author: Eldridge, Judge.

text:
    A98A0149.
    WEEKES v. NATIONWIDE GENERAL INSURANCE COMPANY.
    (500 SE2d 620)
   Eldridge, Judge.

This appeal arises from the trial court’s grant of summary judgment to Nationwide General Insurance Company (“Nationwide”) on a petition for declaratory judgment filed by the plaintiff, dermis Weekes. We reverse.

Viewing the evidence in the light most favorable to the plaintiff, the record shows the following: On November 22, 1994, the plaintiff was injured when an automobile in which she was a passenger collided with an automobile driven by James Anthony Flack. It is undisputed that, at all times relevant to this case, Flack was insured by Nationwide. On January 6, 1995, the plaintiff sent a certified letter notifying Nationwide of the collision. On March 22, 1995, the plaintiff sent a formal demand letter, via certified mail, in which she detailed the facts surrounding the collision, itemized damages incurred, and offered to settle the claim for $13,000. The letter also stated that, if no communication was received from Nationwide’s office within 15 days, the plaintiff would consider the offer rejected and would “proceed with suit immediately.”

On April 27, 1995, Beverly James of the Nationwide Claims Department sent a letter to the plaintiff acknowledging receipt of the March 22, 1995 letter; James requested additional medical records, which were promptly sent by the plaintiff. Nationwide subsequently offered to settle the plaintiff’s claim for $900; the offer was rejected on May 17, 1995. The plaintiff’s rejection letter included the following paragraph: “Be informed that if a fair counter offer to settle is not made within five (5) days, the attached Complaint will be filed in the State Court of Dekalb County.” (Emphasis in original.) Attached to the letter was a copy of a proposed complaint naming Flack as the defendant.

On July 12, 1995, the plaintiff filed a complaint in the State Court of DeKalb County in the exact form as the proposed complaint. The plaintiff then sent a cover letter, a “courtesy copy” of the complaint, and a copy of the Sheriff’s entry of service on Flack (hereinafter collectively referred to as the “letter/courtesy copy”), to Nationwide on July 19, 1995. Notably, this letter/courtesy copy was sent to Beverly James at the same address as every other letter referenced above, as well as the address which was listed on Nationwide’s letterhead.

When Flack failed to answer the complaint, the plaintiff secured a default judgment in the amount of $13,000 on November 13, 1995. The plaintiff sent a copy of the judgment by facsimile to Nationwide on November 16, 1995. On November 27, 1995, Nationwide Claims Attorney David Sims sent a letter to the plaintiff confirming that Flack had failed to notify Nationwide of the pending suit, as required by OCGA § 33-7-15 (a); Flack’s failure to notify Nationwide is undisputed. However, Sims also asserted that, since the plaintiff failed to send a copy of the summons or complaint to Nationwide by certified mail, as required by OCGA § 33-7-15 (c), “Nationwide is relieved of its obligation to defend under the policy or to pay any judgment.”

On December 15, 1995, the plaintiff filed a petition for declaratory judgment against Flack and Nationwide to determine the legal relationship between the parties. Nationwide timely answered the petition. The answer contained the following admission: that the plaintiff “sent a ‘courtesy copy’ of the complaint with a letter dated July 19, 1995, which was not sent certified mail, the content of the letter speaks for itself.”

Both parties moved for summary judgment, and on December 17, 1996, the trial court granted Nationwide’s motion. The plaintiff moved for reconsideration of the order, but such motion was denied on March 3, 1997. This appeal follows.

1. In the plaintiff’s first two enumerations of error, she challenges the trial court’s reliance on Sims’ affidavit, asserting that the affidavit was legally defective and was not based on the affiant’s personal knowledge.

Pursuant to OCGA § 9-11-56 (e), affidavits made in support of a motion for summary judgment must be made on personal knowledge and must attach sworn or certified copies of all papers referred to in the affidavit. Further, affidavits must contain a “jurat or attestation, by an officer authorized to administer the oath, that the affidavit was actually sworn to and subscribed before him by the affiant. [Cit.]” (Punctuation omitted; emphasis supplied.) Glenn v. MARTA, 158 Ga. App. 98, 99 (279 SE2d 481) (1981).

In this case, the plaintiff correctly points out that the affidavit was signed by Sims on September 10, 1996, but the attestation by the notary public was dated the next day, September 11, 1996. As such, it would appear that the affidavit was signed by the affiant outside the presence of the notary, so that the affidavit is facially defective.

However, such error is an amendable defect and does not render the affidavit void ab initio. See Mellon Bank v. Coppage, 243 Ga. 219 (253 SE2d 202) (1979); Horizon Credit Corp. v. Lanier Bank &c. Co., 220 Ga. App. 362 (469 SE2d 452) (1996). Further, the plaintiff failed to raise this issue in the court below, and therefore, it is waived. Id. at 364; Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 440 (280 SE2d 842) (1981).

2. As to whether or not the affiant had the requisite personal knowledge of the facts asserted in the affidavit, Sims states that he was not the custodian of the records at the time the plaintiff allegedly sent Nationwide the letter/courtesy copy on July 19, 1995. He admits that he did not receive the claim file until another claims adjuster resigned from her job sometime between July 12, 1995 (when the suit was filed) and November 21, 1995 (when Nationwide received a copy of the default judgment). As such, Sims has no personal knowledge as to whether or not the notice actually was sent by the plaintiff or received by Nationwide. See OCGA § 9-11-56 (e). Sims admits in the affidavit that his knowledge regarding whether the plaintiff notified the insurance company of the pending suit was based solely on his review of Nationwide’s claim file.

Therefore, the affidavit must be read to assert only that, at the time Sims reviewed the claim file, the file did not contain a notation of receipt of the plaintiff’s actual notice of the pending suit or the plaintiff’s letter/courtesy copy. See OCGA § 9-11-44 (a). This assertion is far different from that proposed by Nationwide, i.e., that the plaintiff had failed to notify Nationwide of the suit. Giving all positive inferences to the plaintiff, as non-movant, one certainly could infer that the absence of a document or a notation of receipt of the plaintiff’s letter/courtesy copy in Nationwide’s claim file may have been due to an oversight or negligence on the part of Nationwide’s employees and not due to the plaintiff’s failure to send the letter/ courtesy copy.

3. We now turn to the plaintiff’s assertion that Sims’ affidavit was insufficient to support the trial court’s grant of Nationwide’s motion for summary judgment. On summary judgment, Nationwide, as movant, can prevail only if it is able to pierce the plaintiff’s complaint by showing an absence of evidence to support an essential element of the complaint or by disproving an essential element. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In this case, Nationwide is unable to do either.

(a) Nationwide asserts that it is entitled to summary judgment because it is undisputed that the plaintiff did not notify it of the pending suit by certified mail. Although OCGA § 33-7-15 (c) seems to require such certification, we cannot accept such a strict construction of the statute, since it would allow an insurance company to escape liability on a claim even when it admits that it received notice of the suit and had time to conduct discovery, but did nothing simply because the plaintiff failed to give notice via certified mail. Such construction undermines the statute’s very purpose.

“The primary purpose of the notice requirement contained in OCGA § 33-7-15 is to give the insurer an opportunity to make a timely and adequate investigation of all the circumstances. [Cit.]” Chadbrooke Ins. Co. v. Fowler, 206 Ga. App. 778, 780 (426 SE2d 578) (1992). Stated another way, such notice allows an insurer “to investigate and marshall defenses at a time when events are fresh in the witnesses’ recollections. [Cit.]” Berryhill v. State Farm Fire &c. Co., 174 Ga. App. 97, 99 (329 SE2d 189) (1985) (holding that “[i]f notice is provided, coverage would apply”). “OCGA § 33-7-15 operates to insulate an insurer from liability on a default judgment obtained against its insured by a third party where the insurer had received no notice of the pendency of the action prior to the entry of the judgment. Starnes v. Cotton States Mut. Ins. Co., 194 Ga. App. 320, 322 (1) (390 SE2d 419) (1990).” (Punctuation omitted; emphasis supplied.) Champion v. Southern Gen. Ins. Co., 198 Ga. App. 129, 131 (401 SE2d 36) (1990) (involving uncontroverted evidence that no notice was given to the insurer until after a default judgment had been entered).

Therefore, whether or not such notice was given via certified mail is irrelevant when considering Nationwide’s motion for summary judgment. While such certification would certainly make the plaintiff’s burden of proving such notification at trial much easier, the plaintiff’s failure to certify is not dispositive on the issue of whether notice to Nationwide of the pending suit was, in fact, given within ten days of filing the claim. When considering the plaintiff’s petition for a declaratory judgment, this is the only issue that must be decided by the trial court.

(b) In moving for summary judgment on the plaintiff’s petition for declaratory judgment, Nationwide primarily relied on Sims’ affidavit. We previously found that this affidavit can be construed to assert only that Nationwide’s claim file contained no record of receipt of the plaintiff’s letter and courtesy copy of the complaint. See Division 2, supra.

In contrast, the plaintiff’s verified petition for declaratory judgment asserts that the letter/courtesy copy was sent to Nationwide on July 19, 1995, seven days after the plaintiff filed her complaint. See OCGA § 33-7-15 (c). In support of her assertion, the plaintiff attached a copy of the letter to her pleadings. “Verified pleadings have been held to be equivalent to a supporting or opposing affidavit for purposes of raising an issue of fact on summary judgment. [Cit.]” Harrison v. Harrison, 159 Ga. App. 578 (284 SE2d 83) (1981).

Decided March 30, 1998

Reconsideration denied April 10, 1998

Yvonne Twyman-Williams, for appellant.

Murray & Associates, Larry E. Stewart, for appellee.

Further, the plaintiff asserts that Nationwide’s answer to her petition, which admits that the plaintiff sent the letter/courtesy copy to the insurance company on July 19, 1995, supports her claim that notice was given. We agree that Nationwide’s answer is an admission in judicio that can be used against it. See OCGA § 24-3-30; Aycock v. Calk, 228 Ga. App. 172, 173-174 (491 SE2d 383) (1997). “Where matter is contained in a pleading, from which inferences may be drawn beneficial to the opposite party, it may be considered as evidence in the record in [the opposite party’s] favor.” (Citations and punctuation omitted.) Metro Leasing v. Health, Ed. &c. Svcs., 193 Ga. App. 157, 158 (387 SE2d 399) (1989).

Therefore, considering the evidence in the light most favorable to the plaintiff, a fact question exists as to whether the plaintiff notified Nationwide of the pending suit within ten days of its filing. As such, it was error for the trial court to grant summary judgment on this issue.

Judgment reversed.

Blackburn, J, and Senior Appellate Judge Harold R. Banke concur.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       OCGA § 33-7-15 (a) requires an “insured to send his insurer, as soon as practicable after the receipt thereof, a copy of every summons or other process relating to the coverage under the policy. . . .” Noncompliance with this provision breaches the insurance contract and, if it results in prejudice to the insurer, relieves the insurer of any liability to pay a judgment on behalf of the insured. OCGA § 33-7-15 (b).

       OCGA § 33-7-15 (c) permits a third party to protect their right to recover from the insurance company by sending a copy of the summons or other process to the insurer “by certified mail within ten days of the filing of such documents with the clerk of the court.”

       However, we note that no sworn or certified records are attached to the affidavit, nor are any such records included in the record on appeal. As such, the affidavit is legally insufficient to prove the affiant’s assertions based thereon. Paulin v. Okehi, 264 Ga. 604, 605, n. 2 (449 SE2d 291) (1994); Val Preda Motors v. Nat. Uniform Svc., 195 Ga. App. 443 (393 SE2d 728) (1990); Pratt v. Tri City Hosp. Auth., 193 Ga. App. 473 (388 SE2d 69) (1989); see also Vickers, supra at 439. Even so, as no such objection was raised in the court below, it is waived. Horizon Credit Corp., supra at 364.

       We note that, while certified mail provides affirmative evidence of delivery, by its very nature, it gives notice to the addressee that the letter contains some legal communication that can be foiled by the refusal to accept the letter. Thus, requiring that notice be given by certified mail is a questionable method to ensure delivery.


source: Caselaw Access Project

author: ELDRIDGE, Judge.

license: Public Domain

text:
    A98A0296.
    SCARBROUGH v. DOVER ELEVATOR COMPANY et al.
    (500 SE2d 616)
   ELDRIDGE, Judge.

This is an appeal from the Fayette County Superior Court’s granting of summary judgment on behalf of Upson County Hospital, Inc., in a personal injury suit instituted by the estate of Margaret Scarbrough after Scarbrough tripped and fell in the hospital’s elevator. We reverse.

On appeal from a trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence. In order “[t]o prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” (Emphasis supplied.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Gentile v. Bower, 222 Ga. App. 736 (477 SE2d 130) (1996). “[T]he ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and . . . summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Robinson v. Kroger Co., 268 Ga. 735, 748 (493 SE2d 403) (1997). With these principles in mind, the facts of record are as follows:

Upson County Hospital operates four elevators. Two of these elevators are located in the middle of the hospital, side by side. At the time of the incident on January 9, 1993, both of these elevators were approximately 30 years old. They were hydraulic elevators with original parts, including the original valves that regulate the floor-leveling process that occurs when an elevator stops. These valves had been obsolete since the 1970s. New parts could not be obtained for rebuilding them. This type of floor-leveling valve needs refurbishing or replacement yearly in order to ensure proper operation of an elevator. These two elevators were identified, when facing them, as: Hydro 2 on the right (#34015) which was the elevator involved in this case; and Hydro 1 on the left (#34016).

In 1992, both elevators had repeated operating problems, requiring “excessive” call-backs by the elevator maintenance people. A frequent problem was with floor level regulation wherein the elevator door would open with the elevator’s threshold at a level higher or lower than the floor at which it would stop. In the twelve months preceding the incident, the repair logs on these two elevators show that thirty-two service calls were made, only two of which were simply routine maintenance. Hydro 1 on the left required sixteen repairs, one of which was for leveling problems. Hydro 2 on the right required seventeen repairs, two of which (on June 17, 1992 and December 2, 1992) were for leveling problems.

Further, it was common knowledge among hospital employees that the hospital’s two hydraulic elevators came to an unlevel stop, and these occurrences caused “no surprise” among employees. In the six months immediately preceding the January 1993 incident (June through December 1992), hospital employees had complained about Hydro 2’s failure to level on no less than four different occasions. In a December 30, 1992 complaint, just over one week before the January 1993 incident involving appellant, an employee reported that Hydro 2 “stops above the floor.” In September 1992, the hospital’s elevator maintenance contractor recommended that the hospital replace the hydraulic valves with new, integrated valves for, among other reasons, the “improve[ment] of floor stopping accuracy.” However, the hospital refused as long as the elevators were “still working okay.”

On January 9, 1993, at approximately 11:00 a.m., 72-year-old Margaret Scarbrough and three relatives arrived at Upson County Hospital to visit a sick cousin. Scarbrough had never been to Upson County Hospital before. The four ladies waited for one of the two middle hydraulic elevators. Hydro 2 arrived. Two hospital employees got off, and the four ladies started to enter the elevator. Scarbrough was in the lead. As Margaret Scarbrough stepped into the elevator, she tripped over a one- to four-inch ledge created when Hydro 2’s threshold stopped at a level above the hospital floor. The two hospital employees who had just exited the elevator came to her aid. She was taken to the hospital’s emergency room. Scarbrough had broken her arm and her hip in the fall. She was transported to DeKalb Hospital for hip surgery. During surgery, Margaret Scarbrough developed a blood clot and died. Held:

“[I]n order to recover for injuries sustained in a slip-[or trip-]and-fall action, an invitee must prove (1) that the defendant 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/occupier. However, the plaintiff’s evidentiary [burden] concerning the second prong is not shouldered until the defendant establishes [that] the plaintiff intentionally and unreasonably exposed [herself] to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.” (Emphasis supplied.) Robinson v. Kroger Co., supra at 748-749.

Based upon the record, we find that Upson County Hospital knew of Hydro 2’s faulty leveling procedures and thus, for purposes of summary judgment, Scarbrough established her cause of action. It was then up to the hospital on motion for summary judgment to establish that Scarbrough intentionally and unreasonably exposed herself to the danger created by the unlevel elevator, which danger Scarbrough (a) knew existed, or (b) in the exercise of ordinary care should have known existed. Robinson v. Kroger Co., supra.

(a) The trial court determined from the record that Scarbrough actually knew of the dangers presented by Hydro 2’s unlevel threshold and, nonetheless, intentionally exposed herself to it. The trial court’s determination was based upon (1) the chronology of events contained in an “incident report” filled out by a hospital supervisor who briefly interviewed Scarbrough in the emergency room after her fall and (2) the supervisor’s deposition testimony explaining the incident report. In granting summary judgment, the trial court factually concluded that “Ms. Scarbrough told her [the supervisor] that she saw that the elevator floor was ‘a little higher than the floor,’ and that she stepped forward into the elevator, ‘stubbed her toe or something’ and fell.” We do not agree with the trial court’s determination.

That Margaret Scarbrough saw the unlevel elevator threshold before her fall is not undisputedly established by the chronology in which the hospital supervisor wrote out the incident report, i.e., that the elevator floor was “a little higher than the floor” and then Scarbrough stepped forward into the elevator, stubbing her toe. In fact, the supervisor stated in her deposition testimony that the only words Scarbrough actually said to her were the words the supervisor put in quote marks: “a little higher than the floor” and “stubbed her toe or something.” The supervisor stated, “[t]he things that are in quotation marks, the patient actually said to me. And the other things are things I wrote.” Thus, the chronology upon which the trial court relied was essentially created by the supervisor based upon, as she put it, her “summary or impressions,” which she wrote down sometime later, after speaking with Scarbrough. Such “impressions” are based upon the supervisor’s interpretation of Scarbrough’s actual statements: “a little higher than the floor” and “stubbed her toe or something.”

However, in a summary judgment setting, only inferences favorable to Scarbrough may be drawn; negative inferences are proscribed. Bruno’s Food Stores v. Taylor, 228 Ga. App. 439 (491 SE2d 881) (1997). Based upon the voluminous record, favorable inferences may be drawn from the two statements Scarbrough actually made to the hospital supervisor: “a little higher than the floor” and “stubbed her toe or something.” For example, the supervisor also testified that she did not ask Scarbrough whether she saw the threshold was “a little higher than the floor” before, during, or after her fall. Also, the supervisor testified that “she [Scarbrough] saw the elevator was — the elevator floor was a little higher than the floor as she stepped forward.” In addition, the supervisor stated in her deposition that “[a]s I recall, she [Scarbrough] told me that she didn’t see that it was unlevel.” The inferences favorable to Scarbrough are supported by the fact that: (1) no one else, not Scarbrough’s three relatives, not even the two hospital employees who exited the elevator, saw the unlevel threshold before Scarbrough’s fall; (2) one hospital employee’s testimony was such that Scarbrough entered the elevator too quickly to have seen the unlevel elevator threshold before her fall; and (3) Scarbrough never told anyone else, other than a hospital supervisor, that she saw the unlevel elevator threshold before her fall.

We find that the evidence of record did not plainly, palpably, and undisputedly establish that, before her fall, Scarbrough had actual knowledge of the danger presented by Hydro 2’s unlevel threshold.

(b) Scarbrough’s failure to see the unlevel elevator threshold before her fall would not entail, as a matter of law, a failure to exercise ordinary care.

With regard to the exercise of ordinary care, an invitee who responds to an owner/occupier’s invitation and enters the premises does so pursuant to an implied representation or assurance that the premises have been made ready and safe for the invitee’s reception, and the entering invitee is entitled to expect that the owner/occupier has exercised and will continue to exercise reasonable care to make the premises safe. It is in this light that an invitee’s exercise of ordinary care for personal safety must be examined. Robinson v. Kroger Co., supra. “The established standard is whether, taking everything into account, the act is one which the common sense of mankind pronounces [lacks] such prudence as the ordinarily careful person would use in a like situation. The invitee is not bound to avoid hazards not usually present on the premises and which the invitee, exercising ordinary care, did not observe, and the invitee is not required, in all circumstances, to look continuously at the floor, without intermission, for defects in the floor. An invitee is not obliged to inspect the premises to discover latent defects nor even to observe patent defects.” (Citations and punctuation omitted; emphasis supplied.) Id. at 741.

We find that Scarbrough’s failure to observe the unlevel elevator threshold did not lack such prudence as an ordinarily careful person would exercise in a like situation. Scarbrough was under no duty to inspect the elevator threshold for defects before entering, nor could she be expected to observe such an uncustomary and unexpected defect. Contrastingly, Upson County Hospital was under a duty to keep its premises safe, which included either fixing Hydro 2 or clearly warning an invitee of the dangers presented by the elevator’s erratic performance. Thus, “taking everything into account” and in “this light” of the hospital’s duty to exercise ordinary care for an invitee’s personal safety, Scarbrough’s actions did not reflect a lack of ordinary care for her safety. This Court will no longer “placet 3 in the limelight an invitee’s duty to exercise reasonable care for personal safety and, in so doing, [relegate] to the shadows the duty owed by an owner/occupier to an invitee.” Robinson v. Kroger Co., supra at 740.

(c) Further, “when an invitee explains that he was not looking at the location of the hazard which caused injury because of something in the control of the owner/occupier, which purported distraction is of such a nature that the defendant might have anticipated that it would divert an invitee’s attention, e.g., [operation of an elevator], the invitee has presented some evidence [of the exercise of] reasonable care for the invitee’s own safety. Barentine v. Kroger, [264 Ga. 224, 225 (443 SE2d 485) (1994)].” (Punctuation omitted.) Robinson v. Kroger Co., supra at 746. To that end, Scarbrough presented testimony from an expert which showed that it is common knowledge in the elevator industry that the threshold of an elevator is the most likely place for injury to occur. The reason for this, according to plaintiff’s expert, is that passengers may not notice an uneven floor level at the threshold because of other “distractions” involved: “[P]assengers entering an elevator are confronted with a multitude of events: The opening doors, exiting passengers, other passengers entering along with this passenger, and the constant realization that the doors will close on a timed basis.”

Herein, Upson County Hospital might have “anticipated that [Scarbrough’s] attention would be diverted” during her entry into Hydro 2, so that the unlevel threshold would not be observed. Accordingly, Scarbrough presented evidence of the exercise of reasonable care for her own safety so as to survive a motion for summary judgment.

In sum, taking into account all of the circumstances existing at the time and place of the fall, Scarbrough “exercised the prudence an ordinarily careful person would use in a like situation.” Robinson v. Kroger Co., supra at 735. We conclude that the granting of summary judgment in this case was error.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.

Decided March 30, 1998

Reconsideration denied April 10, 1998

Evans & Evans, Larry K. Evans, for appellant.

Willis, McKenzie & Long, Edward L. Long, Jr., Drew, Eckl & Farnham, Stevan A. Miller, Julianne Swilley, for appellees.

       Dover Elevator Company settled prior to trial. Upson County Hospital, d/b/a Upson Regional Medical Center, and the Hospital Authority of Upson County are the appellees herein.

       The other two elevators were traction elevators. A traction elevator is cable driven, and an hydraulic elevator is driven by hydraulic pistons.

       Immediately following appellant’s fall, Hydro 2 failed to level properly on March 18, 1993; leveling problems also occurred on December 9, 1994, February 2,1994, February 10, 1994, July 28, 1994, and August 22, 1994. On July 28, 1994, another visitor to the hospital fell because the elevator was allegedly unlevel.

       June 23, 1992, June 26, 1992, November 17, 1992, December 30, 1992.

       Following an immediate review of her deposition with the hospital attorney, the supervisor corrected this statement with an errata sheet to “[a]s I recall, she told me ‘she saw it was unlevel.’ ” Eleven months later, the supervisor swore in an affidavit that she had “simply misspoke” when testifying that Scarbrough “didn’t see that it was unlevel.” “[W]e have previously rejected the proposition that substantive deposition testimony may be erased from the record through the mere substitution of an errata sheet.” Hall v. Holbrook, 220 Ga. App. 675, 677 (469 SE2d 868) (1996); Ga. Osteopathic Hosp. v. O’Neal, 198 Ga. App. 770, 775 (7) (403 SE2d 235) (1991).


text:
    A98A0407.
    GRIMES v. THE STATE.
    (500 SE2d 609)
   Eldridge, Judge.

Appellant Anthony Grimes was charged in a six-count indictment with the offenses of aggravated sexual battery under Count 1; aggravated assault under Count 2; aggravated stalking under Count 3; battery under Count 4; and two misdemeanor counts of simple battery under Counts 5 and 6. A DeKalb County jury found appellant guilty of the lesser included misdemeanor offense of simple battery under Count 1; the lesser included misdemeanor offense of simple assault under Count 2; and the two misdemeanor offenses of simple battery under Counts 5 and 6. Appellant was acquitted of aggravated stalking and battery under Counts 3 and 4. He appeals, and we affirm his convictions.

1. On two specific grounds, appellant challenges the sufficiency of the evidence to support his convictions.

First, appellant contends that under the evidence produced at trial, either he was guilty of the felony offenses of aggravated assault and aggravated sexual battery as the state’s evidence showed, or he was guilty of nothing because he denied the felonious acts ever occurred. Thus, appellant argues, since the jury found him “not guilty” of the felony offenses, the evidence was insufficient to support the jury’s determination that he is guilty of the lesser included misdemeanor offenses. We disagree.

Notably, by arguing that the state’s evidence made out the felony offenses, appellant has conceded that the evidence supports conviction on the lesser included misdemeanor offenses. OCGA § 16-1-6; see Pryor v. State, 238 Ga. 698, 700-701 (234 SE2d 918) (1977). However, even without such concession, an “acquittal” on a greater offense does not preclude a jury’s determination that a defendant is guilty as to the lesser included offense. Cantrell v. State, 266 Ga. 700 (469 SE2d 660) (1996). “There may, of course, be a conviction of a lesser offense than that expressly named in the indictment, where the former is necessarily included in the latter.” McCrary v. State, 252 Ga. 521, 523 (314 SE2d 662) (1984). In this case, the evidence shows that the misdemeanor offenses of simple battery and simple assault were included in the greater offenses of aggravated sexual battery and aggravated assault as a matter of fact; appellant requested jury charges on the lesser included offenses, and the trial court gave the appellant’s requested charges. This was an issue for the jury.

Second, appellant alleges that the testimony of the state’s witnesses regarding the simple battery offenses under Counts 5 and 6 show that they had “clearly discussed and planned this testimony, and it should be of no probative value therefore.” Such argument is directed to the believability of the witnesses who testified against appellant. “On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.” (Citations omitted.) Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

Herein, taking the victim’s testimony as true, as we must, the 156 pages of the victim’s testimony outlining in detail appellant’s physical attacks upon her contain sufficient evidence for a rational trier of fact to conclude that appellant is guilty beyond a reasonable doubt of the three counts of misdemeanor simple battery and the one count of misdemeanor simple assault for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Bryant v. State, 226 Ga. App. 135, 136 (1) (486 SE2d 374) (1997).

2. We find no error in the admission of the state’s evidence of five incidents of prior difficulty between the appellant and the victim. Each of the five incidents occurred successively within a nine-month period leading up to the indicted offenses. These incidents involved acts of physical violence or specific threats of physical violence toward the victim that serve to illuminate the nature of the defendant’s course of conduct with and relationship to the victim. Sheppard v. State, 267 Ga. 276, 278 (476 SE2d 760) (1996). The five incidents of prior violence toward the victim lead logically and in steady progression to the acts of violence against the victim for which appellant was indicted and lend “some link of association, something which draws together the preceding and subsequent acts, something which gives color of cause and effect to the transaction, and sheds light upon the motive of the parties.” Maxwell v. State, 262 Ga. 73, 75 (414 SE2d 470) (1992). As was noted by Supreme Court Justice Hunt, “[w]hat is true in this case is generally true with all cases involving prior difficulties between a victim and a defendant. The history of their relationship is of whole cloth woven of the many threads of dependent, connected actions and incidents that occurred between them. In short, evidence concerning prior difficulties they have experienced in their relationship is relevant.” Stewart v. State, 263 Ga. 843, 849-850 (440 SE2d 452) (1994) (Hunt, P. J., dissenting). There was no error in the admission of this evidence.

Decided March 30, 1998

Reconsideration denied April 10, 1998.

Lynch, Spears & Shuman, John H. Tarpley, for appellant.

Anthony Grimes, pro se.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Melissa L. Himes, Keith E. Adams, Assistant District Attorneys, for appellee.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A0477.
    DUNCAN v. THE STATE.
    (500 SE2d 603)
   Eldridge, Judge.

The defendant, David Pirie Duncan, challenges his convictions on two counts of aggravated child molestation. We affirm the convictions.

The defendant and his wife adopted two boys, ages four and six, in 1987. At trial, the older child testified that, beginning in the summer of 1993, the defendant regularly punished him and his younger brother by forcing them to perform oral sex on the defendant. The child testified that he initially was afraid to tell anyone about the abuse, but after several episodes, he decided to tell his friend because he was “sick and tired of it.”

In October 1993, he told his teacher that he needed to see the school counselor; the teacher testified that the child’s request sounded “urgent.” The school counselor met with the child and testified at trial that he seemed upset and embarrassed. She testified that he was hesitant to tell her what was wrong, so she suggested that he write down whatever was bothering him. The child then wrote a note that said, in part, the following: “My Dad makes me suck his Dick. He also does it to [the younger child]. . . .” The note also said that the only two people who knew of the abuse were the younger child and their friend, J. R. The counselor testified that the child seemed “relieved” after writing the note.

The counselor immediately contacted the Georgia Department of Family & Children Services (“DFCS”). The next morning, a Cobb ^ —. - - -* - • - “ abuse investigator, Rose Parker, interviewed both children at school.

During the interviews and at trial, both boys gave similar accounts of the incidents of molestation. The older child said that he and his younger brother stayed at home alone during the summer of 1993 while both parents were at work. Both children said that their father, the defendant, would sometimes come home from work early and would punish the boys for various misdeeds by forcing them to perform oral sex on the father’s penis. The older child stated that his father would sometimes ejaculate into his mouth. The older child testified that the defendant threatened the children that if they told anyone, he would go to jail and receive “three square meals a day,” while the children would be worse off because there would not be much money for the family to live on. He also testified that he did not report the abuse immediately because he was “scared,” but that he finally told his best friend because he was “sick and tired of it.”

Following the interviews by Officer Pope and Parker, it was determined that the boys were at risk of further abuse, and they were removed from the defendant’s home. Sandra Duncan, the defendant’s wife, was contacted and interviewed by Parker. Based upon the investigation, Officer Pope secured a warrant for the defendant’s arrest, and he was arrested and charged with three counts of aggravated child molestation.

A jury trial was held in January 1996, and the jury found the defendant guilty on two counts of aggravated child molestation, one count as to each of the boys. The defendant’s motion for a new trial was denied, following a hearing on March 10, 1997. This appeal followed. Held:

1. In his first enumeration of error, the defendant asserts that the trial court erred in permitting the State to question the defendant’s wife concerning their lack of sexual relations. The defendant claims that such testimony is protected by the spousal privilege, OCGA § 24-9-21 (1). See also White v. State, 211 Ga. App. 694 (440 SE2d 68) (1994). While the defendant is correct that testimony regarding sexual relationships between spouses generally is protected by the spousal privilege as a matter of public policy, a spouse may waive his or her privilege by voluntarily taking the stand and testifying. Id. at 696. In this case, Mrs. Duncan expressly waived her spousal privilege, stating that “[w]e have nothing to hide.”

Further, although the defendant claims on appeal that his spousal privilege should have excluded the testimony, the defendant affirmatively stated at trial that he was not going to exercise his spousal privilege. The only objection to Mrs. Duncan’s testimony was the defendant’s assertion that it was irrelevant. Subsequent to this objection, both the State and the defendant questioned Mrs. Duncan about the couple’s sexual practices without further objection. Accordingly, this enumeration is without merit.

2. In his second enumeration, the defendant asserts that the evidence was insufficient for a rational trier of fact to find him guilty beyond a reasonable doubt of aggravated child molestation. Under OCGA § 16-6-4 (a), “[a] person commits the offense of child molestation when he does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” Further, under OCGA § 16-6-4 (c), “[a] person commits the offense of aggravated child molestation when he commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” Sodomy is defined as a “sexual act involving the sex organs of one person and the mouth or anus of another.” OCGA § 16-6-2 (a).

The evidence presented at trial included the victims’ testimony that the defendant punished them by forcing them to perform oral sodomy on him during the summer of 1993, when both victims were under the age of 14. While the defendant points to minor discrepancies in the victims’ testimony, such discrepancies go to the weight, not the sufficiency, of the evidence. OCGA § 24-9-5 (b); Nunn v. State, 224 Ga. App. 312 (480 SE2d 614) (1997); Jones v. State, 220 Ga. App. 236 (469 SE2d 379) (1996); Webster v. State, 185 Ga. App. 709 (365 SE2d 530) (1988).

The evidence also showed that both victims subsequently told a mutual friend about the abuse; the friend, who had not seen the victims since the children were removed from the defendant’s home in October 1993, corroborated the victims’ testimony at trial. The older victim also made an outcry to the school counselor, who notified law enforcement and DFCS officials. Although there was testimony that the interview of the victims by these officials was not conducted in strict compliance with Cobb County Child Abuse Investigation Protocol, such protocol is clearly directory, not mandatory. Further, once the trial court determines that the officials’ testimony is sufficiently reliable, any failure to follow established protocol goes to the credibility of the witnesses, not the admissibility of the witnesses’ testimony. OCGA § 24-3-16 (the Child Hearsay Rule); Knight v. State, 210 Ga. App. 228 (435 SE2d 682) (1993); Gregg v. State, 201 Ga. App. 238 (411 SE2d 65) (1991).

After carefully considering the record in the light most favorable to the verdict, we find that the evidence is sufficient beyond any reasonable doubt to enable a rational trier of fact to convict the defendant of two counts of aggravated child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Chastain v. State, 180 Ga. App. 312 (349 SE2d 6) (1986).

3. In his third enumeration of error, the defendant complains that the trial court erred in excluding his expert witness from testifying regarding various psychological principles, including projection and pay back. However, the defendant did not object at trial to the court’s limitation on this testimony, responding that “I’m not going into the particulars of the case. I do not intend to do that.” Accordingly, there was no error.

Pretermitting whether or not the defendant waived any objection to the trial court’s exclusion of this testimony, we note that there was no admissible evidence that supported the introduction of testimony regarding projection and pay back. See Division 5, infra. Further, the defendant’s expert witness did not interview the victims in this case, but relied instead upon inadmissible hearsay in reaching his opinions. Compare State v. Butler, 256 Ga. 448, 449-450 (349 SE2d 684) (1986) (the State’s expert witness was a pediatrician who questioned and examined the seven-year-old victim, and who concluded that the child had been sexually abused).

Moreover, the defendant was not precluded from questioning his expert witness regarding these principles, i.e., whether children make false allegations about sexual abuse and the possible reasons for this behavior. He was prevented from exploring how these principles specifically applied to this case, i.e., eliciting an opinion as to whether or not the victims’ allegations in this case were a result of projection or pay back. During the trial, the defendant proffered the expert’s testimony that recited, in detail, various inadmissible assertions regarding alleged prior abuse of the victims by unidentified third parties which led the expert to conclude that the victims’ allegations of sexual abuse by the defendant were the result of projection and pay back and, thus, were not credible.

However, determination of issues of witness credibility are reserved exclusively for the jury. OCGA § 24-9-80. “[A]n expert may not testify as to his opinion as to the existence vel non of a fact unless the inference to be drawn from facts in evidence is beyond the ken of the jurors — that is, unless the jurors, for want of specialized knowledge, skill, or experience, are incapable of drawing — from facts in evidence — such an inference for themselves. In the present case, the truthfulness or credibility of the victim[s] was not beyond the ken of the jurors.” (Citations and punctuation omitted; emphasis in original.) Smith v. State, 259 Ga. 135, 138 (377 SE2d 158) (1989). See also Allison v. State, 256 Ga. 851, 853 (353 SE2d 805) (1987); Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981). The jury heard testimony from the victims, as well as evidence about the children’s mental, emotional, and intellectual status; their descriptions of the abuse; their outcries to the school counselor; and the subsequent investigative interviews. Expert opinion testimony was not required to assist the jury in determining whether or not the children were truthful in their reports of abuse, particularly when such opinion was based upon inadmissible hearsay. As such, the expert’s conclusion that the children in this case had fabricated their reports as a result of projection or pay back was properly excluded. See United States v. Azure, 801 F2d 336, 340-341 (8th Cir. 1986) (holding that “putting an impressively qualified expert’s stamp of truthfulness on a witness’ story goes too far” and may lead the jury to “ ‘[surrender] their own common sense in weighing testimony’ ”); United States v. Barnard, 490 F2d 907, 912 (9th Cir. 1973); Smith v. State, 259 Ga. at 138; Allison v. State, 256 Ga. at 853.

4. In his fourth enumeration of error, the defendant asserts that the trial court erred in excluding his expert witness from testifying regarding the results of his psychological testing of the defendant. The defendant claimed at trial that the evidence “supports our contention that [the defendant] did not do these acts.” Further, he complains in his appellate brief that such evidence showed that he did not have the characteristics of a pedophile.

However, “[t]here is no authority for the admission of an expert opinion that the defendant who is on trial for sex crimes against a child is or is not a pedophile. . . . The profile testimony sought to be introduced by [the defendant] goes to the credibility and believability of [his] own testimony that he did not commit the acts charged and further speaks to the ultimate fact of whether [he] committed those acts. From the extensive testimony and cross-examination of the various witnesses at trial, the jury, without the help of expert opinion, could have determined the credibility and truthfulness of all the witnesses and could have formed independent opinions as to the victim’s truthfulness and the [defendant’s] capability of performing the acts he was accused of. These determinations did not involve unique and mysterious areas of human response necessitating expert testimony.” (Citations and punctuation omitted; emphasis in original.) Knight v. State, 206 Ga. App. 529, 530 (426 SE2d 1) (1992). There was no error in excluding this testimony, because such testimony invades the province of the jury as to the ultimate issue, i.e., the defendant’s guilt or innocence.

The defendant also asserts that, since the State was allowed to elicit testimony from his wife that they had stopped having sexual intercourse at the approximate time of the victims’ sexual abuse, he should have been able to present the expert’s opinion that the frequency of his sexual relations with his wife was within “normal” limits. However, the expert stated in proffered testimony that “[t]here is a tremendous latitude of what is normal in terms of how often people have sexual intercourse with each other. There is no one expected standard. . . . There is a wide variety of what is normal.” The defendant subsequently was allowed to question the expert in front of the jury as to whether there was a standard for evaluating the frequency of sexual relations between married adults, and the expert’s response was consistent with his proffered testimony. Accordingly, there was no error.

5. In his final enumeration of error, the defendant asserts that the trial court violated his constitutional right to confront the victims/witnesses by preventing him from cross-examining them regarding their prior actions that would show their bias and prejudice. We disagree.

The trial court granted the State’s motion in limine to exclude any evidence of alleged past sexual acts by the victims or acts of child molestation directed toward the victims by any person other than the defendant. The trial court also excluded impeachment evidence of specific bad acts by the children under OCGA § 24-9-84.

The defendant asserts that he should have been allowed to cross-examine the victims about alleged prior bad acts, including his assertion that they had stolen the defendant’s calculator and set fire to their grandmother’s house. The defendant asserted that the victims made their allegations of sexual abuse after being punished by the defendant for these incidents, and that he should be allowed to present this evidence to expose the victims’ “possible biases, prejudices or ulterior motives” against the defendant. However, such ‘had act” impeachment evidence is inadmissible under OCGA § 24-9-84. Heaton v. State, 214 Ga. App. 460, 461 (448 SE2d 49) (1994); see also Evans v. State, 180 Ga. App. 1, 2 (348 SE2d 561) (1986). Further, even though evidence as to a witness’ motives in testifying may be relevant in attacking the credibility of the witness, there is nothing to indicate in this case that the witnesses were benefiting in any way from their cooperation with the State. “What counts is whether the witnesses] may be shading [their] testimony in an effort to please the prosecution.” (Citations and punctuation omitted; emphasis in original.) Owens v. State, 251 Ga. 313, 316 (305 SE2d 102) (1983). There was no error.

Decided March 30, 1998

Reconsideration denied April 10, 1998.

Gregory A. Hicks, James K. Luttrell, for appellant.

The defendant also asserts that he should have been allowed to present evidence as to prior molestation of the victims by unidentified third parties and of sexual acts by the victims toward other children. However, the fact that the child was previously molested by someone other than the defendant has no relevance as to whether the defendant committed the crime for which he is charged. Chastain v. State, supra at 312. “[E]vidence of prior molestation or previous sexual activity on the part of the victim is not relevant in a child molestation case to show either the victim’s reputation for nonchastity or [his] preoccupation with sex. [Cit.]” Hall v. State, 196 Ga. App. 523, 525 (396 SE2d 271) (1990). See also OCGA § 24-2-3 (a) (the Rape Shield Statute); Phillips v. State, 196 Ga. App. 267, 268 (396 SE2d 57) (1990) (holding that the Rape Shield Statute “supersedes all evidentiary exceptions”); Johnson v. State, 146 Ga. App. 277, 280 (246 SE2d 363) (1978).

However, in Hall v. State, 196 Ga. App. at 524, this Court held that, when the State has presented evidence that indicates that the victims are suffering from child sexual abuse accommodation syndrome, evidence of molestation by third parties may be necessary “to prevent the jury from reaching the unwarranted conclusion that the only possible explanation for the medical findings and the existence of behavior consistent with the . . . syndrome was that the victim had been molested by appellant.” (Emphasis supplied.) Id. at 525. No such danger existed here, as the State did not assert that the children suffered from such syndrome and no medical evidence of molestation was presented. Instead, the State relied on the victims’ own testimony regarding the molestation and the corroborating testimony of school officials, law enforcement personnel, and DFCS investigators, as well as the victims’ mother, in proving that the defendant forced the victims to perform oral sodomy. There was no error.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

Thomas J Charron, District Attorney, Debra H. Bernes, Michael S. Moody, Assistant District Attorneys, for appellee.

       Officer Pope used a tape recorder to record the interviews, but it malfunctioned and produced no recording. However, Parker took detailed notes during the interview, which were later relied upon by Officer Pope in writing her investigative report.

       Even so, we note that the right to assert the marital privilege belongs to the witness, not the accused. OCGA § 24-9-23 (a); Chancey v. State, 256 Ga. 415, 437 (349 SE2d 717) (1986), cert. denied, 481 U. S. 1029 (107 SC 1954, 95 LE2d 527) (1987). But see White v. State, supra at 696.

       The protocol states, in relevant part, as follows: “Basic Child Abuse Investigative Procedures. 1. The first interview should be basic[,] collecting only the information needed to determine if the child is in danger or if a crime has occurred. It is not mandatory that this interview be recorded but good notes should be kept. ... 2. The investigating officer and a [DFCS] worker in joint cases should conduct a second interview. If possible this interview should be audio or video taped. The interview should be very detailed to establish all the facts in the case.”


author: Blackburn, Judge.

text:
    A98A0751.
    ELLSWORTH v. THE STATE.
    (500 SE2d 642)
   Blackburn, Judge.

Richard E. Ellsworth appeals the trial court’s denial of his motion to set aside judgment and motion for writ of error coram nobis. By those motions, Ellsworth contended that the trial court originally erred in denying his motion to acquit pursuant to OCGA § 17-7-170, the speedy trial statute.

On March 9, 1996, a Gwinnett County police officer issued three traffic citations to Ellsworth: one for failing to maintain a single lane, one for DUI, and one for failing to wear his seatbelt. The clerk of the recorder’s court testified that the case was docketed in Gwinnett County Recorder’s Court on March 14, 1996. Thereafter, Ellsworth’s counsel filed an entry of appearance and a request for a jury trial on April 22, 1996. Upon a request for a jury trial, the recorder’s court loses jurisdiction because it does not impanel juries. The case is then forwarded to the solicitor’s office for docketing in state court. Ells-worth filed a demand for speedy trial in state court on April 29,1996. However, the case had not yet been docketed in state court. The recorder’s court issued an order on May 16, 1996, binding the citations over to the state court solicitor. The solicitor did not file the citations or an accusation in state court. However, on October 9, 1996, Ellsworth was indicted in Gwinnett Superior Court on the felony offense of serious injury by vehicle. On October 23, 1996, Ells-worth filed his motion to acquit pursuant to OCGA § 17-7-170, which was subsequently deified by the trial court.

“OCGA § 17-7-170 provides that an accused may enter a demand for a speedy trial at the court term in which the accusation is filed or the next regular court term. The demand must be served on the prosecutor. If the accused is not tried when the demand is made or at the next term of court and juries were impaneled and qualified to try the case at both court terms, the defendant ‘shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.’ ” (Footnote omitted.) State v. Gerbert, 267 Ga. 169, 170 (475 SE2d 621) (1996). In Gerbert, the Supreme Court of Georgia determined that “the statutory right to demand a speedy trial of a traffic offense in state court attaches when the uniform traffic citation is filed with the court.” Id. The court issued the bright-line rule that “[i]f a court can adjudicate the charges in the citation without the filing of a formal accusation, then a defendant should be able to enter a speedy trial demand based solely on the citation.” Id.

Decided March 31, 1998

Reconsideration denied April 10, 1998

Fred P. Meyer, Raymond J. O’Reilly, for appellant.

Daniel J. Porter, District Attorney, Ben L. Leutwyler III, Assistant District Attorney, for appellee.

In the present case, it is undisputed that the citations were never filed in state court, where Ellsworth’s speedy trial demand was filed. The citations contained in the record each bear stamps indicating that they were “Entered” March 10, 1996 and “Entered” again on March 12,1996, but these stamps do not indicate where the citations were entered. We further note that other documents in the record reflect a filing stamp from the recorder’s court, yet the citations do not contain such a stamp. Therefore, the citations were not filed prior to Ellsworth’s speedy trial demand. Pursuant to Gerbert, Ellsworth’s speedy trial demand was premature. See also Meservey v. State, 230 Ga. App. 382 (496 SE2d 518) (1998) (UTC not formally filed unless by solicitor or with his consent).

The citations were filed in the Gwinnett County Superior Court on December 22, 1997, several months after Ellsworth was indicted on the felony charge. “Under Georgia law a trial court may not try a person charged with a felony until an indictment issues, unless the accused files a waiver of indictment and consent in writing. OCGA § 17-7-70.” (Emphasis in original.) Groom v. State, 212 Ga. App. 133 (441 SE2d 259) (1994). Ellsworth is now before the Gwinnett County Superior Court indicted on a felony charge, and the misdemeanor charges for which he was previously cited are not being pursued by the State. The record does not contain a waiver of indictment. Therefore, Ellsworth’s speedy trial demand was also premature for the felony offense for which he is presently being prosecuted. See id. at 134.

Based on the foregoing, the trial court did not err in denying Ellsworth’s motion to acquit, motion to set aside judgment, or motion for writ of error coram nobis.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


author: Judge Harold R. Banke.

text:
    A98A0175.
    WARE v. THE STATE.
    (500 SE2d 601)
   Judge Harold R. Banke.

Winnie Ware was convicted of reckless endangerment to children and possession of marijuana with intent to distribute. On appeal, she enumerates eight errors.

This case arose after law enforcement authorities arrested Christopher Irby, Ware’s boyfriend, upon discovering two packages of cocaine, over $1,000 in cash and a motel room key on his person. Shortly thereafter, the officers decided to investigate the room, where Ware and her six-year-old daughter were also staying. The authorities knocked; Ware asked who it was; and they identified themselves, unlocked the door and entered. The officers immediately discovered Ware, her young daughter, and the smell of marijuana smoke. After learning of Irby’s arrest, Ware consented to a search of the room, stating it was his room, not hers. During the search, the authorities found over two ounces of marijuana, several sizes of baggies, and some marijuana butts in an ashtray. Held:

1. The trial court did not abuse its discretion in denying Ware’s motion to sever the drug charge from the reckless endangerment charge. Varnadoe v. State, 227 Ga. App. 663, 664 (1) (490 SE2d 517) (1997). The crimes and acts were so intertwined that some of the same evidence would have been required at separate trials on each charge, a valid reason for joinder of the offenses. Johnson v. State, 257 Ga. 731, 733 (2) (c) (363 SE2d 540) (1988); Davis v. State, 159 Ga. App. 356 (1) (283 SE2d 286) (1981).

In her brief, Ware attempts to enlarge her enumeration by arguing that the trial court erred by failing to give a promised limiting instruction upon the introduction of a similar transaction which related only to the drug charge. Because this issue was not properly raised in the enumerations of error, it will not be addressed. Guest v. State, 229 Ga. App. 627, 628 (1) (494 SE2d 523) (1997).

2. Ware challenges the trial court’s decision to reseat on the petit jury several members of the venire she had peremptorily stricken. After Ware used 11 of her 12 strikes to remove whites from the jury during voir dire, the State asserted a challenge under Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992), which applied Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) to criminal defendants’ peremptory strikes. Because the State successfully established a prima facie case of purposeful racial discrimination, Ware was required to “set forth a race-neutral, case-related, clear and reasonably specific explanation for the exercise of the peremptory strike.” Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996). The trial court determined that Ware failed to present articulably race-neutral reasons for six of the eleven challenged strikes.

This decision is entitled to “great deference” and must be upheld unless clearly erroneous. Id. Explanations which are so implausible or fantastic as to be pretextual may provide a basis for finding that an improper discriminatory motive underlay the strike. Id.

Ware’s counsel argued that he struck one venireperson because his family was racist, another because Ware felt uncomfortable when she looked at him, a third because she had grandchildren the same age as Ware’s daughter and worked with a racially biased individual, a fourth because Ware “sense[d] something from her,” a fifth because of the place he worked and a “predisposition of bias towards [sic] the blacks,” and a sixth because she was a white, middle-class, very strict farmer’s wife. He also argued that because his client was African-American, “a jury of her peers should be predominantly black.”

Decided March 26, 1998

Reconsideration denied April 13, 1998

Ralph L. Phillips, for appellant.

Charles M. Ferguson, District Attorney, Keith W. Day, Assistant District Attorney, for appellee.

Four of these explanations are not race-neutral on their face. The remaining two, based solely on Ware’s professed intuition about the venire members, are not case-related, clear or reasonably specific. In these circumstances, we cannot say the trial court clearly erred in rejecting Ware’s explanations.

3. Ware maintains the admission of a second officer’s testimony about the similar transaction was sufficiently prejudicial to require reversal. The second officer’s testimony established the amount of currency and contraband seized during the similar transaction, information the State’s initial witness was unable to provide.

Ware offers no authority supporting her argument, and we have found none. To the contrary, in numerous cases more than one witness has offered testimony on the same similar transaction. See, e.g., Blige v. State, 205 Ga. App. 133, 134 (2) (421 SE2d 547) (1992); Carter v. State, 199 Ga. App. 843, 844 (2) (406 SE2d 238) (1991); Norton v. State, 199 Ga. App. 27, 28 (403 SE2d 884) (1991). The testimony at issue was not sufficiently cumulative or prejudicial to warrant reversal. Because Ware’s additional argument regarding Exhibit 9 was not enumerated as error, we decline to address it. Guest, 229 Ga. App. at 628 (1).

4. Ware failed to support her remaining enumerations with any argument or citation of authority. They are therefore deemed abandoned. Court of Appeals Rule 27 (c) (2); Sprinkles v. State, 227 Ga. App. 112, 114 (3) (488 SE2d 492) (1997).

Judgment affirmed.

Birdsong, P. J, and Johnson, J., concur.


author: Andrews, Chief Judge.

text:
    A98A0061.
    EASTERWOOD v. THE STATE.
    (500 SE2d 413)
   Andrews, Chief Judge.

Kenneth Easterwood appeals from the judgment entered after a jury found him guilty of being an habitual violator and driving with a revoked license. Easterwood argues on appeal that the trial court erred in admitting into evidence a statement Easterwood made to police after he was taken into custody and before he was given a Miranda warning. For the reasons which follow, we affirm.

This case arose when two Floyd County police officers, after receiving a message asking them to be on the look-out for a bronze Ford Mustang, noticed a bronze Mustang going in the opposite direction with defendant Easterwood driving. The officers turned around to overtake and stop the car, but they lost sight of it for a short period of time. Both officers testified that when they saw the Mustang again, it was parked behind a building and the driver of the car, Easterwood, was sliding across to the passenger’s seat and the passenger was walking behind the car and getting in on the driver’s side.

One of the officers went up to the car and asked Easterwood, who was then sitting on the passenger’s side, for his driver’s license. Easterwood said he was not driving and did not have a driver’s license. The officer then had Easterwood get out of the car and sit in the back seat of the patrol car. The officer went back and talked to the man sitting in the driver’s seat, who told him that Easterwood had been driving and it was Easterwood’s idea to change places.

After running a search, the officer discovered that Easterwood had been driving with a suspended or revoked license and was also an habitual violator. The officer informed Easterwood that his friend said Easterwood was the one driving the car and therefore he was' going to charge him with driving with a suspended or revoked license and with being an habitual violator. The officer testified that Easterwood did not respond immediately after being informed of the charges; but, about a minute later, admitted he had been driving, saying he did not want to get his friend into trouble.

The court held a Jackson-Denno hearing and both parties agreed that at the time Easterwood made the statement, he was in custody and had not received a Miranda warning. After hearing the officer’s testimony, the court determined that the officer was not interrogating Easterwood but merely informing him as to the charges against him and why the charges were being made. The fact that Easterwood began to feel guilty and chose to confess after being informed of the charges and their basis, did not alter the situation.

Accordingly, the court allowed the officer to testify that Easterwood admitted he was driving the car. This appeal followed.

“[T]he necessity of administering Miranda warnings exists only when the individual is interrogated while in custody.” Ramos v. State, 198 Ga. App. 65, 66 (400 SE2d 353) (1990). “Miranda warnings are not a prerequisite to the admission of evidence concerning voluntary statements not made in response to any form of custodial questioning or interrogation. The term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” (Citations and punctuation omitted.) Syfrett v. State, 210 Ga. App. 185, 186 (435 SE2d 470) (1993). Whether, under the circumstances, the officer knew or should have known that his comments were likely to elicit an incriminating response is a question of fact for the trial court. Id. at 186-187; Turner v. State, 199 Ga. App. 836, 838 (406 SE2d 512) (1991).

Here, the trial court found that the officer was “merely stating the grounds for the arrest.” Accordingly, it does not appear from the evidence that the officer knew or should have known that his statement to Easterwood was reasonably likely to elicit an incriminating response and we cannot say that, under these circumstances, the trial court abused its discretion in finding that no interrogation had occurred. Thomas v. State, 226 Ga. App. 441, 443-444 (487 SE2d 75) (1997); Rush v. State, 188 Ga. App. 520, 521 (373 SE2d 377) (1988).

In any event, this enumeration fails because Easterwood is unable to show any harm arising from the officer’s statement. The officer who was driving the patrol car said he saw Easterwood driving when the car passed him and both officers testified that they saw Easterwood change places with the passenger in his car. Therefore, there was overwhelming evidence that Easterwood was driving the car. Accordingly, the admission of the statement, if error, was harmless beyond a reasonable doubt. See Harrington v. California, 395 U. S. 250, 254 (89 SC 1726, 23 LE2d 284) (1969); Johnson v. State, 204 Ga. App. 246, 248 (419 SE2d 107) (1992).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

Decided April 13, 1998.

John F. McClellan, Jr., for appellant.

Tambra P. Colston, District Attorney, Bryant G. Speed II, Assistant District Attorney, for appellee.


text:
    A98A0204, A98A0205.
    BODYMASTERS SPORTS INDUSTRIES, INC. v. WIMBERLEY; and vice versa.
    (501 SE2d 556)
   Blackburn, Judge.

On March 30, 1996, Candice J. Wimberley was injured while using an inverted leg press machine manufactured by Bodymasters Sports Industries, Inc. She sued Bodymasters, asserting claims under OCGA § 51-1-11 for defective product design and failure to warn, as well as a claim for breach of the implied warranty of fitness for a particular purpose under OCGA § 11-2-315. The trial court granted Bodymasters’ motion for summary judgment on the claim for breach of implied warranty, but denied its motion for summary judgment on the other claims. The parties appeal each of these rulings.

“When reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. . . . [T]he opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion.” Adams v. Sears, Roebuck & Co., 227 Ga. App. 695, 696-697 (1) (490 SE2d 150) (1997).

The relevant facts are as follows. Wimberley joined the Sportslife health club in 1992, and worked out four to six times a week over the next four years. She began using the Bodymasters leg press machine as part of her normal exercise routine around May 1994. She used the machine in order to strengthen her left knee, which had been weakened in a childhood injury and had required about 29 surgeries over the years.

The inverted leg press machine may be used for calf exercises or for quadricep/hamstring exercises. For calf exercises, the lifter places free weights in whatever amount she desires onto the bar, then sits in an adjustable seat tilted backward so that she is facing slightly upward and her legs are raised. She then places her feet on a rectangular metal plate, with raised traction lines, connected to the weight bar and pushes the plate up until her legs are almost fully extended and thereafter raises and lowers the weights by flexing her ankles. She then accomplishes her routine by repeating the exercise. A sticker affixed to the machine concerning this particular exercise reads: “CAUTION — HANDLES MUST BE IN LOCKED POSITION WHEN DOING CALF EXERCISES.” (Emphasis supplied.)

When setting up the machine to do the quadricep/hamstring exercises, it is necessary to remove the pin that otherwise prevents the plate from descending closer than approximately 33 inches from the seat. The removal of the pin is a part of the design of the equipment to permit the performance of the quadricep exercises. In performing the quadricep exercise, the user assumes the same position as for the calf exercises. She then pushes the plate up with her feet, lets the plate descend toward her body as far as she desires, and then repeats the exercise. The machine does not have a series of safety pin holes into which the pin could be inserted by the user to prevent the full force of the falling weights from crashing onto the user’s legs forcing them to hyperflex, or other safety device. At the time of the injury, Wimberley was aware that there was no safety mechanism to stop the descent of the weights while in the quadricep/hamstring mode.

On the date of the injury, Wimberley began her normal exercise routine at about 7:00 a.m. After using several other machines, she proceeded to use the inverted leg press. After putting 200 pounds of weight on the machine, Wimberley converted the machine to the quadricep mode by removing the pin. While pushing the plate upward, her feet slipped down the plate, causing the entire weight to be supported by the balls of her feet, which were unable to bear the weight. As a result, her legs were forced down rapidly toward her chest, causing a hyperflexion of the knee and fracturing her patella. At no point did the plate or weights actually strike her knee.

Case No. A98A0204

1. Design defect, (a) In her design defect claim, Wimberley alleges that the machine was defectively designed because it was not equipped with a “dead man” lock that would stop the weights from descending so far as to force a user’s knees to her chest if her foot slips from the foot plate while in the quadricep mode. Bodymasters contends that this defect was open and obvious, and that the trial court erred in holding that the open and obvious doctrine is no longer an absolute defense to a design defect claim following the Supreme Court’s decision in Banks v. ICI Americas, 264 Ga. 732 (450 SE2d 671) (1994). For the reasons discussed below, this contention is without merit and the trial court did not err in this regard.

Prior to Banks, Georgia courts held that an injured party could not recover in a design defect case where the defect was open and obvious. See Weatherby v. Honda Motor Co., 195 Ga. App. 169, 170 (393 SE2d 64) (1990). The open and obvious doctrine was not applied as an affirmative defense, however, but went to the issue of whether the product was “defective” in the first instance. Id. at 170-171; see also Raymond v. Amada Co., Ltd., 925 FSupp. 1572, 1578 (N. D. Ga. 1996). The rationale for the doctrine was that “a product is not defective if the absence of a safety device is open and obvious.” Weatherby, supra at 170. In applying the doctrine, “the decision is made on the basis of an objective view of the product, and the subjective perceptions of the user or injured party are irrelevant.” Id. at 171.

In Banks, the Supreme Court rejected the proposition that a product is not defective where it is “reasonably suited for its intended purpose and where the presence or absence of a design feature [does] not prevent the product from functioning properly in its intended úse.” (Punctuation omitted.) Banks, supra at 733 (1), overruling Mann v. Coast Catamaran Corp., 254 Ga. 201 (326 SE2d 436) (1985). The court instead adopted a “risk-utility” analysis to be used in evaluating design defect cases, “whereby the risks inherent in a product design are weighed against the utility or benefit derived from the product.” Banks, supra at 734 (1). The court identified several factors relevant to such an analysis, including “the usefulness of the product; the gravity and severity of the danger posed by the design; the likelihood of that danger; the avoidability of the danger, i.e., the user’s knowledge of the product, publicity surrounding the danger, or the efficacy of warnings, as well as common knowledge and the expectation of danger; the user’s ability to avoid danger; the state of the art at the time the product is manufactured; the ability to eliminate danger without impairing the usefulness of the product or making it too expensive; and the feasibility of spreading the loss in the setting of the product’s price or by purchasing insurance . . . the feasibility of an alternative design; the availability of an effective substitute for the product which meets the same need but is safer; the financial cost of the improved design; and the adverse effects from the alternative.” Id. at 736-737, n. 6.

Although Banks did not expressly address the open and obvious doctrine, the clear import of the decision is that no one factor absolutely controls the analysis as to whether a product is defective. Indeed, Banks identifies “the user’s knowledge of the product,” “common knowledge and the expectation of danger,” and “the user’s ability to avoid danger” as several factors to be included in the analysis, without indicating that any of such factors is controlling. Accordingly, it is clear that under Banks, the open and obvious nature of the danger is but one factor to be considered in determining whether a product is defective. See Raymond, supra, 925 FSupp. at 1578 (concluding that Banks impliedly overruled the open and obvious doctrine in design defect cases). See also Maleski, Eldridge’s Georgia Law of Products Liability, § 6B-3 at 62 (Supp. 1991) (“In jurisdictions that emphasize a policy of risk-utility balancing, the fact that some defect is open and obvious is merely one element to be weighed against all other relevant factors”).

Therefore, even assuming that the danger posed by the leg press machine was open and obvious, this factor is not dispositive as to whether the machine was defective, and Bodymasters was not entitled to summary judgment on the design defect claim on this ground.

(b) Bodymasters also argues that it was entitled to summary judgment on the design defect claim because there was no issue of material fact as to whether the machine was defective. In particular, Bodymasters argues that Wimberley presented no evidence that an alternative design was possible or would have made the machine safer. However, although Banks identifies the existence of an alternative design as one factor affecting the risk-utility analysis, it does not indicate that such factor is controlling. See S K Hand Tool Corp. v. Lowman, 223 Ga. App. 712, 715 (479 SE2d 103) (1996) (“Banks . . . requires the balancing of several factors which relate to the risks and benefits of products, and no one factor alone is a prerequisite for bringing a claim”). Moreover, although Bodymasters contends that the leg press machine functioned as intended, Banks expressly rejected the proposition that such fact is controlling in determining whether a product is defective. Banks, supra. Accordingly, this enumeration is without merit.

(c) Bodymasters also claims that it was entitled to summary judgment because Wimberley assumed the risk of injury as a matter. of law. As an initial matter, we note that the affirmative defense of assumption of the risk is separate and distinguishable from the open and obvious doctrine. “The distinction between the two is that the open and obvious rule considers whether the danger was objectively obvious in order to determine whether the product is defective. See [Weatherby, supra at 171]. On the other hand, the assumption of the risk analysis depends upon whether the particular plaintiff was subjectively aware of the dangerous aspect of the product and unreasonably used it anyway.” Raymond, supra at 1578. In Sharpnack v. Hoffinger Indus., 223 Ga. App. 833, 834-835 (1) (479 SE2d 435) (1996), a full-court decision, this Court held that, notwithstanding Banks’ adoption of a risk-utility analysis, assumption of the risk remains a valid defense to a design defect action.

“The defense of assumption of the risk of danger applies when the plaintiff, with a full appreciation of the danger involved and without restriction of his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct. A defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. . . . The knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.” (Citations and punctuation omitted.) Cornwell v. Chambers of Ga., 228 Ga. App. 64, 65 (491 SE2d 132) (1997). “Whether a party assumed the risk of his injury is a jury question that should not be decided by summary adjudication unless the defense is conclusively established by plain, palpable and undisputed evidence.” (Punctuation omitted.) Id. at 66.

In this case, Wimberley admitted that she knew wet shoes could slip. She testified that she toweled off her shoes and believed that they were dry. Wimberley admitted that she knew the machine, by design, was not equipped with a dead-man device in the quadricep mode at the time of the accident. However, knowledge of the lack of a safety device does not necessarily equate to assumption of the risk. In order to assume the risk, the injured party “must not only know of the facts which create the danger, but he must comprehend and appreciate the nature of the danger he confronts. A defect and the danger arising from it are not necessarily to be identified, and a person may know of one without appreciating the other.” (Punctuation omitted.) Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824 (4) (409 SE2d 524) (1991). Furthermore, “[a] general awareness that a descending piece of machinery without a safety device will crush what is beneath it is not enough for [pjlaintiff to assume the . . . risk.” Raymond, supra at 1579-1580. The record does not conclusively establish that Wimberley fully comprehended the danger posed by using the machine. Accordingly, whether she assumed the risk is a matter for the jury to resolve, and the trial court did not err in its ruling in this regard.

2. Failure to warn. In her failure to warn claim, Wimberley asserts that Bodymasters negligently failed to post warnings on the machine advising users that moisture on the bottom of their shoes could cause their feet to slip off the foot platform, thereby exposing them to an increased risk of injury. However, as discussed above, Wimberley admitted that she knew her shoes were wet and that wet shoes could slip from the foot platform. Indeed, she wiped the bottoms of her shoes with a towel immediately before using the leg press machine in an attempt to remove the moisture she knew was present, precisely because she was aware that wet shoes could slip. Accordingly, since she was aware of the danger she claims she should have been warned against, the failure to post signs warning of such danger could not have been the proximate cause of her injury. See Hunt v. Harley-Davidson Motor Co., 147 Ga. App. 44, 45 (2) (248 SE2d 15) (1978) (no duty to warn of product-connected danger of which person who claims to be entitled to warning has actual knowledge). Therefore, the trial court erred in denying Bodymasters’ motion for summary judgment on this claim.

Decided April 13, 1998.

Jennings & Sparwath, Stephen H. Sparwath, for appellant.

Marvin C. Berkowitz, Charles F. Fenton III, for appellee.

Case No. A98A0205

3. Implied warranty. Wimberley appeals the trial court’s grant of Bodymasters’ motion for summary judgment on her claim for breach of the implied warranty of fitness for a particular purpose under OCGA § 11-2-315. In this claim, she asserts that the lack of a dead-man lock rendered the leg press machine unfit for the purpose intended.

Wimberley’s claim for breach of warranty must fail because of lack of privity between herself and Bodymasters. OCGA § 11-2-318 provides that “[a] seller’s warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume, or be affected by the goods and who is injured in person lay breach of the warranty.” As Wimberley does not fall into any of these categories, she may not avail herself of the seller’s implied warranties.

We note that this claim is separate from the tort claims discussed above. The strict liability statute, OCGA § 51-1-11 (b) (1), provides that a manufacturer of goods is liable in tort, irrespective of privity, to persons injured because the property was not merchantable and reasonably suited to the use intended.

Judgments affirmed in part and reversed in part.

McMurray, P. J., and Eldridge, J., concur.


author: Pope, Presiding Judge.

text:
    A98A0340.
    PAYNE v. TWIGGS COUNTY SCHOOL DISTRICT et al.
    (501 SE2d 550)
   Pope, Presiding Judge.

Natasha Payne, a student at Twiggs County Comprehensive Middle/High School, was cut in the face by another student, Andrea Smith, during a fight on the school bus in May 1993. Payne sued the Twiggs County School District, assistant principal James Basley, and bus driver Ernestine Bowden. Payne claimed Basley and Bow-den knew Smith regularly carried a knife on school property and had threatened Payne with the knife but failed to protect Payne by enforcing the rules prohibiting students from carrying weapons on school property. The trial court granted summary judgment to the school district based on sovereign immunity and to Basley and Bow-den based on official immunity. We affirm that judgment.

1. “The school district correctly claims it is entitled to sovereign immunity from [Payne’s] suit. The 1991 amendment to Ga. Const, of 1983, Art. I, Sec. II, Par. IX extending sovereign immunity ‘to the state and all of its departments and agencies’ includes county-wide school districts. This sovereign immunity ‘can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” (Citations and punctuation omitted.) Rawls v. Bulloch County School Dist., 223 Ga. App. 234, 235 (477 SE2d 383) (1996).

Although Payne claims that OCGA § 20-2-1090 is such an “Act of the General Assembly” which specifically waives sovereign immunity, the Supreme Court has already ruled against Payne on this issue. In a companion case Payne brought against Twiggs County in federal court, the Supreme Court answered a certified question from the federal court of appeals and held that this statute does not apply to these facts. “When a student riding on a school bus suffers an injury that is not proximately caused by an accident or collision in which the bus is involved, such as when the student is injured due to an attack made by a fellow student, OCGA § 20-2-1090 is inapplicable.” Payne v. Twiggs County School Dist., 269 Ga. 361, 362 (1) (496 SE2d 690) (1998). See also Rawls, 223 Ga. App. at 235-236; Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 294-296 (454 SE2d 149) (1995). Compare Coffee County School Dist. v. King, 229 Ga. App. 143 (493 SE2d 563) (1997), which involved a child injured during a collision between the school bus and another vehicle.

2. Payne also contends that Basley and Bowden were not entitled to official immunity because their actions were ministerial rather than discretionary. As the Supreme Court explained in Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476) (1994), the 1991 constitutional amendment “provides no immunity for ministerial acts negligently performed. ... It, however, does provide immunity for the negligent performance of discretionary acts. . . . This interpretation comports with the purpose of providing immunity from personal liability to government employees who work in positions where they make policy or exercise discretion.” Id. at 753. Payne argues that Basley and Bowden knew Smith had threatened Payne with a knife but negligently failed to carry out the “ministerial” act of enforcing the school’s weapons policy.

Construed in Payne’s favor, the evidence shows Smith and Payne were involved in an altercation on the bus in April 1993, several weeks before the incident in which Payne was cut. Because bus driver Bowden reported Payne and two other girls for causing a disturbance on the bus, assistant principal Basley interviewed Payne in his office. Payne told him that the incident occurred because Smith had threatened her, had said she was going to “get” Payne and “mess [her] up,” and had a knife. Payne also told Basley and Bowden that Smith had, a few weeks earlier, used her knife to cut the seats on the bus. After Payne reported Smith’s wrongdoing, neither Basley nor Bowden took disciplinary action against Smith even though the school district’s written policy recommended “expulsion” as the sanction against students who brought weapons on campus. Nevertheless, over the next three to four weeks, Payne experienced no further threats, did not see Smith with the knife, and testified that she did not regard Smith’s threats as a “big deal.” On a bus ride home from school in early May, however, Smith attacked Payne with the knife she carried and cut her face severely.

These facts do not show that Basley or Bowden negligently carried out or failed to carry out a “ministerial duty.” We have faced this question numerous times and have consistently held that the task of school officials “to monitor, supervise, and control students is a discretionary action protected by the doctrine of official immunity.” Kelly v. Lewis, 221 Ga. App. 506, 508 (471 SE2d 583) (1996) (school official failed to enforce rules governing supervision of arriving students). See also Perkins v. Morgan County School Dist., 222 Ga. App. 831, 835 (2) (476 SE2d 592) (1996) (failure to enforce policy governing early dismissal of students); Wright v. Ashe, 220 Ga. App. 91, 93-94 (469 SE2d 268) (1996) (failure to enforce policies prohibiting students from leaving school and governing students’ use of cars on campus and class attendance); Guthrie v. Irons, 211 Ga. App. 502, 506 (2) (439 SE2d 732) (1993), disapproved on other grounds, Gilbert v. Richardson, supra.

Payne argues that because the school system had a weapons policy requiring that violators be expelled, Bowden and Basley had no discretion and were required to enforce that policy. But the facts of this case demonstrate the discretionary nature of the school officials’ disciplinary duties. Payne did not tell assistant principal Basley about Smith’s threats and weapon until Bowden reported Payne to the principal’s office for causing the disturbance. In effect, Payne claimed that Smith, and not she, was responsible for the incident on the bus. Payne also took that opportunity to blame Smith for cutting the seats, even though she had not reported the incident when it occurred weeks earlier. In her meeting with Basley, Payne acknowledged that she and Smith had an ongoing conflict and promised she would “try not to bring it to school.” Although Bowden’s and Basley’s accounts of these events differ from Payne’s, no evidence shows Bow-den or Basley witnessed Smith with a knife before Payne was attacked. Under these circumstances, the assistant principal and bus driver were required to assess the credibility of Payne’s allegations and make a judgment call as to whether those allegations merited immediate investigation of Smith. Payne would have this Court find that the school officials were required to expel Smith based solely on Payne’s accusation. We will not so find.

Decided April 13, 1998.

Lane & Jarriel, Thomas F. Jarriel, for appellant.

Chambers, Mabry, McClelland & Brooks, Lawrence J. Hogan, Beth S. Reeves, Arnold Wright, Jr., James G. Maddox, for appellees.

These facts demonstrate why the disciplinary and supervisory tasks of school officials have been called “a policing function analogous to the discretionary activities of police officers. [Cit.]” Guthrie v. Irons, 211 Ga. App. at 506. To hold school officials responsible based purely on hindsight would be “manifest unfairness,” as it “plac[es the] person in a position in which he is required to exercise his judgment and at the same time is held responsible according to the judgment of others, who may have no experience in the area and may be much less qualified than he to pass judgment in a discerning fashion. . . .” (Citation and punctuation omitted.) Gilbert v. Richardson, 264 Ga. at 750.

Because the facts to which Payne testified show the trial court correctly found the school district, Basley, and Bowden immune to suit, we affirm the grant of summary judgment in their favor.

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

       The Supreme Court’s opinion indicates that Payne sued the school district in federal court and raised claims under 42 USC § 1983 as well as state law negligence claims. The record is unclear as to how tort claims involving the same facts were pursued concurrently in both federal and state courts, and the parties have not mentioned the federal action in their briefs to this Court.

       We note that the school weapons policy contained in the record was not adopted until December 1993. For the purposes of this decision, however, we assume that same policy was in place at the time of this May 1993 incident.