author: Smith, Presiding Judge.

text:
    A01A0232.
    NICHOLS et al. v. GEORGIA TELEVISION COMPANY.
    (552 SE2d 550)
   Smith, Presiding Judge.

This case arises out of a search conducted by law enforcement personnel outside the home of appellants Randall and Kathy Nichols. Appellee Georgia Television Company d/b/a Channel 2-TV (Channel 2) was present during part of the search and televised videotaped portions of the search on its news show. The trial court granted summary judgment to Channel 2 in the trespass action subsequently filed by the Nicholses and also denied the Nicholses’ motion to compel the production of alleged “raw” videotape footage. This appeal ensued. Although we find no error with regard to the trial court’s denial of the motion to compel, we disagree with the trial court’s conclusion that the trespass claim did not present an issue for jury determination. We therefore affirm in part and reverse in part.

In March 1997, a United States Magistrate issued a warrant authorizing the search of the Nicholses’ property. The affidavit submitted in support of the application for the warrant recited that the affiant had reason to believe that Randall Nichols was operating “a clandestine lab” in his chicken house in which methamphetamine was manufactured and that the drug was sold from Randall Nichols’s house.

The Forsyth County Sheriff’s Department and other law enforcement agencies executed the warrant but found no evidence of a “clandestine drug lab” or drug paraphernalia, although they did find small amounts of suspected marijuana and methamphetamine. Randall and Kathy Nichols were arrested and charged with methamphetamine possession. Randall Nichols was also charged with marijuana possession. The methamphetamine charges were later dismissed, and a jury acquitted Randall Nichols of the marijuana charge.

While the search was being conducted, but after the Nicholses were arrested, Channel 2 and other media arrived at the scene of the search warrant execution. It appears to be undisputed that Channel 2 was invited to the scene by the Sheriff of Forsyth County, Denny Hendrix, as acknowledged by the Nicholses in a complaint filed by them in federal court. While on the property, Channel 2 videotaped the search of the exterior of the property and conducted interviews of certain individuals, including Sheriff Hendrix, as well as Junior Nichols, the father of Randall Nichols. With regard to the failure to find a clandestine lab, Sheriff Hendrix stated, ‘You know, you win some, lose some. Maybe we don’t have the drug problem we thought up here; we hope not.” Channel 2 aired three broadcasts in which it reported on the execution of the search warrants.

Randall and Kathy Nichols then filed a complaint in federal district court in which they sought to hold Sheriff Hendrix, Channel 2, and other law enforcement and media defendants liable for violation of their civil rights under 42 USC § 1983 and for malicious prosecution, false arrest, defamation, and trespass. The district court dismissed the § 1983 claims against the media defendants and declined to exercise jurisdiction over the remaining state law claims.

After the dismissal of their claims against the media defendants in federal court, the Nicholses filed a “complaint for trespass” against Channel 2. The trial court granted summary judgment to Channel 2. Randall and Kathy Nichols appeal from this ruling as well as the trial court’s order denying their motion to compel.

1. We first address the Nicholses’ contention that summary judgment was improperly granted to Channel 2 on their trespass claim. In deciding this issue, we must be guided by the basic principle that summary judgment is warranted in cases only when the evidence, or the inference to be drawn from the evidence, plainly shows that a party is entitled to judgment as a matter of law. See generally Lynch v. Waters, 256 Ga. 389, 390-391 (349 SE2d 456) (1986); Marsden v. Southeastern Sash &c. Co., 193 Ga. App. 597, 599 (2) (388 SE2d 730) (1989) (full concurrence as to Division 2).

In this State, all citizens enjoy an absolute right of enjoyment of their property, and “every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie.” OCGA § 51-9-1. Channel 2 argues that its actions were lawful. It maintains that because the Sheriff invited the television crew to the scene of the search, its entry onto the property and filming of the search constituted an “innocent trespass.” Georgia law indeed recognizes the doctrine of the innocent trespasser, which protects individuals who enter the land of another under the mistaken belief that it is permissible to do so. See, e.g., Klingshirn v. McNeal, 239 Ga. App. 112 (520 SE2d 761) (1999); Young v. Faulkner, 228 Ga. App. 587, 588 (492 SE2d 331) (1997). But “whether the trespass was wilfully or innocently done is generally for the jury to determine.” (Citations and punctuation omitted.) Id.

Here, the Sheriff had the legal right to enter the Nicholses’ property to execute the warrant issued by the federal magistrate. While Channel 2 argues that it believed the Sheriff had the authority to invite its news crew onto the property, the reasonableness of this belief is not so plainly clear that it can be adjudicated on motion for summary judgment. The trial court therefore erred in granting Channel 2’s motion.

We note Channel 2’s contention that it was never asked to leave the property. But the Nicholses had been taken to jail when the crew arrived. Their failure to ask the crew to leave is therefore irrelevant. And while Randall Nichols’s father granted an interview and did not ask Channel 2 to leave the property, these facts are not controlling in the absence of evidence that Channel 2 reasonably believed the father had a possessory interest in the property. This case is distinguished from Groves v. City of Atlanta, 213 Ga. App. 455 (444 SE2d 809) (1994), cited by Channel 2. In Groves, we affirmed the grant of summary judgment to a contractor who cleared certain lots owned by several individuals. But in that case, the contractor acted at the direction of the city and under the mistaken belief that property was owned by the city. Nothing in this record suggests that Channel 2 believed the property on which it trespassed was owned by anyone other than Randall and Kathy Nichols.

In addition, we address here Channel 2’s contention that this action is an improper attempt “to transform a time-barred publication tort claim into a trespass claim.” We are not persuaded by this characterization of the Nicholses’ action.

A complaint for libel may indeed have been barred by the applicable statute of limitation, but this does not change the fact that the Nicholses have at least alleged and presented some evidence of a trespass — an unlawful entry onto their property. Also, we have held that a tort against property may support a claim for wounded feelings if a defendant has acted in a wilful manner. See Brunswick Gas &c. Co. v. Parrish, 179 Ga. App. 495, 497 (3) (347 SE2d 240) (1986). The test for awarding damages for a claim such as this is essentially the same as the test for recovery of punitive damages. Westview Cemetery v. Blanchard, 234 Ga. 540, 545 (B) (216 SE2d 776) (1975). The plaintiff must prove that the defendant acted under circumstances that show “an entire want of care and a conscious indifference to the consequences.” (Citations and punctuation omitted.) Artzner v. A & A Exterminators, 242 Ga. App. 766, 772 (3) (531 SE2d 200) (2000). If a jury believed that Channel 2 was not authorized to enter the Nicholses’ property, it might also conclude that Channel 2 acted with a conscious indifference to the consequences of its trespass. Finally, we note that Channel 2 cites cases from foreign jurisdictions in support of its contention that this case represents an improper attempt to recover damages for publication tort claims. These cases, of course, are not binding on this court. While Channel 2 additionally relies on a United States Supreme Court case for this proposition, Hustler Magazine v. Falwell, 485 U. S. 46 (108 SC 876, 99 LE2d 41) (1988), the facts of Hustler Magazine are clearly distinguished from those here and have no bearing on our analysis.

Decided July 16, 2001

Reconsideration denied July 30, 2001

Clifford H. Hardwick, for appellants.

2. We find no merit in the Nicholses’ argument that the trial court erred in denying their motion to compel “raw” video footage taken by Channel 2. During discovery, the Nicholses sought “[c]opies of all . . . video tapes taken by Defendant’s agents concerning the raid.” Channel 2 responded, stating that there were “no documents responsive to this request, except for the videotape of the WSB-TV broadcasts.” Channel 2 also noted in the response that it had previously agreed to make the videotape available to the Nicholses and their counsel for viewing at any reasonable time and continued to extend this offer. The Nicholses filed a motion to compel, alleging that Channel 2 had failed to produce the film requested by them. The trial court concluded that no foundation existed for the motion. We agree.

Channel 2 responded to the discovery request by stating that the only videotape in its possession was a copy of the broadcasts and gave the Nicholses the opportunity to purchase a copy or to visit its studio and view the videotape. Through a letter to the Nicholses’ attorney from its attorney, Channel 2 offered to provide copies of the broadcasts to the Nicholses for its standard fee for producing copies of its broadcasts of $100 for each broadcast day. Because the broadcasts spanned two days, the charge was $200. The Nicholses failed to take advantage of any of these offers. Notably, as stated by the trial court in its order denying the motion to compel, it appears that the Nicholses did not even “make the effort to view the tape filed with the Court” with Channel 2’s summary judgment motion. Trial courts enjoy a broad discretion in dealing with matters of discovery. See, e.g., Perimeter Realty v. GAPI, Inc., 243 Ga. App. 584, 594 (7) (533 SE2d 136) (2000). The Nicholses and their attorney had ample opportunity to view the video footage that Channel 2 had in its possession and failed to do so. The trial court did not abuse its discretion in denying their motion to compel and for sanctions.

Judgment affirmed in part and reversed in part.

Barnes and Phipps, JJ, concur.

Dow, Lohnes & Albertson, Peter C. Canfield, Sean R. Smith, for appellee.

       That case does not address the issue of whether damages can be recovered for wounded feelings arising out of a trespass to property but instead discusses whether a public figure can recover damages for emotional harm caused by the publication of an ad parody offensive to him and others. Id. at 880. The Supreme Court’s discussion extensively focuses on the importance of public debate and opinions concerning public figures. The Court held in that case that public figures cannot recover for intentional infliction of emotional distress in circumstances such as those presented there unless the publication contains a false statement of fact understood as such and made with actual malice. Id. at 882.


source: Caselaw Access Project

author: Ellington, Judge.

license: Public Domain

text:
    A01A0834.
    KELLY v. THE STATE.
    (553 SE2d 175)
   Ellington, Judge.

Walter Lee Kelly was convicted by an Emanuel County jury of burglary, OCGA § 16-7-1. Kelly appeals from the denial of his motion for new trial, contending the trial court erred in admitting statements he made to the county sheriff while in custody. Finding no error, we affirm.

In ruling on the admissibility of an in-custody statement, a trial court must determine whether, based upon the totality of the circumstances, a preponderance of the evidence demonstrates that the statement was made freely and voluntarily. Reinhardt v. State, 263 Ga. 113, 115 (3) (b) (428 SE2d 333) (1993). Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of the defendant’s statement at a Jackson-Denno hearing will be upheld on appeal. Vansant v. State, 264 Ga. 319, 320 (443 SE2d 474) (1994).

After Kelly was arrested, he gave a custodial statement denying participation in the burglary. He does not contest that this first statement was freely and voluntarily made, that the sheriff read him his Miranda warnings, and that he signed a waiver of rights form. A few days later, after Kelly’s accomplice was caught and began talking to the sheriff and blaming Kelly for the burglary, Kelly told his jailer that he wanted to talk to the sheriff. The sheriff agreed to talk to Kelly. Before doing so, however, the sheriff gave Kelly Miranda warnings and reminded him of his previous waiver. Kelly told the sheriff that both he and his accomplice entered the house and that his accomplice “went first.”

Kelly argues that a “fair reading” of the sheriff’s Jackson-Denno testimony suggests that the sheriff did not inform him of his rights, and that the sheriff’s failure to have him sign a waiver form during this second interview renders the statement inadmissible. We disagree with both of these propositions. The trial court heard the sheriff’s testimony and was in the best position to evaluate it. The record supports the court’s finding that the sheriff gave Kelly Miranda warnings before the second interview. The evidence authorized a finding that Kelly, who initiated this meeting, freely and voluntarily waived his constitutional rights before talking with the sheriff. See Peebles v. State, 196 Ga. App. 176, 178 (1) (c) (395 SE2d 640) (1990). Further, a signed waiver of rights form is not a prerequisite to finding a statement admissible. Aldridge v. State, 258 Ga. 75, 76 (3) (365 SE2d 111) (1988). It is simply one factor for the court to evaluate in determining whether, in the totality of the circumstances, a defendant’s statement was freely and voluntarily made. Id. Finally, considering the fact that Kelly’s accomplice testified against him at trial and that substantial circumstantial evidence corroborated his testimony, error, if any, was rendered harmless. Coleman v. State, 271 Ga. 800, 804 (6) (523 SE2d 852) (1999) (“Any error in the admission of appellant’s custodial statement. . . was rendered harmless by the overwhelming evidence of [his] guilt. . . . [Cit.]”).

Decided July 30, 2001.

Lovett Bennett, Jr., for appellant.

Richard A. Malone, District Attorney, Samuel H. Altman, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

       See Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       See Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).


text:
    A01A1386.
    PALACIOS v. THE STATE.
    (554 SE2d 498)
   Ellington, Judge.

Ernesto Palacios appeals from the trial court’s order denying his motion to withdraw his guilty plea. We affirm.

On May 25, 2000, on the eve of trial, Palacios pled guilty to aggravated stalking, OCGA § 16-5-91, a felony, and was sentenced to five years probation. As a result of his felony conviction, the Immigration & Naturalization Service jailed Palacios pending deportation proceedings. Palacios argues that his plea was not knowingly and voluntarily entered because he was not aware of this collateral consequence of his plea. However, the record reveals that prior to entering this plea, Palacios had twice come before the court intending to plead. The first time, Palacios refused to enter a plea for fear he would be deported. The second time, the trial court refused to take the plea because Palacios would not admit his culpability. During those hearings, the issue of Palacios’ possible deportation was discussed. After reviewing the transcripts of those previous hearings, the trial court specifically found that Palacios was “well aware of the fact that his plea of guilty to a felony could result in deportation.”

There is no constitutional requirement that a defendant be advised of certain “collateral consequences” of his guilty plea. Williams v. Duffy, 270 Ga. 580, 581 (1) (513 SE2d 212) (1999) (parole eligibility). The effect of the plea on a defendant’s immigration status is such a collateral consequence. A resident alien’s guilty plea is not “rendered involuntary because he was unaware that he might be deported. [Cits.]” United States v. Santelises, 509 F2d 703, 704 (2nd Cir. 1975). The only source of such a requirement is OCGA § 17-7-93 (c). Although a court must now determine prior to accepting a guilty plea “whether the defendant is freely entering the plea with an understanding that if he or she is not a citizen of the United States, then the plea may have an impact on his or her immigration status,” id., that statutory provision does not apply here. The General Assembly expressly limited the application of OCGA § 17-7-93 (c) to pleas accepted on or after July 1, 2000. Statutes that govern court procedure are only given retroactive effect if there is no express intention to the contrary. Polito v. Holland, 258 Ga. 54, 55 (2), (3) (365 SE2d 273) (1988). Because Palacios’ plea preceded the effective date of the statute, it does not apply. We find no error.

Decided July 30, 2001.

Harris & Helton, Joshua D. Earwood, for appellant.

T. Joseph Campbell, District Attorney, Lance T. McCoy, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.


text:
    A01A1407.
    PAGE v. THE STATE.
    (553 SE2d 176)
   Ellington, Judge.

Following a bench trial, Robin Benjamin Page was convicted in the State Court of DeKalb County of driving under the influence of alcohol to the extent that it was less safe for him to drive, OCGA § 40-6-391 (a) (1); failure to maintain lane, OCGA §§ 40-6-1, 40-6-48; driving an unsafe vehicle, OCGA § 40-8-7; and a headlight violation, OCGA § 40-8-20. On appeal, Page contends his conviction must be reversed because the State failed to prove venue beyond a reasonable doubt.

Because the evidence regarding Page’s arrest was undisputed, the trial court’s application of the law to these facts is subject to de novo appellate review. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). The undisputed facts are as follows: after dark on April 27, 2000, a concerned citizen saw a damaged car stopped in a debris-filled area on a ramp connecting Interstate 285 and Interstate 85. The driver then saw another damaged car, billowing steam, leaving the area and called 911 to report a possible hit and run and DUI. A DeKalb County police officer responded to the call and fell in behind the suspected hit and run driver while they were still in DeKalb County. The officer observed that the hood of the car was pushed back toward the windshield, obscuring the view ahead, and that the headlights were not operating. The officer saw the driver weave from lane to lane. Concerned that the driver would flee, the officer called for backup and continued to follow as they crossed into Fulton County and the car stopped at the end of the Lindbergh Avenue exit ramp. The officer pulled in behind the car and activated his blue lights. The officer found Page at the wheel and arrested him for DUI after administering several field sobriety tests. The officer read Page the implied consent notice; Page refused to submit to a chemical test.

Page contends the State failed to prove venue because the officer arrested Page outside his jurisdiction without first attempting to arrest him within DeKalb County.

Our Georgia Constitution requires that venue in all criminal cases must be laid in the county in which the crime was allegedly committed. Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt. Proof of venue is a part of the State’s case, and the State’s failure to prove venue beyond a reasonable doubt renders the verdict contrary to law, without a sufficient evidentiary basis, and warrants reversal.

(Punctuation and footnotes omitted.) Jones v. State, 272 Ga. 900, 901-902 (2) (537 SE2d 80) (2000). See Ga. Const. of 1983, Art. VI, Sec. II, Par. VI (“all criminal cases shall be tried in the county where the crime was committed”); OCGA § 17-2-2 (a) (same).

In this case, the arresting officer saw Page commit several moving violations while driving in DeKalb County. After he stopped Page, the officer determined that Page was intoxicated. The evidence of Page’s intoxication, although gathered on Fulton County soil, was sufficient to support the inference that Page had been intoxicated moments earlier while he was observed driving in DeKalb County. McLarty v. State, 176 Ga. App. 433, 435-436 (3) (336 SE2d 273) (1985). The State carried its burden of proving DeKalb County venue beyond a reasonable doubt. Horton v. State, 206 Ga. App. 242, 243 (3) (424 SE2d 882) (1992).

While challenging only venue, Page also raised the issue of whether his arrest in Fulton County by a DeKalb County officer was authorized. “Ordinarily, as a matter of legal policy, a peace officer has power of arrest only in the territory of the governmental unit by which he was appointed.” (Citations and punctuation omitted.) Hastings v. State, 211 Ga. App. 873, 874 (1) (441 SE2d 83) (1994). See OCGA § 40-13-30 (“officers of an incorporated municipality shall have no power to make arrests beyond the corporate limits of such municipality unless such jurisdiction is given by local or other law”). “However, an exception to this rule is recognized in instances in which ‘hot pursuit’ of an offender takes a municipal officer beyond his geographical limits in order to effectuate an arrest.” (Citations omitted.) Poss v. State, 167 Ga. App. 86, 87 (1) (305 SE2d 884) (1983). Another exception applies specifically to moving violations: “[a]n officer has authority to arrest a person accused of violating any law or ordinance governing the operation of a vehicle where the offense is committed in his presence regardless of territorial limitations.” (Punctuation and footnote omitted.) State v. Gehris, 242 Ga. App. 384, 386 (528 SE2d 300) (2000).

As we emphasized in Poss v. State, the fact that an officer does not engage in a high speed chase in the pursuit of a driver does not necessarily mandate a finding that the stop and arrest beyond the officer’s territorial limits were unauthorized under the “hot pursuit” doctrine. 167 Ga. App. at 87 (1). Nor is there any requirement that the officer activate emergency lights or a siren before leaving his jurisdictional territory. “[T]he critical elements characterizing ‘hot pursuit’ are the continuity and immediacy of the pursuit, rather than merely the rate of speed at which pursuit is made.” Id. A pursuing officer may, and should, wait to stop and arrest a suspect “at the first opportunity for doing so which [is], under the circumstances, safe for all concerned — [the suspect], the officers and other motorists.” (Emphasis in original.) Id.

In this case, there is no question that, based upon Page’s driving behavior in DeKalb County, the arresting officer had the legal authority to initiate a pursuit of Page, and, if necessary, to go outside of the county’s geographic limits in order to effectuate an arrest. State v. Gehris, 242 Ga. App. at 386; Hastings v. State, 211 Ga. App. at 874 (1); McLarty v. State, 176 Ga. App. at 435-436 (3); Poss v. State, 167 Ga. App. at 87-88 (1).

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

Decided July 30, 2001.

Head, Thomas, Webb & Willis, William C. Head, for appellant.

Gwendolyn R. Keyes, Solicitor-General, Courtney L. Johnson, Assistant Solicitor-General, for appellee.

       OCGA § 40-5-67.1.


author: Blackburn, Chief Judge.

text:
    A01A0028.
    A01A0029, A01A0030.
    EAST BEACH PROPERTIES, LTD. v. TAYLOR et al. TAYLOR et al. v. RYALS; and vice versa.
    (552 SE2d 103)
   Blackburn, Chief Judge.

The land involved in this case has been the subject of litigation for over 30 years. The case involves a dispute over the extent of the permissible use of easements owned by lot owners in the East Beach subdivision of St. Simons Island. The easements have been previously defined by our Supreme Court in Smith v. Bruce and Bruce v. Garges. Several suits concerning the use of these easements were filed and consolidated in the Superior Court of Glynn County. The trial court entered a judgment as a matter of law, and several parties appeal. The consolidated appeals are decided herein.

In Smith, the Supreme Court held that the then owners of the underlying fee, part of which is now owned by East Beach Properties, Ltd. and part by Glynn County, owned the land between the street that ran along the subdivision and the mean high water line, subject to the rights of the lot owners of the East Beach subdivision. The Court held that each lot owner owned an easement “to use such open area as a soft beach for all recreational purposes soft beaches can be used for, and as a means of ingress and egress from the subdivision lots and streets to the smooth, hard beach area and ocean.” Smith, supra at 142 (1).

We turn now to the recent developments. Philip Taylor and 32 other lot owners in the East Beach subdivision (hereinafter referred to as the “Taylor Group”) filed an action to enjoin James Timbes, another lot owner, and his contractor, Winston Ryals d/b/a J. R. Construction, from “clear-cutting” a portion of the natural growth of wild scrub on the land subject to the easement. The Taylor Group also requested nominal and punitive damages and attorney fees.

Timbes filed a counterclaim, seeking a declaratory judgment that he be allowed to mow, clear, and grade the property as an exercise of his unlimited easement rights as set forth in Smith and later discussed in Bruce. Paula Carol and some other lot owners filed a separate action against the Taylor Group and East Beach Properties and others. When the actions were consolidated in the trial court, the Carol Group’s action was aligned with James Timbes (collectively referred to as the “Timbes Group”).

The basic contentions of the parties are as follows: The Taylor Group contends that the Timbes Group’s alteration of the property impaired its right to use the easement for beach access and recreation. The Timbes Group contends that pursuant to Smith and Bruce, they have the unfettered right to make physical alterations to the property so long as the other property owners are not denied access to the beach. They maintain that clearing the land facilitates rather than hampers the recreational use of the property. East Beach Properties, the owner of part of the underlying fee, contends that it has the right to make alterations, including building on the property so long as such alterations do not interfere with the easement rights of the lot owners. East Beach Properties also contends that the easement rights do not extend to the accreted land.

The trial court ruled that the Taylor Group lacked standing to enjoin the Timbes Group from altering the easement property by removing vegetation because this conduct did not impair their right to use the easement for beach access or recreation. The trial court also ruled that East Beach Properties was entitled to bar any alterations to the property that exceed what is necessary to permit beach access by the lot owners. It further ruled that East Beach Properties and its invitees were authorized to use or alter the easement property in any manner that “does not interfere with beach access and customary soft sand beach activities by said lot owners,” and that does not interfere with the lot owners’ use of their easement.

The trial court also ruled that James Timbes and the other lot owners were enjoined from altering the vegetation on the land subject to the easement beyond what is absolutely necessary to permit access to the beach on foot, without first obtaining consent from East Beach Properties on the land owned by East Beach Properties and a permit from Glynn County on the land owned by the County.

Case No. A01A0028

East Beach Properties appeals the trial court’s order, contending that the trial court erred by ruling that (1) the filing of a certain plat by the developer of the property represented to prospective buyers that there was no real property subject to future development between Beach Drive and the Beach; (2) the filing of the plat was the functional equivalent to a covenant running with the land on the subject property; (3) the development of the accreted property may be effectively precluded because the lot owners have a nonexclusive right to the entire accreted property pursuant to Smith, supra; (4) East Beach Properties could not construct buildings and other improvements that do not substantially interfere with the easement; and (5) the trial court could not define what East Beach Properties could do on the property without violating the rights of the easement holders because the rights of the easement holders had not sufficiently accrued within the meaning of the Declaratory Judgment Act.

1. In its first two enumerations of error, East Beach Properties argues that the ruling in Smith does not establish that there was no real property subject to future development on the beach. We disagree because this issue was already resolved in Smith and Bruce.

In Smith, supra at 142 (1), the Supreme Court held that each lot owner had an easement “to use such open area as a soft beach for all recreational purposes soft beaches can be used for, and as a means of ingress and egress from the subdivision lots and streets to the smooth, hard beach area and ocean.”

After Smith, the land between the high water line and the street continued to accrete. In Bruce, the Bruces, the former owners of the underlying fee now owned by East Beach Properties, appealed the trial court’s refusal to limit the easement to the original area subject to the easement prior to the accretion of the land. Our Supreme Court upheld the trial court’s decision, determining that the Smith Court “did not intend to limit the lot owners’ recreational use to any area less than that which lies between the high water line and East Beach Drive and which is subject to expansion or contraction by the forces of nature.” Bruce, supra at 271 (3) (b). The Bruce Court concluded that “just as the rights of the fee holder expand with the accreted land, so do the rights of the easement holder where such a broad grant has been made.” Id. at 272 (3) (b). Thus, as the facts stand, the property subject to the easement can only be developed in the future subject to the rights of the lot owners despite the accretion of the property. We cannot revisit issues decided by the Supreme Court.

In two enumerations of error, East Beach Properties argues that the trial court erred by ruling that the development of the accreted property may be precluded because of the lot owners’ nonexclusive right to use the property set forth in Smith. East Beach Properties asserts that because the topography of the accreted land has naturally evolved over the years to be more maritime forest-like, the lot owners’ easement in the soft sand beach “is no longer applicable to the accreted land.” Again, this issue in controlled adversely to East Beach Properties by Bruce.

2. East Beach Properties asserts that the trial court’s order conflicts with Upson v. Stafford, in which this Court held that one of the owners of a nonexclusive easement lawfully constructed a drainage ditch on the property subject to the easement because such construction did not encroach upon the second easement holder’s rights. Id. at 616. The first easement holder also lawfully removed trees that had served as a buffer between the easement holders’ separate tracts of land because the second easement holder had “no right to a buffer of trees, either expressly or as a reasonably necessary incident of any of the purposes of his easement.” Id. This Court also acknowledged that “unless the easement is exclusive, the grantor may construct buildings or other improvements on the land which do not ‘substantially interfere’ with the enjoyment of an easement previously granted.” Id.

East Beach Properties asserts that, under Upson, it should be allowed to construct buildings and other improvements that do not substantially interfere with the easement. In upholding the trial court’s ruling, we emphasize that the trial court did not rule that no development of the land could take place. Rather, the trial court ruled that East Beach Properties had not submitted a proposed plan and thus its ruling on what structures could be erected would be an advisory opinion, which is prohibited by the Declaratory Judgment Act. The court commented that, given the broad grant given to the lot owners, “development (except perhaps as a purely recreational area without residential or commercial structures) may be effectively precluded.” Indeed, our Supreme Court has held that the owner of the underlying fee cannot develop the property to the extent it interferes with the easement holder’s rights. Fairfield Corp. No. 1 v. Thornton.

3. East Beach Properties argues that the trial court erred by ruling that it could not define what it could do with the property without violating the easement holders’ rights because such a ruling would be an advisory opinion, which is prohibited under the Declaratory Judgment Act. We disagree.

Pursuant to the Declaratory Judgment Act, superior courts are authorized to enter a declaratory judgment in cases of “actual controversy” and

“to determine and settle by declaration any justiciable controversy of a civil nature where it appears to the court that the ends of justice require that such should be made for the guidance and protection of the petitioner, and when such a declaration will relieve the petitioner from uncertainty and insecurity with respect to his rights, status, and legal relations.”

Baker v. City of Marietta. See also OCGA § 9-4-2. “However, no declaratory judgment may be obtained which is merely advisory, or fruitless, or which merely answers a moot or abstract question.” (Citations and punctuation omitted.) Id. at 214 (1).

It is well settled that,

[flor a controversy to justify the making of a declaration, it must include a right claimed by one party and denied by the other, and not merely a question as to the abstract meaning or validity of a statute. There can be no justiciable controversy unless there are interested parties asserting adverse claims upon a state of facts which have accrued.

(Citations omitted.) Cook v. Sikes.

It would be nearly impossible for the trial court in this case to rule what construction East Beach Properties could or could not undertake. East Beach Properties essentially requested that the trial court interpret the Supreme Court decisions in Smith and Bruce, supra, in the abstract. If East Beach Properties sought a declaratory judgment on a specific proposal, the trial court could enter a judgment if all of the other requirements under the Declaratory Judgment Act are met. Such is not the case in the present litigation.

Case No. A01A0029

4. In three enumerations, the Taylor Group argues that the trial court erred by ruling that it could not recover damages from the Timbes Group and denying it of its right to a jury trial on the issue.

Earlier in the litigation, the trial court denied the Timbes Group’s motion for summary judgment on the damages issue. In its final order, however, the trial court ruled that the Taylor Group was not entitled to damages because Timbes’ “clear-cutting” of a portion of the property did not interfere with their use of the easement for its intended purposes. Thus, in its final order, the trial court granted the Timbes Group’s motion for summary judgment on the damages issue although it did not couch this ruling as such.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

Viewed in this light, John Pitts, who was hired by the Timbes Group, deposed that, at James Timbes’ direction, he cut “the sand dimes and everything,” including vines, weeds, bushes, small myrtles, and sea oats on the subject property. When Pitts went over the dunes with a bush hog, he knocked off some of the tops of the dunes.

Timbes deposed that he did not think that using the accreted land for enjoyment in its natural state was an “appropriate” recreational use of the land. Timbes stated that when the land is cleared, “it’s very nice, and a lot of people would enjoy it even more looking at it instead of looking at the brush and the scrub that has grown up.” Timbes agreed that it was all right to clear the land so that people could play softball, hit golf balls, or throw footballs and frisbees.

Under Georgia law, “ ‘[Recreational purpose’ includes, but is not limited to, any of the following or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study,. . . and viewing or enjoying historical, archeological, scenic, or scientific sites.” OCGA § 51-3-21 (4). We cannot say, as a matter of law, that Timbes’ clearing of the property did not interfere with the Taylor Group’s easement to use the land for recreational purposes other than those listed by Timbes, such as enjoying the land in its natural uncut state. Therefore, issues of fact preclude summary judgment as to whether the Taylor Group is entitled to damages. We reverse the ruling of the trial court on this issue.

5. The Taylor Group argues that the trial court erred by failing to enjdin the Timbes Group from altering the easement property by removing vegetation from the property. We disagree.

On appeal from the grant of a permanent injunction, “ ‘the standard of review is whether or not the trial court manifestly abused its discretion.’ ” Teachers’ Retirement System &c. v. Forehand. A “trial judge manifestly abuses [her] discretion when [she] grants an injunction adverse to a party without any evidence to support such judgment and contrary to the law and equity.” Id.

In denying injunctive relief to the Taylor Group, the trial court found that “[t]he evidence establishes that Mr. Timbes cleared more of the growth upon the easement property owned by Glynn County [and] East Beach Properties than was necessary for reasonable beach and ocean access.” The court held that the Taylor Group was not entitled to injunctive relief because Timbes’ actions did not interfere with the Taylor Group’s use of the easement for recreational and other purposes specified in Smith, supra.

The requirement for an easement holder to obtain an injunction against another easement holder is strict: “[T]he holder of an easement must be adversely affected, or substantially or materially interfered with, in order to enjoin another owner’s unauthorized use. Otherwise, the remedy lies in the owner of the underlying fee.” (Citations omitted.) Upson, supra at 617.

Although a jury issue remains as to whether the Taylor Group was damaged by the Timbes Group’s clear-cutting the property, the trial court did not err in denying its request for injunctive relief. We note that the standards of review with respect to a summary judgment ruling and a ruling on a permanent injunction are quite different. Moreover, although the Taylor Group cannot enjoin the Timbes Group from altering the property, the trial court ordered that it cannot make any alterations to the property without the consent of East Beach Properties. The court further enjoined East Beach Properties from allowing any alterations to be made which interfere with the lot owners’ easement rights. Thus, although the Taylor Group itself was denied an injunction, the trial court’s other rulings have addressed the Taylor Group’s concerns. We affirm the ruling of the trial court on this issue.

6. The Taylor Group argues that the trial court erred by issuing an injunction in favor of East Beach Properties and Glynn County against only James Timbes and not the remainder of the Timbes Group. The Timbes Group, however, concedes that the trial court’s ruling applies to all of the property owners in the East Beach subdivision.

It is apparent from the trial court’s order that its ruling applies to all of the lot owners, not only to Timbes or to the Timbes Group. Therefore, this enumeration is without merit.

7. The Taylor Group argues that the trial court erred by enjoining the lot owners from altering the property beyond what is required to ensure beach access without first obtaining permission from the owners of the underlying fees, East Beach Properties and Glynn County. The Timbes Group agrees with the Taylor Group on this enumeration and further asserts that the term “open area” in the judicial grant of the easement allows the lot owners to alter the property to create open areas for recreational soft beach activities without first obtaining permission. We disagree.

“The rights not granted under an easement remain in the landowner.” Montana v. Blount. The grant of the easement, as defined in Smith and Bruce, though broad, did not include the right to alter the property unilaterally. Although the Supreme Court in Smith, supra at 142 (i), stated that the lot owners had an easement “to use such open area as a soft beach for all recreational purposes soft beaches can be used for,” this judicial holding was not a guarantee that the lot owners would necessarily have open areas of soft sand beach to use for recreational purposes. Indeed, the Court in Bruce, supra at 271 (3) (b), acknowledged that the land was “subject to expansion or contraction by the forces of nature.” The Bruce Court concluded that “just as the rights of the fee holder expand with the accreted land, so do the rights of the easement holder where such a broad grant has been made.” Id. at 272 (3) (b). Thus, the Supreme Court’s opinion contemplated changes in the land. The Court foresaw that the forces of nature could affect the property rights of both the lot and underlying fee owners.

Having found no abuse of discretion, we uphold the trial court’s injunction requiring that the easement holders receive permission from the owners of the underlying fee before making any alterations to the property beyond what is required to ensure beach access. See Teachers’ Retirement System, supra. That said, the owners of the underlying fee, in deciding whether or not to grant such permission, should be mindful of the broad grant given to the easement holders, as defined in Smith and Bruce, supra.

8. The trial court ruled that “[b]ecause the nature of the rights at issue herein were uncertain due to the peculiar status of the judicially-created easement in question, each party shall bear its own attorney fees and expenses of litigation.” The Taylor Group argues that it was entitled to recover attorney fees and expenses from the Timbes Group pursuant to OCGA § 13-6-11. We disagree.

We review a trial court’s denial of attorney fees under OCGA § 13-6-11 under an abuse of discretion standard. Rivergate Corp. v. Atlanta Indoor Advertising Concepts. Under OCGA § 13-6-11, the expenses of litigation “generally shall not be allowed as a part of the damages” a jury may allow them “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” A final ruling on attorney fees and expenses may be premature because the issue of damages has not yet gone to a jury. We find no abuse of discretion by the trial court with respect to its ruling on attorney fees.

Decided July 9, 2001

Reconsideration denied July 31, 2001

Abbott & Abbott, Anthony H. Abbott, Laurie K. Abbott, for East Beach Properties, Ltd.

George M. Rountree, for Taylor et al.

Christopher J. O’Donnell, for Ryals.

Case No. A01A0030

The Timbes Group also appeals the trial court’s ruling. The Timbes Group’s enumerations are addressed in Division 7.

Judgment affirmed in Case Nos. A01A0028 and A01A0030. Judgment affirmed in part and reversed in part and case remanded in Case No. A01A0029.

Pope, P. J., and Mikell, J., concur.

        Smith v. Bruce, 241 Ga. 133 (244 SE2d 559) (1978).

        Bruce v. Garges, 259 Ga. 268, 270 (1) (379 SE2d 783) (1989).

       Richard Anderson, Lisa Anderson, Donald Bartlett, Mary Bartlett, Ralph Birdsong, Mary Birdsong, Laura Brown, Mary Bell Capallo, Joan Chatham, Ann Clendenin, John Clendenin, Patricia Collins, Denise Esserman, Edward Esserman, Jacqueline Heyward, Robert Heyward; Billie Huggins, Bobby Huggins, Louise Kinzey, Hilliard Kinzey, Ann Kite, Jack Kite, Luanne Lanyon, Carolyn Mastín, Peter Mastín, Dorothy McCleskey, Á. L. Rogers, Ann Rogers, Jean Russell, John Weitnauer, Jr., Bonnie Whitten, Ted Whitten, and East Beach Association, Inc.

       Charles Caye, Dean Davidson, and Marie Davidson.

        Upson v. Stafford, 205 Ga. App. 615 (422 SE2d 882) (1992).

        Fairfield Corp. No. 1 v. Thornton, 258 Ga. 805, 806 (374 SE2d 727) (1989).

        Baker v. City of Marietta, 271 Ga. 210, 213 (1) (518 SE2d 879) (1999).

        Cook v. Sikes, 210 Ga. 722, 726 (82 SE2d 641) (1954).

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

        Teachers’ Retirement System &c. v. Forehand, 234 Ga. App. 437, 438 (506 SE2d 913) (1998).

        Montana v. Blount, 232 Ga. App. 782, 785 (1) (a) (504 SE2d 447) (1998).

        Rivergate Corp. v. Atlanta Indoor Advertising Concepts, 210 Ga. App. 501, 504 (4) (436 SE2d 697) (1993).


author: Andrews, Presiding Judge. Eldridge, Judge,

text:
    A01A0066.
    A01A0067.
    PATRICK v. MACON HOUSING AUTHORITY et al. MACON HOUSING AUTHORITY v. PATRICK.
    (552 SE2d 455)
   Andrews, Presiding Judge.

Wanda Patrick slipped and fell in a puddle of water in a common area of an apartment building owned and operated by the Macon Housing Authority. She brought two suits seeking to recover for injuries she suffered in the fall: a premises liability claim against the Authority pursuant to OCGA § 51-3-1 claiming it failed to keep the common area safe for invitees, and a claim based on the principle of respondeat superior against Justice Home Care, Inc. claiming its employee negligently left the water on the floor. The appeal in Case No. A01A0Q66 is from the trial court’s grant of summary judgment for Justice Home Care. We affirm the trial court in this case because Patrick’s claim was based on sheer speculation that Justice Home Care’s employee left the water which caused the slip and fall. The appeal in Case No. A01A0067 is from the trial court’s denial of the Authority’s motion for summary judgment. We reverse the trial court in this case because we find as a matter of law that the Authority exercised reasonable care pursuant to OCGA § 51-3-1 to inspect and keep safe the common area of the building.

Case No. A01A0066

At the time of the slip and fall, Patrick was working as an aide for Crossroads Home Service, a personal care provider, and was about to do laundry for an elderly client who lived in the Authority’s apartment building. Patrick took two steps into the third-floor common area laundry room and slipped and fell in a puddle of water on the floor. Gussie Mae Fleming, who worked as an aide for Justice Home Care, another personal care provider, was also doing laundry in the same laundry room for one of her clients. Fleming had just finished taking clothes out of a washer and putting them into a dryer and was leaving the laundry room when she saw Patrick about to enter the room. As Fleming left the room, she did not see or hear Patrick slip and fall.

At her deposition, Fleming was asked if it was possible she put water on the floor when she transferred clothes from the washer to the dryer by shaking the clothes to straighten them before putting them in the dryer. She responded that she commonly shook clothes to get any knots out before putting them into the dryer, but added that, when she did so, the clothes were not dripping wet but only damp. She could not ever remember water dripping from clothes when she shook them and testified that she saw no water on the floor of the laundry room from the time she entered the room until she left after putting the clothes in the dryer.

At best, this evidence shows only a possibility that Fleming might have shaken a few drops of water from damp clothes, but there is no evidence of it. It might also support speculation that, if some drops were shaken to the floor, they might have formed the puddle of water in which Patrick slipped and fell, but there is no evidence this happened.

Patrick further suggests there was evidence raising a reasonable inference that Fleming negligently spilled water on the floor while attempting to add water to one of the washers. This contention is based on evidence that, after the slip and fall, one of Patrick’s elderly clients, Minnie Etheridge, spoke to a woman who worked as an aide at the building and who admitted to her that she spilled water on the floor of the laundry room while pouring it into a washer.

Etheridge testified that, when she learned Patrick slipped and fell while doing her laundry, she immediately went to look at the laundry room with Patrick. She said a woman was in the laundry room when she and Patrick arrived, and this woman told her that she had spilled water on the floor when she tried to pour extra water into the washer she was using. Etheridge said the woman was “an aide for some company,” wearing a pink top and a white skirt, but she did not know which company. She variously described the woman as “average size[d]” and “big and fat.” Etheridge, who admitted that her eyesight was failing, was not sure of the woman’s height, weight, or race, or whether she could identify the woman if she saw her again.

There was no evidence in the record showing what Fleming was wearing on the day of the slip and fall, nor any other evidence showing she fit a description given by Etheridge. Evidence showed that other residents of the building also had aides who provided personal care services. The record shows no effort was made to have Etheridge identify Fleming as the woman she saw in the laundry room after the slip and fall. No reasonable inference can be drawn from this evidence that Fleming was the woman who told Etheridge she spilled the water.

Moreover, other evidence in the record supports the reasonable inference that Fleming was not the woman who told Etheridge she spilled the water. Patrick testified that, after she fell, she immediately walked to the nearby elevator, asked a person on the elevator to tell Etheridge that she had fallen, and that Etheridge immediately came down to the third floor to meet her. Etheridge testified that she and Patrick went to the third-floor laundry room together and that the woman she spoke to was in the room.

Patrick testified that, as she was entering the laundry room just before she slipped and fell, she passed a woman coming out of the laundry room whom she recognized but did not know by name. This testimony was consistent with Fleming’s testimony that, as she was exiting the laundry room, she passed Patrick entering the room, and that, when she returned to get clothes out of the dryer, she learned from a janitor that Patrick slipped and fell when she entered the room.

These facts support the conclusion that Patrick saw and recognized Fleming just prior to the slip and fall. If Fleming was the woman in the laundry room who admitted in the presence of Etheridge and Patrick that she spilled the water, surely Patrick would have recognized and identified her. However, Patrick made no such identification and said she never spoke to Fleming about the slip and fall. The only reasonable inference is that the woman Patrick and Etheridge saw, and who admitted spilling the water, was not Fleming.

In fact, Patrick testified that she had only heard rumors that a woman who worked in the building spilled the water on the floor, and that Retha Jones, the resident services coordinator at the apartment building, mentioned Fleming’s name in connection with finding out who spilled the water. Jones testified, however, that she had only heard rumors that Fleming spilled the water on the floor. Fleming denied that she poured water into a washer or spilled water onto the floor of the laundry room, and she denied having any conversation with Etheridge in which she admitted doing so. Furthermore, Fleming testified that she knew Etheridge and spoke to her occasionally, but she did not remember seeing her on the day of the slip and fall.

No reasonable inference can be drawn from the above facts that Fleming was the woman who admitted spilling the water. To the contrary, the only reasonable inference which can be drawn from the facts is that Fleming was not the woman who spilled the water. It follows that pure speculation was the only basis for Patrick’s claim that Justice Home Care’s employee, Fleming, negligently left the water on the laundry room floor which caused Patrick to slip and fall.

Only reasonable inferences can give rise to a genuine issue of fact sufficient to preclude summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991). An inference based on mere possibility, conjecture, or speculation is not a reasonable inference sufficient to establish a genuine issue of fact and preclude summary judgment. Pafford v. Biomet, 264 Ga. 540, 544 (448 SE2d 347) (1994); Butler v. Huckabee, 209 Ga. App. 761, 762 (434 SE2d 576) (1993). Where a plaintiff’s proof of causation in a negligence case is based on mere possibilities, or the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it is the duty of the trial court to grant summary judgment for the defendant. Futch v. Super Discount Markets, 241 Ga. App. 479, 482 (526 SE2d 401) (1999). Accordingly, the trial court correctly granted summary judgment in favor of Justice Home Care.

Case No. A01A0067

In this premises liability case, the Macon Housing Authority cross-appeals from the trial court’s denial of its motion for summary judgment on Patrick’s claim that the Authority failed to exercise ordinary care under OCGA § 51-3-1 to keep the common area of its apartment building safe for invitees.

Because Patrick’s slip and fall occurred in the third-floor laundry room, a common area of the apartment building over which the Authority retained control, the Authority was obligated under OCGA § 51-3-1 to exercise ordinary care to keep this area safe for tenants and for Patrick, who was invited by a tenant to perform work for the tenant in this area. Lidster v. Jones, 176 Ga. App. 392, 393 (336 SE2d 287) (1985); Hohnerlein v. Thomas, 186 Ga. App. 282-283 (367 SE2d 95) (1988). In order for Patrick to prevail on her slip and fall claim against the Authority under OCGA § 51-3-1, she had to prove two essential elements: (1) that the Authority had actual or constructive knowledge of the puddle of water which caused her slip and fall; and (2) that she lacked knowledge of the puddle despite the exercise of ordinary care. Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997). Under Robinson, a jury issue existed as to the second essential element concerning Patrick’s knowledge of the puddle and the exercise of ordinary care for her own safety. Accordingly, this case concerns the first essential element of the claim — whether the Authority had actual or constructive knowledge of the puddle of water prior to the slip and fall. There is no claim in this case and no evidence showing that the Authority had actual knowledge of the puddle of water prior to Patrick’s slip and fall. Thus, the issue presented in this case is whether there was sufficient evidence to create a genuine issue of fact for a jury on Patrick’s claim that the Authority had constructive knowledge of the puddle.

In the absence of evidence that the Authority had actual knowledge of the hazard, Patrick could prove the Authority had constructive knowledge by two methods: (1) proof that an employee of the Authority was in the immediate area of the puddle and could have easily seen and removed it prior to the slip and fall; or (2) proof that the puddle had been on the floor of the laundry room for a sufficient length of time that the Authority should have discovered and removed it during a reasonable inspection. Alterman Foods v. Ligon, 246 Ga. 620, 622-623 (272 SE2d 327) (1980); Banks v. Colonial Stores, 117 Ga. App. 581, 584-585 (161 SE2d 366) (1968). Because there was no evidence (and no claim by Patrick) that an Authority employee was in a position to see and remove the puddle prior to the slip and fall, this case necessarily involves the second method of proving constructive knowledge.

Under this method, Patrick was required to produce facts showing the puddle at issue was on the floor for a sufficient length of time prior to the slip and fall so that knowledge of the puddle would be imputed to the Authority. Alterman Foods, 246 Ga. at 622-623. In other words, since the Authority is permitted a reasonable amount of time to exercise ordinary care to inspect the common areas of the building and maintain them in a safe condition, proof of the length of time the puddle existed is necessary to determine whether the Authority was afforded a reasonable time within which to inspect and remove the puddle. Kroger Co. v. Brooks, 231 Ga. App. 650, 654 (500 SE2d 391) (1998); Alterman Foods, 246 Ga. at 622.

In the present case, Patrick could not say how long the puddle had been on the floor before she slipped and fell. Nevertheless, this Court has held that a premises liability defendant in a slip and fall case cannot obtain summary judgment on the issue of constructive knowledge by relying on the absence of evidence proving that the hazard had been on the floor long enough to be discovered by a reasonable inspection. Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30 (500 SE2d 353) (1998); J. H. Harvey Co. v. Reddick, 240 Ga. App. 466, 470 (522 SE2d 749) (1999). Under the holding in these cases, Patrick was not required to prove how long the puddle was on the floor unless the Authority first produced evidence to negate Patrick’s claim by showing it had reasonable inspection procedures in place and followed them at the time of the incident. Straughter, 232 Ga. App. at 30; Reddick, 240 Ga. App. at 470; compare Lau’s Corp., 261 Ga. at 491, 495.

In this case, the Authority produced evidence that it adhered to an inspection procedure in which the laundry room at issue was inspected every two hours, and that the floor in the laundry room had been inspected for trash and water about an hour or an hour and a half prior to the slip and fall. The issue is whether inspection every two hours was reasonable under the circumstances, or whether there were conditions on the premises that required the Authority to conduct more frequent inspections to keep the common area laundry room safe.

Aside from the present slip and fall, there is no evidence that any aide, or any elderly resident of the building, or any other person had ever slipped and fallen in any common area of the building, including the laundry rooms. Patrick testified that she had been working as an aide for Etheridge five days a week for four years and, during that period of time, she had never seen any water or other liquid on the floor of the laundry room prior to her slip and fall. She said she had never heard of any other slip and fall. Jones, the resident services coordinator at the building, testified there had never been a previous slip and fall.

Moreover, not a single witness testified to any problem with water on the floor of the laundry rooms. Fleming testified that, although she had heard talk from residents about people pouring extra water into washers, she had never seen it done, nor did she have any knowledge that water had ever been spilled on the floor of a laundry room.

Henderson Reeves, who was the maintenance foreman at the apartment building and had been working there for nine years at the time of the slip and fall, testified that, after the slip and fall, he turned off the water to the sinks in the laundry rooms and posted a notice not to add water to the washers. He did this as a precaution against the possibility that residents might spill water while adding it to a washer, but he had never seen anyone add or spill water. He said mops were put in the laundry rooms, not because of a problem with water on the floor, but as a precautionary measure so that residents could use them if any water got on the floor.

Jones further testified that, prior to the slip and fall, she had heard rumors of residents transferring water from a sink to a washer. However, she had no knowledge that water had ever been spilled on the floor and testified that, prior to the slip and fall, there had been no problems with water on the floor of the laundry rooms.

Clyde Ware, the maintenance mechanic at the apartment building who had been working there for 13 years at the time of the slip and fall, said he also had heard rumors of residents adding water to washers, but he had never seen it done and did not know whether the rumors were true or not. He confirmed that water to the sinks was cut off as a precaution against residents adding water. He testified that, although the laundry rooms had a drain in the middle of the floor in the event water collected, he could not ever recall finding water on the floor of the rooms.

There is no evidence in the record of any dangerous conditions in the laundry rooms caused by the presence of water on the floor. In fact, other than Etheridge’s testimony that an unidentified woman told her she spilled the water that caused Patrick’s slip and fall, there is no evidence that water had ever been spilled on the floor of a laundry room. Moreover, there is no evidence that anyone had slipped and fallen in a laundry room or anywhere else in a common area of the apartment building prior to Patrick. Accordingly, there is nothing in the record to justify imposing a duty on the Authority to inspect the laundry rooms more often than once every two hours.

The circumstances here are different from those in supermarkets or fast food restaurants where the nature of the business creates conditions which cause slip and falls to occur with some frequency. Under those circumstances, we have held that premises owners have a duty to inspect with greater frequency. Alterman Foods, 246 Ga. at 623; Shepard v. Winn Dixie Stores, 241 Ga. App. 746, 748-749 (527 SE2d 36) (2000). Rather, this case involves a common area of an apartment building where a slip and fall had never previously occurred, and the Authority had no reason to believe there were any dangerous conditions in the area that could cause a slip and fall. The Authority had no duty to insure the safety of every invitee against injury, nor did it have any duty to constantly inspect the floors in the absence of unusually dangerous conditions. Winn-Dixie Stores v. Hardy, 138 Ga. App. 342, 344 (226 SE2d 142) (1976). The law requires only the exercise of such diligence in making the premises safe as an ordinarily prudent proprietor would be accustomed to use under the circumstances. Emory Univ. v. Williams, 127 Ga. App. 881, 885 (195 SE2d 464) (1973).

On the present facts, we conclude as a matter of law that the Authority exercised the ordinary care required under OCGA § 51-3-1 to keep the common areas safe by inspecting every two hours. Having conducted a reasonable inspection under the circumstances, no constructive knowledge of the puddle may be imputed, and the Authority was entitled to summary judgment.

Judgment affirmed in Case No. A01A0066. Judgment reversed in Case No. A01A0067.

Johnson, P. J., Smith, P. J., Ruffin and Ellington, JJ., concur. Eldridge and Miller, JJ., dissent.

Eldridge, Judge,

dissenting.

Wanda Patrick was injured when she entered the third-floor laundry room and slipped on water allegedly left on the floor by Gussie Fleming, an employee of Justice Home Care. The trial court granted Justice Home Care’s motion for summary judgment because it ruled that there was no evidence Fleming caused the water to be on the floor. From the evidence in the record, Fleming, by her own testimony, took wet clothing from the washer, shook it out over the floor, and put it into an adjoining dryer; thus, the favorable inference arose that such conduct caused water to drip onto the floor from the wet clothes being shaken and moved, since Fleming was unable to testify that she saw no water on the floor. Further, Fleming denied causing water to be on the floor, and Minnie Etheridge testified that a woman fitting Fleming’s description admitted spilling water on the floor 25 minutes after the fall, which constitutes a prior inconsistent statement.

Plaintiff contends that the Macon Housing Authority was either negligent in failing to timely inspect and remove the water, or caused the puddle to occur. The Authority maintained new washers that it knew the users believed only partially filled with water and that many users mistakenly added more water by hand to fill the washer with water to wash a full load; the Authority attempted to stop such practice, but it negligently failed to stop such dangerous practice or to avoid the danger of water on the floor through remedial means. Therefore, its negligence concurred in the alleged negligence of Fleming in spilling the water, which was reasonably foreseeable and required more frequent inspections under the circumstances, as well as corrective measures.

Case No. A01A0066

On April 24, 1997, plaintiff, while acting as a nurse for Crossroads Home Service and caring for Etheridge, a resident of McAfee Towers, a retirement center, entered the third-floor laundry room, carrying a basket of Etheridge’s clothes to wash. When she entered the laundry room, she did not see water on the floor near the entrance and slipped and fell in a puddle of water just inside the laundry room door.

Fleming, after washing the laundry for Ms. Lewis, a resident, left the laundry room immediately prior to plaintiff’s entry and passed plaintiff. Fleming took Lewis’ wet clothes out of the top loading washer, shook them out over the floor, and threw the wet clothes into the dryer. Fleming did not notice if water dripped on the floor and denied seeing water on the floor and causing water to get on the floor. She returned to the laundry room 20 to 25 minutes later, after the plaintiff’s fall. Although she fit the description of the woman who told Etheridge that she spilled water on the floor, she denied taking water to fill up the washer and spilling the water as she poured it into the washer.

When the plaintiff returned to Etheridge’s apartment after her fall and told Etheridge about slipping on water, Etheridge went immediately to the laundry room where she saw water on the floor, found a woman who fit Fleming’s description, and asked her if she caused the water to be on the floor. This woman told Etheridge: “Yes I did. I ain’t going to lie,” and stated that she had gotten the water: “I went down the hall and borrowed it, a pitcher, and got me some; I missed the top and it went on the floor.” Etheridge testified to the description of this woman, and it fit Fleming’s description. Thus, the favorable inference arose that it was Fleming, and the trial court failed to make such inference in the plaintiffs favor.

(a) While Fleming was an employee of defendant Justice so that it is liable for her conduct under the doctrine of respondeat superior, she was not its agent for purposes of making an admission against her employer’s interest that was binding upon her employer as an exception to the hearsay rule, since she, herself, was not a defendant. OCGA §§ 24-3-33; 10-6-64; Uniflex Corp. v. Saxon, 198 Ga. App. 445 (402 SE2d 67) (1991); Southern R. Co. v. Allen, 118 Ga. App. 645 (165 SE2d 194) (1968). However, Fleming’s statement was made against her penal interest and constituted a well-recognized exception to the hearsay rule, the res gestae exception, if made at the time of the occurrence or contemporaneous with it as an excited utterance. Sutton v. Winn Dixie Stores, 233 Ga. App. 424, 426 (504 SE2d 245) (1998); Quiktrip Corp. v. Childs, 220 Ga. App. 463, 465-466 (3) (469 SE2d 763) (1996); Brown v. Piggly Wiggly Southern, 210 Ga. App. 459, 460 (436 SE2d 513) (1993). Declarations made so nearly connected with an occurrence that are deemed free from all suspicion of device or afterthought constitute a part of the res gestae and shall be admissible in evidence. However in this case, while 25 minutes after the occurrence has often been held to be sufficiently close to be a part of the res gestae under other circumstances, such length of time is not sufficiently close to be considered as contemporaneous with the occurrence when made by an agent, not as an excited utterance, and made to someone inquiring into the incident or investigating. OCGA §§ 24-3-3; 10-6-64; Hassell v. First Nat. Bank &c., 218 Ga. App. 231, 234 (2) (461 SE2d 245) (1995); Uniflex Corp. v. Saxon, supra at 446; Southern R. Co. v. Allen, supra at 646-647; Augusta Coach Co. v. Lee, 115 Ga. App. 511, 514-517 (154 SE2d 689) (1967); Allgood v. Dalton Brick &c. Corp., 81 Ga. App. 189, 191-192 (2) (58 SE2d 522) (1950).

Therefore, the testimony of Etheridge relating the statement made by Fleming shortly after the occurrence was hearsay and could not come into evidence under such res gestae exception.

(b) However, Fleming’s testimony was submitted for the trial court’s consideration in support of the motion for summary judgment by Justice, and Fleming denied negligently causing the water to be on the floor in her deposition. Therefore, Etheridge’s testimony that Fleming told her that Fleming had caused the water to be on the floor constituted a prior inconsistent statement that was admissible not only to impeach Fleming, but also as probative evidence in the case as to who caused the water to be on the floor. OCGA § 24-9-83; Woodard v. State, 269 Ga. 317, 318-319 (2) (496 SE2d 896) (1998); Sprouse v. State, 250 Ga. 174, 176 (296 SE2d 584) (1982); Gibbons v. State, 248 Ga. 858, 862-863 (286 SE2d 717) (1982). Thus, such testimony was admissible both for impeachment of Fleming, which would create a jury question as to credibility, but also as substantive evidence in the case, which would cause a material conflict in the evidence, requiring denial of the motion. When a witness testifies under oath and is subject to cross-examination, a prior inconsistent statement is not hearsay and is admissible substantive evidence. Sprouse v. State, supra at 176.

(c) Further, favorable reasonable inferences as to Justice’s liability can be drawn from the evidence. Fleming testified that she saw no water on the floor when she entered the laundry room and did not look at the floor while she was there; therefore, the reasonable inference arises that any water on the floor came from her transfer of the wet clothes from the washer to the dryer when she shook them out over the floor, which she admitted doing. This inference must be drawn in favor of the plaintiff, which then created a material issue of fact that Fleming, as an employee of Justice, caused water to be on the floor. This conflicts with Fleming’s sworn testimony to the contrary and creates a material issue of fact for jury determination, as well as to evidence of negligence. See OCGA § 9-11-56 (e).

All evidence must be construed most favorably for the respondent on a motion for summary judgment, and all inferences that may fairly and reasonably be drawn in support of her case must be made in her favor by the trial court. Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981); Mitchell v. Rainey, 187 Ga. App. 510, 512-513 (370 SE2d 673) (1988); McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178, 179 (129 SE2d 408) (1962).

Where more than one inference can be drawn from circumstantial evidence as to a material element of plaintiff’s case, a trial judge cannot make the determination as to which inference to accept, because the inference most favorable to the respondent must be drawn as a matter of law; only a trial jury can determine between competing reasonable inferences, which inference to make from the evidence before them. McCarty v. Nat. Life &c. Ins. Co., supra at 178.

Where the plaintiff has responded to a motion for summary judgment by presenting circumstantial evidence that gives rise to a reasonable inference that a breach of duty of ordinary care occurred, summary judgment must be denied, because the trial judge must draw such inference as a matter of law. Lau’s Corp. v. Haskins, supra at 491; Merritt v. Athens Clarke County, 233 Ga. App. 203, 208 (3) (504 SE2d 41) (1998).

Case No. A01A0067

Plaintiff as the servant/invitee of a tenant, Etheridge, comes within the landlord-tenant relationship. OCGA § 44-7-14; Spence v. C & S Nat. Bank, 195 Ga. App. 294, 295 (1) (393 SE2d 1) (1990). However, where the injury arises from a common area, the landlord’s liability to the tenant and the tenant’s invitee arises under OCGA § 51-3-1 and not under OCGA § 44-7-14, so that the landlord has the duty of keeping the common areas safe through the exercise of ordinary care at all times. Commerce Properties v. Linthicum, 209 Ga. App. 853, 854 (2) (434 SE2d 769) (1993). Being an invitee arising out of a landlord-tenant relationship means that the landlord must foresee the invitee’s presence in the common areas at all times and exercise the requisite reasonable care to keep such areas safe. See Paul v. Sharpe, 181 Ga. App. 443, 444-445 (1) (352 SE2d 626) (1987).

Where the tortious conduct of a third party should reasonably be foreseen by prior similar conduct putting the owner on notice of the risk of danger to invitees from such third party’s conduct, the owner has the duty to anticipate a tortious act of a third party and to exercise ordinary care to protect invitees from such danger, because from its superior knowledge of the danger caused by prior third party’s tortious misconduct, the owner must anticipate a repetition of such conduct under the facts and circumstances to protect the invitee. Foreseeability gives rise to the duty to act. Days Inns of America v. Matt, 265 Ga. 235 (454 SE2d 507) (1995); Lau’s Corp. v. Haskins, supra at 492-493 (1); McNeal v. Days Inn of America, 230 Ga. App. 786, 788 (498 SE2d 294) (1998).

Further, the Authority knew that users were causing water to get on the floor through use of the laundry room in various ways; therefore, the third party’s tortious misconduct would not constitute a supervening cause but be a concurrent proximate cause of plaintiff’s injuries. See Taylor v. Atlanta Gas Light Co., 93 Ga. App. 766, 769-770 (92 SE2d 709) (1956). In attempting to address this danger of water on the floor, the Authority cut off the water to the laundry room sinks; kept mops in the laundry rooms for the users to get up the water that they spilled; gave warnings; and maintained floor drains. These measures evidenced a knowledge, awareness, and appreciation of the risk of danger to the elderly and disabled invitees. However, an issue arises for jury determination as to whether the Authority negligently failed to take sufficient measures to remove the danger, since the Authority failed to stop water getting on the floors by putting out rubber mats, grooving the floor to drain water quicker, and making the floor slip resistant through a rough surface. Also, the Authority was aware that some users carried water to the laundry room to fill up the new washers, which was active negligence that the Authority had a duty to prevent from recurring.

. The law has long been that when conditions make the premises unusually dangerous, the owner has a duty to continuously patrol the floors; absent such conditions making the premises dangerous, the law does not require such constant patrols. Boatright v. Rich’s, Inc., 121 Ga. App. 121 (173 SE2d 232) (1970); see also Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980); Anderson v. Svc. Merchandise Co., 230 Ga. App. 551 (496 SE2d 743) (1998); Fussell v. Jimbo’s Log Kitchen, 227 Ga. App. 161 (489 SE2d 71) (1997). When undertaking the duty to keep the premises safe by the exercise of ordinary care, this includes inspecting the premises to discover anticipated dangerous conditions about which the owner does not have actual knowledge and taking reasonable precautions to protect invitees from dangers foreseeable from the use of the premises. OCGA § 51-3-1; Robinson v. Kroger Co., 268 Ga. 735, 740 (1) (493 SE2d 403) (1997); Freyer v. Silver, 234 Ga. App. 243, 246 (2) (507 SE2d 7) (1998). Therefore, the owner of the premises is on constructive notice of what a reasonable inspection would reveal. See Jackson v. Waffle House, 245 Ga. App. 371 (537 SE2d 188) (2000); Wesleyan College v. Weber, 238 Ga. App. 90, 94 (b) (517 SE2d 813) (1999); Freyer v. Silver, supra at 245-246 (2).

Fleming testified that the coin-operated washing machines did not fill to the normal water level, which prevented a full load of clothing from being washed. She denied filling the washer with water, but testified that some other residents poured more water into the washer to allow a full load to be washed. The Authority claimed that the new washing machines held the same amount of water as the old machines; that the machines did not work with excess water; and that the new washers looked to the users as if they held less water. The laundry rooms had sinks, but the Authority cut off the water there to prevent washer users from getting additional water to fill the washers. The Authority was aware prior to plaintiffs fall that this practice was occurring on the fifth floor, but did not specifically know for certain that it was also occurring on the third floor, although its employee heard rumors to that effect. In response, the Authority cut off the water in the sink on the third floor and placed mops in the laundry room so that any spilled water could be gotten up immediately by any user. The Authority claimed to have posted a warning not to add water to the new washing machines, but the sign did not stay up; the Authority warned in the newsletter, “Highlight,” that no one should put water into the washers; however, Carl Ware from building maintenance denied that any warnings had been posted. Thus, the Authority had actual knowledge of the dangerous condition, even though it had no actual knowledge of the presence of water on this occasion. The Authority had constructive knowledge of the dangerous practice of third persons.

The inspection schedule of the laundry room consisted of at least one inspection each day when the trash was removed. Maintenance men would go each morning into the laundry room to empty the trash can, check the room, and clean it up as necessary. However, Henderson Reeves from building maintenance claimed that he inspected the laundry rooms every hour or hour and a half throughout the day, or at least every two hours, and did so on the day of the occurrence. Ware did not know when or if Reeves inspected each laundry room, but Ware did not inspect them himself.

Retha Jones of the Authority denied that the Authority had any problems with people filling up washing machines and getting water on the floor, although she admitted to hearing rumors about these problems. The Authority expected that water would get on the floor from wet clothes being transferred from the washer to the dryer. The Authority did not treat such water on the floor as a problem, because users were expected to mop up the water themselves. There were no rubber mats on the floor, because any quantity of water was expected to go out the floor drain. Robinson v. Kroger Co., supra at 748-749. The Authority was on notice of the foreseeable risk of water on the laundry room floor from (1) users attempting to pour more water into the new washers because the new washers looked like they held less water; and (2) water dripping from the transfer of wet clothes from the washer to the dryer. In recognition of the danger of water on the laundry room floor, the Authority placed a mop for the users to use in getting any water up immediately, made periodic inspections each day, and maintained a floor drain. The Authority did not place rubber mats on the floor; nor did it make inspections more frequently than every hour, although users constantly used the washers and increased the risk of the presence of water on the floor and the exposure of subsequent users to the danger. We cannot hold as a matter of law that the inspection schedule was reasonable or sufficient in light of the foreseeable risks to the elderly and disabled. McConnell v. Smith &c. Mgmt. Corp., 233 Ga. App. 447, 449 (2) (504 SE2d 526) (1998).

Decided July 6, 2001

Reconsideration denied July 31, 2001

Sell & Melton, Russell M. Boston, Neil A. Halvorson, for appellant.

Martin, Snow, Grant & Napier, John C. Daniel III, Richard A. Epps, Jr., Hall, Booth, Smith & Slover, Heather C. McGrotty, Jason P. King, Moore, Clarke, DuVall & Rodgers, Luanne Clarke, for appellees.

Periodic inspections would be insufficient to protect the user from the risk of harm, unless done frequently, because such risk is constantly present by continuous proper use with dripping clothes and possible misuse of the washers from manual filling; whether or not inspections made at one- to two-hour intervals were sufficient is a jury question. Thus, the trial court could not hold that the inspection procedure was reasonable as a matter of law under the circumstances. Shepard v. Winn Dixie Stores, 241 Ga. App. 746, 748 (527 SE2d 36) (1999); Hutchins v. J. H. Harvey Co., 240 Ga. App. 582, 585 (2) (524 SE2d 289) (1999); J. H. Harvey Co. v. Reddick, 240 Ga. App. 466, 470-471 (1) (522 SE2d 749) (1999). Whether the presence of rubber mats, a rough nonskid floor surface, or grooves in the floor to carry water to the floor drain would be necessary is a jury question as to what constitutes the exercise of ordinary care under the circumstances. Robinson v. Kroger Co., supra.

Under the facts and circumstances of this case, it cannot be said as a matter of law, where the old or the disabled were reasonably expected to be exposed to such risk, that an inspection schedule every one to two hours was representative of the exercise of reasonable care. Hartley v. Macon Bacon Tune, 234 Ga. App. 815, 818 (507 SE2d 259) (1998). The owner must satisfy the owner’s statutory duty to exercise ordinary and reasonable care under the circumstances to make the premises safe. OCGA § 51-3-1.

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


author: Pope, Presiding Judge.

text:
    A01A0377.
    A01A0667.
    GROPPER et al. v. STO CORPORATION et al. RENAISSANCE BUILDING CORPORATION v. KOLBE & KOLBE MILLWORK COMPANY, INC. et al.
    (552 SE2d 118)
   Pope, Presiding Judge.

Gary R. and Vicki Rae Gropper filed claims arising from the use of synthetic stucco in the construction of their home. The defendants are STO Corporation, the manufacturer of the synthetic stucco product, or “Exterior Insulating Finishing System” (EIFS); Renaissance Building Corporation, the builder; and Evans Plastering Company, a subcontractor. The Groppers’ building contract specified the use of one-inch insulation and a product called “Dryvit.” But the Groppers assert that Renaissance substituted STO’s EIFS product without informing them. The Groppers claim that this system repeatedly failed, allowing water to seep into the exterior insulation and framework of their house. They filed suit asserting claims for product defects (strict liability), breach of contract, breach of warranty, fraud, and negligence. At issue is whether their claims are barred by the applicable statute of limitation.

The Certificate of Occupancy on the Groppers’ home was issued on February 23, 1993. The Groppers’ suit was filed on February 28, 1997, in Fulton Superior Court, four years and five days later. The defendants filed summary judgment motions, claiming that the Groppers’ claims were barred by the four-year statute of limitation for damage to property, OCGA § 9-3-30, counting from the issuance of the Certificate. The Groppers’ former counsel dismissed the first suit without prejudice on October 20, 1998, before these motions were decided.

The Groppers then obtained new counsel and filed a renewal complaint on February 19, 1999, within the six-month renewal period, and more importantly, the Groppers assert, within six years after the issuance of the Certificate. The second complaint added claims for personal injury due to the effects of mold .cpntamination and water leakage on behalf of the Groppers and claims of property damage and personal injury on behalf of their minor children.

In the second action, STO, Evans, and Renaissance asserted cross-claims against one another. STO and Renaissance also asserted third-party indemnity and contribution claims against a number of subcontractors and vendors, including Kolbe & Kolbe Millwork Company, Inc., Bowman Building Supply, Inc., Unique Paving Systems, Inc., DeKalb Steel, Inc., Southern Standard Design & Construction, Inc., and Fashion Floors by Chris.

All defendants sought partial summary judgment based upon the four-year statute of limitation applicable to damage to real property, as it existed prior to the March 29, 2000 amendment, and the trial court granted summary judgment on the Groppers’ defective product, contract, warranty, negligence, and fraud claims as to the real property. The trial court’s order held that because the Groppers’ real property claims against the principal defendants were barred, the comparable third-party and indemnification claims were also barred.

Case No. A01A0377

1. The Groppers first assert that the trial court erred in applying the four-year statute of limitation under OCGA § 9-3-30 to its breach of contract and breach of warranty claims. They contend that the six-year statute of limitation for breach of a written contract applies instead. OCGA § 9-3-24. And, in fact, in a number of recent decisions, this Court has applied the six-year limitation period to contract claims arising out of the use of synthetic stucco. See, e.g., Smith v. KLS Constr. Co., 247 Ga. App. 493 (544 SE2d 197) (2001); Mitchell v. Jones, 247 Ga. App. 113 (541 SE2d 103) (2000); Stimson v. George Laycock, Inc., 247 Ga. App. 1 (542 SE2d 121) (2000).

The defendants argue, however, that these recent decisions were wrongly decided, citing Daniel v. American Optical Corp., 251 Ga. 166 (304 SE2d 383) (1983). There, the plaintiff sought to recover under a theory of strict liability for an eye injury suffered when a piece of hot metal flew over his safety glasses. The Supreme Court of Georgia applied the statute of limitation applicable to personal injury claims under OCGA § 9-3-33, rather than the time limitation applicable to strict liability claims under OCGA § 51-1-11 (b), to bar the plaintiff’s claims. Id. at 168 (1). See also Smith, Miller & Patch v. Lorentzson, 254 Ga. 111 (327 SE2d 221) (1985). The defendants argue that the Daniels decision created a blanket rule that courts should look to the nature of the injury, not to the nature of the claim asserted, to determine the applicable statute of limitation.

But that argument fails upon a closer reading of Daniels. In reaching its conclusion in that case, the Supreme Court noted that strict liability claims were in derogation of the common law and that while the legislature had placed express time restrictions for bringing such a claim, the restrictions were not “a traditional statute of limitations.” Id. at 167 (1). Therefore, the court found that the time restrictions of OCGA § 51-1-11 (b) gave way to the provisions of OCGA § 9-3-33, which was a “traditional general statute of limitations.” Id. at 168 (1). And it further found that the language of that particular statute turned on the nature of the injury rather than the nature of the asserted claim: “By its very language, the scope of application of this statute of limitations is determined by the nature of the injury sustained rather than the legal theory underlying the claim for relief.” (Emphasis supplied.) Id.

Moreover, Georgia follows a specialized rule for determining the limitation period applicable to personal injury claims:

The more commonly accepted [rule] would seem to be that an action to recover for personal injuries is, in essence, a personal injury action, and, regardless of whether it is based upon an alleged breach of an implied warranty or is based upon an alleged tort, the limitations statute governing actions for personal injury is controlling.

(Citations and punctuation omitted.) Adair v. Baker Bros., Inc., 185 Ga. App. 807, 808 (366 SE2d 164) (1988). It follows that because the claims before us do not include personal injury, Daniels and its progeny are not controlling. Stimson, 247 Ga. App. at 3 (1).

Here, in contrast to Daniels, we are presented with two “traditional” statutes of limitation and claims for damage to real property. Under the language of OCGA § 9-3-30, the scope of the limitation period is determined by the nature of the injury sustained. But the scope of the limitation period under OCGA § 9-3-24 is determined by the legal theory underlying the claim for relief — breach of a written contract. To accept the defendants’ argument that OCGA § 9-3-30 always controls would be to render OCGA § 9-3-24 meaningless. Therefore, we agree with the recent decisions of this Court that the six-year limitation period of OCGA § 9-3-24 governs the Groppers’ claim asserting the breach of a written contract. See also Fort Oglethorpe Assoc. II v. Hails Constr. Co. &c., 196 Ga. App. 663 (1) (396 SE2d 585) (1990) (statute of limitation for breach of a written construction contract is six years after the work was substantially complete).

We are therefore in accord with the holding of this Court in another recent synthetic stucco case:

Thus, to the extent that the plaintiffs’ complaint alleges breach of the written contract — including claims for breach of implied warranty stemming from that contract — such claims are governed by the six-year statute of limitation. To the extent that the complaint alleges breach of an implied contract, such claim would be subject to the four-year statute of limitation.

(Footnotes omitted.) Rosenheimer v. Tidal Constr. Co., 250 Ga. App. 145, 147 (2) (550 SE2d 698) (2001).

The only written contract in this case was between the Groppers and Renaissance, the builder. Therefore, the Groppers’ claims for breach of contract and breach of warranty against Renaissance are subject to the six-year statute of limitation and are not time-barred. But the Groppers’ claims against the remaining defendants are based on claims of implied contract and implied warranties not arising from a written contract. Accordingly, those claims are subject to the applicable four-year statutes of limitation and the trial court correctly granted the motions for summary judgment filed by STO and Evans.

2. The Groppers next assert that their claims for breach of warranty should run from the time they discovered the problems with the EIFS or from the date that the defendants breached their duty to repair under the warranty, and not from the date of substantial completion, as the trial court found. It is well settled that “[t]he period of limitation on a construction contract commences on the date the work was substantially complete.” (Citations and punctuation omitted.) Costrini v. Hansen Architects, 247 Ga. App. 136, 137 (1) (543 SE2d 760) (2000). See also Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (1) (368 SE2d 732) (1988); Mitchell v. Contractors Specialty Supply, 247 Ga. App. 628, 629 (544 SE2d 533) (2001); OCGA § 9-3-51. And the Groppers’ breach of warranty claims are based upon either express or implied contracts arising in connection with the construction of their home. Accordingly, the limitations period began to run at the time the Certificate of Occupancy was issued, which the trial court ruled was the date of substantial completion. See generally Bicknell v. Richard M. Hearn Roofing &c., 171 Ga. App. 128, 130 (318 SE2d 729) (1984) (cause of action for negligent construction runs from the date construction completed, not from the discovery of the injury).

Although the Groppers rely upon Versico v. Engineered Fabrics Corp., 238 Ga. App. 837 (520 SE2d 505) (1999), that case was decided under the Uniform Commercial Code (UCC) provisions setting out the limitation period in connection with the sale of goods and thus has no application here. OCGA § 11-2-725 (1). Unlike the general statutes of limitation applicable in this case, the UCC specifically sets forth a discovery rule where a warranty covers the future performance of the goods delivered. OCGA § 11-2-725 (2).

3. The Groppers also assert that the trial court erred in deciding as a matter of law that tolling did not apply to their fraud claim. To establish tolling, the Groppers must prove that the defendants engaged in fraud sufficient to have debarred or deterred them from discovering their cause of action. OCGA § 9-3-96. To establish such fraud, they must present evidence of the following three elements: “(1) actual fraud on the part of the defendant involving moral turpitude, (2) which conceals the existence of the cause of action from the plaintiff, and (3) plaintiff’s reasonable diligence in discovering his cause of action, despite his failure to do so within the time of the applicable statute of limitations.” (Citations omitted.) McClung Surveying v. Worl, 247 Ga. App. 322, 324 (1) (541 SE2d 703) (2000). This proof requires something more that mere concealment. The Groppers must show that the defendants concealed the defects through “[s]ome trick or artifice ... to prevent inquiry or elude investigation or to mislead and hinder the party who has the cause of action from obtaining the information, and the acts relied on must be of an affirmative character and fraudulent.” Mitchell v. Jones, 247 Ga. App. at 117 (3).

We agree with the trial court that the Groppers failed to meet this level of proof.

4. In their final enumeration of error, the Groppers assert that the trial court erred in applying OCGA § 9-3-30 rather than OCGA § 51-1-11 to determine the limitation period on their strict liability claim. The arguments raised by the Groppers in connection with this enumeration were previously considered and rejected by this Court in Mitchell v. Contractors Specialty Supply, 247 Ga. App. at 629-630. Accordingly, we find no error on this ground.

Case No. A01A0667

5. Renaissance cross-appeals the trial court’s grant of summary judgment to the third-party defendants in this action. Renaissance asserts that to the extent we reverse any portion of the trial court’s grant of partial summary judgment as to Renaissance, we should reverse the trial court’s order granting summary judgment to the third-party defendants to the same extent. We agree.

Decided July 9, 2001

Reconsiderations denied July 31, 2001

Rubin & Hoyt, Robert P. Hoyt, for appellants (case no. A01A0377).

Pursley, Howell, Lowery & Meeks, Paul A. Howell, Jr., John C. Amabile, Wood & Grant, Wayne Grant, for appellant (case no. A01A0667).

Womble, Carlyle, Sandridge & Rice, R. Wayne Bond, Jonathan B. Mason, John A. Thomson, Jr., Jimmy E. White, Swift, Currie, McGhee & Hiers, Stephen M. Schatz, Robert E. Jones, Kenneth M. Barre, for appellees (case no. A01A0377).

Ellis, Funk, Goldberg, Labovitz & Dokson, Donald J. Ellis, for appellee (case no. A01A0667).

To summarize, therefore, we reverse the trial court’s grant of summary judgment on the Groppers’ claim that Renaissance breached its written contract and their claim for breach of warranty arising in connection with that written contract. Further, to the extent that Renaissance has asserted any third-party claims in connection with those breach of contract and breach of warranty claims, we reverse the trial court’s grant of summary judgment as to such third-party claims. We affirm the trial court’s grant of summary judgment on the remaining claims.

Judgments affirmed in part and reversed in part.

Blackburn, C. J., and Mikell, J., concur.

       The timeliness of the personal injury claims is not before the Court in this appeal.

       In 2000, the legislature amended OCGA § 9-3-30 to include subsection (b) specifically directed to actions such as this one, arising out of the “negligent design or installation of synthetic exterior siding.” But that amendment applies only to causes of action that would not have expired under the former law before March 28, 2000, and thus has no application in this case. OCGA § 9-3-30 (b) (2).

       The trial court did not specifically address any claims for damage to personal property. The parties disagree as to whether any such claims remain viable, but that is not specifically enumerated as an issue in this appeal. Thus, we do not address such claims.

       In addition we note that Kemp v. Bell-View, Inc., 179 Ga. App. 577, 578 (346 SE2d 923) (1986), relied upon by some of the parties in this appeal, does not affect this analysis. See Costrini v. Hansen Architects, 247 Ga. App. 136, 137 (1) (543 SE2d 760) (2000); Stimson, 247 Ga. App. at 3 (1), n. 2.

       The trial court did not specifically rule on the cross-claims filed by the defendants against each other. Therefore, we do not address such claims.