text:
    A96A2496.
    CANTRELL et al. v. U-HAUL COMPANY OF GEORGIA, INC. et al.
    (482 SE2d 413)
   Smith, Judge.

Perkecia Cantrell and Toby Valdez Lewis Rushin brought this action against U-Haul Company of Georgia and the local U-Haul rental agency from which they rented a truck (collectively “U-Haul”). They alleged negligence and sought damages for injuries they alleged were incurred when the rented truck hit a tree after its brakes failed. The defendants answered, denying any negligence, and moved for summary judgment. The trial court granted the defendants’ motion for summary judgment, and Cantrell and Rushin appeal.

Cantrell and Rushin correctly state that a statutory duty exists for the owner of a vehicle to maintain the brakes in good working order. OCGA § 40-8-50 (a); Lewis v. Harry White Ford, 129 Ga. App. 318, 319 (2) (199 SE2d 599) (1973). An owner who permits another to operate the vehicle when the owner knows or should know that the brakes are defective is liable for injuries proximately caused by defective brakes. Lewis, supra. Cantrell and Rushin contend that U-Haul did know or should have known that the brakes were defective on the truck they rented. The testimony relied upon by plaintiffs in support of this contention consists entirely of their testimony that the brakes did not work properly on the day of the accident; the deposition testimony of the president of U-Haul of Georgia indicating that this truck was involved in an accident in North Carolina in August 1993, approximately seven months before the accident in issue; and evidence showing that no repairs were made to the brakes after that accident or before or after the accident in issue.

“[Sjummary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991). Because Rushin and Cantrell testified on deposition that the brakes failed, we must also assume for purposes of review that this is true. For purposes of this appeal, U-Haul concedes that the brakes were defective. But even assuming that the brakes failed and caused the accident, Cantrell and Rushin have failed to establish that appellees knew or should have known that the brakes were defective when the truck was rented to them. Because establishment of this fact is an element essential to recovery, we affirm the trial court’s grant of summary judgment to appellees. See generally Lau’s Corp., supra.

U-Haul produced evidence that the truck was regularly maintained and serviced, and that each time it was inspected before the accident, the brakes appeared to be in working order. No other customers complained about the truck’s brakes, either before or after the accident. The last inspection of this truck prior to Rushin’s rental was three weeks before the accident. No problems were noted with the truck’s brakes at that time or when the truck was inspected after the accident.

Appellants’ reliance upon Kirby v. Spate, 214 Ga. App. 433 (448 SE2d 7) (1994), is misplaced. In that case, we reversed the trial court’s grant of summary judgment because a fact issue remained regarding whether the defendant school bus owner exercised ordinary diligence when no effective regular maintenance program had been established. In this case, it is undisputed that such a program existed at U-Haul, that the program was followed, and that U-Haul had no reason to believe when it rented the truck to Rushin that the brakes were defective.

Judgment affirmed.

Andrews, C. J., and Pope, P. J., concur.

Decided February 14, 1997

Michael B. King, for appellants.

Troutman Sanders, Daniel S. Reinhardt, Lesley G. Carroll, for appellees.

       In fact, the evidence showed they were not. After the accident the truck was driven without incident by Rushin’s brother (who drove the truck back to the local U-Haul agency), a local agency employee, and a U-Haul mechanic. Both the U-Haul mechanic who tested the truck and the local agency owner testified that nothing was wrong with the truck’s brakes.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A96A2531.
    DANIEL v. THE STATE.
    (482 SE2d 409)
   Smith, Judge.

Candy Daniel was charged with murder, OCGA § 16-5-1 (a), for stabbing her mother to death. She claimed self-defense, and the jury convicted her of voluntary manslaughter, OCGA § 16-5-2 (a). We affirm.

1. In two enumerations of error, Daniel claims the evidence did not support her voluntary manslaughter conviction and demanded a finding that she acted in self-defense. We apply the standard set forth in Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979) and view the evidence with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the verdict. Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986).

In February 1994, the victim’s body was found discarded and decaying in the woods behind her home. She had suffered four separate stab wounds to the left side of her chest and one to the right side of her neck, as well as blunt trauma on the top and side of her head. Of the four stab wounds, three were serious enough that any one of them would have been fatal. Daniel, the victim’s daughter, gave statements to police on March 2 and July 5 in which she denied knowing how her mother died. On July 8, after police told Daniel a bloody fingerprint found at the scene matched hers, she stated she could not explain the fingerprint but said she had witnessed her aunt “Bootsie” stab her mother while another man was present. In subsequent interviews on July 26, Daniel said a man named “Keith French” stabbed her mother in the presence of other named witnesses. Finally, in statements taken the evening of July 26 and the morning of July 27, Daniel admitted she had killed her mother after her mother attacked her with a knife. The two were wrestling on the ground, Daniel claimed, when the knife fell from her mother’s hands. Daniel stated she picked up the knife and stabbed her mother, who was on top of Daniel at the time.

In these final statements, Daniel gave conflicting stories concerning two individuals she claimed witnessed the fight. Daniel did not testify at trial. The State also produced evidence that allowed its expert to opine that the victim was standing upright when she was bleeding and that it appeared the victim tried to get away from her attacker.

As Daniel correctly contends, the State had the burden of disproving the justification defense. Austin v. State, 218 Ga. App. 90, 91 (2) (460 SE2d 310) (1995). This evidence, however, supports the jury’s verdict rejecting the self-defense claim. “The distinguishing characteristic between voluntary manslaughter and justifiable homicide is that the accused was so influenced and excited that [s]he reacted passionately rather than simply to defend [her]self. [Cit.]” Syms v. State, 175 Ga. App. 179, 180 (1) (332 SE2d 689) (1985). Whether Daniel acted in the heat of passion or in self-defense was a matter for the jury to determine. Nelson v. State, 213 Ga. App. 641, 642 (1) (445 SE2d 543) (1994). Even though the only eyewitness account of the stabbing presented at trial was Daniel’s own statement to police, the jury was not required to believe her claim of self-defense. Syms, supra at 180; Jenkins v. State, 241 Ga. 212 (244 SE2d 868) (1978).

2. Daniel contends the admission of her statements of July 8, July 26, and July 27 was error. After a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), the trial court determined Daniel made those statements after being informed of her Miranda rights and admitted the statements as freely and voluntarily given. This Court will accept the trial court’s factual findings on this issue unless they are clearly erroneous. Mejia v. State, 264 Ga. 230 (2) (443 SE2d 486) (1994). The record shows that before each interview, Daniel indicated she understood and waived her Miranda rights. During the course of these interviews, she signed several forms indicating she understood her rights but freely and voluntarily waived them in the absence of any threat or promise. At the July 8 interview, one officer did say to his partner in Daniel’s presence, “If she’s not going to tell that’s what happened . . . it’s going to be rough on her.” However, he then explained to Daniel that he meant the evidence showed she was at the scene of the crime, and if she could not explain the inconsistency between the evidence and her prior statements she would have a “tough” time. The officer’s statement was nothing more than a permissible exhortation to tell the truth. See Tyler v. State, 247 Ga. 119, 122 (2) (274 SE2d 549) (1981). Under these circumstances, “[n]othing that the officer said could reasonably have been interpreted by [Daniel] as eliciting an untrue confession of guilt.” Shelton v. State, 196 Ga. App. 163, 164 (3) (395 SE2d 618) (1990). The trial court did not err in ruling the statements admissible. Mejia, supra.

3. Daniel claims the trial court erred by denying her motion for continuance after an officer she subpoenaed for trial left the jurisdiction. The officer apparently would have testified that the victim told him she was beaten up by a boyfriend, evidence Daniel asserts was material to the self-defense claim.

Before a continuance based on the absence of a witness may be granted, the movant must show each of the requirements of OCGA § 17-8-25. Caver v. State, 215 Ga. App. 711, 712 (2) (452 SE2d 515) (1994). Assuming without deciding that Daniel met the remaining prerequisites of that statute, the trial court did not abuse its discretion in denying the motion because this evidence was not material to the claim of self-defense. Caver, supra. Although acts of violence by the victim against third parties may be relevant to a claim of self-defense, see Chandler v. State, 261 Ga. 402, 407 (3) (b) (405 SE2d 669) (1991), the proffered testimony showed only that the deceased had herself been the victim of violence. See Wells v. State, 261 Ga. 282, 283 (4) (b) (404 SE2d 106) (1991) (evidence not admissible which did not suggest violence on part of victim against third persons).

Even if this incident would have shown the victim’s violent propensities, this evidence was cumulative. Eight other witnesses either testified that the victim was a violent person or gave accounts of specific incidents in which the victim acted violently towards the defendant, third parties, or herself. Therefore, the trial court’s denial of the motion for continuance was not error. Daniel v. State, 180 Ga. App. 179, 181 (4) (348 SE2d 720) (1986) (continuance not required where sought-after evidence would be cumulative).

4. Daniel claims the trial court gave an erroneous charge on justification. She points to the court’s statement, “Once the issue of an affirmative defense is raised, the burden is on the State to prove it beyond a reasonable doubt and to the extent required by law.” (Emphasis supplied.) We find this to be a mere slip of the tongue, as the court should have said “disprove” instead of “prove.” The court went on to instruct the jury that “[t]he State has the burden of proving beyond a reasonable doubt that the Defendant was not justified.” Viewing the charge as a whole, we find the trial court’s verbal slip did not mislead the jury and was harmless error in light of the court’s subsequent statement clearly stating the prosecution’s burden. Looney v. State, 221 Ga. App. 224, 226 (2) (471 SE2d 243) (1996); Tenant v. State, 218 Ga. App. 620, 622 (3) (462 SE2d 783) (1995).

5. Contrary to Daniel’s assertion, the trial court did not err by allowing a GBI crime scene specialist to testify that a substance he photographed was blood. The trial court acted within its sound discretion when it qualified this witness as an expert in “the field of crime scene investigation and blood pattern analysis and detection” based on his training and experience in blood analysis. See Askew v. State, 185 Ga. App. 282 (1) (363 SE2d 844) (1987). Even if the witness were not qualified as an “expert” to identify a substance as blood, a lay person may give such an opinion so long as he explains the reasons for that opinion. This agent explained that he had received training in blood analysis. Wimmis v. State, 216 Ga. 350, 352 (3) (116 SE2d 547) (1960); Wright v. State, 220 Ga. App. 233, 234 (2) (469 SE2d 381) (1996).

Decided February 14, 1997.

Candace E. Rader, for appellant.

Peter J. Skandalakis, District Attorney, Lynda S. Engel, Assistant District Attorney, for appellee.

6. Daniel enumerates as error a portion of the prosecutor’s closing argument that she claims inappropriately shifted the burden of proof to her client, but that closing argument is not part of the trial transcript. “[I]n such circumstances, when we cannot determine what argument was presented, and on what factual basis the trial judge’s ruling was based, we normally would affirm peremptorily the trial court’s judgment. [Cit.]” Oller v. State, 187 Ga. App. 818, 821 (3) (371 SE2d 455) (1988). Daniel’s objection to the argument was transcribed, and from that objection, it appears the State’s argument challenged Daniel’s failure to present witnesses who could corroborate her claim of self-defense. Such a comment would be permissible, especially in light of Daniel’s statements indicating that others were present during the fight with her mother. Sinkfield v. State, 266 Ga. 726, 728 (5) (470 SE2d 649) (1996). But the trial court responded to Daniel’s objection by reminding the prosecutor (and the jury) that the burden never shifts to the defendant to prove self-defense. Daniel neither requested further instructions nor renewed her objection. This issue therefore was not preserved for appellate review. Jones v. State, 221 Ga. App. 374, 375 (2) (471 SE2d 318) (1996).

Judgment affirmed.

Andrews, C. J., and Pope, P. J., concur.


author: Birdsong, Presiding Judge.

text:
    A97A0007.
    ARRINGTON v. THE STATE.
    (482 SE2d 400)
   Birdsong, Presiding Judge.

Christopher Douglas Arrington appeals his conviction of trafficking in methamphetamine. Held:

1. Appellant’s first enumeration contains therein the assertion of two independent errors: first, that the trial court erred by refusing to enforce appellant’s subpoenas, which had been served upon two law enforcement officers, unless appellant could demonstrate that the officers would testify there was in fact a tape recording made of the confrontation between appellant and Agent Crowe; and, secondly, that the trial court erred by ruling upon appellant’s motion to compel production of said tape recording without first hearing the testimony of the two officers. When an appellant enumerates more than one error within a single enumeration, which constitutes a violation of OCGA § 5-6-40, this Court may in its discretion elect to review none or one or more of the errors so improperly enumerated. Robinson v. State, 200 Ga. App. 515, 518 (2) (408 SE2d 820). ‘We elect in our discretion to review none of these multiple assertions of error.” White v. State, 221 Ga. App. 860, 861 (1) (473 SE2d 539); accord Wilson v. Southern R. Co., 208 Ga. App. 598, 606 (6) (431 SE2d 383), cert. denied, 510 U. S. 1195 (114 SC 1303, 127 LE2d 655).

Further, the hearing transcript reveals that, during the course of discussing the subpoenaed officers’ anticipated testimony, appellant acknowledged that he did not know what they would testify to, as he had not been able to interview them. Appellant further invited the trial court to rule on the issue stating he had made his record, and after the court ruled, appellant expressed his understanding of the ruling and did not specifically object to the ruling having been made without the taking of the subpoenaed officers’ testimony. It is well-established that one cannot complain of a ruling or trial procedure utilized by the trial court which his own trial tactics or conduct procured or aided in causing. Williams v. State, 205 Ga. App. 445, 446 (2) (422 SE2d 309).

Additionally, in denying appellant’s pretrial motion to bar use of a coerced confession, the trial court found, as fact, that “the officers never recorded the conversation [between appellant and the GBI agent posing as the Federal Express employee] even though they could have done so.” Nothing in the record would support any claim that this finding of fact was clearly erroneous; rather, the record contains some testimonial evidence which provides support for this finding.

2. Appellant contends the trial court erred in failing to charge the jury on impeachment. By expressly announcing following the charges that there was “no exception to the charge” and by failing to reserve objection, appellant waived any charging error on appeal. Dukes v. State, 205 Ga. App. 678 (2) (423 SE2d 295); Crosby v. State, 188 Ga. App. 191, 194 (6) (372 SE2d 471). Moreover, “[i]n the absence of a timely written request to charge on impeachment, the failure to do so is not error.” Maxwell v. State, 170 Ga. App. 831, 834 (2) (318 SE2d 650).

3. Appellant contends for various reasons that the trial court erred by allowing, over objection, the introduction in evidence of a tape-recorded telephone conversation between Tracy Hunter (appellant’s girl friend and his wife at trial time) and a woman in Arizona. The phone conversation occurred a few minutes after appellant’s arrest and apparently was initiated on request of the investigating officer. The call was placed to the Arizona residence of the girl friend’s uncle, John David Frix. The party who answered the call was identified by Ms. Hunter as Beverly Frix. Ms. Frix stated that Ms. Hunter’s uncle was not there; Ms. Frix subsequently inquired whether the “package” had been received. No reference was made during the conversation as to which particular package Ms. Frix was referring. Further, the contents of the package were not identified during the course of the conversation; neither was the identity of the person for whom the package was intended expressly revealed. However, Ms. Frix did ask the girl friend, “did you get” the “package” and the girl friend later replied that “I don’t think he got those.” Appellant married his girl friend before trial; at trial, the wife (former girl friend) refused to testify claiming both spousal immunity and her right against self-incrimination under the Fifth Amendment. See generally Patterson v. State, 202 Ga. App. 440 (2), (4) (414 SE2d 895) and cases cited therein. At trial appellant posed only a hearsay objection, a relevancy objection, and an objection for lack of authentication; he also previously objected because the tape was outside the range of discovery.

(a) Appellant asserts that admission of the tape recording at trial violated the discovery provisions of Title XVII, Chapter XVI, Official Code of Georgia Annotated. But see Sledge v. State, 223 Ga. App. 488, 489 (3) (477 SE2d 898). Before relief can be obtained for a violation of the discovery provisions of Title XVII, Chapter XVI, Article I, Official Code of Georgia Annotated (OCGA §§ 17-16-1 through 17-16-10), it must be “brought to the attention of the court that the [State or the defendant] has failed to comply with the requirements of this article.” OCGA § 17-16-6. Appellant failed to object timely and expressly on the grounds that the introduction of the tape would constitute a violation of any specific Code provision of Title XVII, Chapter XVI, Article I. Accordingly, any objection based on a violation of these statutory provisions was waived. See Strawder v. State, 207 Ga. App. 365 (1) (427 SE2d 792); Norman v. State, 197 Ga. App. 333, 334 (2) (398 SE2d 395). Likewise waived is any other claim of appellate error based on a ground for objection not timely and specifically raised at trial.

(b) Pretermitting the issue whether the trial court erred by admitting the tape for any reason asserted on appeal by appellant is whether such admission, even if erroneous, would constitute harmless error. Examination of the trial record in toto reveals that any error arising from the introduction of the tape in evidence would constitute harmless error.

A cardboard box (hereinafter package) was shipped from Arizona to a “Hall Creek.” A search warrant was obtained and the package was found to contain methamphetamines. ■ Investigation revealed that the mailing address on the package — 3420 Irwin Bridge Road — was that of appellant, Christopher Arrington. Investigation also revealed that no person named Hall Creek was living at the mailing address. A GBI agent dressed as a Federal Express employee was detailed to make a controlled delivery of the package to its mailing address. The agent, however, drove to 3424 Irwin Bridge Road which was the home of appellant’s parents. Before the agent could leave the residence, appellant drove up on a terrain vehicle. The agent identified herself as a Federal Express employee attempting to deliver the package. Appellant replied that this was the home of his parents who were vacationing in Florida. Appellant then accepted delivery of the package and signed for it, signing the name of Mike Chris to the delivery document. (The agent further made an in-court identification of appellant as the person who took possession of the package.) At no time did appellant tell the agent that he did not want the package or attempt not to take possession of it. After taking possession of the box, appellant placed it on a toolbox in the back of a pickup truck parked under the carport of his parents’ home. Appellant mounted his terrain vehicle and the agent gave the takedown signal. Backup arrived and appellant was arrested.

A few minutes after being advised of his Miranda rights and electing not to assert them, appellant made a voluntary, oral statement to another law enforcement investigator. In that statement appellant initially denied knowledge of the package. Next appellant stated that the package was supposed to contain race car parts or gears which had been shipped from Arizona and that a truck driver was going to come and pick it up at the house. When pressed, appellant could not give any description or specific information about the driver, truck or expected time of pickup. Appellant “finally admitted that the package was sent to him by his girlfriend’s uncle from Arizona” who had said he would send him a package which would help him out of a financial bind — “he would give [appellant] something to sell.” Appellant further admitted that he had met with her uncle a week prior to the incident, and this was when the uncle stated he would send the package; it was to be addressed to a “Paul Creek and not Hall Creek.” Although appellant did not use the word methamphetamine in his statement, when asked by the investigator if “he knew it was methamphetamine or crank as it’s referred to on the street, [appellant] said he did.” Appellant admitted that “he knew it was methamphetamine coming” and that he was “expecting the package.” Appellant could not give any explanation for signing the name, Mike Chris, to the Federal Express signature record form.

It is clear from the record that the information regarding the sending of an unidentified package from Ms. Hunter’s uncle’s location in Arizona was entirely cumulative of the evidence contained in appellant’s own oral statement which was duly admitted in evidence. Accordingly, any error in the admission of the taped phone conversation was harmless. “Evidence is harmless where admissible evidence of the same fact is before the jury.” Scott v. State, 206 Ga. App. 23, 26 (1) (c) (424 SE2d 328); Young v. State, 191 Ga. App. 651, 653 (2) (382 SE2d 642); see Revera v. State, 223 Ga. App. 450, 452 (2) (477 SE2d 849).

Decided February 14, 1997

Sidney L. Moore, Jr., for appellant.

Cheryl F. Custer, District Attorney, Sara D. Yarbrough, Assistant District Attorney, for appellee.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


author: Judge Harold R. Banke.

text:
    A97A0034.
    HEMBREE v. JOHNSON et al.
    (482 SE2d 407)
   Judge Harold R. Banke.

Terrell L. Hembree sued Gordon Johnson and James Haddle d/b/a Douglasville Health & Athletic Club (collectively “Johnson”) to recover damages relating to a knee injury allegedly sustained in a slip and fall on a racquetball court. Hembree appeals the trial court’s adverse summary judgment ruling.

Johnson moved for summary judgment relying primarily on exculpatory language contained in a membership agreement. The record shows that Melissa Hembree completed and signed joint Membership Agreement No. 13217 on which she listed Terrell Hembree, her husband, as a family member. The first section in the contract provides, “I agree to use the Health and Athletic Club in accordance with the Rules and Conditions printed on the reverse side.” Melissa Hembree signed the Rules and Conditions document which contains certain exculpatory provisions requiring a member to: (1) assume any risk occasioned by the use of the facilities, and (2) forever release and discharge the corporate owner of the club, and any affiliated companies and/or its agents and employees from liability for claims arising out of the use of the facilities.

Several months after the joint membership expired, Terrell Hembree signed a Membership Addendum to obtain an individual membership. The Membership Addendum states, “I herewith modify my original membership agreement No. 13217 dated 4-14-92 as stated herein.” The only pertinent change in the addendum altered the joint membership to an individual one. During the time Hembree had an individual membership, he allegedly slipped and fell. Held:

1. We reject Hembree’s contention that summary judgment was precluded by the existence of a material issue of disputed fact as to whether he assented to the waiver. The construction of a written contract is a question of law for the trial court unless after the court applies the applicable rules of construction, ambiguity remains. OCGA § 13-2-1; Binswanger Glass Co. v. Beers Constr. Co., 141 Ga. App. 715, 716 (1) (234 SE2d 363) (1977). This is not such a situation. When Hembree signed the Membership Addendum, he specifically assented to all the terms contained in Membership Agreement No. 13217, which was incorporated by reference in the Membership Addendum. Incorporation by reference is generally effective to accomplish its intended purpose where, as here, the reference has a reasonably clear and ascertainable meaning. Binswanger, 141 Ga. App. at 717 (2). Hembree was bound by the terms and conditions of the contract that he signed including the Rules and Conditions giving effect to the waiver. It was incumbent upon Hembree to read the contract and apprise himself of the terms to which he assented. Conklin v. Liberty Mutual Ins. Co., 240 Ga. 58, 59 (239 SE2d 381) (1977); Lovelace v. Figure Salon, 179 Ga. App. 51, 53 (1) (345 SE2d 139) (1986). Having shown the absencé of any genuine issue of material fact, Johnson was entitled to summary judgment as a matter of law. OCGA § 9-11-56 (c).

2. Hembree enumerates as errors an alleged violation of the Fair Business Practices Act (OCGA § 10-1-393.2) and an assertion that Johnson and Haddle are not agents and employees of the corporation as contemplated by the waiver language. Although Hembree claims that he raised these two issues during oral argument, he failed to provide a transcript of the summary judgment hearing. Hembree, as the party alleging error, has the burden to show it affirmatively by the record. North Fulton Feed v. Purina Mills, 221 Ga. App. 576, 577 (472 SE2d 122) (1996). Because Hembree failed to show that either of these issues was raised and argued below, they cannot be raised now for the first time. Auerbach v. First Nat. Bank of Atlanta, 147 Ga. App. 288, 290 (1) (B) (248 SE2d 551) (1978).

3. Notwithstanding Hembree’s argument to the contrary, we find no violation of public policy in the exculpatory clause at issue. A contracting party may waive or renounce that which the law has established in his favor, provided doing so does not injure others or affect the public interest. OCGA § 1-3-7. It is well settled that public policy does not prohibit the inclusion of an exculpatory clause, like the one at issue here, in a health club membership. Day v. Fantastic Fitness, 190 Ga. App. 46 (1) (378 SE2d 166) (1989); My Fair Lady of Ga. v. Harris, 185 Ga. App. 459 (364 SE2d 580) (1987); Lovelace, 179 Ga. App. at 52 (1).

Decided February 14, 1997.

Akin & Tate, S. Lester Tate III, for appellant.

Chambers, Mabry, McClelland & Brooks, Rex D. Smith, Ian R. Rapaport, for appellees.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


author: Andrews, Chief Judge.

text:
    A96A1846.
    COLUMBUS DOCTORS HOSPITAL, INC. v. THOMPSON et al.
    (482 SE2d 705)
   Andrews, Chief Judge.

Sharon Thompson slipped and fell on ice which had naturally accumulated in the parking lot at Columbus Doctors Hospital as a result of a snow storm. She sued the hospital claiming the serious head injury she suffered in the fall was caused by the hospital’s failure to exercise ordinary care to keep its premises safe for invitees. Thompson’s husband, Thomas Thompson, also sued the hospital for loss of consortium caused by the injury sustained in the fall. We granted the hospital’s application for a discretionary appeal from the trial court’s denial of its motion for summary judgment.

We conclude that the hospital was entitled to summary judgment in its favor because, even though the evidence shows Thompson could not see the clear ice on which she slipped and fell despite exercising ordinary care for her own safety, there is no evidence that the hospital had any actual or constructive knowledge of the ice which caused the fall.

Thompson slipped and fell in the parking lot of the hospital on Monday morning after she drove there for a medical appointment. On the Saturday prior to that Monday, the entire area had been covered with snow by a major storm. On Monday morning, the weather was clear, but snow was still visible in some areas, and it was still cold. Thompson parked her car in the uncovered upper parking deck at the hospital. She noticed some snow and slush up against the curb on the deck where she parked and a small amount of slush between the parked cars, which she walked around. She walked to the rear of her car, took about three or four more steps, and slipped and fell. She did not see what she slipped on although she was looking where she was walking and down at the surface of the deck. After she fell, she could feel with her hands that she had slipped on a thin sheet of clear ice, even though she still could not see the ice while sitting on it.

All of the evidence shows that the invisible ice on which Thompson slipped and fell was naturally occurring rather than the result of any affirmative action taken by the hospital. The evidence shows that hospital maintenance personnel were aware of the general weather conditions and the presence of some remaining snow and slush on parts of the upper deck, but there is no evidence that they knew about the invisible ice on which Thompson slipped. Although the hospital’s director of plant operations testified on deposition that two entrances to the upper parking deck, the north bridge and the west ramp, were closed on Monday morning because of potentially hazardous conditions at those entrances, the third entrance to the upper deck remained open, and the upper parking deck itself remained open at all times. The director of plant operations and one of his employees both deposed that, although there were some visible spots of snow and slush on the upper parking deck on Monday morning, they saw no areas that appeared to be iced over. There is no evidence that anyone else had slipped or fallen on the parking deck prior to Thompson. There is no evidence that the hospital did anything to make the icy condition more dangerous than it was in its natural state of accumulation.

In order to prevail on a claim where the plaintiff invitee alleges that, due to the defendant proprietor’s failure to exercise ordinary care to keep the premises safe, she slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must demonstrate that the defendant had superior knowledge of the foreign substance — i.e., (1) the defendant had actual or constructive knowledge of the foreign substance, and (2) the plaintiff was without knowledge of the foreign substance or for some reason attributable to the defendant was prevented from discovering it. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980); Fisher v. HBS Mgmt., 220 Ga. App. 752, 753 (469 SE2d 885) (1996). The evidence shows that Thompson, despite exercising reasonable care to watch where she was walking, was unable to discover the invisible ice prior to slipping on it. Accordingly, the issue is whether the hospital had actual or constructive knowledge of the ice which caused the fall.

Although the hospital and Thompson knew that a snow storm had just occurred and it was still cold, knowledge of the generally prevailing hazardous conditions is not sufficient to establish actual or constructive knowledge by the hospital or Thompson of the specific invisible ice hazard on the upper deck which caused the slip and fall. Telligman v. Monumental Properties, 161 Ga. App. 13, 16 (288 SE2d 846) (1982). There is no evidence that the hospital had actual knowledge of the invisible ice hazard on the upper deck, despite evidence that the hospital conducted regular inspections of the premises. Thompson’s claim is that, because the hospital failed to discover and remove the invisible ice, it had constructive knowledge of the hazard. However, where ice accumulated on a premises is naturally occurring and not attributable to any affirmative action on the proprietor’s part, the proprietor has no affirmative duty to discover and remove it in the absence of evidence that it had become an obvious hazard by means other than the natural accumulation. Speaks v. Rouse Co. &c., 172 Ga. App. 9, 10-11 (321 SE2d 774) (1984); Auerbach v. Padgett, 122 Ga. App. 79, 82-83 (176 SE2d 193) (1970). There is no evidence that the ice which caused Thompson’s fall had become such an obvious hazard. Under the circumstances, the hospital had no duty to inspect the premises to find and remove the naturally occurring invisible ice that caused the fall.

Decided February 4, 1997

Reconsideration denied February 17, 1997

Tisinger, Tisinger, Vance & Greer, Kevin B. Buice, for appellant.

Denney, Pease, Allison & Kirk, John W. Denney, Elizabeth S. Morgan, for appellees.

Accordingly, there was no basis to conclude that the hospital had actual or constructive knowledge of the ice hazard which caused Thompson’s fall. Since the hospital’s knowledge of the hazard was no greater than Thompson’s, the hospital was entitled to summary judgment. Fisher, supra; Speaks, supra; McIntyre v. Corporate Property Investors, 160 Ga. App. 868 (288 SE2d 584) (1982); Auerbach, supra.

Judgment reversed.

Pope, P. J., and Smith, J., concur.


author: Eldridge, Judge. Beasley, Judge,

text:
    A96A2123.
    HAMMOND v. CITY OF WARNER ROBINS.
    (482 SE2d 422)
   Eldridge, Judge.

Appellant brought an action against the City of Warner Robins in nuisance, trespass, and inverse condemnation. From 1972 until 1976, Warner Robins operated a sanitary landfill.

There exists a three-foot layer of soil as a ground covering for the landfill; beneath this layer, household garbage exists from a depth of three feet to thirty feet.

Most sanitary landfills contain organic waste, such as household garbage, which decays with time. The rate of decay varies with time at a rate which can be represented by a bell curve. However, since there exists no uniformity in content of the landfill or time and depth of a waste deposit, then there exist multiple rates of decay which would be represented by overlapping bell curves for each layer of waste. Anaerobic decay, in the absence of air, produces methane gas and water.

Methane gas is an odorless, colorless, organic compound that is lighter than air so that it has a tendency to migrate to an environment where it will be under less pressure. If ventilated vertically to the ground surface, methane gas will dissipate into the atmosphere. Methane seeks the course of least resistance through the soil; it will migrate vertically through decaying waste if there exists no clay cap as a barrier or will migrate laterally under normal conditions, depending upon the geological composition of the soil. Methane generation or water saturation can increase the pressure buildup that, along with an impervious soil condition, such as clay, can cause a downward and lateral movement of the gas along porous soil. Methane gas will collect in voids in the soil, cracks in rocks, or areas beneath structures, such as crawl spaces. When the ground surface dries out and cracks, methane gas can seep out of the ground through such opening. The gas can move laterally through gravel, silt, sand, and geological faults, seeking to escape to the atmosphere. This means that methane can move along and above groundwater tables, because the soil is porous enough to allow water collection and flow; during droughts, when the water level falls, these voids become empty, allowing the invasion of methane gas. When methane gas concentrations reach five percentage or greater, which is 50,000 ppm, the gas becomes explosive if ignited. At higher concentrations, it can be harmful to human health; often vegetation near escaping methane gas dies.

Landfills often contain other organic chemicals, such as cleaning fluids, paint, paint remover, and industrial solvents, which may settle into ground water or decompose into organic gases. Many of these organic compounds are either toxic to tissue, carcinogenic, or both.

Springwood Subdivision was built next to the landfill after it closed in 1976. Some lots abutted the east boundary line of the landfill, which exists at a higher elevation than the subdivision. Since the landfill sits at a higher elevation and extends to a depth of 30 feet, the bottom of the landfill lies close to the level of the ground water table in the subdivision.

Appellant bought her house in the subdivision at 102 Prado Court in 1985 for $80,000. Prado Court lies parallel to the east side of the landfill, approximately 150 feet away from the landfill. Appellant’s property is approximately 175 feet east of the landfill across Prado Court. Mr. Holt’s property, 103 Prado Court, lies between Prado Court and the landfill, across from appellant.

Appellant lived in the house at 102 Prado Court for approximately one year prior to her marriage, when she moved out. She has leased out the property ever since. In 1988, appellant sought to refinance the property loan, but the lender declined to make the loan because of the risk of methane gas. From this loan rejection, appellant first learned of the potential methane problem. Since then, she has been unable to sell the property. While refinancing has been a problem, a factual dispute exists as to whether the property can be refinanced or not.

Methane gas was detected at 103 Prado Court (Mr. Holt’s property) by the Georgia Department of Natural Resources, Environmental Protection Division, but the gas was not found at 102 Prado Court. Tests conducted by engineers retained by the city have been unable to find methane gas on appellant’s property, but the test hole went only to a depth of two and one-half feet.

After testing, the City of Warner Robins engaged in a methane gas abatement program along Prado Court and Springwood Drive; a drainage swale was constructed with a 12-foot trench at the bottom filled with clay to form a passive barrier; methane gas vents to a depth of 15 feet were installed and a line of gas monitor holes were dug along Prado Court to the same depth.

Appellant joined with three other litigants in the subdivision to pay $16,000 for deep test wells to be drilled at 103 Prado Court, Mr. Holt’s property, below the ground water table. Such wells went five feet below the water table, to a depth of between 35 and 40 feet. Tests at these depths showed high concentrations of methane gas where the soil was either moist silt or very moist sand that provided a good porous soil condition for lateral migration. The test well at MW-3 was approximately 130 feet from 102 Prado Court and was the closest well to this address. The report showed test results in methane gas present in parts per million (ppm): no gas present at 5 and 10 feet; 4 ppm at 15 feet; 8,990 ppm at 20 feet; and more than 10,000 ppm at 25 through 35 feet. The water table was determined to lie at MW-1 at 36.86 feet; at MW-2 at 33.53 feet; at MW-3 at 29.47 feet; and at MW-4 at 32.67 feet.

Appellant’s expert, Dr. Ronald Huggins, interpreted the test results to show that methane gas had migrated from the landfill through the porous zone of soil at and above the water table in high concentrations. In Dr. Huggins’ opinion, the methane gas migrated beyond the test wells along the course of least resistance and under appellant’s property. The existence of high concentrations of methane gas presented not only a physical hazard but also a potential health hazard, although Dr. Huggins admitted on cross-examination that the levels of methane found at 102 Prado Court in June 1994 were not physically dangerous at that time, but its presence posed a health risk. He also opined that the testing methodology employed by Warner Robins’ experts was deficient in that it did not drill deep enough, and that the passive barrier, methane vents, and monitor holes at a depth of 15 feet or less allowed methane gas to migrate underneath these installations without detection. He concluded that the methane gas came from the landfill.

Appellee’s expert, Mr. Hodges, stated in contradiction that, in his opinion, the methane gas detected at 103 Prado Court was either caused by construction debris from the subdivision or by the decay of such materials providing a pathway for methane gas to migrate from the landfill. In his opinion, it would be highly improbable that methane gas could migrate from the landfill to 102 Prado Court. Mr. Hodges also had a problem with the methodology used by Dr. Huggins. However, the only test done on appellant’s property by appellee’s experts was at a depth of two and one-half feet.

During May and June of 1994, appellant and the three other litigants spent another $16,000 to actually drill test wells on their own property to provide direct evidence of the subsoil presence of methane gas from the landfill. The test wells at OW-2 and OW-4 were on the north and south property lines of 102 Prado Court, appellant’s property.

The June 30, 1994 test report showed methane gas concentrations (in parts per million) at the test depths:

Depth in feet Soil Type Soil Type

3 to 5 10 ppm clay clay

8 to 10 15 ppm silt 25 ppm silt

13 to 15 18 ppm silt 12 ppm silt

18 to 20 8 ppm silt 12 ppm silt

20 to 25 95 ppm moist silt 13 ppm silt

28 to 30 40 ppm very moist 12 ppm moist silt

33 to 35 N/A sand 26 ppm moist silt

38 to 40 N/A 15 ppm very moist clay

In addition, measurable amounts of other organic gases were found, including: dichlorodifluoromethane; tetrachloroethane; tridecane; chloroform; methylene chloride; eicosane, 10-methyl-; and styrene.

Appellant’s real estate appraiser gave an appraisal that the property had an $82,000 fair market value, but that it should be discounted 40 percent to reflect the effect of contamination on the market price, so that the actual fair market value was $48,840. Appellee’s real estate expert agreed as to the fair market value without the discount, and questioned the use of the 40 percent figure.

The trial court denied appellee’s initial motion for summary judgment; upon the renewed motion for summary judgment before a senior judge, the motion was granted.

1. Appellant’s first enumeration of error is that the trial court erred in finding that a physical invasion and physical damage were necessary to support a claim of nuisance.

Appellee’s expert witnesses testified that methane gas and other organic compounds were stopped by the passive clay barrier on 103 Prado Court, and that, because of such barriers, it was highly improbable that methane gas could migrate from the landfill underground across 103 Prado Court (Mr. Holt’s property), cross Prado Court, which was built upon a clay base, and invade appellant’s property at 102 Prado Court.

However, appellant’s expert dug deep test wells below the water table on 103 Prado Court and found methane gas in the porous layer of soil above the water table at a depth of 20 to 30 feet. He testified that, in his opinion, methane gas would continue to migrate the additional approximate distance of 175 feet to appellant’s property by passing under the passive barrier which extended to only a depth of 15 feet.

In May and June of 1994, when test wells were finally drilled at 102 Prado Court (appellant’s property) at a depth of 20 to 30 feet, it was found that methane gas, as well as other organic gases, had, in fact, invaded appellant’s property and were detectable between both the north and south property lines above the water table. This meant that such gases had invaded the entire property through the porous area or zone extending upward through the silty soil layer. In fact, trace amounts were detectable in the clay three to five feet below the surface of the ground.

While each of the opposing party’s experts challenge the methodology and test results of the other and question the extent of damages resulting from such invasion of methane and other organic gases from the landfill, such conflicts not only raise material issues of fact, but also raise issues of weight and credibility of the evidence and expert opinions.

The legal issue presented is whether the subsurface contamination of soil with methane gas or organic man-made compounds in trace amounts constitutes a nuisance upon which an action for damages can be based. “ ‘ “Under some factual situations, it can be held as a matter of law that no nuisance exists; however, that question ordinarily is a question for the jury.” (Cits.)’ [Cit.]” Grier v. City of Atlanta, 200 Ga. App. 575, 576 (408 SE2d 794) (1991), citing Whiddon v. O’Neal, 171 Ga. App. 636, 638 (320 SE2d 601) (1984).

This Court, on almost identical facts, has already found that a jury issue of permanent nuisance and damages arises. City of Warner Robins v. Holt, 220 Ga. App. 794 (470 SE2d 238) (1996). In Holt, the property involved was 103 Prado Court, which lies directly across the street from appellant’s property and had the nearest test well approximately 130 feet away; the test levels of methane were higher and the property abutted the landfill in Holt, and the expert witness for the plaintiff in Holt is also appellant’s expert. Therefore, the differences between the two cases lie in the level of methane and other organic gas invasion, and not on the question of whether or not subsurface contamination can give rise to a nuisance, because Holt held that “the evidence presented a jury issue concerning whether there was a nuisance, and, if so, whether it was permanent or abatable.” Id.

The evidence shows the ability of methane and other gases to migrate from the landfill, despite abatement efforts, across the Holt property and the street to physically invade appellant’s property; the measurements of the methane and other gases on appellant’s property have varied with time and location; the expert testimony shows that the output of methane gas by the landfill can increase, which could also cause the levels of measurable methane gas on appellant’s property to increase and which could increase to safety hazard levels. Whether or not the methane gas will increase or could increase to safety hazard levels in the foreseeable future are questions for jury determination based upon expert testimony. If a jury determines that the physical invasion of methane gas is de minimis or is unlikely to increase in the future, then the jury would determine what actual effect that level of methane would have on the fair market value of the property; however, if the methane level at the time of trial has substantially increased or is found by the jury to have a future likelihood of increasing, then the jury would determine what effect that level of methane would have on the fair market value. At trial, the jury must determine whether the nuisance is permanent or abatable. In light of Holt, it appears highly unlikely that the methane and other gas can be abated because of the passage of time since the prior abatement efforts were undertaken and the subsequent methane levels on appellant’s property, but the determination of whether the nuisance is permanent or abatable would be a matter for the jury to decide. “What constitutes the proper measure of damages recoverable by the owner of real property damaged by a nuisance turns upon the issue of whether the nuisance is permanent or abatable. If the nuisance is permanent, the measure of damages is the diminution of fair market value of the property. If the nuisance is abatable, the measure of damages is the lost rental value for so long as the nuisance is allowed to continue.” Holt, supra at 796. Under OCGA § 41-1-3 or § 41-1-4, if an individual has “special damages,” then the individual has a right of action. If a nuisance is found to exist although there has been only de minimis damage to the property interest, appellant may seek damages for “annoyance and discomfort” caused by such nuisance as a result of the maintenance of the nuisance. Shepherd Constr. Co. v. Vaughn, 88 Ga. App. 285, 291-292 (5) (76 SE2d 647) (1953); Sam Finley Incorporated v. Russell, 75 Ga. App. 112, 118 (3) (42 SE2d 452) (1947); see also Central Ga. Power Co. v. Parker, 141 Ga. 198 (80 SE 648) (1913); Swift v. Broyles, 115 Ga. 885 (42 SE 277) (1902). Damages for discomfort and annoyance are separate and distinct damages from any damage to realty. City of Atlanta v. Murphy, 194 Ga. App. 652 (391 SE2d 474) (1990). The measure of damages for discomfort, unhappiness, and annoyance is in the enlightened conscience of the jury. Holt, supra at 797-798 (3), (4).

Stigma to realty, in and of itself, is too remote and speculative to be a damage and is of first impression; the closest area in tort comes under OCGA § 51-9-11, slander to title, which is analogous to a stigma. A stigma may arise when there exists a minimal physical invasion through nuisance, which would not rise to the level of actual hazard to health or safety, and which cannot be abated or which abated has a negative effect on the property in public perception, i.e., there is a demonstrable effect on the fair market value. Special damages proximately flowing from such nuisance must be shown. See Copeland v. Carpenter, 203 Ga. 18, 19 (1) (45 SE2d 197) (1947); Schoen v. Maryland Cas. Co., 147 Ga. 151, 153 (93 SE 82) (1917); Daniels v. Johnson, 191 Ga. App. 70, 73 (2) (381 SE2d 87) (1989). Inability to obtain loans or refinancing the realty does not constitute a special damage. Hicks v. McLain’s Bldg. Materials, 209 Ga. App. 191, 192 (1) (433 SE2d 114) (1993); Harmon v. Cunard, 190 Ga. App. 19, 20 (378 SE2d 351) (1989). Costs of litigation including attorney fees do not constitute special damages. Hicks, supra at 192. In Harmon, supra, appellant alleged “that the lien prevented her from obtaining funds necessary to complete her house and prevented her from selling her house, without offering specific figures for the damage allegedly suffered.” Id. at 20. In the case sub judice, the appellant has produced some evidence as to the value before the nuisance was discovered as well as some opinion evidence as to the value after the nuisance was discovered, which would provide the measure of damages for the jury to determine damages, if any. Thus, even if at trial appellant fails to be able to prove anything more than nominal damages to her realty interests, she has a right to seek the above damages from a jury.

The Supreme Court has disapproved the holding in Austin v. Augusta Terminal R. Co., 108 Ga. 671 (34 SE 852) (1899), defining the nature of a property interest too narrowly. Duffield v. DeKalb County, 242 Ga. 432, 433-434 (249 SE2d 235) (1978). Austin v. Augusta Terminal R. Co., supra, even in its narrow definition of real property interests, stands for the fundamental proposition that any repeated and continuous physical invasion of the real property of another constitutes a private nuisance; a physical invasion has occurred in the case sub judice, as well, yet the trial court has granted summary judgment. In Duffield, supra, the Supreme Court held that “[t]he term (property) comprehends not only the thing possessed, but also, . . . means the rights of the owner in relation to land or a thing; the right of a person to possess, use, enjoy and dispose of it. . . . Therefore, no physical invasion damaging property need be shown, only an unlawful interference with the right of the owner to enjoy his possession.” Id. at 433-434. A municipality, unlike a county, can be held liable for a private nuisance, whether it arises from a governmental or ministerial function which damages property (City of Rome v. Turk, 235 Ga. 223 (219 SE2d 97) (1975)) or which causes health hazards (Kea v. City of Dublin, 145 Ga. 511 (89 SE 484) (1916); Ingram v. City of Acworth, 90 Ga. App. 719 (84 SE2d 99) (1954)). Duffield, supra at 434, n. 2.

In the case sub judice, a physical invasion of appellant’s property has occurred even though it may be 23 feet below ground; it cannot be said as a matter of law that this caused no damages, which would be for jury determination. Where a governmental entity causes damage to property in carrying out a governmental function, such invasion of an individual’s property interest would not only be a private nuisance but would also be an inverse condemnation of the property, either permanently or temporarily. Duffield, supra at 432-434.

While it appears unfair for a municipality to be liable to subsequent adjacent property owners for any pre-existing nuisance to their acquiring the property, the nuisance is a continuing tort, which injures them anew each day of its existence, and to the extent that it is a damage to property interests, such would be a chose in action, assignable, which would pass to successors in title. OCGA §§ 44-12-20; 44-12-22; 44-12-24; McLanahan v. Keith, 135 Ga. App. 117, 119 (2) (217 SE2d 420) (1975). Under the facts of both Duffield, supra, and Holt, supra, the nuisance preceded the ownership of each property owner.

In the case sub judice, the gas is trapped into the very body of the property and is not merely moving across the surface of the property, based upon the direction of the wind, so that it is a physical invasion of the property, so that a finding of a partial condemnation is not a condition precedent to recovery, although appellant does, in fact, contend that there has been such taking by inverse condemnation. In Hoffman v. Atlanta Gas Light Co., 206 Ga. App. 727, 730 (426 SE2d 387) (1992), this Court held that “[t]he ‘damages growing out of (the) nuisance’ . . . [is] the continuing ‘hurt, inconvenience, or damage’ caused by the hydrocarbon contamination, for which OCGA § 41-1-1 gives a cause of action . . .,” and treated the contamination as a physical invasion of the property. Here, the hydrocarbon was a gas instead of a liquid, which nonetheless has contaminated the soil within which it is trapped and continues to infiltrate.

On motion for summary judgment, the burden is on the movant to establish the absence of an element of plaintiffs claim, and to show that the evidence, viewed most favorably to the non-movant, warrants judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In the case sub judice, there is conflicting evidence regarding the elements of a nuisance, and summary judgment should be denied.

Further, opinion evidence in opposition to a motion for summary judgment can be sufficient to preclude a grant of summary judgment. Barlow v. Orkin Exterminating Co., 196 Ga. App. 822, 823 (397 SE2d 170) (1990), citing Brygider v. Atkinson, 192 Ga. App. 424, 426 (385 SE2d 95) (1989); see also Davidson Mineral Properties v. Gifford-Hill & Co., 235 Ga. 176, 177 (219 SE2d 133) (1975). In the case sub judice, the expert opinion evidence conflicts not only as to the existence of a nuisance, but also as to damages. When movant’s expert opinion has been contradicted, summary judgment should be denied. Haire v. City of Macon, 200 Ga. App. 744 (409 SE2d 670) (1991).

The trial court erred in the grant of summary judgment on the issue of the existence of a nuisance under the facts of this case.

2. The second enumeration of error is that the trial court erred in dismissing the appellant’s claim for inverse condemnation. Where there has been a physical invasion, either temporarily or continuously, of the property of a person by a governmental entity that causes damage, such invasion of the property rights may give rise to inverse condemnation where no compensation has first been paid for such governmental damage. Duffield v. DeKalb County, supra; Fulton County v. Baranan, 240 Ga. 837 (242 SE2d 617) (1978). Generally, such physical invasion is either in the form of solids or liquids, but may also be in the form of gases. The physical property of gases is such that, if not confined, gases diffuse in all directions to equalize pressure; gases that are lighter than air will rapidly dissipate or move upward into the atmosphere, but gases that are heavier than air will pool on the surface and slowly diffuse laterally like water. Gases that are lighter than air may cause danger by being noxious in odor, explosive, corrosive, or toxic, causing damage depending on whether they are transitory or a continuous physical invasion; such gases are subject to wind and rain, which may accelerate or delay the movement of the gas over the property. In contrast, gases that are heavier than air will move like a liquid at or above the surface of the ground until the gas has diffused or been blown away by wind or rain. It is in recognition of that fact that odor or smoke, as well as more harmful gases, may, depending upon the facts and circumstances, constitute a public taking through inverse condemnation. See Duffield, supra. The constitution “does not, however, give these authorities the power to damage property without a taking. The ‘damage’ clause gives the injured citizen a constitutional cause of action against a public authority for injury to his property interests regardless of whether there is also a ‘taking.’ ” MARTA v. Trussell, 247 Ga. 148, 149 (1) (273 SE2d 859) (1981). Where private property has been damaged negligently for public purposes, under the constitutional provisions for eminent domain the property owner can recover for such damages. Woodside v. Fulton County, 223 Ga. 316 (155 SE2d 404) (1967).

In the case sub judice, there is not a surface presence of gases which are moving across the surface of the property but an actual subsurface invasion of appellant’s property, so that the gases diffuse throughout the soil and become trapped in any faults, voids, or fissures in the property. Under such circumstances, the trapped gases present a physical invasion which is similar to a solid or liquid. The nature and extent of damage presents a factual question for jury determination. See Holt, supra at 796 (2). A party is entitled to one complete recovery for their damages; therefore, if the appellant recovers for a temporary or permanent nuisance, then there could be no additional recovery under the theory of. inverse condemnation; conversely, if there is a full recovery under the theory of inverse condemnation, then there can be no recovery for nuisance. Since the permitted damages under nuisance are broader, then there can be no recovery under both theories for the same damages, but could be a recovery under each theory for different damages.

For the reasons set forth not only in Division 1 but also herein, the trial court erred in dismissing the claim or in granting summary judgment.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Pope P. J., Johnson and Smith, JJ., concur. Andrews, C. J., and Ruffin, J., concur in the judgment only. Beasley, J., dissents.

Beasley, Judge,

dissenting.

“A nuisance is anything that causes hurt, inconvenience, or damage to another, and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary, reasonable man.” OCGA § 41-1-1. We have recognized that “[t]he classic definition of a private nuisance is such conduct as constitutes an unreasonable interference with the plaintiff’s interest in the use and enjoyment of his land.” Barrow v. Ga. &c. Aggregate Co., 103 Ga. App. 704, 711 (4) (120 SE2d 636) (1961), disapproved as to another proposition, OB-GYN Assoc. &c. v. Littleton, 259 Ga. 663, 667 (B) (386 SE2d 146) (1989). See also Prosser & Keeton, The Law of Torts, “Nuisance,” § 87, pp. 619, 622; Restatement of the Law, Torts 2d, § 82 ID.

In construing this Code provision, which is not intended to change the common-law definition of nuisance, the Supreme Court has held that in order to constitute a nuisance, “there must be the maintenance of a dangerous condition on a continuous or regular basis over a period of time in which no action or inadequate action is taken to correct the condition after knowledge thereof.” (Emphasis in original.) City of Bowman v. Gunnells, 243 Ga. 809, 810 (1) (256 SE2d 782) (1979). Although the Supreme Court in that case recognized that whether a complained-of condition constitutes a nuisance is ordinarily a question of fact, “under some factual situations it can be held as a matter of law that no nuisance exists.” Id. at 811. Gunnells was one of those situations, and Mrs. Hammond’s case is another. The superior court did not err in granting summary judgment to the municipality on her second restated amended complaint, as asserted on appeal.

The city landfill and the emanating methane gas which Mrs. Hammond alleges interfered with her right to use and enjoyment of her property were involved in the suit of her neighbor Holt. His house was adjacent to the landfill and there was evidence his property contained dangerous levels of methane gas from the landfill, rendering it uninhabitable or, if corrected, then unmarketable; the jury’s finding of a permanent nuisance was thus upheld. City of Warner Robins v. Holt, 220 Ga. App. 794 (470 SE2d 238) (1996). Mrs. Hammond’s house, located diagonally across the street from Holt’s, was not uninhabitable and actually was rented for the entire time in issue here, with somewhat escalating rent. Her case is not founded on “almost identical facts” as that of Mr. Holt, contrary to the majority’s analysis.

Mrs. Hammond encountered difficulty in refinancing the house in 1988. The lender refused because of the methane problems with the neighbors’ houses and the inability of the city engineer to guarantee that there would be no methane on Mrs. Hammond’s property for the life of the proposed loan, 15 years. No methane gas had been detected on her property at that time, and no methane gas has been detected despite various tests and periodic testing since that time, except for a small amount found once deep down by her expert in 1994. No subsequent test measured any. The amount found, 95 parts per million, is over 500 times below the lowest risk level of combustion, which is the only danger methane gas poses. The lowest level at which the gas will support combustion is approximately 50,000 parts per million. Except for its combustibility, methane gas poses no risk to health or safety and is not otherwise offensive, because it is odorless, colorless, and nontoxic, which Mrs. Hammond admits.

Moreover, “[a] single isolated occurrence or act, which if regularly repeated would constitute a nuisance, is not a nuisance until it is regularly repeated. [Cit.] . . . Assuming for the sake of argument that the evidence showed that this [single] occurrence was due to the negligence of the defendant in this case, it was wholly insufficient to authorize any finding that the defendant was creating or maintaining a nuisance so as to authorize the abatement thereof. . . .” Southeastern Liquid Fertilizer Co. v. Chapman, 103 Ga. App. 773, 775-776 (2) (120 SE2d 651) (1961). See Desprint Svcs. v. DeKalb County, 188 Ga. App. 218, 220 (2) (372 SE2d 488) (1988); compare DeKalb County v. Orwig, 261 Ga. 137, 138-139 (2) (402 SE2d 513) (1991).

The difficulties Mrs. Hammond experienced in refinancing her property, which she ultimately did refinance, despite the one instance of measured methane, were attributed not to the presence of the small amount on her property. That information was not conveyed to any lender and was obtained in June 1994, long after her 1988 initial efforts at refinancing. Nor was it conveyed to any renter or proposed renter, so the presence of a minuscule amount of methane gas many feet below the surface, detected once, did not affect marketability as either sale or rental property. Instead, the difficulties were founded on the perception that the property was worth less because of the methane problems of other nearby property owners and the lack of a guaranteed forecast.

The landfill itself cannot be a nuisance. It had been operated in years prior to 1977, when it was closed, and the residential subdivision in which Mrs. Hammond’s house is located was built thereafter. “[T]hose owning property in the vicinity of a public work, whose property values are depreciated thereby, are not entitled to compensation under the state constitutional provision that private property shall not be taken or damaged for public use without just compensation.” Evans v. Just Open Government, 242 Ga. 834, 837 (251 SE2d 546) (1979). In Evans, the plaintiffs alleged nuisance per se and nuisance per accidens. Id. at 836. But the Court relied on earlier authority in holding that the prisons at issue are a public necessity, are authorized by law, and thus are in no legal sense a nuisance. Id. at 839 (4). The same must be said of a public landfill. Moreover, the value of Mrs. Hammond’s property was established when the landfill was already in existence and closed. Of course, as recognized in Evans, the manner in which the facility is kept might become a nuisance.

Here, then, the question is whether the migration of methane gas onto others’ property, which Mrs. Hammond’s evidence tends to show affected the value of hers insofar as its refinancing and possibly its sale are concerned, can constitute a nuisance on her property right to enjoy her property. As held in Duffield v. DeKalb County, 242 Ga. 432, 433-434 (249 SE2d 235) (1978), where the property owners also claimed nuisance and inverse condemnation, “property” comprehends the thing possessed as well as the rights of the owner in relation to it; “the right of a person to possess, use, enjoy and dispose of it, and the corresponding right to exclude others from the use. [Cit.]” (Punctuation omitted.) There need not be a “physical invasion” damaging to the property; a nuisance may also be constituted of only “an unlawful interference with the right of the owner to enjoy his possession.” Id. at 434.

Here there was no health or safety nuisance connected to plaintiff’s property; there is only a claimed economic nuisance engendered by methane gas in such levels on other property such as Holt’s, and by the inability of defendant municipality to assure no future gas on Mrs. Hammond’s property. This cannot constitute an unlawful interference with Mrs. Hammond’s enjoyment of her property so as to constitute the maintenance of a nuisance by the municipality as to her. A problem on adjacent property, tending to devalue the plaintiff’s property, is not such inconvenience as to amount to a nuisance. Jillson v. Barton, 139 Ga. App. 767, 769 (1) (229 SE2d 476) (1976). Mere diminution in property value as a result of adjacent or nearby contamination, in and of itself, does not constitute an actionable nuisance because the creation of such losses is not a substantial and unreasonable interference by the municipality with the use and enjoyment of property. The contamination of the neighbors’ property did not spill over to constitute a nuisance on plaintiff’s property by way of the effect of the former on the market perception of the value of her property. It is damnum absque injuria, a loss without legal injury.

Other courts have referred to what Mrs. Hammond claims as injury as “stigma” and have refused compensation. See, e.g., In re Paoli R. Yard PCB Litigation, 811 FSupp. 1071, 1074 (E.D. Pa. 1992); Adkins v. Thomas Solvent Co., 487 NW2d 715 (Mich. 1992); City of Newport v. Emery, 559 SW2d 707 (Ark. 1977).

Anticipating a potential future nuisance is non-actionable because it requires a conclusion not based on existing facts. Kahn v. Standard Oil Co., 165 Ga. 575 (141 SE 643) (1928). “The whole idea of nuisance is that of either a continuous or regularly repetitious act or condition which causes the hurt, inconvenience or injury. To this end, it has long been recognized in Georgia that the mere apprehension of future injury from a nuisance which the complainant anticipates may be maintained in the future in the operation of a lawful business is not sufficient to authorize its abatement. If it be a nuisance, the consequences must be to a reasonable degree certain. [Cits.]” Chapman, supra at 775 (2).

Decided February 17, 1997

Decker & Hallman, F. Edwin Hallman, Jr., David C. Moss, Pamela M. Richards-Greenway, for appellant.

Jones, Cork & Miller, Hubert C. Lovein, Jr., Robert C. Norman, Jr., for appellee.

Kilpatrick & Cody, Edward A. Kazmarek, Troutman Sanders, John H. Johnson, Jr., Hollister A. Hill, Walter E. Sumner, Susan M. Pruett, James F. Grubiak, amici curiae.

Since plaintiff has no claim against the municipality for nuisance, even giving her the benefit of all evidence in her favor as must be done on summary judgment, she cannot recover on the theory of inverse condemnation either. Without the nuisance, there is no taking for which plaintiff would be entitled to compensation. See Prosser & Keeton, The Law of Torts, “Immunities,” p. 1054, § 131; Duffield, supra; Evans, supra. Diminution of value in and of itself does not constitute a constitutional deprivation of property rights so as to amount to a taking for which compensation is required. Gradous v. Bd. of Commrs. &c., 256 Ga. 469, 471 (349 SE2d 707) (1986). As a matter of law, no compensable taking of Mrs. Hammond’s property rights occurred. As to this being a question of law, see MARTA v. Fountain, 256 Ga. 732, 734 (352 SE2d 781) (1987).

The trial court’s grant of summary judgment to the City of Warner Robins should be affirmed.

       Mr. Holt’s property was the subject of a similar suit, City of Warner Robins v. Holt, 220 Ga. App. 794 (470 SE2d 238) (1996).

        Hill v. McBurney Oil &c. Co., 112 Ga. 788, 793 (38 SE 42) (1901).

       “Coming to a nuisance” does not necessarily preclude recovery. See Prosser & Keeton, The Law of Torts, “Nuisance,” pp. 634-636.

       Present Constitution, Art. I, Sec. Ill, Par. I.


author: Eldridge, Judge.

text:
    A97A0050.
    SOUTHEASTERN EXPRESS SYSTEMS, INC. et al. v. SOUTHERN GUARANTY INSURANCE COMPANY OF GEORGIA.
    (482 SE2d 433)
   Eldridge, Judge.

On June 9, 1994, Southern Guaranty Insurance Company of Georgia, appellee, brought a declaratory judgment action in the Superior Court of Bibb County against Southeastern Express Systems, Inc., Southeastern Express Systems, Southeastern Brokerage Company, Southeastern Express, George Barnes, Kevin Clark, and Gerry Wambolt to determine coverage regarding a California lawsuit against them. Appellee issued a policy for the coverage period beginning October 25, 1989, with several renewals through October 25, 1991, to George Barnes as the named insured doing business as Southeastern Brokerage Company in the renewal of such policy. Effective October 25, 1992, the policy listed for the first time as named insured Southern Express Systems, Inc. to George Barnes doing business as Southeastern Brokerage Company, after suit had been served against Southeastern Express Systems, Inc. Barnes was the registered agent for Southeastern Express Systems, Inc.; Barnes, Gerry Wambolt, and Kevin Clark are partners doing business as Southeastern Express and Southeastern Brokerage Company, both with principal places of business in Macon, Bibb County, Georgia.

On April 22, 1992, Triad Systems Corporation (Triad), a Delaware corporation with its principal place of business in California, sued Southeastern Express Systems, Inc. and George Barnes in the United States District Court for the Northern District of California, and Barnes was served on April 22, 1992. Barnes did not notify appellee but, within days, hired private counsel to defend against the suit. In October 1992, Triad amended its suit to also name as defendants “Southeastern Express Co., a Georgia de facto partnership, d/b/a Southeastern Brokerage Company and d/b/a Southeastern Express Systems,” Kevin Clark, and Gerry Wambolt. Until 1987, Barnes had been an employee of Triad and had entered into various confidentiality agreements with Triad not to use or divulge its proprietary or trade secrets or to seek its customers. Triad sued appellants for selling pre-owned Triad computer hardware and pre-licensed Triad software products without paying a software license fee and without obtaining from the subsequent purchasers an agreement to be bound by Triad’s license agreement. Triad contended that appellants knew that Triad’s original customers had an agreement to pay subsequent relicensing fees and not to transfer software without a license agreement. In addition, Triad contended that appellants had intentionally encouraged Triad’s original customers to violate such agreements; that appellants copied and distributed Triad’s manuals without permission in violation of Triad’s copyrights; that appellants provided their new customers upgrades of Triad’s software without license, permission, or payment of fees to Triad; that appellants provided their customers with illegal copies of Triad’s copyrighted software programs; that appellants breached the confidentiality agreements entered into regarding Triad’s proprietary property, i.e. operation and service of the hardware, and information contained on the software by transferring, selling, and using such proprietary information without Triad’s consent; that appellants violated the California Business and Professions Code by misappropriating Triad’s trade secrets and actual and potential Triad customers by advertising that they were familiar with Triad’s proprietary property, by inducing Triad’s customers to breach their license agreements, and by transferring the software in violation of the license agreement; that appellants intentionally interfered with such license agreements to acquire Triad’s customers; that appellants intentionally took customers from Triad by interfering with the license agreements; and that appellants wilfully violated Triad’s copyrights for its own economic benefit. Triad alleged that these intentional acts began in 1988 and continued until the time of suit.

The policies issued by appellee expressly excluded coverage of the insured, or other insureds, who engaged in dishonest or fraudulent acts, which exclusion raised serious coverage issues. The alleged wrongful conduct by appellants commenced prior to the initial policy period of October 25, 1989, under policy number 6450, which did not include Southeastern Express Systems, Inc. as a named insured but did include Barnes. The policy numbered 9896 was renewed in the name of Southeastern Express Systems, Inc. for the first time on October 25, 1992, although it had not previously been a named insured and had been sued on April 22, 1992, along with Barnes.

Peter Dortch is Barnes’ brother-in-law who owned Dortch Agency, Inc. and is an independent insurance broker who placed the business coverage for Barnes with appellee. Barnes previously had procured personal insurance coverage through Dortch. Barnes relied upon Dortch’s expertise to not only procure business coverage, but also to determine the amount of insurance and insurance company to write the coverage. Appellee’s agency contract with Dortch created an independent contractor relationship between Dortch and the insurer, which agreement specifically included that Dortch “[pjrovide all usual and customary services of an insurance agent on all insurance contracts placed by the Agent with the Company.”

Barnes told Dortch a few days after service of the suit that he and Southeastern Express Systems, Inc. had been sued in California by Triad. Barnes asked Dortch if they were covered by the policy for such suit, and Dortch told him that the policy did not provide coverage for Southeastern Express Systems, Inc. under the policy under the circumstances. Barnes testified that he accepted Dortch’s opinion of non-coverage at face value and made no further effort to file a claim at that time. Later, after the defense costs had mounted to over a million dollars, Barnes decided to file a notice of claim in order to obtain payment of the defense costs from appellee. Then Barnes gave notice of the original and amended complaint to appellee on October 21, 1993, when he sent a claims letter to appellee but did not send a copy of the complaint or amended complaint.

On January 2, 1996, appellee moved for summary judgment. On April 30, 1996, the trial court granted appellee’s motion for summary judgment based upon appellants’ failure to provide notice and copy of the complaint as amended to the appellee of the suit as required by the contract. Appellants filed a timely appeal.

Appellants’ sole enumeration of error is that the trial court erred as a matter of law in granting the motion for summary judgment.

“Independent insurance agents or brokers are generally considered the agent of the insured, not the insurer. Nat. Property &c. Ins. Co. v. Wells, 166 Ga. App. 281 (2) (304 SE2d 458) (1983).” European Bakers, Ltd. v. Holman, 177 Ga. App. 172, 173-174 (2) (338 SE2d 702) (1985); see also Clark, Davis & Easley Ins. Agency v. Tile Technology, 217 Ga. App. 809 (459 SE2d 450) (1995); Kirby v. Northwestern Nat. Cas. Co., 213 Ga. App. 673, 678 (2) (445 SE2d 791) (1994). Under the facts and circumstances of this case, including the familial relationship involved, Dortch, as an independent insurance agent or broker, was the agent of the insureds, appellants, so that notice to Dortch of the Triad suit was not notice to appellee.

When the terms of the policy or instructions stamped upon the face of a liability policy instruct the insured that it is to provide notice of suit, either to the independent insurance agent or the insurer, such delegation of apparent authority, notwithstanding the independent contractor relationship, will estop the insurer to deny any notice which was given to the independent agent under its instructions. This is because the insurer “places a purported agent in a position of apparent authority so that a person of ordinary prudence conversant with business usages and the nature of the particular business is justified in assuming that such agent has the authority to perform a particular act and deals with the agent upon that assumption. [Cits.]” Intl. Indem. Co. v. Odom, 174 Ga. App. 6, 7 (2) (329 SE2d 307) (1985); see also Alexander Underwriters Gen. Agency v. Lovett, 177 Ga. App. 262, 265 (2) (339 SE2d 368) (1985). However, in the case sub judice, neither the language of the policy nor anything stamped upon the face of the policy gave apparent authority to the independent insurance agent to receive the notice required to be given to the insurer, appellee. Therefore, any notice of the Triad suit given to Dortch, the independent insurance agent who was acting as agent for appellants, did not provide constructive notice to appellee.

Titan Indem. Co. v. Hall County, 202 Ga. App. 38, 39-40 (2) (413 SE2d 213) (1991), is distinguishable on both the law and facts from the case sub judice. In Titan, the facts involved only a “local insurance agent who had sold the policy,” which description fails to distinguish an independent insurance agent from an agent employed by the insurer. Thus, the Titan opinion was properly grounded upon decisions wherein independent agents were designated under the stamp on the face of the policy with apparent authority to accept notice for the insurer. In the case sub judice, none of these factors is present; there cannot be constructive notice to the insurer from notice (if satisfactorily given) to an independent insurance agent who was the agent of the insured and who had no real or apparent authority to receive notice of a claim or suit on behalf of the insurer. Titan cannot be extended beyond the factual and legal basis upon which it was decided to create a rule of constructive notice to the insurer when notice is given to an independent agent without real or apparent authority to receive such notice on behalf of the insurer.

In a liability policy, notice and delivery of the suit papers to the insurer by either the insured or anyone else, in a timely and reasonable manner, will satisfy the condition precedent to liability under the contract. Timely notice and delivery of suit papers are critical to the contract because it bears upon the insured’s risk and the insurer’s ability to investigate, prepare to defend, or seek to reduce potential liability by settlement. “ ‘The purpose of notice is to enable the insurer to inform itself promptly concerning the accident, so that it may investigate the circumstances, prepare for a defense, if necessary, or be advised whether it is prudent to settle any claim arising therefrom.’ Public Nat. Ins. Co. v. Wheat, 100 Ga. App. 695, 698 (112 SE2d 194) (1959).” Kitt v. Shield Ins. Co., 240 Ga. 619, 621 (241 SE2d 824) (1978); see also Hamm v. Ledesma, 184 Ga. App. 237, 238 (361 SE2d 205) (1987). Appellants denied appellee such reasonable and timely notice and delivery of the complaint and amendments from April 22, 1992 until October 1993, in violation of the express terms of the insurance policy. A delay in providing notice of a claim for eight months was unreasonable as a matter of law; the delay in providing notice of an existing lawsuit and the failure to deliver the suit papers after service for nearly eighteen months was unreasonable as a matter of law absent a reasonable excuse for the delay. Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga. App. 215 (231 SE2d 245) (1976).

By a delay in notice from the insured until long after suit has been served and the failure to deliver the suit papers, the insurer is deprived of the right to provide and to control the defense of the case, which entails the investigation of the claim, selection of counsel, theories of defense, conduct of discovery, and trial strategy, as well as the elimination of the risk of a default judgment if the insured does not hire private counsel to answer the complaint timely. If the insurer is to indemnify the insured within policy limits, then it must be afforded the opportunity to put up the best defense or to timely settle. Appellee’s rights were clearly prejudiced by the lack of notice as a matter of law. However, “[cjontrary to appellants’ contentions, appellee was not required to show it was prejudiced by appellants’ failure to give notice, as the notice requirement was a condition precedent under the policy. Richmond v. Ga. Farm Bureau &c. Co., [supra at 222]; Bituminous Cas. Corp. v. J. B. Forrest, 132 Ga. App. 714, 720 (3) (209 SE2d 6) (1974); Wolverine Ins. Co. v. Sorrough, 122 Ga. App. 556, 562 (177 SE2d 819) (1970).” Bates v. Holyoke Mut. Ins. Co. in Salem, 171 Ga. App. 164, 165 (318 SE2d 777) (1984), aff’d, 253 Ga. 697 (324 SE2d 474) (1985).

Decided February 17, 1997

Jones, Cork & Miller, Jerry A. Lumley, for appellants.

Therefore, failure to provide timely and reasonable notice and to deliver the complaint and any amendments will act as a condition precedent to bar the insurer’s liability under the policy except in certain cases of mandatory motor vehicle liability coverage, which do not apply here. Berryhill v. State Farm Fire &c. Co., 174 Ga. App. 97, 98-99 (329 SE2d 189) (1985); Richmond v. Ga. Farm Bureau &c. Co., supra at 222; Bituminous Cas. Corp. v. J. B. Forrest, supra at 720. For example, Amica Mut. Ins. Co. v. Bourgault, 263 Ga. 157, 160 (2) (429 SE2d 908) (1993) is not controlling in the case sub judice, because that case involved a certified question from the United States Court of Appeals for the Eleventh Circuit as to the statutory interpretation of mandatory motor vehicle liability insurance when, under the express terms of the policy, the vehicle is principally used and garaged in another state. By the express language of the quote from Amica cited by appellants, Restatement, 2d, Conflict of Law, § 193 was applied only to motor vehicles by the Georgia Supreme Court. Neither the Restatement § 193 nor the Amica decision contradicts the Georgia conflict of law rule, lex loci contractus, where the contract was made and to be performed governs the applicable substantive law, which rule governs the case sub judice; there is evidence that the insurance contract was entered into in Georgia and was to be performed in Georgia by a Georgia business. There is no evidence that at the time that the contract of insurance was made that there was any indication that the principal activities of the insured would take place in California, and not in Georgia. See General Tel. &c. Southeast v. Trimm, 252 Ga. 95, 96 (311 SE2d 460) (1984); GEICO v. Dickey, 255 Ga. 661, 662 (340 SE2d 595) (1986); Ropar v. Travelers Ins. Co., 205 Ga. App. 249, 251-252 (1) (422 SE2d 34) (1992). However, lex loci contractus is still the rule in Georgia. See General Tel. &c. Southeast v. Trimm, supra at 96; GEICO v. Dickey, supra at 662; Allstate Ins. Co. v. Duncan, 218 Ga. App. 552 (1) (462 SE2d 638) (1995); Federal Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763, 765-766 (417 SE2d 671) (1992).

The trial court did not err in granting summary judgment for the appellants’ failure to provide timely and reasonable notice of suit.

Judgment affirmed.

Birdsong, R J, and Ruffin, J., concur.

Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, Deeann B. Waller, for appellee.


text:
    A97A0339.
    HIGHTOWER v. THE STATE.
    (481 SE2d 867)
   Eldridge, Judge.

Appellant was convicted on May 23, 1995, of one count of violation of the Georgia Controlled Substances Act (distribution of cocaine) and sentenced to 22 years to serve. Appellant filed a motion for new trial, as well as an amended motion for new trial. Both motions were denied by the trial court, and appellant then filed his notice of appeal.

On August 22, 1994, between the hours of 4:30 p.m. and 5:30 p.m., the Oconee Dublin Drug Task Force conducted an undercover operation in Laurens County, Georgia. Under the direction of Task Force Agents Neal White and Tad Fuqua, Antonio Richardson acted as a confidential informant. Agent White searched Richardson and his car for any contraband, while Agent Fuqua installed an audio and video system into Richardson’s vehicle prior to sending Richardson into an area designated as having high drug traffic. Richardson was provided with Task Force funds to make purchases of cocaine and marijuana. Richardson purchased cocaine from appellant and turned the cocaine, along with the audio and video equipment, over to Agent White. Richardson had no control over the operation of the audio and video equipment; the equipment was started and stopped by Agent Fuqua.

At trial, Richardson identified the appellant as the person from whom he had purchased the cocaine. Agent Fuqua testified that, in addition to seeing the videotape of the sale, he had known appellant for many years. Agent Fuqua stated that he had known appellant since elementary school and that he was definitely the person depicted in the videotape selling cocaine to Richardson. The jury was allowed to view the videotape as well as a frozen still shot of the individual who sold the cocaine to Richardson.

The appellant, however, testified that he was not the individual depicted in the videotape. Appellant further testified on cross-examination that he knew the person depicted in the tape selling cocaine, and identified that individual as “Blue” from Miami. The appellant also testified that “Blue” used to work at Shoney’s, and people often confused the two of them.

1. Appellant alleges as his first enumeration of error the failure of the trial court to charge on the defense of alibi. “The defense of alibi involves the impossibility of the accused’s presence at the scene of the offense at the time of its commission. The range of the evidence in respect to time and place must be such as reasonably to exclude the possibility of presence.” OCGA § 16-3-40.

In the case sub judice, while counsel for the appellant reserved the right to make exception after the charges were given, he did not make a written request for the trial court to charge on the defense of alibi. Furthermore, it is clear from reading the transcript that appellant’s counsel did not orally request a charge on alibi and waived any charge on such defense. At the pre-charge conference, counsel for the appellant stated “there’s no request for an alibi, he didn’t know where he was. There is no alibi defense. What we are working on is a defense of misidentification.”

Even if the defense of alibi ha‘d been raised by the evidence, a specific charge on alibi was not required, absent a written request, if the court’s charge as a whole covered such defense. The true effect of an alibi defense is to traverse the state’s proof that the accused committed the crime, therefore, “when a trial court does charge the jury, as it did here, completely and correctly on defendant’s presumption of innocence, on the State’s burden of proof and on credibility of witnesses, and the State produces evidence sufficient to prove defendant’s guilt beyond a reasonable doubt, a specific charge on alibi is not mandated absent a request.” Green v. State, 219 Ga. App. 24, 27 (464 SE2d 21) (1995); Rivers v. State, 250 Ga. 288, 299-300 (298 SE2d 10) (1982). There was no error in the trial court’s failure to charge on alibi. “The court’s instruction to the jury, when viewed as a whole, fairly and accurately presented the relevant considerations. [Cits.]” Stewart v. State, 172 Ga. App. 450, 452 (323 SE2d 652) (1984).

2. In the second enumeration of error, the appellant contends that “the trial court erred in failing to charge the jury that the state had the burden to prove that someone other than the appellant committed the crime.”

Pretermitting the fact that, in Division 1, this Court held the defendant did not present any evidence to raise the defense of alibi, it is only affirmative defenses that the state has the burden of disproving beyond a reasonable doubt. State v. McNeill, 234 Ga. 696 (217 SE2d 281) (1975). Affirmative defenses are those in which the defendant admits doing the act charged, but seeks to justify, excuse, or mitigate it. State v. Moore, 237 Ga. 269 (227 SE2d 241) (1976); Perkins v. State, 151 Ga. App. 199 (259 SE2d 193) (1979).

The Georgia Supreme Court analogized the standard for charging on alibi to that of affirmative defenses in Rivers v. State, supra, however, such analogy does not apply any further; the burden placed on the state of disproving an affirmative defense beyond a reasonable doubt does not apply to the defense of alibi. “Alibi is not truly an independent affirmative defense. It is simply evidence in support of a defendant’s plea of not guilty, and should be treated merely as ‘evidence tending to disprove one of the essential factors in the case of the prosecution, that is, presence of the defendant at the time and place of the alleged crime.’ Stump v. Bennett, 398 F2d 111, 115 [(8th Cir. 1968)]; 21 AmJur2d 206, § 136; Anno. 29 ALR 1139; 67 ALR 138, 141; 124 ALR 471, 474.” Parham v. State, 120 Ga. App. 723, 727 (171 SE2d 911) (1969). An alibi defense creates a reasonable doubt on behalf of the accused, and the state has the risk of failure to carry the burden of persuasion and, as a consequence, may fail to carry the standard of proof beyond a reasonable doubt.

Decided February 17, 1997.

Harold D. McLendon, for appellant.

With a legal affirmative defense, the accused admits the elements of the crime, but seeks to justify, excuse, or mitigate by showing no criminal intent; all elements of the parts of the crime are admitted with the exception of the intent. All defenses which have been held to be statutory affirmative defenses meet this criteria; i.e., justification, self-defense or defense of others, rendering assistance to law enforcement officers, defensé of habitation, defense of property other than habitation, entrapment', and coercion. See ÓCGA §§ 16-3-20 through 16-3-28. Each of these affirmative defenses requires that the defendant admit the crime before he can raise such defense. In fact, even under the more general provision of OCGA § 16-3-20 (6), the defense of justification can only be claimed “[i]n all other instances which stand upon the same footing of reason and justice as those enumerated in this article [Article 2 of Chapter 3 of Title 16].”

Therefore, contrary to appellant’s assertions, the question that is before this Court is simply one of the sufficiency of the evidence. “On appeal we must view the evidence in the light most favorable to the verdict, [Hightower] no longer enjoys the presumption of innocence, and we do not weigh the evidence nor judge the credibility of the witnesses. Further, we do not speculate which evidence the jury chose to believe or disbelieve.” (Citations and punctuation omitted.) Thompson v. State, 210 Ga. App. 655, 656 (436 SE2d 799) (1993). The evidence presented at trial was sufficient to authorize a rational trier of fact to find the appellant guilty beyond a reasonable doubt of violation of the Georgia Controlled Substances Act (distribution of cocaine). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J, and Ruffin, J., concur.

Ralph M. Walke, District Attorney, Louie C. Fraser, Assistant District Attorney, for appellee.