author: Smith, Judge. Johnson, Chief Judge, Eldridge, Judge, Barnes, Judge,

text:
    A99A1457.
    MULLINS et al. v. THE STATE.
    (525 SE2d 770)
   Smith, Judge.

Jimmy Wayne Mullins and Kimberly Carmela Mullins were charged in a two-count indictment with possession of amphetamines with intent to distribute and possession of less than an ounce of marijuana. Both were found guilty by a jury, and they appeal, alleging that the State failed to prove an adequate chain of custody for the contraband seized from their home and that the trial court erred in denying their motion for a mistrial based upon juror misconduct. Although we find that the State proved an adequate chain of custody, we conclude that a mistrial should have been declared, and we therefore reverse.

1. The Appalachian Drug Task Force executed a search warrant on the home of Jimmy and Kimberly Mullins on January 10, 1997. Agent John Cagle found Jimmy Mullins in the bathroom of the house trying to flush several plastic bags down the toilet. Agent Cagle was able to retrieve these bags and seize the contraband. He initialed the evidence bags and turned them over to Agent Shane Henson at the scene. Henson placed them, along with other items seized from the home, including marijuana, electronic scales, plastic “corner” baggies, a can or jar of Fruit Fresh, and a smoking pipe, into the trunk of his vehicle and locked the trunk. Henson testified that he first placed the evidence in the secured evidence locker at the office of the Appalachian Drug Task Force in Dawson County and that he later carried it personally to the Georgia Bureau of Investigation crime lab in Decatur for testing. At trial, Henson identified State’s Exhibits 1 and 2 as the samples he took from the Mullinses’ home and eventually delivered to the crime lab.

Unaiza Ali, a forensic chemist at the crime lab, testified that she received State’s Exhibit 1 from her supervisor, Mark Burns, on May 26, 1998. The sample had been taken from the lock box by Lonnie Jones, who was then employed at the crime lab as a forensic chemist, and it was analyzed by Jones. Because Jones was no longer employed at the crime lab, the prosecutor requested that the sample be analyzed again. Ali analyzed the sample anew, and she identified it as amphetamine.

Ali testified that when she received the evidence bag, it was not sealed but was stapled shut. She stated that it bore a “unique crime lab number” corresponding to the case and she had no concern that the sample might have been mixed up, tampered with, or contaminated.

. In two enumerations, the Mullinses contend the trial court erred in allowing State’s Exhibit 5, the laboratory report, into evidence and in failing to strike Ali’s testimony. They contend the chain of custody was deficient based upon the failure of Jones, the original testing chemist, to testify, even though the laboratory report included his findings; the failure to seal the sample between the two analyses; and the large discrepancy in the report between the weight of the sample as found by Jones and Ali. For several reasons, we do not agree that the chain of custody was materially deficient.

First, when the State wishes to introduce evidence of a fungible nature, its burden is simply to show that the evidence is the same as that seized and that it has not been tampered with or substituted. Scott v. State, 227 Ga. App. 900, 901 (2) (490 SE2d 208) (1997). The State need not rule out every possibility of tampering, but the “circumstances must establish reasonable assurance of the identity of the substance. [Cit.]” Staples v. State, 209 Ga. App. 802, 805 (5) (434 SE2d 757) (1993).

The State’s burden was discharged in this case. The State need not establish a “perfect” chain of custody for evidence within the crime lab itself. Here, as in Scott, the crime lab employee who originally received and analyzed the sample did not testify; here, as there, the technician who testified received the sample from her superiors. Id. at 900 (2). We held that the chain of custody shown was sufficient. The Mullinses offered no evidence of tampering. A discrepancy in weight was shown in Staples. But here, as in Staples, the possibility of complete substitution was rebutted by testimony concerning procedures used to identify and store evidence. Id. at 806 (5).

Second, the fact that the sample was stapled but not sealed goes to the weight of the evidence and not its admissibility. “Where there is only a possibility of tampering, substitution, or misidentification, it is proper to admit the evidence and let what doubt remains go to its weight.” (Citations and punctuation omitted.) Staples, supra.

Third, any issue with regard to the weight discrepancy has been waived, because it was not raised at trial. The same is true of the issue the Mullinses raise on appeal regarding Ali’s receipt of the evidence from outside the crime lab prior to her analysis. A party may not during trial remain silent concerning what he believes to be an error or injustice and hope to complain later if the verdict is not favorable. See, e.g., Anthony v. State, 236 Ga. App. 257, 258 (1) (511 SE2d 612) (1999). The trial court did not err in admitting the lab report or in allowing the testimony of Ali.

2. The Mullinses’ remaining enumeration concerns an instance of alleged juror misconduct. The record shows that during a court recess, two jurors standing in the hallway were approached by an acquaintance with no connection with this trial. Their conversation was overheard and reported to the trial judge. After the recess, the trial judge took sworn testimony from the three participants in the encounter.

The acquaintance denied talking to the two jurors about anything connected to the trial, and the two jurors swore likewise. The judge, puzzled by the discrepancy between what had been reported to him and this testimony, then questioned defense counsel, who related that several witnesses informed him they heard the acquaintance tell the two jurors that the defendants would not be in court if they were not guilty, and they heard one juror agree.

The trial court requestioned the acquaintance, who reported that if he did make that comment he did not recall it. Upon requestioning, however, the two jurors admitted hearing their acquaintance make the comment related to defense counsel. But they steadfastly denied replying to the comment. The judge inquired of the jurors whether their acquaintance’s comment would in any way affect their ability to decide the case based upon the evidence presented, and both replied that it would not. The defense moved for a mistrial, which was denied.

After the two jurors were returned to the jury room, Kimberly Mullins was sworn and testified that she heard one juror reply to the acquaintance’s remark. She stated that when the acquaintance told the two jurors the defendants would not be in court if they were not guilty, one juror replied, ‘Yeah, I know.” The defense again moved unsuccessfully for a mistrial. When the jurors returned, the trial court admonished them that if they heard anything during the break, they were to disregard what they heard and decide the case solely upon the evidence presented in court.

The trial proceeded without further incident until the close of evidence. Shortly before the charge conference, defense counsel placed in the record that he knew the court had ruled on his motion for mistrial, but that he had requested that the court remove the two jurors involved in the incident. The trial court acceded to this request, finding specifically that the jurors did nothing wrong “but out of an abundance of caution on behalf of your clients to protect the integrity of their trial by jury,” only after the defense agreed to proceed with just ten jurors.

On appeal, the Mullinses contend that a mistrial should have been declared and that the trial court abused its discretion in failing to do so. We must agree. “When irregular juror conduct is shown, there is a presumption of prejudice to the defendant, and the prosecution carries the burden of establishing beyond a reasonable doubt that no harm occurred.” (Footnote omitted.) Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997). To upset a jury verdict, the misconduct must have been “so prejudicial that the verdict is deemed inherently lacking in due process.” (Punctuation and footnote omitted.) Id.

In this case, we find no evidence in the record that the State met its burden of establishing that no harm occurred. This case is unlike those in which we have found that the substance of the extrajudicial communication was established without contradiction and the facts themselves established lack of prejudice to the defendant. See, e.g., Sims v. State, 266 Ga. 417, 419-420 (3) (467 SE2d 574) (1996) (juror statements to each other did not involve extrajudicial information or demonstrate they were deliberating or attempting to persuade each other); Holcomb, supra. Here, testimony regarding whether the juror responded to the acquaintance’s remark was in conflict. The State did not establish whether the two jurors involved discussed the matter with the other jurors; the remaining jurors were not questioned.

We must decide, therefore, whether the incident was so prejudicial that the jury’s verdict was tainted.

The decision whether any unauthorized statement, communicated to the jury either individually or as a group, is so prejudicial as to warrant a mistrial is in the discretion of the trial court. Some of the factors and circumstances to be reviewed in determining whether the trial court abused its discretion in denying the motion for mistrial include the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.

(Citations and punctuation omitted.) Cooke v. State, 230 Ga. App. 326, 327 (496 SE2d 337) (1998). The question presented here is a close one, but we conclude that under these particular facts and circumstances, the misconduct was so prejudicial that a mistrial was warranted, and the trial court erred in failing to declare one.

The statement related to the defendants’ guilt or innocence, the ultimate issue for jury resolution. The testimony was in conflict as to whether one of the jurors indicated that he, too, had predetermined the defendants’ guilt. The State did not establish that this view had not been transmitted to the rest of the jury. And the very fact that the jurors first denied even hearing the remark placed the defense in the unenviable position of contradicting a sworn statement by the jurors before the jurors reluctantly admitted that the defense allegation was true, even in part. Although the two jurors did not participate in the verdict, we conclude that possible personal resentment on their part after having been contradicted and forced to change their testimony may very well have contributed to the verdict. The defense’s agreement, as a last resort, to proceed with a jury of ten precisely to avoid such contamination does not constitute a waiver of the right to raise this issue on appeal. Under these circumstances, a mistrial was “essential to preserve [the Mullinses’] right to a fair trial.” (Citation and punctuation omitted.) Milton v. State, 232 Ga. App. 672, 676 (503 SE2d 566) (1998).

Judgment reversed.

Johnson, C. J, Pope, P. J., and Ellington, J., concur and concur specially. Blackburn, P. J., Eldridge and Barnes, JJ., dissent.

Johnson, Chief Judge,

concurring specially.

I fully concur with the majority opinion, but write separately to discuss the state’s failure to meet its burden of proof in this case of improper jury contact.

A defendant is entitled to a trial by a jury untainted by improper influences, and when there has been an improper communication with a juror, the state bears the burden of proving beyond a reasonable doubt that the communication was not harmful to the defendant. In determining if the state has met its burden, the trial court focuses on, among other things, whether there was an attempt to discuss the merits of the case with the juror or to exert any influence upon the juror.

During a break in the trial of Jimmy and Kimberly Mullins, jurors Pirkele and Grizzle were standing in a courthouse hallway when an acquaintance, William Gray, approached them and said that the defendants would not be there if they were not guilty. The trial judge was informed of the conversation. When he questioned Pirkele and Grizzle about the conversation, they first denied that Gray had said anything about the case, but when confronted with the fact that there were witnesses to the conversation, they both admitted that Gray had made the improper comment about the Mullinses’ guilt. Nevertheless, they told the judge, the comment would not affect their ability to decide the case based only on the evidence. The judge twice asked the state’s prosecutor if he had anything to offer, and both times he said that he did not. The judge then denied the Mullinses’ motion for a mistrial.

Did the trial court erroneously conclude that the state had carried its burden of proving beyond a reasonable doubt that Gray’s improper communication with the two jurors was not prejudicial to the Mullinses? I believe that the court did err because, on its face, the communication was about the merits of the case and appeared to be an attempt to influence the opinion of the two jurors about the Mul-linses’ guilt. Moreover, those two jurors initially misinformed the court that there had been no improper communication before admitting that it had occurred and then claiming that they would not be influenced by it. And when given the chance to make some showing about the prejudice of the communication, the state offered nothing.

In Lockridge v. State the Supreme Court held that the state had not carried its burden of showing that the defendant was not harmed where a deputy sheriff improperly remarked to a juror that the defendant was guilty. And in Towler v. State, we ruled that the state had not met its burden of showing no harm where the jury foreperson’s mother, a court employee, told the foreperson that someone at work had said that the foreperson was holding out against a guilty verdict and was going to let a child molester go free. Likewise, in the instant case the state failed to overcome the presumption of harm and prove beyond a reasonable doubt that the Mullinses were not prejudiced by Gray’s improper remark about their guilt. The conclusive claims of jurors Pirkele and Grizzle that they were not influenced by the remark is insufficient to prove lack of harm. The trial court therefore should have granted the Mullinses’ motion for a mistrial.

The harm of the court’s error in denying the mistrial motion was exacerbated when the Mullinses agreed to have Pirkele and Grizzle removed from the jury and to proceed with a jury of only ten members. While defendants can waive their constitutional right to be tried by a jury of 12, they should not be forced into such a waiver because of an error by the court. Here, after the court’s error in finding that the state had proved beyond a reasonable doubt that there was no harm from the improper juror communication by Gray, the Mullinses had the unenviable choice of being tried either by a tainted jury of twelve or by a jury of only ten people. The trial court’s error was not cured, and in fact led to further error, by putting the Mul-linses in a position where they had to choose between the valuable rights of either an untainted jury or a 12-person jury.

I therefore agree with the majority’s conclusion that the Mul-linses’ convictions must be reversed because of the trial court’s refusal to grant a mistrial after the state failed to prove that the improper juror communication was harmless.

I am authorized to state that Presiding Judge Pope and Judge Ellington join in this concurrence.

Eldridge, Judge,

dissenting.

What is the real basis for reversal here? The Mullinses made three motions related to jurors Pirkele and Grizzle. One motion was for mistrial and was properly denied because, at the time it was made, the only evidence before the trial court was the jurors’ statements of impartiality. The second motion was for mistrial and is waived because it was not renewed after curative instructions were given. And the third motion was to remove Pirkele and Grizzle, and that motion was granted.

However: (1) the special concurrence reverses because “the state failed to prove that the improper juror communication was harmless”; and (2) the majority reverses because of a possible improper communication by Pirkele or Grizzle to the rest of the venire which “may very well have” contributed to the verdict. In my view, neither position withstands scrutiny.

1. Special Concurrence:

During a trial recess, a third party, Gray, made an unsolicited comment to jurors Pirkele and Grizzle that the defendants would not be there if they were not guilty. Before recess was over, defense counsel brought it to the court’s attention, and the trial court immediately brought Gray, Pirkele, and Grizzle into court for a hearing on the matter.

The first question to the jurors was whether Gray had talked to them about the case:

[Trial court:] Mr. Grizzle, do you remember any comment he made about the case?
[Grizzle:] No, sir, not about the case, he didn’t, Judge. He sure didn’t.
[Trial Court:] Did you hear anything, Mr. Pirkele about the case?
[Pirkele:] No, sir.

The jurors were then told the comment was about the defendants’ guilt or innocence — not about the facts of the case: “[Defense counsel:] Mr. Gray, I believe, told the jurors that they wouldn’t be here, the defendants wouldn’t be here today if they weren’t guilty, and Mr. Grizzle acknowledged that fact.” Grizzle unhesitatingly admitted hearing that comment: “[Trial court:] Mr. Grizzle, did you hear that? [Grizzle:] Yes, sir, I did.” Pirkele and Grizzle then volunteered the following — unasked:

[Pirkele:] Yes, I heard it.
[Grizzle:] But I didn’t make a comment when he said it.
[Trial court:] You didn’t comment back?
[Grizzle:] No, sir, I sure didn’t.

The trial court asked both jurors if Gray’s improper comment would influence their decision:

[Trial court:] Mr. Gray’s comment, is that going to affect you in any way, your ability to listen to the evidence in this case and decide this case based upon the evidence presented to you, rather than anything you heard outside?
[Grizzle:] No, sir, it won’t, Judge. Sure won’t.
[Trial court:] Mr. Pirkele, how about you?
[Pirkele:] No, sir. It sure won’t.

It was at this point defense counsel made his first motion — when there was no evidence before the court of anything other than (a) Gray made the improper comment and (b) Pirkele and Grizzle could remain impartial despite the comment: ‘Your Honor, I move for a mistrial at this point. I believe the jury has been improperly tainted and I believe it will cause reversible error.” The trial court denied the motion.

(a) The trial court believed the jurors’ assertions of impartiality. The special concurrence (and the majority) may not believe them and may think the jurors “initially misinformed the court,” but the trial court did not see them or their voir dire responses in that light. The trial court found them “honest.” “A conclusion on an issue of bias is based on findings of demeanor and credibility which are peculiarly in the trial court’s province, and those findings are to be given deference.” Holmes v. State, 269 Ga. 124, 126 (2) (498 SE2d 732) (1998). The trial court believed the jurors. And it was the trial court’s credibility decision to make, not ours. The trier of fact is the exclusive judge of the credibility and weight to be accorded the evidence. Harris v. State, 155 Ga. App. 530 (1) (271 SE2d 668) (1980).

At this point, everyone agreed that the improper comment was made. But at the time the defense made the initial motion for mistrial, the evidence was that (i) neither juror had responded to the improper comment; (ii) the improper comment did not affect either juror; and (iii) they both could decide the case based on the evidence presented, Accordingly, there was no harm to the defendants established by the fact the comment was made, since it would not affect the jurors. Butler v. State, 270 Ga. 441, 445 (511 SE2d 180) (1999); Davidson v. State, 231 Ga. App. 605, 612 (7) (499 SE2d 697) (1998).

(b) The special concurrence asserts — wrongly — that “[t]he conclusive claims of jurors Pirkele and Grizzle that they were not influenced by the remark is insufficient to prove lack of harm.” That is not the law. The case that the special concurrence cites, Lamons v. State, 255 Ga. 511, 513 (340 SE2d 183) (1986), is an extraordinary one in which a juror telephoned the chief prosecuting police officer during an overnight trial recess and developed a “confidential relationship” of “trust” with him. It was only “[i]n these circumstances, a conclusive statement by the juror that she was not influenced is insufficient to prove lack of harm.” (Emphasis supplied.) Id. Otherwise, a conclusive statement of impartiality from a juror is sufficient to show lack of harm. See Pruitt v. State, 270 Ga. 745, 755 (22) (514 SE2d 639) (1999); Speed v. State, 270 Ga. 688, 694 (26) (512 SE2d 896) (1999); Butler v. State, supra at 445; Davidson v. State, supra at 612. We do not have the extraordinary circumstances of Lamons before us here, and the trial court was entitled to rely on the jurors’ statements of impartiality.

(c) The special concurrence also asserts that the State failed to meet its burden to establish lack of harm because “when given the chance to make some showing about the prejudice of the communication, the state offered nothing.” However, there was nothing more to offer. A juror’s statement that the improper communication will not influence his or her decision meets the burden the State is to carry: “The evidence establishes that the improper communication in this case did not affect the impartiality of the jurors, and the trial court therefore did not err by denying [the Mullinses’] motion for mistrial.” Pruitt v. State, supra. No harm has been shown by the fact the trial court, not the State, conducted the voir dire of Pirkele and Grizzle. The State is not required to re-ask the same question just for the sake of asking, when lack of harm has already been established by the evidence. “Because the defendant has failed to show how he has been prejudiced by the allegedly improper remark in the case at bar, we find no abuse of discretion under the circumstances of the present case.” (Emphasis supplied.) Jones v. State, 185 Ga. App. 649, 652 (3) (366 SE2d 144) (1988).

Since the evidence at the first motion for mistrial established that the improper communication in this case did not affect the impartiality of the jurors, the State’s burden was met, and the trial court did not err by denying the Mullinses’ motion. Pruitt v. State, supra at 755. The special concurrence’s determination to the contrary is, to my mind, incorrect.

2. Majority Opinion:

(a) After Pirkele and Grizzle returned to the jury room, defense counsel perfected the record on this issue. Counsel put up defendant Kimberly Mullins who testified, that, in response to Gray’s improper comment:

[Mullins:] The one in the gray shirt or the green shirt, whatever his name, Mr. Pirkele, he said, ‘Yeah, I know.”
[Trial court:] The guy in the green shirt, the younger fellow?
[Mullins:] Yes, sir.
[Trial court:] That’s not Mr. Pirkele. We got a problem there. Okay. Anything else, Mr. Cox?

It was at this point defense counsel made his second motion, asking that “the entire panel, be struck based on conversations which took place outside the courtroom.” Defense counsel also claimed a brand new ground for mistrial, i.e., possible prejudice because of the hearing itself, since Pirkele and Grizzle were present at the hearing and defense counsel had “indicated that [Grizzle] had spoken.”

The trial court denied the second motion for mistrial, finding that the jurors did not respond to Gray’s comment: “I don’t find that they did do anything wrong. In fact, I specifically find that they did not do anything wrong.” Thereafter, the trial court gave curative instructions to the entire venire to disregard any comments that they may have heard during break and to decide the case based only on evidence from the witness stand. Defense counsel did not renew the motion for mistrial following the curative instructions.

(i) Because Mullins did not renew her motion for a mistrial after this curative instruction, she failed to preserve this alleged error for our review. Ward v. State, 234 Ga. App. 610, 611-612 (507 SE2d 506) (1998).

(ii) Waiver aside, there was no error. “Where the trial court receives evidence that is conflicting as to irregularities in the conduct of the jury, the appellate court will not reverse unless the trial court has abused its discretion.” (Citation and punctuation omitted.) Colantuno v. State, 262 Ga. 830, 831 (1) (426 SE2d 563) (1993).

Here, the trial judge did not believe defendant Mullins’ claim that a juror responded ‘Yeah, I know” to Gray’s comment. That was the court’s right as trier of fact. Again, the trier of fact is the exclusive judge of the credibility and weight to be accorded the evidence. Harris v. State, supra at 530. Evidence of record supports the trial court’s credibility determination in that (1) the jurors emphatically denied making any response to Gray’s comment; (2) defense counsel’s wife did not hear any juror response although she heard Gray’s comment; (3) defendant Mullins who heard the alleged response had an obvious interest in the outcome of the motion; and (4) Mullins had “a problem” identifying which juror even made the alleged response.

“[T]he trial court’s factual findings and credibility determinations will be upheld on appeal if there is any evidence to support them.” Kenerly v. Bryant, 227 Ga. App. 746, 747 (1) (490 SE2d 454) (1997). With evidence to support the trial court’s credibility determination that no response to Gray’s comment was ever made, the majority cannot simply choose to find “testimony regarding whether the juror responded to [Gray’s] remark was in conflict” and use such finding as a basis for reversal.

Since no evidence showed that either Pirkele or Grizzle held a view of “predetermined guilt,” such view could not be transmitted to the rest of the jury, as the majority fears.

(iii) As to defense counsel’s motion for mistrial because of possible prejudice resulting from the hearing itself, “ ‘[o]ne cannot complain of trial procedure utilized by the trial court which his own trial tactics or conduct procured or aided in causing.’ ” Davis v. State, 225 Ga. App. 564, 570 (8) (484 SE2d 284) (1997); Holcomb v. State, 268 Ga. 100, 103 (485 SE2d 192) (1997). To hold otherwise would be to condone a practice where defense counsel can request to voir dire a juror regarding impartiality and then achieve the removal of the juror, not through any answer demonstrating partiality, but because the very process of voir dire — requested by counsel — may have “prejudiced” the juror against the defense. This is an absurd result.

Since no evidence showed jurors Pirkele and Grizzle held any bias or prejudice because of the hearing or the statements made therein, we cannot assume, as the majority states, “possible personal resentment” and reverse. “[A] valid conviction is not otherwise vitiated unless the defendant was actually prejudiced by the communication.” (Emphasis supplied.) Jones v. State, supra at 651 (3). Speculation will not do.

(b) At the conclusion of the case and before jury deliberations, defense counsel asked the trial court to remove Pirkele and Grizzle. The trial court granted defense counsel’s request based on the defendants’ stipulation that they would proceed with ten jurors. Pirkele and Grizzle were removed. They did not participate in jury deliberations or the return of the verdict. The trial court instructed the jury that the two jurors were excused because of innocent contact from a third party and that the jurors had done nothing wrong. Prior to instructing the jury, the trial court reviewed the charge with defense counsel and asked, “Is there any problem with that, Mr. Cox?” Defense counsel replied, “No problem.”

(i) The defense got what it wanted. Counsel made no other request. Defense counsel agreed with the trial court’s charge to the jury to mitigate any possible “taint” from the removal of the two jurors. Counsel never requested removal of the entire panel because of, as the majority puts it, “possible personal resentment” communicated to the rest of the venire which “may very well have contributed to the verdict.”

(ii) It was not the State’s burden to prove that an improper communication between the two jurors and the rest of the venire was NOT made. We do not require a party to prove a negative. “The burden of proving the absence of harm shifts to the state only after an irregularity is shown.” Davitt v. State, 232 Ga. App. 427, 428-429 (3) (502 SE2d 300) (1998). If, as the majority states, the reversible irregularity in this case is an improper communication between the two jurors and the rest of the venire, it was the defense’s burden to prove that such improper communication was actually made. The State is not required to prove the absence of harm in a communication that was never proved to exist.

In sum, the special concurrence reverses because the State failed to prove that Gray’s improper communication was harmless, despite the fact the both jurors asserted that the improper communication did not affect their impartiality and the trial court believed their affirmative assertions, and the majority reverses because of a possible improper communication by Pirkele or Grizzle to the rest of the venire which “may very well have” contributed to the verdict — a communication for which there is absolutely no evidence. Since I cannot agree with either of these grounds for reversal, I respectfully dissent.

I am authorized to state Presiding Judge Blackburn and Judge Barnes join in this dissent.

Barnes, Judge,

dissenting.

I respectfully dissent from the majority and join Judge Eldridge in Division (2) (b) (i) of his dissent, in which he notes that the defendants in this case received exactly what they asked for when the trial court removed the two jurors who were questioned about an improper contact. In granting the defendants’ request to remove the two jurors, the trial court said it was doing so “to remove any possibility of error.” After asking the defendants if they agreed to this action and receiving affirmative responses, the court said, “We will remove those two jurors. Now, anything else?” Defense counsel responded, “No.” I would therefore conclude that the defendants waived any error in the trial court’s failure to grant a mistrial. See Cobb v. State, 236 Ga. App. 265, 269-270 (4) (511 SE2d 522) (1999).

Decided November 19, 1999

Reconsideration dismissed December 16, 1999.

Husby, Myers & Stroberg, Roland H. Stroberg, for appellants.

N. Stanley Gunter, District Attorney, Lynn Akeley-Alderman, Assistant District Attorney, for appellee.

       In addition, this “issue” is unsupported by the record. Appellants argue that the chain of custody is clouded by a notation in the lab report that prior to its analysis by Ali, the evidence was received from “T. Pitts,” whose identity is unknown, of the Dawson County district atttomey’s office, where the drug task force was located. But the report states only that a request was received from Pitts to reanalyze the evidence and not, as urged by appellants, that the evidence was received from Pitts.

        Lockridge v. State, 260 Ga. 528, 529 (397 SE2d 695) (1990); Towler v. State, 188 Ga. App. 43, 44 (2) (372 SE2d 242) (1988).

        Head v. State, 191 Ga. App. 262, 264 (4) (381 SE2d 519) (1989); Towler, supra.

       Supra at 529-530.

       Supra at 45.

       See Lamons v. State, 255 Ga. 511, 513 (340 SE2d 183) (1986).

        Baptiste v. State, 190 Ga. App. 451, 453 (2) (379 SE2d 165) (1989).

       See Childress v. State, 266 Ga. 425, 436 (4) (467 SE2d 865) (1996) (court committed grave error by forcing defendant to choose between forgoing admission of relevant evidence and testifying before deciding if his testimony was needed).

       I cannot help but express my concern about the tremendous amount of damage that can be done to the law by ignoring qualifying language and taking out of context a holding like “a conclusive statement by the juror that she was not influenced is insufficient to prove lack of harm.” In fact, in most cases, an affirmative statement of impartiality is all the proof that is available and that is all the proof that is required. See, e.g., Speed v. State, supra:


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A99A1769.
    RIVERS v. ALMAND.
    (527 SE2d 572)
   Smith, Judge.

To sanction plaintiff Mary Rivers for her total noncompliance with the discovery process, the trial court dismissed her complaint with prejudice, cast costs upon her, and awarded $500 in attorney fees. On appeal, Rivers seeks to challenge the order dismissing her case. We affirm.

Rivers instituted a personal injury lawsuit against James Almand in July 1998. Almand answered and served interrogatories and requests for production of documents on August 12, 1998. When Rivers completely failed to respond, Almand’s counsel wrote a letter dated September 21, 1998, inquiring as to whether there was a problem and offering to agree to an extension if one was needed. After no reply was forthcoming, Almand’s counsel sent a second letter on October 30, 1998, again requesting a response. When again met with silence, on November 24, 1998, Almand’s counsel wrote another letter to Rivers’s counsel seeking a response and suggesting that counsel contact him “if there is some problem of which I am unaware.” Almand’s counsel advised, however, that if the documents were not provided within ten days, he would file a motion to compel seeking sanctions. Subsequently, Almand moved to compel or in the alternative for sanctions, including dismissal of the complaint due to “plaintiff’s total and wilful failure to respond to discovery.” About two weeks after this motion was filed, neither Rivers nor her counsel appeared for a noticed deposition. A court reporter certified the nonappearance of Rivers and her attorney. Almand then filed a supplemental brief to his motion to compel, pointed to this additional evidence of misconduct, and again requested the dismissal of Rivers’s complaint.

Rivers did not file a written response to Almand’s motion to compel or for sanctions, and the matter proceeded to a hearing. Following oral argument, the trial court dismissed Rivers’s complaint with prejudice.

1. In four overlapping enumerations of error, Rivers contends that the trial court erred and abused its discretion in dismissing her complaint with prejudice. Citing to absolutely no evidence in the record, and apparently conceding the facts outlined above, Rivers now brazenly asserts that the trial court erred in dismissing her complaint. We disagree and impose sanctions for the frivolous appeal brought to this court.

Trial courts have broad discretion to control discovery, including the imposition of sanctions. Daniel v. Corporate Property Investors, 234 Ga. App. 148 (505 SE2d 576) (1998). Absent the showing of a clear abuse of discretion, a court’s exercise of that broad discretion will not be reversed. Id. Here, no abuse has been shown. Tompkins v. McMickle, 172 Ga. App. 62, 64 (2) (321 SE2d 797) (1984).

The law authorizing the imposition of sanctions for discovery-related abuses is not ambiguous, uncertain, or arcane. OCGA § 9-11-37 (d) (1). Provided proper discovery procedures are followed, when a party fails to appear for a properly noticed deposition, or fails to answer or object to interrogatories properly submitted under OCGA § 9-11-33, or after appropriate service fails to respond to document requests, a trial court may take any action delineated under OCGA § 9-11-37 (b) (2) (A)-(C). Id.; see Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 439 (2) (254 SE2d 825) (1979). Among several other options, subsection (b) (2) (C) authorizes a court to enter an order “dismissing the action or proceeding or any part thereof.” OCGA § 9-11-37 (b) (2) (C). Moreover, an order compelling discovery is not a condition precedent for the imposition of sanctions under subsection (d). Cook v. Lassiter, 159 Ga. App. 24, 25 (282 SE2d 680) (1981). All that is required is a motion, notice, and a hearing. Id.

Here, the evidence confirms that Rivers committed three separate violations of the discovery rules, inexplicably failing to comply with the most elementary requirements of the discovery sections of the Civil Practice Act. See OCGA §§ 9-11-30 (a); 9-11-33 (a) (2); 9-11-34 (b) (2). While an explicit finding of wilfulness by the trial court would have been preferable, “a conscious or intentional failure to act,” as distinguished from accidental or involuntary noncompliance may constitute “wilful” conduct that authorizes dismissal. Washington v. South Ga. Med. Center, 221 Ga. App. 640, 641 (1) (472 SE2d 328) (1996) (full concurrence as to Division 1).

According to the undisputed evidence, Almand’s counsel served copies of the interrogatories, document requests, and a notice of deposition upon Rivers’s counsel of record. Yet Rivers failed to respond to the requested discovery or to appear at her deposition. The record contains no reason, excuse, or justification for her nonappearance. Nor did Rivers submit any response to Almand’s motion for sanctions. From this evidence, the trial court could determine that Rivers’s noncompliance was intentional. James v. Gray, 229 Ga. App. 39, 41 (494 SE2d 198) (1997). Although the trial court did not employ the word “wilful” in its order, such a finding is implicit in the evidence before us. See Schrembs v. Atlanta Classic Cars, 261 Ga. 182, 183 (402 SE2d 723) (1991). In fact, the record contains absolutely no evidence to support a contrary finding. Compare Cook, supra (evidence showed defendant unsuccessfully attempted to change place and time of deposition).

Decided December 16, 1999.

Clark & Washington, Arthur M. Washington, for appellant.

Although Rivers claims that the trial court abused its discretion, she has offered not a scintilla of evidence to support that assertion. Nothing in the record suggests even an inkling of justification for Rivers’s repeated failures to comply with routine discovery. Nor did Rivers bother to provide a transcript of the motion hearing for review on appeal. See OCGA § 5-6-41; Wright v. Southern' Investment Properties, 204 Ga. App. 538 (419 SE2d 764) (1992) (absent transcript or stipulation therefor, appellate court must assume the evidence supported the trial court’s judgment). Based on the uncontested evidence appearing in the record, and in the absence of a transcript of the motion hearing, we cannot imagine any basis whatsoever for finding that the trial court abused its discretion in imposing the ultimate sanction of dismissal with prejudice. Daniel, supra at 149-150 (3).

2. Since the applicable law is unquestionably clear and this appeal has no arguable merit, pursuant to Court of Appeals Rule 15 (b) we impose a sanction of $500, not against Rivers herself, but against her attorney for pursuing this appeal. Upon receipt of the remittitur, we direct the trial court to impose upon counsel for Rivers a penalty of $500. Barron v. Spanier, 198 Ga. App. 801, 802 (403 SE2d 88) (1991).

Judgment affirmed with direction.

Pope, P. J., and Miller, J., concur.

Crim & Bassler, Mitchell S. Evans, for appellee.

       Court of Appeals Rule 15 (b) provides: “[t]he panel of the Court ruling on a case, with or without motion, may by majority vote impose a penalty not to exceed $1,000 against any party and/or party’s counsel in any civil case in which there is [an] appeal... determined to be frivolous.”


author: Blackburn, Presiding Judge. Eldridge, Judge,

text:
    A99A1927.
    BAUER et al. v. NORTH FULTON MEDICAL CENTER, INC.
    (527 SE2d 240)
   Blackburn, Presiding Judge.

In this action regarding the alleged removal of eye tissue from a corpse without permission, Rosemary Bauer, in her individual capacity and as administratrix of the estate of Joseph Bauer, appeals the trial court’s dismissal of her claims against North Fulton Medical Center, Inc. (North Fulton Hospital) for breach of contract, fraud, intentional infliction of emotional distress, property damage to a corpse, and violation of OCGA § 31-23-6. The trial court determined that all of Bauer’s claims were barred by the statute of limitation for medical malpractice actions and personal injury actions. OCGA §§ 9-3-33; 9-3-71. We find that: (1) the statute of limitation for medical malpractice actions is not applicable to Bauer’s claims; (2) to the extent Bauer’s claims seek redress for personal injury, they were properly dismissed by the trial court pursuant to OCGA § 9-3-33; (3) Bauer’s claims for breach of contract and property damage should not have been dismissed, although Bauer’s measure of recovery is restricted due to the limited nature of her quasi-property right in her husband’s corpse; (4) Bauer has not alleged an actionable claim of fraud against North Fulton Hospital; and (5) Bauer does not have a separate cause of action against North Fulton Hospital pursuant to OCGA § 31-23-6.

The record shows that Joseph Bauer was taken to North Fulton Hospital while having a heart attack. Mr. Bauer died at the hospital, and Mrs. Bauer was asked whether she wanted to make a donation of any of Mr. Bauer’s organs, including his eyes. Mrs. Bauer declined. The parties dispute whether or not some other family members may have verbally consented. No organ donation form was signed by any of Mr. Bauer’s relatives. Nevertheless, Mr. Bauer’s corneal tissue was later removed by Georgia Eye Bank, Inc., an organ harvesting company.

More than two but less than four years later, Mrs. Bauer sued North Fulton Hospital and Georgia Eye Bank for the unauthorized removal of eye tissue from her husband’s corpse. North Fulton Hospital subsequently moved to dismiss Bauer’s claims, contending that they had been made outside the period allowed by the applicable statute of limitation for medical malpractice and personal injury actions. The trial court granted North Fulton Hospital’s motion, and Bauer appeals from this order.

1. The trial court determined that the bulk of Bauer’s claims fell under the aegis of the medical malpractice statute. See OCGA § 9-3-70. This statute, however, governs medical procedures and services offered to living patients, and it is therefore not applicable in this case, which involves no issue of medical services provided to such a patient.

In relevant part, OCGA § 9-3-70 defines an action for medical malpractice as: “any claim for damages resulting from the death of or injury to any person arising out of. . . [c]are or service rendered by any . . . private hospital ... or by any officer, agent, or employee thereof acting within the scope of his employment.” (Emphasis supplied.) On its face, this provision is inapplicable to procedures performed on a corpse. The statute clearly deals with improper care or services rendered to living patients, as it is an impossibility to kill or injure someone who is already deceased. What is involved here is injury to a corpse, not a person. Otherwise, the unauthorized invasion of a corpse would constitute a battery. Moreover, since Bauer has not asserted any medical malpractice claims, OCGA § 9-3-70 cannot govern her case.

2. The trial court also found, in the alternative, that Bauer’s claims fell within the purview of the two-year statute of limitation for personal injury actions.

Generally, actions for injuries to the person must be brought within two years after the cause of action accrues. OCGA § 9-3-33. Therefore, to the extent that any of Bauer’s claims seek redress for injuries personal to her, they would now be barred. For example, Bauer’s claim for emotional distress fits squarely within this category, and it was properly dismissed. In addition, Bauer cannot receive compensation for her own distress and injuries through any of her remaining claims, whether based on tort, property, or contract law. To hold otherwise would allow Bauer to circumvent OCGA § 9-3-33.

We do not address the viability of Bauer’s claim for emotional distress because such claim was not filed within the applicable two-year statute of limitation for personal injuries. We note that it is the public policy of this State to encourage organ donation, see, e.g., OCGA § 31-23-6. Hospitals and organ harvesting companies are statutorily protected from civil or criminal liability for the removal of eye tissue only if the removal was in accordance with the requirements of OCGA § 31-23-6 and not otherwise.

3. (a) To the extent that Bauer is suing to enforce property rights, however, her claims are subject to a four-year statute of limitation. “Actions for the recovery of personal property, or for damages for the conversion or destruction of the same, shall be brought within four years after the right of action accrues.” OCGA § 9-3-32. Therefore, Bauer’s property claims were timely filed.

The underlying question then becomes what are the parameters of Bauer’s property rights in the corpse of her husband. As Justice Lumpkin recognized:

Death is unique. It is unlike aught else in its certainty and its incidents. A corpse in some respects is the strangest thing on earth. A man who but yesterday breathed, and thought, and walked among us has passed away. Something has gone. The body is left still and cold, and is all that is visible to mortal eye of the man we knew. Around it cling love and memory. Beyond it may reach hope. It must be laid away. And the law — that rule of action which touches all human things — must touch also this thing of death. It is not surprising that the law relating to this mystery of what death leaves behind can not be precisely brought within the letter of all the rules regarding corn, lumber, and pig-iron.

Louisville &c. R. Co. v. Wilson, 123 Ga. 62, 63 (51 SE 24) (1905).

Nevertheless, in order to respect “those sentiments connected with decently disposing of the remains of the departed which furnish one ground of difference between men and brutes,” Wilson, supra at 64, this Court has consistently found that a decedent’s next of kin has a personal, quasi-property right in his or her corpse to ensure its proper handling and burial.

[I]n Pollard v. Phelps, 56 Ga. App. 408, 415 (193 SE 102, 107) (1937), the court held that “(a)t common law no property right was held to exist in a dead body; and though this view is still maintained in a strict sense, the courts of civilized and Christian countries regard respect for the dead as not only a virtue but a duty, and hold that, in the absence of testamentary disposition, a quasi property right belongs to the . . . next of kin.” See also Rivers v. Greenwood Cemetery, Inc., 194 Ga. App. 524, 525 (22 SE2d 134) (1942), wherein we held “that a dead body is quasi property over which the relatives of the deceased have rights which the courts will protect.”

Ga. Lions Eye Bank v. Lavant, 255 Ga. 60, 61 (1) (335 SE2d 127) (1985).

McCoy [v. Ga. Baptist Hosp., 167 Ga. App. 495, 497 (306 SE2d 746) (1983)] states that “(t)here exists a legal duty, enforceable by the next of kin, which requires that a party contractually obligated to handle a corpse, do so nonneg-ligently and with utmost dignity.” . . . [U]nder such cases, the next of kin must be known and have asserted some proprietary interest in the corpse, and the defendant must have had a reasonable opportunity to comply with such expressed wishes after pronouncement of the cause of death, autopsy, postmortem investigation, or embalming.

Wages v. Amisub of Ga., 235 Ga. App. 156, 158 (508 SE2d 783) (1998).

The quasi-property right in a corpse is not pecuniary in nature, nor should it be. The right encompasses only the power to ensure that the corpse is orderly handled and laid to rest, nothing more. One need only imagine the absurd and morbid process of determining the replacement value of body parts to understand the wisdom behind this rule. While it may be true that our laws must govern the funeral procession of a corpse, it will not impose a pecuniary value on the flesh itself. To do so would make the strangest thing on earth that much stranger.

As Professor Prosser has stated:

In most [cases involving the mishandling of dead bodies], the courts have talked of a somewhat dubious “property right” to the body, usually in the next of kin, which did not exist while the decedent was living, cannot be conveyed, can be used only for the one purpose of burial, and not only has no pecuniary value but is a source of liability for funeral expenses. It seems reasonably obvious that such “property” is something evolved out of thin air to meet the occasion, and that it is in reality the personal feelings of the survivors which are being protected, under a fiction likely to deceive no one but a lawyer.

Prosser, The Law of Torts, 58-59 (4th ed. 1971).

With this in mind, we analyze the type of damages which can be recovered pursuant to Bauer’s property claims of conversion and improper bailment of her husband’s corpse and body parts. Generally, “[flor personalty unlawfully detained, the plaintiff may recover a sum in the amount of the highest value which he is able to prove existed between the time of the conversion and the trial.” OCGA § 44-12-152. Bauer, however, has no pecuniary interest in her husband’s corpse, and, accordingly, Mr. Bauer’s corneal tissue is not subject to valuation in this context. Therefore, Mrs. Bauer’s claim for conversion cannot be maintained. Moreover, even if we were to accept Bauer’s argument that North Fulton Hospital was a bailee for hire with regard to her husband’s corpse, which she also contends, her recourse generally remains limited to reimbursement for the dimin-ishment in value to her property. Mayor &c. of Columbus v. Howard, 6 Ga. 213 (1848). Again, Mr. Bauer’s body parts are not subject to such valuation, and Mrs. Bauer’s bailment claim must fail, for if no damages are recoverable, the claims can properly be dismissed as untenable.

(b) Bauer also claims that North Fulton Hospital breached an implied contract to appropriately care for Mr. Bauer both before and after his death. Implied contracts are subject to a four-year statute of limitation, OCGA § 9-3-26, and to the extent that Bauer argues the breach of such a contract, her claims were timely. This does not mean, however, that her claims are automatically enforceable, even assuming that such a contract actually existed.

Again, we focus on the type of damages Bauer may recover in this instance. “Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.” OCGA § 13-6-2.

Damages growing out of a breach of contract . . . must be such as could be traced solely to breach, be capable of exact computation, must have arisen according to the usual course of things, and be such as the parties contemplated as a probable result of such breach. The measure of damages in the case of a breach of contract is the amount which will compensate the injured person for the loss which a fulfillment of the contract would have prevented or the breach of it entailed. In other words, the person injured is, so far as it is possible to do so by a monetary award, to be placed in the position he would have been in had the contract been performed.

(Citation and punctuation omitted.) Crawford & Assoc. v. Groves-Keen, Inc., 127 Ga. App. 646, 650 (194 SE2d 499) (1972).

Even if Mr. Bauer’s corneal tissue held pecuniary value, Mrs. Bauer could not sue for its recovery on the basis of contract. OCGA § 31-23-9 makes it a misdemeanor to sell eye tissue for remuneration, making any contract for the sale of eye tissue illegal. If, therefore, Mrs. Bauer were allowed to receive remuneration for the value of Mr. Bauer’s eye tissue pursuant to her alleged contract, this Court would have to enforce an illegal arrangement. That we cannot do.

Because Bauer’s claims for mental pain and suffering are not pecuniary damages, they cannot be recovered pursuant to her contract claims. Other losses, however, may be recoverable to the extent that Bauer can prove damages relating to the burial and preparation for burial. For example, in Louisville, supra, a company was hired to transport a corpse, in its coffin, between cities. At its destination, the coffin was allowed to sit on an open railroad platform in the rain for several hours. The next of kin sued the transportation company for negligence, and our Supreme Court, while not making any decision regarding the recovery of damages, implied that the next of kin might recover for “actual pecuniary damage to the coffin and shroud, and of injury to the body.” Id. at 71.

In this case, therefore, Bauer might recover damages relating to any extra cost paid to the mortuary which flows directly from the removal of Mr. Bauer’s eyes. Such damages might, for example, include any additional charge to prepare a corpse with its eyes removed for burial, or costs related to any delay in funeral proceedings resulting from such additional preparation, or other such limited damages. We must reverse this case based upon the trial court’s erroneous application of the two-year medical malpractice statute of limitation. Bauer is entitled to present evidence of her claim as herein provided, and we remand this case for further proceeding.

4. Bauer also contends that the trial court erred by dismissing her claim for fraud against North Fulton Hospital. However, even if Bauer’s complaint is accepted as true, no actionable fraud has been alleged. Nothing in the complaint or the record supports an inference that North Fulton Hospital knowingly attempted to defraud Bauer of her husband’s eye tissue. See OCGA § 9-11-9 (b). Therefore, the trial court did not err in dismissing her claim for fraud.

5. Finally, Bauer contends that North Fulton Hospital violated OCGA § 31-23-6 and that she has a separate cause of action thereunder subject to a 20-year statute of limitation. See OCGA § 9-3-22. We disagree.

OCGA § 31-23-6 sets out the procedure eye banks must follow in harvesting eye tissue for donation and transplantation. OCGA § 31-23-6 (a) (2) provides:

No physician, coroner, medical examiner, hospital, or funeral director authorizing removal of eye tissue nor any eye bank or its personnel requesting or participating in such removal shall be liable or responsible in any civil or criminal action for the removal or subsequent transplant of the tissue, provided that its removal was in accordance with the requirements of this subsection.

Bauer argues that this section, by referring to civil or criminal liability, recognizes the existence of a separate unique cause of action for removal of eye tissue. This contention is inapposite to the wording of the statute, however, which creates immunity for civil or criminal actions under other areas of the law rather than creating new civil or criminal actions of its own. Moreover, if the legislature intended for OCGA § 31-23-6 to comprise a separate cause of action for tissue removal, it would have made such intention explicit as it did in OCGA § 31-23-9. Therefore, because Bauer has no separate, unique cause of action under OCGA § 31-23-6, the trial court did not err in dismissing her claim on this ground.

Decided December 16, 1999.

Christopher D. Langley, for appellants.

Judgment affirmed in part and reversed in part and case remanded.

Eldridge and Barnes, JJ, concur fully and specially.

Eldridge, Judge,

concurring fully and specially.

While I fully concur in the well-reasoned majority opinion, I wish to elaborate on the damage issues raised in this appeal.

1. Plaintiff could have recovered damages for peace, happiness, and feelings under OCGA § 51-12-6 for the malicious, wilful or wanton conduct of the defendants in tortiously desecrating her husband’s body; however, the majority correctly holds that such personal injury damages are barred by the two-year statute of limitation. See Blanchard v. Westview Cemetery, 228 Ga. 461 (186 SE2d 92) (1971); see also Moody v. Dykes, 269 Ga. 217, 219 (2) (496 SE2d 907) (1998); Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992).

2. Whether in contract or tort involving property rights, if there exists either a breach of contract or tortious wrong and no other damages can be proven, then nominal damages would be recoverable where there has been some invasion of such property right that cannot be shown as a special damage. Weimer v. Cauble, 214 Ga. 634, 636-637 (106 SE2d 781) (1959); Williams v. Harris, 207 Ga. 576, 579 (2) (63 SE2d 386) (1951); Flanders v. Hill Aircraft &c. Corp., 137 Ga. App. 286, 289 (223 SE2d 482) (1976). When special damages have failed of specific proof, nominal damages can be recovered. Miller &c. Assoc. v. Diedrich, 174 Ga. App. 249, 254 (3) (329 SE2d 918) (1985), rev’d on other grounds, 254 Ga. 734 (334 SE2d 308) (1985).

3. Where nominal damages have been recovered for a tortious wrong that has aggravating factors, punitive damages may also be recovered. OCGA § 51-12-5.1; Foster v. Sikes, 202 Ga. 122, 126 (42 SE2d 441) (1947); Horne’s Pest Control Co. v. Elliott, 190 Ga. App. 351, 353 (378 SE2d 734) (1989); Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 276-277 (10) (329 SE2d 900) (1985).

I am authorized to state that Judge Barnes joins in this special concurrence.

Hall, Booth, Smith & Slover, Timothy H. Bendin, Jonathan Marigliano, for appellee.


author: Blackburn, Presiding Judge.

text:
    A99A2351.
    DICKSON v. THE STATE.
    (527 SE2d 246)
   Blackburn, Presiding Judge.

Leslie Dickson appeals his convictions, following a bench trial, of violating the Georgia Controlled Substances Act and obstructing a police officer. Dickson contends that the trial court erred in denying his motion to suppress claiming that the arresting officer had no authority to conduct a pat-down of his person. Because the trial court’s determination that the arresting officer’s pat-down was reasonably justified is not clearly erroneous, we affirm.

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.
Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citations and punctuation omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

So viewing the evidence, it reveals that DeKalb Police Officer Walker, while on routine patrol around 2:29 a.m., saw Dickson passing a large plastic bag between two vehicles parked beside each other at a strip mall. Officer Walker testified that he had arrested several individuals in that parking lot for drug activity, and he suspected criminal activity due to the location, the time of night, and his observations regarding the plastic bag.

After witnessing the transaction, Officer Walker got out of his car and approached Dickson, who became startled and would not respond when asked what was happening. For safety purposes, Officer Walker then frisked Dickson and felt an unknown object in Dickson’s front pocket which he believed was a pocket knife. The item turned out to be a Crown Royal bag stuffed with tin foil. The substances in the tin foil tested positive for cocaine. “[A] police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.” (Punctuation omitted.) Welborn v. State, 232 Ga. App. 837, 839 (2) (503 SE2d 85) (1998).

A police officer may make such stop if the officer has “a reasonable, articulable suspicion” that the person stopped has been, is, or is about to be, engaged in criminal activity. Davis v. State, 225 Ga. App. 627, 628 (2) (484 SE2d 655) (1997). “ (A) founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. (Cit.)’ (Cit.)” State v. McFarland, 201 Ga. App. 495, 496 (411 SE2d 314) (1991). “(A) reasonable search for weapons for the protection of the police officer( ) (is permitted) where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” (Cit.) Smith v. State, 139 Ga. App. 129, 131 (2) (227 SE2d 911) (1976).

Richardson v. State, 239 Ga. App. 345, 346 (521 SE2d 239) (1999).

Under the totality of the circumstances faced by Officer Walker, a reasonably prudent person would be warranted in believing it necessary to conduct a pat-down of Dickson. Dickson was in an area known for drug activity, in the middle of the night, standing between two cars containing other individuals, passing a large plastic bag between the cars, acting startled at the approach of the officer and failing to respond to his inquiry.

Contrary to Dickson’s contentions, State v. King, 227 Ga. App. 466 (489 SE2d 361) (1997) does not change this result. The issue there was the trial court’s grant of the defendant’s motion to suppress. Therefore, the burden on appeal favored the trial court’s suppression. But here, it favors the trial court’s denial of suppression. Additionally the arresting officer in King did not observe any suspicious actions. The defendant had merely been standing outside late at night with another individual in an area known for drugs. Id. at 466-467.

Decided December 16, 1999.

William C. Puckett, Jr., for appellant.

J. Tom Morgan, District Attorney, Sheila A. Connors, Robert M. Coker, Assistant District Attorneys, for appellee.

The trial court’s findings as to the motion to suppress were supported by the record, not clearly erroneous, and, therefore, must be accepted on appeal as correct. See Bryan v. State, 197 Ga. App. 207, 208 (398 SE2d 230) (1990).

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

       The officer’s search of the Crown Royal bag has not been challenged on appeal.


text:
    A99A2415.
    ROLLING PIN KITCHEN EMPORIUM, INC. et al. v. KAAS.
    (527 SE2d 248)
   Smith, Judge.

Rolling Pin Kitchen Emporium, Inc. and Aropi, Inc. appeal from the trial court’s grant of judgment on the pleadings to Glenn D. Kaas in the suit brought by Kaas to recover debts arising from the purchase of the business in which Kaas was the sole shareholder and chief executive officer. We find that the trial court correctly entered judgment on the pleadings in favor of Kaas, and we affirm the judgment.

The record shows that in their answers, Rolling Pin and Aropi admitted all allegations of Kaas’s complaint essential to his recovery, except that they denied the allegations in Count 6, which sought attorney fees and expenses because of bad faith and stubborn litigiousness. The defendants also asserted the affirmative defense of estoppel, alleging that Kaas’s “complaint may be barred by the doctrine of estoppel based on subordination agreements between plaintiff and third parties.”

When negotiations between the parties failed, Kaas filed an emergency motion for judgment on the pleadings and an expedited hearing. In his motion, Kaas waived recovery under Count 6. After considering the arguments of counsel, the trial court dismissed Count 6, which Kaas had waived, and granted Kaas’s motion for judgment on the pleadings.

1. Kaas’s motion to dismiss the appeal for mootness is denied.

2. Rolling Pin and Aropi contend on appeal that the trial court erred in granting judgment on the pleadings because they had asserted an affirmative defense. We find no merit in this contention. In deciding a motion for judgment on the pleadings, the issue is whether the undisputed facts appearing from the pleadings entitle the movant to judgment as a matter of law. Bishop v. Westminster Schools, 196 Ga. App. 891, 892 (1) (397 SE2d 143) (1990). In deciding whether the movant is entitled to judgment as a matter of law, “all well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all. allegations of the moving party which have been denied are taken as false.” (Citation and punctuation omitted.) Morgan v. Wachovia Bank, 237 Ga. App. 257, 258 (2) (514 SE2d 239) (1999). But this applies .to factual allegations. The trial court “need not adopt a party’s' legal conclusions based on these facts. OCGA § 9-11-12 (c). [Cit.]” Lewis v. Turner Broadcasting System, 232 Ga. App. 831, 832 (2) (503 SE2d 81) (1998). The trial court therefore was required to accept as true the factual allegation that Kaas had subordinated his claims to those of other creditors. But the trial court was not required to accept the defendants’ legal conclusion that these subordination agreements barred Kaas’s complaint.

Decided December 16, 1999.

Womble, Carlyle, Sandridge & Rice, Everett W. Gee III, Carl L. Meyer, for appellants.

Nelson, Mullins, Riley & Scarborough, Shawn A. Kachmar, Arnall, Golden & Gregory, Charles T. Huddleston, for appellee.

And indeed, that legal conclusion is erroneous. Subordination agreements pertain to the collection or execution of judgments. Even when a claim is subordinated to the claims of others, such a subordination agreement is simply immaterial to the issue of whether that claim may be pursued and reduced to judgment. See generally Commercial Mtg. &c. Corp. v. North American Investors, 111 Ga. App. 355-356 (1) (141 SE2d 768) (1965). Because the existence of subordination agreements did not affect Kaas’s right to recover and Rolling Pin and Aropi admitted all the essential elements of Kaas’s complaint, the trial court correctly entered judgment on the pleadings in favor of Kaas.

Judgment affirmed.

Pope, P. J, and Miller, J., concur.


author: Phipps, Judge.

text:
    A99A2438.
    VEDDER v. THE STATE.
    (527 SE2d 249)
   Phipps, Judge.

Ronald S. Vedder was charged with speeding in Duluth Municipal Court. Vedder’s case was transferred to Gwinnett County State Court because Vedder filed a demand for speedy trial by jury in the municipal court, which does not conduct jury trials. He did not file a demand for speedy trial in the state court. In the state court, Vedder made two motions for discharge and acquittal on the ground of noncompliance with the speedy trial demand he had filed in the municipal court. Both motions were denied, and, ultimately, the State was allowed to nolle prosse the case. Vedder opposed the nolle prosse because the State would retain authority to prosecute the charge. He appeals the denials of his motions for discharge and acquittal and the grant of the nolle prosse. Because Vedder’s demand for trial was not effective, we affirm the denial of Vedder’s motions and the grant of the nolle prosse.

Decided December 16, 1999.

Ronald S. Vedder, pro se.

Gerald N. Blaney, Jr., Solicitor, Jeffrey P. Kwiatkowski, Emilien O. Loiselle, Jr., Assistant Solicitors, for appellee.

A demand for speedy trial filed in a municipal court, which is not a court of record having both regular terms and the authority to impanel juries, is ineffective, and if the case is transferred to State Court even without a request from the defendant, the only valid demand for speedy trial is that which has been filed anew in the transferee State Court. [Cit.]

The Duluth City Court does not impanel juries or hold jury trials. Because Vedder did not file a demand for speedy trial in the state court, he did not file an effective demand for speedy trial.

“ ‘When a recommendation is made that an [accusation] be nol-prossed, it is within the discretion of the trial court whether to follow the recommendation. (Cit.)’ [Cit.]” Because Vedder had not filed an effective demand for speedy trial, the trial court did not abuse its discretion in allowing the State to enter a nolle prosse.

Judgment affirmed.

Johnson, C. J., and McMurray, P. J., concur.

        Harp v. State, 204 Ga. App. 527, 528 (2) (420 SE2d 6) (1992).

        Adams v. State, 189 Ga. App. 345, 346 (2) (375 SE2d 642) (1988).

        Wilcox v. State, 236 Ga. App. 235, 238 (3) (511 SE2d 597) (1999).


author: Barnes, Judge.

text:
    A99A0912.
    GILL v. POE & BROWN OF GEORGIA, INC.
    (524 SE2d 328)
   Barnes, Judge.

Poe & Brown of Georgia, Inc. (“Poe & Brown”) sued Bobby Gregg Gill for an injunction and damages, claiming that Gill violated a non-solicitation agreement. Poe & Brown moved for partial summary judgment in its favor on the issue of whether the non-solicitation agreement was enforceable; Gill opposed the motion and also moved for summary judgment in his favor. The trial court granted Poe & Brown’s motion and denied Gill’s motion. Gill appeals, claiming the trial court erred because it (1) implicitly found that the non-solicitation agreement could be assigned to Poe & Brown without his consent, and (2) concluded that the non-solicitation agreement was reasonable and enforceable as a matter of law. Because we find the non-solicitation agreement was an unreasonable partial restraint of trade, we reverse.

On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998). Viewed in this light, the record shows that Poe & Brown purchased all of the assets of B & R International, Inc. (B & R) relating to its insurance brokerage business on April 17, 1996. B&R employed Gill as an insurance salesman and broker from 1985 through April 16, 1996, the day before the sale of its insurance business to Poe & Brown. This lawsuit relates to a non-solicitation agreement signed by Gill on March 2, 1992, during his employment with B&R.

The “Employee Confidentiality and Non-Solicitation Agreement” signed by Gill included the following relevant provisions:

THIS AGREEMENT is made and entered into as of the 2nd day of March 1992, by and between B&R INTERNATIONAL, INC., a Georgia corporation (the “Company”), and BOBBY GREGG GILL (“Employee”).
WHEREAS, Employee has agreed to execute and deliver this Agreement pursuant to Section 1 (c) of the Stock Purchase Agreement and as part of the consideration for the obligations of the Company under the Stock Purchase Agreement;
NOW, THEREFORE, for and in consideration of the continued employment of Employee by the Company, the obligations of the Company under the Stock Purchase Agreement, and other good and valuable consideration, the sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement the following terms shall have the meanings specified below: . . .
(c) “Employee’s Customers” — Those Customers listed on Schedule 1 to this Agreement, as amended from time to time, which is attached and made a part of this Agreement by reference, which are the Customers for whom Employee has been the principal contact, has supervised the principal contact, or to whom the Employee has sold or brokered insurance or whose insurance business Employee has actively solicited. As the Company acquires new Customers from time to time for whom Employee is the principal contact, supervises the principal contact, or to whom Employee sells insurance or whose insurance business Employee actively solicits on behalf of the Company, from time to time Employee will be asked to sign and agrees to sign an amendment to Schedule 1 adding such new Customers to Schedule 1.
(d) “Employee Territory” — The entire geographic area within the United States of America. The parties acknowledge that (i) Employee’s Customers are and will be located throughout the United States of America, and (ii) the “Employee Territory” is defined in the foregoing manner for the purpose of complying with the requirement that all non-competition covenants, in order to be enforceable under the laws of the State of Georgia, must, among other things, contain a territorial limitation.
2. Covenants of Employee . . .
(c) Covenant Against Solicitation. . . . Employee agrees that, for a period commencing on the date of this Agreement and continuing in effect for 18 months after the termination of Employee’s employment with the Company, he will not, directly or indirectly, individually or on behalf of any Person other than the Company:
(i) solicit any of Employee’s Customers located within the Employee Territory for the purpose of selling or brokering commercial property and casualty lines of insurance, including, without limitation, life insurance and employee benefits. . . .

When Poe & Brown purchased B & R’s insurance brokerage business, all non-solicitation agreements and covenants not to compete signed by B & R employees were assigned to Poe & Brown, including the one signed by Gill. It is undisputed that Gill did not consent to this assignment and that the non-solicitation agreement itself neither authorizes nor prohibits unilateral assignment of the agreement by B & R to a third party.

1. We find no merit in Gill’s claim that the non-solicitation agreement could not be assigned without his consent. See Swanson v. Kirby, 98 Ga. 586, 594 (2) (26 SE 71) (1896); U3S Corp. of America v. Parker, 202 Ga. App. 374, 375-376 (2) (a) (414 SE2d 513) (1991).

2. Gill asserts the non-solicitation agreement is unenforceable because it was unreasonable and overbroad. We must uphold a restrictive covenant in an employment contract “if the restraint imposed is not unreasonable, is founded on a valuable consideration, and is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public.” W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992). To determine the reasonableness of restrictive covenants, “the courts have established a three-element test of duration, territorial coverage, and scope of prohibited activity.” Reardigan v. Shaw Indus., 238 Ga. App. 142, 143 (1) (518 SE2d 144) (1999).

In W. R. Grace, supra, the Supreme Court recognized that

[requiring an express geographic territorial description in all cases is not in keeping with the reality of the modern business world in which an employee’s territory knows no geographic bounds, as the technology of today permits an employee to service clients located throughout the country and the world.

Id. at 467. It then held that when the parameters of a restrictive covenant were

as narrow as those set forth in the certified question, i.e., where the former employee is prohibited from post-employment solicitation of employer customers which the employee contacted during his tenure with the employer, there is no need for a territorial restriction expressed in geographic terms.

(Footnote omitted.) Id. at 467-468.

Gill argues the covenant he signed does not fall within the scope of the Supreme Court’s holding in W. R. Grace because it applies to customers who may have ended their relationship with his employer more than two years before his termination. We agree. The covenant at issue in W. R. Grace restricted the employee from soliciting customers contacted by the employee during the two-year period immediately before the conclusion of the employee’s employment.

In this case, the covenant applies to customers on a list created over four years before Gill was terminated. Although the covenant provided that the list of Gill’s customers could be amended, it is undisputed that this was never done. The fact that Gill’s employer had already lost the business of some of the customers on this list at the time of Gill’s termination illustrates the problems created by a covenant that forbids an employee from soliciting a stagnant list of customers. Gill’s employer had no legitimate business interest in preventing Gill’s solicitation of former clients who may have severed their relationship with it up to four years before Gill’s termination. As a result, the trial court erred when it found the covenant “was reasonable and enforceable” and granted Poe & Brown’s motion for partial summary judgment on the issue of liability. See Smith Adcock & Co. v. Rosenbohm, 238 Ga. App. 281, 284-285 (518 SE2d 708) (1999) (finding similar covenant, applying to all “former company clients,” was “an unreasonable partial restraint of trade”). For these reasons, the trial court also erred when it denied Gill’s motion for summary judgment, and it is hereby directed to enter summary judgment in Gill’s favor.

Decided November 3, 1999

Reconsideration denied December 17, 1999

Goodman & Associates, Norman L. Smith, for appellant.

Porter & Barrett, J. Alexander Porter, Simuel E Doster, Jr., for appellee.

Judgment reversed with direction.

Blackburn, P. J., and Ellington, J., concur.


author: Eldridge, Judge. Andrews, Presiding Judge,

text:
    A99A1033.
    VAL D’AOSTA COMPANY v. CROSS et al.
    (526 SE2d 580)
   Eldridge, Judge.

This case is a premises liability action, involving a user with disabilities in a wheelchair. The issue presented is whether mere prior use by the disabled person gives her equal knowledge to the owner/ occupier of a specific static defect that the regulations and guidelines prohibit as dangerous, when the owner/occupier is under a continuing statutory mandate to provide a safe handicap access ramp, defect-free and compliant with detailed regulations and guidelines to protect the disabled in use of the ramp, and when, in fact, the ramp is non-compliant, creating a static dangerous defect specifically prohibited by the regulations. We find that the owner/occupier has superior knowledge under such facts and circumstances.

Plaintiff Roberta Cross, who is confined to a wheelchair by arthritis, stayed at a motel owned and operated by Val D’Aosta Company. To gain access to her room, Cross had to use one of two disability access ramps, and the ramp nearest her room had a leading edge without beveling where it met the parking lot surface and had a difference in levels between the ramp and the surrounding parking lot that was greater than one-quartér inch, creating a ramp lip. Such conditions constituted non-compliance with the American National Standards Institute (“ANSI”) standards, as testified to by plaintiffs’ architect-expert witness by affidavit. This ramp was ascended and descended several times by Cross in her wheelchair with assistance from relatives during her stay without a problem. On return to her room, while being pushed by a relative, the front wheels of the wheelchair caught on the ramp lip for the first time, turning the front wheels so that they stopped moving forward and throwing Cross out of the wheelchair and injuring her. The specific guidelines and regulations prohibited the small lip between the ramp and the walk to prevent this very risk of just such occurrence.

Val D’Aosta Company contends that the trial court erred in denying its motion for summary judgment. We do not agree.

As a matter of law, Val D’Aosta Company, as owner of a place of public accommodation and a public building, had knowledge of the condition of the disabled access ramp that was superior to the knowledge of the plaintiff, as a person with disabilities who had merely used the ramp previously. This is because OCGA § 30-3-8, with criminal sanctions for non-compliance, mandated compliance with any regulation promulgated under OCGA § 30-3-1 et seq. by the owner/ occupier and required specific knowledge of the condition of the ramp and its compliance or non-compliance by the owner/occupier. ANSI specifications A117.1-1986 and the Americans With Disabilities Act Accessibility Guidelines for Buildings & Facilities constitute the regulations with which the public building owner/occupier must comply to avoid criminal sanctions and know for the protection of the elderly and persons with disabilities. As owner/occupier of this motel, Val D’Aosta Company had such superior knowledge through its employees, because the mandate applied to “[a]ny person, firm, or corporation who violates this chapter.” OCGA § 30-3-8. Clearly, a jury issue arises that Cross came within the definition of a person with disabilities, being wheelchair-confined by her musculo-skeletal condition.

Under the first of the two prongs of Alterman Foods v. Ligon, 246 Ga. 620, 622-623 (272 SE2d 327) (1980), the owner/occupier must have superior knowledge of the static condition on the premises that is alleged to create a dangerous defect as well as be negligent in creating or maintaining such condition. As to the superior knowledge aspect of this first prong, the statutes and regulations satisfy such requirement by mandating such knowledge in the owner/occupier as set forth in the guidelines and regulations. See Davis v. GBR Properties, 233 Ga. App. 550, 553-554 (1) (504 SE2d 204) (1998) (Eldridge, J., concurring specially); Flournoy v. Hosp. Auth. of Houston County, 232 Ga. App. 791, 794 (504 SE2d 198) (1998) (Eldridge, J., concurring specially). Thus, the owner had superior knowledge over a disabled person’s prior use.

To recover, the plaintiff must show at trial that the statutes and regulations were intended to protect the class of persons from certain risk of injury and that she came within the ambit of the act, protecting her from the prohibited acts or omissions of the defendant. See Walter v. Orkin Exterminating Co., 192 Ga. App. 621, 624 (3) (385 SE2d 725) (1989). The facts and circumstances of this case create a factual issue as to the existence of negligence per se, because a jury must determine whether a violation of the statutes and regulations occurred and whether such violation constituted the proximate cause or a concurrent proximate cause of any injury and damages. See Keith v. Beard, 219 Ga. App. 190, 192 (1) (464 SE2d 633) (1995). “To prevail on a negligence per se claim, a causal relation between the violation of the statutory duty and the injuries sustained thereby must be shown. [Cit.]” Walter v. Orkin Exterminating Co., supra at 624. See also Central Anesthesia Assoc. v. Worthy, 254 Ga. 728, 730 (1) (333 SE2d 829) (1985). As to the second prong of Alterman Foods, under the facts of this case, Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997), such holding directs that a jury issue exists as to the exercise of ordinary care for her own safety by the plaintiff under the circumstances, getting the case past the motion for summary judgment. See Flournoy v. Hosp. Auth. of Houston County, supra at 792-793; see also Davis v. GBR Properties, supra at 552-553. Thus, the trial court properly denied the motion for summary judgment.

Judgment affirmed.

Johnson, C. J., McMurray, P. J., and Smith, J., concur. Andrews, P. J., Pope, P. J., and Ruffin, J., dissent.

Andrews, Presiding Judge,

dissenting.

Because the majority has based its decision on a theory which was not argued below and is not supported by binding legal authority in this State, I must dissent.

The complaint alleged negligence only in that “[t]his ramp did not run flush with the level ground, and as such, was negligently constructed and maintained” and that this negligence caused Cross’ wheelchair to turn over while she was accessing the ramp. There is no reference in the complaint to the Americans With Disabilities Act or OCGA Chapter 3, Title 30, Access To & Use of Public Facilities by Persons With Disabilities Act.

In architect Yielding’s affidavit in opposition to the motion for summary judgment, he opined only that the ramp was not in compliance with the applicable American National Standards Institute provisions because the leading edge of the ramp was not beveled and the difference in levels between the ramp and the surrounding parking lot was greater than one-quarter inch. There is no reference in that affidavit to the ADA and its requirements or the Georgia Act.

The only reference in the record to the ADA was during the deposition of the motel’s general manager when he was asked his familiarity with the ADA. There is nothing in the pleadings that would put defendant on notice that Cross was relying on the ADA; there is no admissible evidence in the record regarding the specific provision or provisions of the ADA or federal regulations supposedly being relied upon; and there was no request that the court take judicial notice of any of these provisions. See Graves v. State, 269 Ga. 772, 774 (2) (504 SE2d 679) (1998); Central of Ga. R. Co. v. Gwynes, 153 Ga. 606, 607 (113 SE 183) (1922); P.G.L. & C.C. Employees Credit Union v. Kimball, 221 Ga. App. 108 (470 SE2d 501) (1996).

Even overlooking these deficiencies, there is no indication in either the federal ADA or Georgia’s statute that provides a private cause of action. See Smith v. Wal-Mart Stores, 167 F3d 286 (6th Cir. 1999). As pointed out in Smith, there is no damages remedy for violation of Title III of the ADA. The enforcement statute is 42 USCA § 12188 which incorporates the remedies of 42 USCA § 2000a-3. That section does not include money damages.

While the Sixth Circuit opines in Smith that the Supreme Court of Georgia would conclude that Smith had a private cause of action against Wal-Mart under Georgia law for its.failure to implement ADA-mandated requirements designed for the protection of disabled persons, such a conclusion is not binding on Georgia courts, Russell v. Parkford Mgmt. Co., 235 Ga. App. 81 (508 SE2d 454) (1998), and there is no Georgia authority recognizing such a private cause of action.

Even assuming the existence of such a private cause of action, however, a violation of the ADA would amount only to negligence per se.

Negligence per se is not liability per se. Negligence, it should be remembered, is in itself only one of the essential elements prerequisite to a cause of action in a given case. Parks- Nietzold v. J. C. Penney, 227 Ga. App. 724, 726 (2) (490 SE2d 133) (1997); see also Hannah v. Hampton Auto Parts, 234 Ga. App. [392,] 395 [506 SE2d 910) (1998)].

(Punctuation omitted.) Herrin v. Peeches Neighborhood Grill &c., 235 Ga. App. 528, 533 (2) (509 SE2d 103) (1998).

In premises liability cases, proof of a fall, without more, does not give rise to liability on the part of a proprietor. (Punctuation omitted.) Hallberg v. Flat Creek Animal Clinic, 225 Ga. App. 212, 215 (2) (483 SE2d 671) (1997). The true basis of a proprietor’s liability for personal injury to an invitee is the proprietor’s superior knowledge of a condition that may expose the invitees to an unreasonable risk of harm. (Cit.) Recovery is allowed only when the proprietor had knowledge and the invitee did not. (Cit.) Parks-Nietzold v. J. C. Penney, [supra at 726 (2)]. See also Cooper [v. Corporate Property Investors, 220 Ga. App. 889-890 (470 SE2d 689) (1996)]. . . . A claim involving a static defect differs from other slip and fall cases in that when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. (Cit.) Hallberg, supra at 215 (2). See also Spires v. Hall, 230 Ga. App. 357, 359 (1) (496 SE2d 501) (1998); Dickman v. South City Mgmt., 229 Ga. App. 289 (494 SE2d 64) (1997) (physical precedent only) (prior successful negotiation of steps precluded recovery). . . . We need not decide whether the [ramp] constituted a building code violation, because, even assuming [it] did, it would show only negligence per se. Parks-Nietzold, supra at 726.

(Punctuation omitted.) Hannah v. Hampton Auto Parts, supra at 394-395. See also Hart v. Brasstown View Estates, 234 Ga. App. 389, 390 (506 SE2d 896) (1998) (physical precedent).

In addition to the evidence cited by the majority, the record reflects that Cross had been wheelchair-bound since 1980 due to rheumatoid arthritis and other medical problems, although she had never been declared “disabled” by Social Security or any insurance company. At the time of the accident in October 1995, she was 54 years old, 5' 5" tall and weighed approximately 350 pounds. According to Cross, she was denied disability by Social Security after the accident.

Cross and her daughter Renee arrived at Comfort Inn around dusk on Monday, October 9. They had requested a wheelchair-accessible room and were registered in one near one of two handicapped-accessible ramps at the motel. Renee parked the van next to the ramp nearest their room, let down Cross’ lift on her van, and rolled her off the lift and up the ramp without difficulty.

At that time, Cross noticed that the ramp “wasn’t snug to the ground like most ramps” and “wasn’t as smooth as a ramp normally is.” That Monday, Cross used the ramp a total of three times and on Tuesday a total of four times. Wednesday, she traversed the ramp at least twice. On Thursday, another daughter and Cross’ 15-year-old grandson arrived. Cross successfully negotiated the ramp five times that day, including one trip after lunch when her grandson pushed her up the ramp without difficulty.

On Thursday evening, the group returned to the motel around 11:00 p.m. Cross deposed that the lighting was adequate, the way it had been all week. Her grandson had pushed her in the chair many times before and went to assist Cross after she exited the van. He said she had begun moving along with her feet “and I can help push her.” He said he was pushing at a normal pace and

just like at the bottom on the right-hand side, it either was a rock or crack or whatever was at the bottom of the ramp, it’s like the wheel, as it was going up, it turned. And when it turned, it stopped all movement. . . and when it stopped all movement, I kept going because I didn’t know all movement was stopped when the wheel had turned. . . . [fit’s like she just slid out. She didn’t just catapult out. She slid out of the chair.

Cross stated that “when he pushed me, the ramp didn’t accept the wheels in the — I don’t know what happened. I just know I was in the chair one minute and I was on the sidewalk another.” Asked specifically what caused her fall, Cross stated “I have no idea.”

Here, Cross acknowledges that, from the first time she negotiated the ramp on Monday, she was aware that the ramp was not level with the adjoining parking lot and was not as smooth as these ramps usually are. Therefore, her knowledge was at least equal to that of the defendants, and the equal knowledge rule precludes recovery even if she has shown that the ramp, as constructed, violated the ANSI standards thereby showing negligence per se by defendant. Mechanical Equip. Co. v. Hoose, 241 Ga. App. 412 (523 SE2d 575) (1999) (fall on crosstie steps repeatedly previously negotiated, plaintiff’s equal knowledge precluded liability); Hannah, supra; Hart, supra.

While this Court remains mindful that “the 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,” in my opinion, this is one of those cases in which the evidence is plain and palpable that the defendant is not liable and was entitled to summary judgment. Mechanical Equip. Co., supra; Hannah, supra; see also Johnson v. J. H. Harvey Co., 240 Ga. App. 265 (523 SE2d 95) (1999) (customer tripped on concrete ramp over which she had walked on at least 50 prior occasions, store entitled to summary judgment); Wright v. JDN Structured Finance, 239 Ga. App. 685 (522 SE2d 4) (1999) (customer fell over high curb to sidewalk, an open and obvious condition of which the owner had no duty to warn).

Decided December 3, 1999

Reconsideration denied December 17, 1999.

Clyatt, Clyatt & DeVaughn, Robert M. Clyatt, Sandra K. Sanders, Carl G. Fulp III, for appellant.

Hodges, Erwin, Hedrick & Coleman, David W. Orlowski, for appellees.

I am authorized to state that Presiding Judge Pope and Judge Ruffin join in this dissent.

       OCGA § 30-3-2 (1), (3); see also Americans With Disabilities Act (“ADA”), 42 USCS § 12101 et seq., Pub. L. No. 101-336, Title II, § 209 (104 Stat. 337) (1990); 36 CFR § 1191, App. A, pp. 648, 694-697 (1994); 47 FR 1393, 1396.

       OCGA § 34-6A-2 (3), (5), (7), and (8) must be construed in pari materia with OCGA § 30-3-1 et seq. to define a person with disabilities. See also 42 USCS § 12102 (2); 29 CFR § 1630.2 (h); 34 CFR § 104.3 (j) (2) (i); Torcasio v. Murray, 57 F3d 1340, 1353-1354 (4th Cir. 1995).