author: Johnson, Judge. Ruffin, Judge, McMurray, Presiding Judge,

text:
    A96A0715.
    MOORE v. KROGER COMPANY.
    (471 SE2d 916)
   Johnson, Judge.

Janice S. Moore brought this tort action against The Kroger Company seeking to recover for personal injuries sustained when she slipped and fell in a Kroger grocery store. The trial court granted summary judgment to Kroger and Moore appeals.

This is a “slip and fall” premises liability case in which the facts presented to the trial court are straightforward and not in material dispute. Moore testified at her deposition that when she entered the Kroger Company store she did not take a shopping cart, but was collecting ingredients to make lasagna. She was walking up the aisle where the pasta and pasta sauces were located, carrying two pounds of meat, a loaf of bread and two pounds of cheese. She was looking at the various brands of sauces when she slipped and fell halfway down the aisle. Asked “If you had been looking down, could you have seen the orange substance on the white floor?” Moore replied “I would think so . . . yes.”

At the threshold of analysis in every such premises liability case stand two well-settled legal principles: First, the owners and occupiers of property are not insurers of the safety of their invitees; and, second, in order to prevail, the plaintiff must show that the owner or occupier of the premises had superior knowledge of the alleged defect which caused the plaintiffs fall. See Gaydos v. Grupe Real Estate &c., 211 Ga. App. 811, 812 (440 SE2d 545) (1994); Howell v. Three Rivers Security, 216 Ga. App. 890, 891 (456 SE2d 278) (1995); Westbrook v. M & M Supermarkets, 203 Ga. App. 345 (1) (416 SE2d 857) (1992). Because “slip and fall” cases are frequently very fact-specific and fact-intensive, it sometimes has been difficult to apply these principles correctly and difficult to distinguish those cases in which summary judgment is demanded from those in which to grant summary judgment would be an injustice. This is not one of those difficult cases, however.

To survive summary judgment in this case, Moore must show that The Kroger Company had actual or constructive knowledge of the hazard created by the spaghetti sauce upon which she slipped and that she was without knowledge of the hazard or, for some reason attributable to Kroger, she was prevented from discovering the hazard. See Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

Moore has presented no evidence to contradict Kroger’s evidence that it had no actual knowledge of the presence of the sauce on the floor. Furthermore, Moore testified that she had no idea how long the foreign substance had been on the floor. There is no evidence even suggesting that the foreign substance was on the floor for a length of time sufficient for knowledge of its presence to be imputed to Kroger such as would give rise to a finding of constructive knowledge of the hazard. Compare Brown v. Piggly Wiggly &c., 210 Ga. App. 459, 460 (436 SE2d 513) (1993). Likewise, Moore’s testimony that she saw a Kroger employee behind a cash register at the end of the aisle is insufficient to raise an inference that any employee of Kroger was in the immediate vicinity of the hazard and could have noticed and removed it. Compare Queen v. Kroger Co., 191 Ga. App. 249, 250 (1) (381 SE2d 413) (1989). The dissent extrapolates that “the jury would be authorized to find that defendant may be charged with knowledge of the hazard, established by the presence of its cashier, who was in a position to warn plaintiff even if she could not leave her register to clean up the spill” and concludes that a jury would be authorized to find that “plaintiff did not necessarily fail to exercise ordinary care for her own safety, even though she did not notice the smeared orange substance against the grayish-white tile, since defendant’s employee failed to warn plaintiff.” However, there is no evidence that anyone working behind the cash register, half an aisle away, saw the sauce at all. There simply is no duty to warn about a condition which one does not know exists.

In any event, a failure to warn does not relieve a plaintiff of her legal obligation to exercise ordinary care for her own safety. The purely speculative testimony cited by the dissent that “if someone was stocking the meat counter, they had a clear view of that aisle” adds nothing to our inquiry. Neither does the testimony regarding Kroger employees’ conduct after the fall contribute to our analysis. Even if we assume Kroger had actual or constructive knowledge of the hazard, the store would still be entitled to summary judgment if Moore knew about the hazard or should have discovered and avoided it, unless Kroger somehow prevented her from discovering it. Id. See Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991). Alterman Foods, supra, established the test for determining whether Moore knew or should have discovered and avoided the hazard created by the spilled sauce. She must “exercise ordinary care for [her] own safety, and must by the same degree of care avoid the [store’s] negligence after it becomes apparent to [her] or in the exercise of ordinary care [she] should have learned of it. [She] must make use of all [her] senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to [her].” (Citations and punctuation omitted.) Id. at 623. Moore effectively admits that she simply did not exercise ordinary care because her own testimony shows that she completely failed to look to see if the way was clear.

Moore does not claim that the store induced any distraction other than displaying its merchandise on the shelves. This has been held time and again to be a self-induced distraction which does not abrogate a plaintiff’s obligation to exercise ordinary care for her own safety. Riggs v. Great A & P Tea Co., 205 Ga. App. 608, 609 (423 SE2d 8) (1992); Harper v. Kroger Co., 212 Ga. App. 570, 571 (443 SE2d 7) (1994); Piggly Wiggly Southern v. Weathers, 216 Ga. App. 12, 14 (453 SE2d 74) (1994). The record before us shows that Moore failed to exercise ordinary care for her own safety when she did not discover and avoid a clearly visible hazard presented by the sauce on the floor. The undisputed evidence before the trial court demanded its conclusion that the proximate cause of the fall was Moore’s own failure to exercise ordinary care to discover and avoid an obvious hazard. On the record before it and before us, the trial court was required to grant summary judgment in Kroger’s favor. Minor v. Super Discount Markets, 211 Ga. App. 123, 124-125 (438 SE2d 384) (1993); Colevins v. Federated Dept. Stores, 213 Ga. App. 49, 52 (443 SE2d 871) (1994); Bruno’s, Inc. v. Pendley, 215 Ga. App. 108 (449 SE2d 637) (1994); Baker v. Winn-Dixie &c., 219 Ga. App. 513 (465 SE2d 710) (1995).

Summary judgment is a tool which should be used most carefully and, obviously, only when the record demands judgment as a matter of law. It is a great injustice for a plaintiff to be denied an opportunity to present her issues to a jury for determination where a record does not demand judgment for a defendant; but it is an equally great injustice to deny summary judgment to a defendant, putting him to the expense and risk of a trial, where, as here, the record does demand judgment in its favor as a matter of law.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Blackburn and Smith, JJ, concur. Ruffin, J., concurs specially. McMurray, P. J., dissents.

Ruffin, Judge,

concurring specially.

Slip and fall cases continue to come to us with baffling regularity. Indeed, one is tempted to ask: “How many ways can one slip and fall?” The problem arises not from the myriad ways to slip and fall, but, rather, from our inconsistent application of certain stale principles.

Our law in slip and fall cases is so confusing that it places both plaintiffs and defendants in the untenable and unenviable position of having to choose between the disastrous and the despicable. Indeed, this area of the law, more than any other, may constitute the enigma of our time. As we strive for strength in the struggle, our goal should be not only to reach a just and fair result, but also to eliminate confusion and bring some predictability to this troublesome area.

Although I concur in the majority’s opinion, I write separately to address what I believe to be the appropriate boundaries of summary judgment in a “foreign substance” slip-and-fall such as this one and to clarify the proper analysis to be applied.

1. The dissent refers to a “comparative negligence analysis” to determine whether Kroger or Moore proximately caused Moore’s injury. The proper test on a proprietor’s motion for summary judgment, however, is a two-part determination of the parties’ knowledge of the foreign substance. The separate issues are 1) whether the proprietor had actual or constructive knowledge of the foreign substance and 2) whether the plaintiff did not know of the foreign substance and, exercising ordinary care, would not have discovered the foreign substance in time to avoid it. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980); Piggly Wiggly Southern v. Brown, 219 Ga. App. 614 (468 SE2d 387) (1995); Smith v. Wal-Mart Stores, 199 Ga. App. 808 (406 SE2d 234) (1991). The proprietor is entitled to summary judgment if he can show, without question of fact, either his lack of actual or constructive knowledge or the plaintiff’s actual or imputed knowledge. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In this analysis, the court does not compare negligence', it compares knowledge. A plaintiff may prevail only by showing the proprietor knew (or was deemed to know) of the danger and he did not know (and was not legally deemed to know) of it.

2. Although the test is simple in appearance, it is difficult in application. In this case, however, Moore admitted she could have seen the orange colored substance on the “off-white” floor halfway down the aisle and, indeed, alleged the cashier could have seen it from the opposite end of the aisle. Although she had her hands full, and her attention was focused on the shelves of pasta sauce, she said she was not distracted and nothing prevented her from looking down. Under the narrow facts of this case — especially the apparent visibility of the orange spill — and the precedents cited by the majority holding that merchandise on shelves is no distraction, Kroger has pierced the second element of the test and has shown Moore should have discovered the danger.

Moore’s case fails because she was unable, as a matter of law, to show she exercised ordinary care for her own safety and thus had no reason to know of the danger she encountered. See Lau’s Corp., supra. At the same time, the evidence she presented in opposition to Kroger’s motion shows the difficulty of these cases. Like that of many shoppers, Moore’s attention was consumed by the load of groceries in her arms and by her search for a specific product on the shelves.

By creating a flat rule and policy that these facts do not excuse her failure to watch the floor, we have denied Moore the ability to present that explanation to a jury of her peers. We should question that policy, recalling that “[t]he Summary Judgment Act does not authorize the trial [or appellate] court[s] to sit as both judge and jury, weighing the evidence and deciding issues that are traditionally for the jury.” (Citations and punctuation omitted.) Haire v. City of Macon, 200 Ga. App. 744, 747 (409 SE2d 670) (1991). Moreover, that policy is a relic that should be relaxed because it contradicts reality. We have, in effect, ruled Moore’s evidence to have no weight. In light of the Georgia Supreme Court’s ruling in Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994), in which the court considered the surrounding circumstances in determining whether the plaintiff exercised due care, it is time to reconsider the hard and fast rules we have made for determining what does and what does not constitute “ordinary care.” See Dill’s Food City v. Johnson, 219 Ga. App. 654 (466 SE2d 250) (1995); McDonald’s Restaurants of Ga. v. Banks, 219 Ga. App. 667 (466 SE2d 240) (1995). Accordingly, I reluctantly join in the court’s opinion only because I feel constrained by current authority to do so.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the affirmance of summary judgment to the defendant proprietor in this case, as my review of the record indicates that defendant itself adduced the evidence indicating one of its employees was in a position to discern the hazard and warn the patron of any risk of injury. Consequently a jury question is presented as to whether plaintiff’s comparative negligence in failing to observe the hazard outweighs the negligence of defendant in failing to warn of or remove that hazardous spill.

Plaintiff Janice S. Moore brought this tort action against defendant, The Kroger Company, seeking to recover for personal injuries sustained when she slipped and fell due to a foreign substance on the floor of defendant’s grocery, “which substance [allegedly] was clearly visible to store employees, the same constituting a dangerous and defective condition.” Defendant denied the material allegations and, after a period of discovery, moved for summary judgment on the ground that “plaintiff failed to exercise ordinary care for her own safety.” In support of this contention, defendant relied on plaintiffs deposition testimony affirming that the hazardous substance “could have been a type of pasta sauce with chunks of vegetables in it[.]” Plaintiff intended to make lasagna, and she was carrying “two pounds of meat, a loaf of bread, and [about two pounds of mozzarella] cheese[.]” The floor tile in this store was “grayish-white or off white.” Plaintiff confirmed that, “[i]f [she] had been looking down, [she could] have seen the orange substance on the floor[;. . . that there was not] anything in the aisle preventing [plaintiff] from seeing the floor or looking down[; . . . and that there was not] anything distracting [her] as [she was] walking down the aisle[.]”

In opposition, plaintiff explained that she “[c]ame into the store [wearing flat shoes], went past the vegetable/bread aisle, past the meat case to get the. meat for the lasagna, came up the pasta aisle, and then . . . fell,” hurting her knee. “The substance.that was in the floor . . . was orangish-red in color and kind of mushy, like some chewed-up vegetable or carrot or whatever.” After she fell, from her position “on the floor, [plaintiff noticed the spilled matter] was in two spots,” about 12 inches apart. “It wasn’t like a blob. It was a smear in the floor.” In light of this testimony, I do not accept defendant’s characterization of an “ ‘orangish-red’ substance on the floor that was smeared over a 12 inch area.” (Emphasis supplied.) When cross-examined by defendant, plaintiff affirmed that “it was clearly visible to a Kroger employee[.]” Plaintiff specifically testified “the cashier, she had a clear view down that aisle. Also, in the back of the store, the meat counter, if someone was stocking the meat counter, they had clear view of that aisle.” Next, after plaintiff fell, “[t]he cashier yelled out, ‘A lady just fell in [the] aisle’. . . Two “Kroger employees, a male and a female, walked down the aisle.” The female employee told the male employee to “clean that up. He . . . got a bucket and a mop and he came back. . . . And [plaintiff] was there when he wiped it up.” Plaintiff also testified, “that little fellow that was running around that mopped up the stuff, that was his job to clean the aisles, so I feel like he didn’t check the aisle.” When asked, “if you had been looking down, it would have also been visible to you? [plaintiff answered,] I’m not sure of that. . . . If I had been walking with my head down, probably so. I do not — that’s not my practice in walking. There was no reason for me to look down that day in the store. I was interested in what was on the shelves.”

Plaintiff enumerates the grant of summary judgment as error, contending that factual issues remain as to whether she failed to exercise ordinary care for her own safety, and whether, under a comparative negligence analysis, defendant’s negligence caused plaintiff’s injuries in whole or in part. I agree.

“When an action is based on constructive knowledge, to avoid summary judgment for the defendant, the plaintiff must establish a question of fact whether the foreign substance remained on the floor for a sufficient length of time for knowledge of it to be imputed to the proprietor, showing that he had an opportunity to discover the defect and correct it. Smith v. Wal-Mart Stores, 199 Ga. App. 808 (406 SE2d 234) (1991). This may be done by showing that employees of the proprietor were in the area and easily could have seen the hazard and corrected it. -. . . Queen v. Kroger Co., 191 Ga. App. 249-250 (1) (381 SE2d 413) (1989).” Smith v. Winn-Dixie Atlanta, 203 Ga. App. 565 (417 SE2d 202). Accord Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327), citing Winn-Dixie Stores v. Hardy, 138 Ga. App. 342 (226 SE2d 142) and Sharpton v. Great A & P Tea Co., 112 Ga. App. 283 (145 SE2d 101).

When the evidence, including all favorable inferences, is viewed in the light most favorable to plaintiff as the non-movant, the jury would be authorized to find that defendant may be charged with knowledge of the hazard. This is established by the presence of its cashier, who was in a position to warn plaintiff even if she could not leave her register to clean up the spill herself. She also could have informed a coworker to attend to the spill. See, e.g., Food Lion v. Williams, 219 Ga. App. 352 (1), 354 (464 SE2d 913) (motion for directed verdict correctly denied when employee failed to warn that patron of spilled water). “Thus, the only question remaining is whether [plaintiff] had equal knowledge of the alleged . . . hazard, i.e., did she exercise ordinary care for her own safety?” Axom v. Wendy’s Intl., 219 Ga. App. 623, 625 (466 SE2d 613). In the case sub judice, plaintiffs hands were full of items she intended to purchase from defendant’s establishment and her attention was directed to items on the shelves as she focused on the purpose of her trip, purchasing a particular brand of sauce. The evidence would further authorize the jury to conclude that plaintiff did not necessarily fail to exercise ordinary care for her own safety, even though she did not notice the smeared orange substance against the grayish-white tile, since defendant’s employee failed to warn plaintiff. Dill’s Food City v. Johnson, 219 Ga. App. 654 (466 SE2d 250). “[I] cannot conclude as a matter of law that the plaintiff is barred from recovery merely because she admitted she was not looking at the floor in front of her when she fell. ‘Looking continuously, without intermission, for defects in a floor is not required in all circumstances.’ Choatas v. J. P. Allen & Co., 113 Ga. App. 731, 733 (149 SE2d 527) (1966).” Fletcher v. Family Center, 169 Ga. App. 376, 377 (2) (312 SE2d 856). “In [my] view, the case sub judice is therefore controlled favorably to plaintiff-invitee ... by the rationale employed in such recent whole court decisions as Jackson v. Camilla Trading Post, 218 Ga. App. 164, 167 (460 SE2d 849) [cert. denied] and Dept. of Human Resources v. Thomas, 217 Ga. App. 174 (1) (a), 176 (456 SE2d 724), cert. denied. In each of those cases, a majority of this Court agreed that the question whether a plaintiff failed to exercise ordinary care on her own behalf, because she should have seen the hazardous foreign substance that she claimed she did not see, was for the jury to determine.” Dill’s Food City v. Johnson, 219 Ga. App. 654, 656, supra. In the case sub judice, the trier of fact might very well find that defendant should have seen the spilled orange substance, or might conclude that defendant’s employees could not reasonably have seen the spill to warn plaintiff because they were concentrating on other duties. “The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must use all of his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Emphasis supplied; citations and punctuation omitted.) Alterman Foods v. Ligon, 246 Ga. 620, 623, supra. But, that ultimate determination, based on the credibility of the witnesses as well as the physical facts, is for the jury and not for the courts, except where the circumstances are plain, palpable, and admit of only one reasonable outcome. This is not such a case. “ ‘Even where there is no dispute as to the facts, it is . . . usually for the jury to say whether the conduct in question met the standard of the reasonable man.’ Wakefield v. A. R. Winter Co., 121 Ga. App. 259, 260 (174 SE2d 178) (1970).” James v. Sears, Roebuck & Co., 140 Ga. App. 859 (232 SE2d 274). See also Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 836 (331 SE2d 899), and Presiding Judge Birdsong’s excellent survey of issues presenting jury questions. “The trial court erred[, in my view,] in granting the defendant’s motion for summary judgment based on the evidence of record in this case.” Fletcher v. Family Center, 169 Ga. App. 376, 377 (2), supra. Since my colleagues in the majority would nevertheless affirm that unwarranted grant of summary judgment, I respectfully dissent.

Decided May 23, 1996

Graham G. McMurray, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Robert M. Ethridge, Craig A. Brookes, for appellee.

       While both Barentine and Banks involved clear liquid on the floor, they show the use of a “totality of the circumstances” test in determining whether a plaintiff exercised ordinary care for his or her own safety.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A96A0862.
    WASZCZAK et al. v. CITY OF WARNER ROBINS et al.
    (471 SE2d 572)
   Ruffin, Judge.

John Waszczak sued the City of Warner Robins and others for personal injuries he claims he received in an accident involving his vehicle and a truck belonging to the City of Warner Robins and driven by Robert Louis Rumph. Grace Waszczak, John Waszczak’s wife, also sued for loss of consortium arising out of the same incident. The jury rendered a verdict for the City of Warner Robins and Rumph, leading to this appeal. We affirm.

Mr. Waszczak alleged he injured his back and knee when Rumph, an employee of the City of Warner Robins, pulled out in front of him. Rumph testified Waszczak came over a hill at a high rate of speed and said he could not see Waszczak’s vehicle before he entered the intersection. Waszczak testified Rumph’s truck was already in the intersection when he came over the hill. Rumph was cited by the police for failure to yield the right-of-way in violation of OCGA § 40-6-72. He subsequently paid a fine in connection with this citation.

The parties also disputed whether a collision actually occurred. According to Waszczak, his car collided with Rumph’s truck. However, Rumph testified there was no contact between the vehicles. In any event, Waszczak’s vehicle went into a spin on the wet road as he attempted to steer clear of Rumph’s truck. Rumph testified during his deposition that his truck was “just like one that had come off the show case.” At trial, Rumph was presented with photographs of his truck taken by the Warner Robins Police Department on the morning of the incident which showed a rust-colored substance on the truck’s bumper. Rumph testified unequivocally that the substance was rust from a previous accident.

1. In their first enumeration of error, the Waszczaks assert the. trial court erred in granting the defendants’ motion in limine and refusing to allow the jury to consider evidence that Rumph paid a fine in connection with his traffic citation for failure to yield the right-of-way. According to the Waszczaks, this evidence was admissible as conduct inconsistent with Rumph’s trial position that he was not liable for the Waszczaks’ injuries. We disagree.

“This court has consistently held inadmissible evidence of any traffic court initiation or disposition of a case against the parties to a collision” unless the party has entered a guilty plea in traffic court, thereby admitting liability. Townsend v. Brantley, 163 Ga. App. 899 (1) (296 SE2d 186) (1982). Even “an adjudication of guilt by a traffic court that the defendant was in violation of a law alleged to be the proximate cause of the plaintiff’s injuries is inadmissible as irrelevant and immaterial . . . [cits.]” since the defendant does not make any admission of guilt under this circumstance. Hunter v. Hardnett, 199 Ga. App. 443 (1) (405 SE2d 286) (1991). Using this same logic, we have previously held that evidence of a nolo contendere plea to a traffic citation is inadmissible since it is not an admission of guilt. Reese v. Lyons, 193 Ga. App. 548 (5) (388 SE2d 369) (1989); Windsor Forest v. Rocker, 121 Ga. App. 773 (2) (175 SE2d 65) (1970).

Contrary to the Waszczaks’ assertion, this case is not analogous to Roberts v. Ledbetter, 218 Ga. App. 860 (1) (463 SE2d 533) (1995). In Roberts, the cited party failed to appear to contest the citation. As in other failure to appear cases, the court noted that a party’s failure to appear is deemed an admission of guilt, and this admission may subsequently be used in a civil action for damages. Id.; see also Cannon v. Street, 220 Ga. App. 212 (469 SE2d 343) (1996). These rulings are consistent with OCGA § 40-13-58, which provides that a party cited for a traffic violation who posts a cash bond and subsequently forfeits the bond by failing to appear has legally pled guilty. The evidence in this case shows that Rumph appeared in court at the designated time, then subsequently paid the fine before he was scheduled to re-appear in court. Thus, unlike Roberts, this case does not involve the total failure of a defendant to appear in court. Moreover, Rumph’s specific denial of guilt takes this case out of the realm of the bond forfeiture situation.

The Waszczaks presented no evidence that Rumph pled guilty to the traffic citation. They tendered into evidence the traffic citation, but the blocks on the reverse side of the citation indicating the disposition of the charge against the accused show that Rumph entered a plea of “not guilty” prior to paying his fine. Unlike Hunter, this is not a case in which two different blocks have been checked, making the citation ambiguous and subject to conflicting interpretations. Hunter, supra at 443-444. In addition, unlike Cannon, supra, and Henderson v. Henderson, 94 Ga. App. 64, 71-72 (1) (93 SE2d 822) (1956), this is not a case where the defendant paid the traffic fine while admitting he was guilty in and out of court. Here, the Waszczaks have failed to prove that any admission was ever made in the first place. In Townsend, supra, the court affirmed the exclusion of a guilty plea “allegedly” made by the defendant because the plaintiff failed to show that the defendant actually pled guilty. Id. at 900.

Rumph’s traffic citation is stamped “collateral forfeited,” meaning Rumph chose to pay his fine rather than appear in court. While the Clerk of Court for Warner Robins Municipal Court testified that the State treats such an action as a bond forfeiture and an admission of guilt, we decline to adopt the clerk’s interpretation of this action as an admission of guilt. There are many reasons why an individual may choose to pay the fine rather than appear in court. In addition, as previously noted, we have held that evidence of a nolo contendere plea, which is usually accompanied by the payment of a traffic fine, is inadmissible in civil litigation. We also have previously held that the statement “I went down and paid it off” is not an admission that the individual pled guilty. Brookshire v. J. P. Stevens Co., 133 Ga. App. 97, 100-101 (4) (210 SE2d 46) (1974).

In light of Rumph’s initial plea of not guilty to the citation and the lack of evidence showing Rumph changed his plea by affirmatively admitting guilt or by totally failing to appear in court, we find the Waszczaks failed to carry their burden of “proof of an explicit voluntary admission by a person of a fact adverse to his own interest. . . . [Cits.]” Henderson, supra at 72. Therefore, we affirm the trial court’s ruling on this issue.

2. In their second enumeration of error, the Waszczaks contend the trial court erred in refusing to give their requested charge on impeachment. They assert the charge should have been given because Rumph’s deposition testimony that his truck was “just like one that had come off the show case” was impeached by his trial testimony that his truck had rust on the bumper from a previous incident where he backed into a loading dock.

“For a refusal to charge to be error, the request must be correct, adjusted to the evidence, and not otherwise covered in the general charge. [Cit.]” Sharp v. Fagan, 215 Ga. App. 44, 46 (4) (449 SE2d 648) (1994). The charge, as requested by the Waszczaks, referred to impeachment by contradictory statements and by disproving facts to which a witness testified. Impeachment by disproving facts to which a witness testifies and impeachment by contradictory statements previously made by a witness are two separate and distinct forms of impeachment. OCGA §§ 24-9-82 and 24-9-83. In this case, the Waszczaks cite no evidence and we find no evidence that Rumph or any other witness was impeached by disproving the facts to which that witness testified.

Accordingly, though part of the Waszczaks’ requested charge regarding impeachment may have been applicable, it was not reversible error for the trial court to refuse to give the imperfect request. Leonard v. Miller, 207 Ga. App. 602 (3) (428 SE2d 646) (1993); Aiken v. Glass, 95 Ga. App. 849 (5) (99 SE2d 426) (1957). “The court may refuse requests which need qualifications, modification or restriction. It has been said that unless the charge ought to be given in the very terms in which requested, it should be refused altogether. The trial court is not under any obligation to rewrite an instruction which either party requests to be given.” (Citation and punctuation omitted.) Leonard, supra at 604-605.

Decided May 23, 1996

Adams & Adams, Charles R. Adams III, Nelson & Lord, Ellis M. Nelson, for appellants.

Moreover, as in Sharp, supra, the exchange regarding whether the truck was in show case new condition or had rust on the bumper “is not such a ‘material matter’ requiring a specific instruction on impeachment.” Sharp, supra at 46. The trial court’s charge on the credibility of witnesses adequately covered the necessary principle.

3. In their final enumeration, the Waszczaks claim the trial court erred in overruling their motion in limine and allowing the jury to consider evidence of a subsequent automobile collision involving Mr. Waszczak. We disagree.

In February 1994, Mr. Waszczak was involved in an unrelated collision with another vehicle. The Waszczaks moved in limine to exclude evidence of this collision, arguing the evidence was prejudicial and allowed the jury to infer Mr. Waszczak was accident-prone. While Mr. Waszczak claimed the incident with Rumph caused back and knee problems and that he received no injuries in this second automobile accident, the medical evidence disputed this assertion. Prior to the February 1994 accident, Mr. Waszczak received treatment only for back pains and problems. Mr. Waszczak’s last visit to a doctor prior to the February 1994 accident was on November 24, 1992, and treatment at this visit was for back problems only. Two months after the February 1994 accident and fourteen months after his last doctor’s visit, Mr. Waszczak complained to a doctor for the first time about knee problems.

Based on the evidence in the record, the trial court partially granted the Waszczaks’ motion in limine by disallowing evidence of the February 1994 accident to be used to infer that Mr. Waszczak was accident-prone, but allowed this evidence with respect to the question of damages. The trial court also instructed the jury, at the Waszczaks’ request, to consider the evidence “only for the limited purpose for allowing you to assess what effect, if any, it had on Mr. Waszczak’s damages in this case.”

The scope of cross-examination is within the discretion of the trial court and will not be disturbed on appeal unless there is evidence of manifest abuse. Thomas v. Clark, 188 Ga. App. 606, 608 (4) (373 SE2d 668) (1988). Based on the foregoing, the Waszczaks have failed to demonstrate that the trial court abused its discretion in admitting evidence of Mr. Waszczak’s 1994 accident for the limited purpose of assessing its effect on Mr. Waszczak’s damages.

Judgment affirmed.

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

Chambless, Higdon & Carson, Jon C. Wolfe, James E. Elliott, Jr., for appellees.

       We need not address whether Rumph’s testimony actually constituted contradictory statements.


author: Andrews, Judge.

text:
    A96A0303.
    PALERMO v. WINN-DIXIE ATLANTA, INC.
    (472 SE2d 85)
   Andrews, Judge.

Evelyn Martinez Palermo appeals the trial court’s order granting summary judgment to Winn-Dixie on her slip and fall claim. She contends issues of fact remain as to whether Winn-Dixie had superior knowledge of the hazard and also whether Winn-Dixie exercised reasonable care. We disagree and affirm the judgment of the trial court.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. ... A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Construing the evidence, as we must, in favor of Palermo as nonmovant on summary judgment, the record shows that, the day after a heavy snowstorm, Palermo and her daughter, Anna Whitby, walked to the Winn-Dixie because Whitby did not want to drive in the snow. The snow was several inches deep and covered the parking lot and sidewalk outside the store. After entering the store, Palermo knocked the snow off her boots onto the floor. Palermo stated there were no mats and no cautionary “wet floor” signs at the entrance. She also said she did not see any mops or buckets when she walked in the door. While walking to the store and upon entering the store, Whitby told her mother to hold onto her arm so she would not slip and fall. After entering the store, Whitby left Palermo and went to get a shopping cart. Palermo stated she took one or two steps after letting go of Whitby’s arm and fell. Palermo said she never saw anything on the floor, no puddles or snow, either before or after she fell. But, after she got up, her coat felt wet.

In support of its motion for summary judgment, Winn-Dixie submitted the affidavit of Steve Ballenger, a Junior Assistant Manager at the Winn-Dixie at the time of Palermo’s fall. Ballenger stated that on the day in question he personally placed two protective carpets in the entranceway to the store and also put two bright, yellow “wet floor” signs inside the entrance. Ballenger also said that he personally mopped the floor dry approximately every ten minutes throughout the day. Accordingly, he was able to state that he had mopped the floor within ten minutes of the time of Palermo’s fall.

Edward Ivey, the security guard on duty the day of the accident, testified at his deposition that there was a carpet at the entrance to the store. Ivey stated that, in addition to the carpet at the entrance, there was at least one caution sign at the front of the store. He further testified that there was a mop and bucket by the front door on the day Ms. Palermo fell, and, even though it was not a part of his duties, he mopped the floor occasionally that day as he usually did on rainy days when there was a lot of traffic. Ivey testified that Ballenger also periodically mopped the floor at the entrance.

“In order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). In other words, recovery is permitted only when the dangerous condition is known to the owner or occupant of the premises and not known to the person injured. Id. at 622.

The trial court found Palermo had equal, if not greater, knowledge than Winn-Dixie of the hazardous condition created by customers like her who came inside and tracked ice and snow onto the floor. The court also found Winn-Dixie had exercised ordinary care in that it introduced uncontradicted evidence the floor was mopped at intervals throughout the day.

1. This case is governed by the long line of cases holding that it is common knowledge that entranceways will become wet and slippery during inclement weather due to shoppers continually tracking in water, slush, or mud, and proprietors are not required to remove the water as fast as it collects. See, e.g., Chafin v. Winn-Dixie Atlanta, 201 Ga. App. 209 (411 SE2d 64) (1991); Adams v. Winn-Dixie Stores, 192 Ga. App. 892 (386 SE2d 686) (1989); Hagin v. Winn-Dixie Stores, 180 Ga. App. 303 (348 SE2d 766) (1986); Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44 (332 SE2d 304) (1985). Further, while the proprietor is under a duty to exercise reasonable care, he is under no duty to warn customers of the obvious and cannot be expected to prevent the presence of some water on the floor during the course of a rainy or snowy day. Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 177-178 (138 SE2d 77) (1964). See also Chafin, supra (summary judgment appropriate when plaintiff knew of the rainy conditions and evidence showed employees took reasonable steps to keep the floors mopped); Hagin, supra (motion for summary judgment was properly granted where plaintiff knew of the rainy conditions and employees took reasonable steps to keep the floor mopped). Accordingly, we find the trial court did not err in concluding that Palermo’s knowledge of the hazardous condition was at least equal to that of Winn-Dixie’s.

Decided May 6, 1996

Reconsideration denied May 24, 1996.

Elvis E. Burke, for appellant.

Fain, Major & Wiley, Gene A. Major, Brian H. Alligood,- for appellee.

2. Palermo also contends that summary judgment was inappropriate because there are issues of fact as to whether Winn-Dixie exercised reasonable care. But, Palermo introduced no evidence contradicting the testimony of the assistant manager and the security guard that they were both mopping the floors dry at least as often as every ten minutes throughout the day. As this evidence was undisputed, the trial court correctly found there was no issue of fact as to whether Winn-Dixie had exercised reasonable care. Chafin, supra; Hagin, supra. Further, even assuming, which we do not, that WinnDixie failed to exercise ordinary care, Palermo cannot recover due to her equal knowledge that customers were tracking snow into the store. See City of Winder v. Girone, 265 Ga. 723, 724 (462 SE2d 704) (1995) (even if a defendant is negligent, a plaintiff’s failure to exercise ordinary care for her own safety will bar recovery).

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A96A0742.
    KOEHLER v. CITY OF ATLANTA.
    (472 SE2d 91)
   Judge Harold R. Banke.

William H. Koehler fell at the Cyclorama, Atlanta’s historical and cultural museum, when he sat down next to his wife in a darkened auditorium and discovered the seat had been removed. He sued the City of Atlanta (the “City”), alleging negligence and gross negligence.

The City moved for summary judgment on sovereign immunity grounds and presented an affidavit from the Cyclorama’s director stating that the Cyclorama’s displays were provided for the public’s benefit and enjoyment. The trial court granted the City’s motion and this appeal ensued. Held:

The trial court properly granted summary judgment because Koehler failed to show that issues remained to be tried on whether the City’s sovereign immunity was waived. Steinberg v. City of Atlanta, 213. Ga. App. 491, 493 (2) (444 SE2d 873) (1994). Because the sovereign immunity of municipal corporations is waived when they negligently perform ministerial duties, this case turns on whether operating the Cyclorama constitutes a governmental function or ministerial duty. OCGA § 36-33-1 (b); Cleghorn v. City of Albany, 184 Ga. App. 732 (1) (362 SE2d 386) (1987); see Smith v. Mayor of Savannah, 185 Ga. App. 708 (365 SE2d 529) (1988). If the City operates the Cyclorama “primarily ... as a place of resort for pleasure and promotion of health of the public at large [a public function]” then immunity attaches. Cleghorn, 184 Ga. App. at 735 (quoting Cornelisen v. City of Atlanta, 146 Ga. 416, 419 (91 SE 415) (1917)). In contrast, if the City operates the Cyclorama “primarily as a source of revenue [a ministerial function],” immunity is waived. Id. The controlling point is not whether the Cyclorama actually turns a profit, but its function. Steinberg, 213 Ga. App. at 493.

The party seeking to benefit from the waiver of sovereign immunity bears the burden of proof. Steinberg, 213 Ga. App. at 493 (2). To withstand summary judgment on the sovereign immunity issue, Koehler had to make a showing that the Cyclorama was operated primarily as a source of revenue, rather than as a place of public recreation. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (parties who will not bear the burden of proof at trial may prevail on summary judgment by pointing out by reference to the record that there is no evidence sufficient to create a genuine jury issue on at least one essential element of the non-movant’s case). We agree with the trial court that Koehler failed to do so. Furthermore, the cases Koehler relies upon for the proposition that the Cyclorama’s operation was a ministerial function are distinguishable in that they fail to address immunity in the context of municipal facilities. Because Koehler bore the burden of proving that the City waived its immunity and failed to present any evidence in response to the City’s motion, summary judgment was proper. Dept. of Human Resources v. Poss, 263 Ga. 347, 348 (1) (434 SE2d 488) (1993). In light of our holding, we need not reach Koehler’s second enumeration.

Judgment affirmed.

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

Decided May 7, 1996

Reconsideration denied May 24, 1996

Michael J. Kramer, for appellant.

Charles G. Hicks, Clifford E. Hardwick TV, for appellee.


author: Birdsong, Presiding Judge.

text:
    A95A1817.
    ARROW COMPANY v. SMITH.
    (472 SE2d 332)
    Decided May 24, 1996.

      Wilson, Strickland & Benson, Warner R. Wilson, Jr., Samuel T. Brannan III, for appellant.

      Murphy, Murphy & Garner, Stephen E. Garner, for appellee.
   Birdsong, Presiding Judge.

Following our grant of a discretionary appeal, The Arrow Company appealed the superior court’s judgment requiring The Arrow Company to pay certain medical and prescription drug expenses following an unauthorized referral to a specialist by Smith’s authorized physician. We reversed because we found that Wright v. Overnite Transp. Co., 214 Ga. App. 822 (449 SE2d 167) controlled disposition of the appeal, and because we found that the amendments to OCGA § 34-9-201 and the State Board of Workers’ Compensation Rules were inapplicable as Smith’s injury occurred before the effective dates of the amendments.

The case is now before this Court again because, after granting certiorari, our Supreme Court remanded the case for reconsideration in light of this Court’s subsequent decisions in Porter v. Ingles Market, 219 Ga. App. 145 (464 SE2d 212) and Barnes v. City of Atlanta Police Dept., 219 Ga. App. 139 (464 SE2d 609), which held the amendment to OCGA § 34-9-201 should be applied retroactively. Accordingly, upon reconsideration in light of this Court’s whole court precedent in Barnes, supra, the prior judgment of this Court in this case is vacated, and pursuant to the judgment of this Court, as expressed in the holding in Barnes, supra, as applied to this case, the judgment of the superior court is affirmed.

Judgment affirmed.

Johnson and Smith, JJ, concur.


author: Johnson, Judge. McMurray, Presiding Judge,

text:
    A96A0392.
    NALLEY et al. v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY.
    (472 SE2d 82)
   Johnson, Judge.

Nine-year-old Kristina Grantham was operating a 1992 Honda Z50R “minibike’’-type motorcycle owned by her grandparents and legal guardians, Seaborn and Helen Abercrombie, when she was involved in an accident on a public roadway. The cycle was a driver-only model intended for off-road use only. However, Grantham’s friend, Jamie Lea Nalley, was riding as a passenger when the cycle was struck by a car, injuring Nalley. Nalley and her mother brought suit against Grantham and the Abercrombies. Nationwide Mutual Fire Insurance Company, the Abercrombies’ insurance carrier, brought this declaratory judgment action asserting there was no coverage for the accident under either the Abercrombies’ automobile or homeowners insurance policy. The trial court granted Nationwide’s motion for summary judgment.

Nalley acquiesces in the trial court’s finding that the Abercrombies’ automobile policy does not provide coverage, and bases this appeal on the trial court’s conclusion that the Elite II homeowners policy does not provide coverage.

1. Nalley contends the trial court erred in finding that the minibike falls within the motor vehicle exclusion from liability coverage in the Nationwide Elite II homeowners policy. We must disagree.

The following provisions in the policy are relevant to the issues raised in this division: Section II, 1 (e) (2) provides: “Coverage E — Personal Liability, and Coverage F — Medical Payment to Others, do not apply to bodily injury or property damage arising out of the ownership, maintenance, or use of a motor vehicle owned or operated by, or rented or loaned to an insured.” Motor vehicle is defined alternatively as “a motorized land vehicle including motorized bicycles or mopeds designed for travel on public roads or subject to motor vehicle registration” (policy definitions 5 (a)) or as “a motorized golf cart, snowmobile or other motorized land vehicle owned by an insured and designed for recreation use off public roads, while off an insured location” (policy definitions 5 (c)). The trial court concluded that the cycle at issue in this case falls within definitions of motor vehicles contained in both section 5 (a) and (c).

In Addison v. Southern Guaranty Ins. Co., 155 Ga. App. 536 (271 SE2d 674) (1980), this Court held that a motorized trail bike not intended for use on a public highway was a “motor vehicle” subject to registration requirements, and therefore falling squarely within the exclusion language in a homeowners insurance policy similar to that at issue in this case. Similarly, in Grange Mut. Cas. Co. v. King, 174 Ga. App. 716 (331 SE2d 41) (1985), this Court held that a trailbike met the statutory definition of a motor vehicle subject to registration for purposes of triggering the exclusion even though the cycle had not been registered. Neither Atkinson v. Allstate Ins. Co., 182 Ga. App. 50 (354 SE2d 866) (1987), nor Cotton States &c. Ins. Co. v. Statiras, 157 Ga. App. 169 (276 SE2d 853) (1981), cases relied upon by Nalley, requires a different result. Atkinson and Statiras examine whether vehicles which were originally designed for use principally upon public roads, but later converted into vehicles for use both on and off road, still satisfied the definitions of motor vehicles in automobile, not homeowners, insurance policies. Neither decision addressed whether the vehicles were subject to registration. We agree with the trial court’s conclusion that the cycle in this case meets the statutory requirements for registration, thus falling within the definition of motor vehicle in section 5 (a) of the Abercrombies’ homeowners insurance policy.

The trial court further found that even if the cycle is not a motor vehicle under section 5 (a), it comes under the exclusion contemplated by section 5 (c), which defines motor vehicle as any “other motorized land vehicle owned by an insured and designed for recreation use off public roads, while off an insured location.” Here, the girls rode a vehicle designed for off-road recreational use off the Abercrombies’ property and onto a public roadway where they were involved in an accident with an automobile. These facts clearly trigger the exclusion contained in the policy.

2. Appellants argue that the trial court erred in finding that the Nationwide Elite II homeowners policy was not vague and ambiguous. Again we must disagree.

“The words used in policies of insurance, as in all other contracts, bear their usual and common significance, and policies of insurance are, as all other contracts, to be construed in their ordinary meaning. ... If the provisions of an insurance policy are ambiguous, or if the provisions in it are conflicting, it is to be construed in favor of the insured and against the company. However, courts are not called upon, because of the rule that contracts of insurance are to be strictly construed against the insurer, and because the contract itself is one of insurance, to call forth doubt, through construction of plain and unambiguous provisions of such a contract.” (Citations and punctuation omitted.) Hollis v. St. Paul Fire &c. Ins. Co., 203 Ga. App. 252, 253 (416 SE2d 827) (1992).

Nalley argues that the definition of a motor vehicle in section 5 (a) is ambiguous because it first addresses design considerations and then contains a second clause relating to registration. The clauses in section 5 (a) are connected by the word “or.” The definitions of a motor vehicle in this section can be read either as “a motorized land vehicle including motorized bicycles or mopeds designed for travel on public roads” or “a motorized land vehicle including motorized bicycles or mopeds subject to motor vehicle registration.” The word “or” provides a succinct method for offering alternatives. We do not find alternative definitions within the same subpart of this policy, set apart by the word “or,” to be so grammatically complex as to render the section vague or ambiguous.

Likewise, we must reject Nalley’s argument that the presence of several subparts in section 5, each defining motor vehicle, are ambiguous because “they were not written in either the disjunctive or conjunctive.” A semi-trailer (section 5 (b)) cannot simultaneously be a motorized golf cart or a snowmobile (section 5 (c)). Therefore, appellants’ suggestion that this section is ambiguous because it does not expressly state that the definitions in the subparts are alternative and not cumulative definitions is without merit. Nalley’s remaining arguments regarding the language of the policy are similarly without merit.

3. Nalley argues that the trial court erred in failing to find that the reasonable expectations of the purchasers of this Nationwide Elite II homeowners policy was that the policy would provide coverage for this type of incident. Mr. Abercrombie testified at his deposition that he believed his homeowners insurance policy would cover the minibike if it was stolen. When asked if it would cover a claim arising out of an accident while someone was using the minibike, he replied that he had other types of insurance which would cover things like that. Because Mr. Abercrombie admitted in his deposition that he did not believe the homeowners policy would provide coverage for an accident such as this one, it is not necessary to address counsel’s arguments that Abercrombie, in fact, expected the opposite.

Judgment affirmed.

Beasley, C. J, Birdsong, P. J., Pope, P. J., Andrews, Blackburn, Smith and Ruffin, JJ, concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the judgment affirming summary judgment in favor of the plaintiff-insurer, Nationwide Mutual Fire Insurance Company (“Nationwide”), in this instance. In my view, there is an ambiguity in Nationwide’s homeowners policy, excluding liability coverage for personal injuries arising out of the use of a motor vehicle. This ambiguity lies in the distinction between a motor vehicle as a motorized bicycle or moped designed for travel on public roads or subject to motor vehicle registration, on the one hand, and a motorized golf cart, snowmobile or other motorized land vehicle designed for use off public roads, on the other hand. These terms were selected by the insurer and presumably mean something different from each other. “ £[W]ords, like people, are judged by the company they keep.’ Anderson v. Southeastern Fidelity Ins. Co., 251 Ga. 556 (307 SE2d 499) (1983). Where the phrasing of an insurance policy is so confusing that an average policyholder cannot make out the boundaries of coverage, there is a genuine ambiguity. See Gary L. Shaw Builders v. State Auto Mut. Ins. Co., 182 Ga. App. 220, 224 (355 SE2d 130) (1987). In the instant case, the meaning of [Nationwide’s exclusion for personal injuries arising from the use of a motor vehicle] is far from clear.” Ga. Baptist Children’s Homes &c. v. Essex Ins. Co., 207 Ga. App. 346 (1), 347 (427 SE2d 798).

Decided May 6, 1996

Reconsideration denied May 28, 1996

Butler, Wooten, Overby & Cheely, Robert D. Cheely, Patrick A. Dawson, Keith A. Pittman, for appellants.

Temples, Strickland & Counts, Gregg P. Counts, for appellee.

Moreover, I believe that to apply the ambiguous exclusion in this instance defeats the reasonable expectations of the insured homeowner. In the recent whole court decision of Hinton v. Interstate Guaranty Ins. Co., 220 Ga. App. 699 (1) (470 SE2d 292), this Court decided that a farmer’s tractor was not a motor vehicle subject to registration, and held that a motorist’s collision on a public road with this unregistered tractor was not a covered event under the uninsured motorist provisions of that plaintiff’s own automobile insurance policy. It is my view, that the rationale employed therein has effectively overruled, sub silentio, the holdings of Addison v. Southern Guaranty Ins. Co., 155 Ga. App. 536, 537 (271 SE2d 674) and Prince v. Cotton States Mut. Ins. Co., 143 Ga. App. 512 (239 SE2d 198). As it is my view that a jury issue is created by the ambiguous terms of Nationwide’s prolix exclusion, I respectfully dissent from the judgment of affirmance.


author: Johnson, Judge.

text:
    A96A0423.
    CARLEY v. LEWIS.
    (472 SE2d 109)
   Johnson, Judge.

In this case, we decide whether a parent’s allegations as set forth in a petition to regain custody of a child from a third party were sufficient to survive a motion to dismiss for failure to state a claim upon which relief could be granted. We find that the petition was sufficient and therefore reverse the judgment of the trial court.

Constwilla Lewis intervened in a divorce action between her son and daughter-in-law, Barbara Carley, seeking custody of the couple’s four-year-old daughter. The court in the divorce proceeding found both parents unfit and awarded permanent custody of the child to Lewis, with Carley retaining visitation rights. Approximately eight months after the judgment was entered, Carley filed a petition for change of custody, alleging that there had been a change of condition in the child’s environment which had adversely affected the child’s emotional health. Specifically, Carley alleged that Lewis was harming the child emotionally by constantly accusing Carley of sexually abusing or allowing others to abuse the child and by attempting to deny Carley all contact with the child. Carley also alleged that she is the “most capable” person to care for the child and that it is in the child’s best interest to be in her custody. Lewis moved to dismiss the petition based on failure to state a cause of action upon which relief could be granted. The trial court heard oral argument on the motion, but denied Carley’s request to call witnesses to testify as to how the child’s current home environment was harming her emotionally, how Carley’s condition had changed, or how a change of custody would be in the best interest of the child. Carley was permitted to submit a psychologist’s written report which contained findings that the child was suffering emotionally as a result of being placed in Lewis’ home, that Carley maintained regular parenting responsibility on weekends and sometimes during the week, that Carley appeared to be a “good enough” parent, and that there was a strong emotional bond between the child and Carley. Although the psychologist was present at the hearing, he was not permitted to testify. The trial court granted Lewis’ motion to dismiss, noting in its order that Carley failed to allege in the petition that she was no longer unfit. The court ruled that since no such allegation was made, the proof offered by Carley was not relevant and the claim not viable. We granted Carley’s application for discretionary review of the trial court’s dismissal of her petition.

In three enumerations, Carley argues that because her petition sufficiently alleges that a material adverse change occurred in the child’s home environment while in Lewis’ custody, that she was the most capable, person to have custody, and the best interest of the child would be served by changing custody, the trial court erred in refusing to hear any evidence in support of her petition for change of custody and in ruling that the petition failed to set forth a cause of action. We agree.

Where a parent’s right to custody of a child is lost to a third party, the parent can regain custody upon showing by clear and convincing evidence: (1) his or her present fitness as a parent and; (2) that it is in the best interest of the child that custody be changed. Villenueve v. Richbourg, 217 Ga. App. 354, 355 (1) (457 SE2d 821) (1995). In her petition, Carley specifically alleged that it would be in the child’s best interest to be in her custody. Although she does not use the phrase “present fitness” in her petition, she does allege that she is the “most capable” person to parent the child; “capable” has been defined as “having ability or fitness.” Webster’s New Inti. Dictionary (2nd ed. 1961).

Without a doubt, Carley’s allegation that she is “capable” is general and conclusory. That it is conclusory, however, is not fatal to the petition. “While conclusions may not generally be used in affidavits to support or oppose summary judgment motions, conclusions may generally be pleaded under the Civil Practice Act. Under this ‘notice’ theory of pleading it is immaterial whether a pleading states conclusions or facts as long as fair notice is given, and the statement of claim is short and plain. The true test is whether the pleading gives fair notice and states the elements of the claim plainly and succinctly, and not whether as an abstract matter it states conclusions or facts.” (Citations, punctuation and emphasis omitted.) Holloway v. Dougherty County School System, 157 Ga. App. 251, 254-255 (277 SE2d 251) (1981). The allegations in the petition to change custody were sufficient to give Lewis fair notice of Carley’s claim.

“When the sufficiency of the complaint is questioned by a motion to dismiss for failure to state a claim for which relief may be granted, the rules require that it be construed in the light most favorable to the plaintiff with all doubts resolved in [her] favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed.” (Citation and punctuation omitted.) Hartsfield v. Union City Chrysler-Plymouth, 218 Ga. App. 873, 874 (463 SE2d 713) (1995). Construing the petition in the light most favorable to Carley, we cannot say that it is certain that she would not be entitled to relief under any state of provable facts. See Morgan v. Ga. Vitrified Brick &c. Co., 196 Ga. App. 779, 780 (1) (397 SE2d 49) (1990). Therefore, the trial court erred in dismissing the action for failure to state a claim. Carley is entitled to prove, if she can, such facts as would show that she is presently fit and that it is in the best interest of the child for her to regain custody. “The issue of child custody, especially where a child is taken from a natural parent, calls for judicial soul searching under the most difficult circumstances. Therefore, we cannot agree that an evidentiary hearing should be denied, and the trial court erred in so holding.” Durden v. Barron, 155 Ga. App. 529, 530 (271 SE2d 667) (1980).

Judgment reversed and case remanded.

McMurray, P. J., and Ruffin, J., concur.

Decided May 28, 1996.

Harmon, Smith, Bridges & Wilbanks, Archer D. Smith III, for appellant.

Walter E. Van Heiningen, for appellee.


text:
    A96A0566.
    RAGAN ENTERPRISES, INC. v. L & B CONSTRUCTION COMPANY, INC. et al.
    (472 SE2d 88)
   Birdsong, Presiding Judge.

Ragan Enterprises, Inc. (“REI”), a subcontractor on a construction project, filed suit against the general contractor, L & B Construction Company, Inc. and its surety for breach of contract caused by L & B’s two-year delay in completion of the project.

REI and L & B filed cross-motions for partial summary judgment on the issue of whether the subcontract contains a “no damages for delay” clause. REI contends this clause does not bar it from recovering damages for delay: “Should subcontractor be delayed in his work by contractor then contractor shall owe subcontractor therefor only an extension of time for completion equal to the delay caused and then only if a written claim for delay is made to the contractor within forty-eight hours from the time of the beginning of the delay.”

The trial court granted L & B’s motion for partial summary judgment on this issue and denied REI’s motion for partial summary judgment. REI appeals. Held:

1. REI contends that the clause merely provides for time extensions with no mention of delay damages, and it does not bar recovery of damages for delay. We agree.

(a) “ ‘(E)xculpatory clauses must be clear and unambiguous, they must be specific in what they purport to cover, and any ambiguity will be construed against the drafter of the instrument.’ ” Dept, of Transp. v. Arapaho Constr., 180 Ga. App. 341, 343 (349 SE2d 196). This subcontract contains no clear, unambiguous, specific bar to damages for delay. At best, the provision that the contractor “shall owe . . . only an extension of time for completion equal to the delay caused” is ambiguous as to whether “only” refers to the length of the extension of time given or to the spectrum of remedies allowed. Since this exclusionary clause is not “specific in what [it] purports to cover,” such ambiguity is construed against the drafter, who was the contractor. Id. The clause on its face does not provide a bar to recovery of damages for the subcontractor’s delay.

See similarly Redman Dev. Corp. v. Piedmont Heating &c., 128 Ga. App. 447, 451 (197 SE2d 167), where a clause also contained language that in case of delay the contractor “ ‘ “shall owe subcontractor therefor only an extension of time for completion equal to” ’ ” the period of delay, but immediately following that language the contract provided: “ ‘ “Subcontractor shall not be entitled to claim or recover damages or loss of profits from contractor under any circumstances.” ’ ” Id. The issue was whether this exculpatory clause applied clearly only to the “delay” provision or was a release of all damages in addition to delay damages. We held that it did not amount to a bar of all damages for “ £[i]f this were intended it would have been inserted as a separate paragraph or subparagraph.’ ” That reasoning applies here. There is unambiguous, unmistakable language by which a contractor can exculpate itself from recovery of damages for delay if the parties so intend. See Dept. of Transp. v. APAC-Ga., 217 Ga. App. 103 (4) (456 SE2d 668), where summary judgment was properly denied because there was nothing in the agreement specifically barring the plaintiff from recovery of delay damages.

(b) Moreover, in view of the subcontract’s failure to mention any remedy exculpated for delay, we affirmatively conclude that the language that contractor shall owe “only an extension of time . . . equal to the delay caused” plainly refers only to the length of an extension of time. (Emphasis supplied.) Under the rules of construction of exculpatory clauses, this language cannot be construed in the drafter’s (contractor’s) favor to bar recovery of damages. See Dept. of Transp. v. Arapaho Constr., supra.

(c) Another clause in the subcontract supports the conclusion that the parties did not intend to exculpate the contractor for delay damages. That clause, which immediately follows the subject clause, exculpates the contractor for delay or other damages caused by others “beyond contractor’s control, or on account of any circumstances caused or contributed to by the subcontractor”; it further provides “contractor will cooperate with subcontractor to enforce any just claim against the owner or architect for delay.” (Emphasis supplied.) By stating that the contractor will not be liable for damages for delay beyond his control or on account of circumstances contributed to by the subcontractor, this clause anticipates that the contractor will be liable for damages for delay within its control and not caused or contributed to by the subcontractor. This clause also shows that in drafting this contract, the parties considered the matter of delay damages; they knew what to say in order to provide a complete bar to the contractor of damages for its own delay, but they did not say it.

2. The contractor contends its subcontract with REI is controlled by a provision in the contractor’s general contract with the owner, which does contain a clause specifically precluding the recovery by the contractor of delay damages from the owner. The contractor contends this exculpatory provision in the general contract inures to the contractor by virtue of the subcontract’s so-called “flow-down” provision, viz., “contractor shall have the same rights and privileges as against the subcontractor herein as the owner in the general contract has against contractor.”

Decided May 6, 1996

Reconsideration denied May 29, 1996

Smith, Howard & Ajax, Larry S. McReynolds, Scott D. Cahalan, for appellant.

Bovis, Kyle & Burch, John V. Burch, Gregory R. Veal, for appellees.

The “flow-down” principle which allows construction of a contract by reference to another contract cannot be applied where the two provisions in question are conflicting. See Centex-Rodgers Constr. Co. v. McCann Steel Co., 206 Ga. App. 827, 828 (1) (426 SE2d 596). As stated in Division 1, the nature of an exculpatory clause is such that to be effective as a bar to recovery of damages, it “ ‘must be clear and unambiguous, [it] must be specific in what they purport to cover, and any ambiguity will be construed against the drafter of the instrument.’” Dept. of Transp. v. Arapaho Constr., supra at 343. Since the subcontract does not contain an exculpatory clause for delay damages against the contractor, the construction of the provision in the subcontract on its face is conclusive that the subcontractor is not barred from recovering such damages. Since thát result is conclusive, affirmative, and not in doubt, there is no merit in the contractor’s argument that the subcontract is “silent” on this point and that therefore no conflict exists between it and the bar of delay damages in the general contract. Any ambiguity in this exculpatory clause in the subcontract is not “filled in” by terms in the general contract, for this would violate the rule on interpretation of exculpatory clauses; moreover, in Division 1 (b) above, we have affirmatively found that there is no ambiguity in the clause in that it contains no bar to recovery of damages for delay.

3. L & B’s contention that it may be liable for damages for delay only if bad faith or fraud is proved, is inadequately supported by argument and support and is without merit.

The trial court erred in granting defendant L & B’s motion for partial summary judgment and in denying plaintiff REI’s motion for partial summary judgment.

Judgment reversed.

Beasley, C. J., and Blackburn, J., concur.


author: Pope, Presiding Judge.

text:
    A96A0156.
    MATTOX v. BAILEY et al.
    (472 SE2d 130)
   Pope, Presiding Judge.

Plaintiff Donald Mattox is an inmate at the Phillips Correctional Institution. On March 9, 1995, he filed a pro se civil action complaint form against defendant Lieutenant Bailey and Bailey’s employer, defendant Georgia Department of Corrections (“DOC”). In his complaint, plaintiff alleged that Bailey, who was a correctional officer, had slammed plaintiff’s head into a door and thereafter beaten him while escorting plaintiff across prison grounds. Plaintiff asserted that Bailey’s actions constituted violations of both federal and state law, and that plaintiff should be awarded $500,000 if Bailey was found guilty of violating plaintiff’s civil rights. Plaintiff also claimed that DOC was liable for Bailey’s actions because it was his employer. Defendants answered the complaint denying liability and filed a motion to dismiss. The trial court granted defendants’ motion, without prejudice, on the ground that defendants were immune from suit under the Georgia Tort Claims Act (“Act”). OCGA § 50-21-20 et seq.

1. We agree with the trial court that plaintiff’s state law battery claim against Bailey is barred by the Act because it is clear from the complaint that the alleged battery arose from the performance of Bailey’s official duties as a correctional officer. Under the Act, state employees are immune from liability arising from the performance of their official duties. OCGA §§ 50-21-21 (b), 50-21-25 (a); Datz v. Brinson, 208 Ga. App. 455 (430 SE2d 823) (1993); Collier v. Whitworth, 205 Ga. App. 758, 759 (423 SE2d 440) (1992).

Under the Act, the State also is immune from liability on plaintiff’s state law claim. The Act “provides for a waiver of the state’s sovereign immunity for torts of state officers and employees while acting within the scope of their official duties or employment, OCGA § 50-21-23 (a), unless the alleged tortious act falls within one of the exceptions set forth in OCGA § 50-21-24.” (Punctuation omitted; emphasis supplied.) Howard v. Burch, 210 Ga. App. 515, 516 (436 SE2d 573) (1993). In the instant case, the alleged tortious act falls within the exception found in OCGA § 50-21-24 (7), which specifically provides that “[t]he state shall have no liability for losses resulting from . . . battery.” Additionally, plaintiff’s state law claim against the State is barred based on his failure to comply with the ante litem notice requirements set forth in OCGA § 50-21-26.

2. Having said the above, we nevertheless conclude that the trial court erred in dismissing plaintiff’s complaint in its entirety. “A pro se complaint is not held to [the] stringent standards of formal pleadings, Haines v. Kerner, 404 U. S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (Vinnedge v. Gibbs, 550 F.2d 926 (1) (4th Cir. 1977)), and the complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U. S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).” (Citation and punctuation omitted.) Battle v. Seago, 208 Ga. App. 516 (431 SE2d 148) (1993). In this case, it cannot be said with assurance that the allegations of the complaint demonstrate beyond doubt that plaintiff can prove no set of facts which would entitle him to relief against Bailey. See Evans v. City of Atlanta, 189 Ga. App. 566, 567 (377 SE2d 31) (1988). A liberal reading of the complaint reveals a potentially valid cause of action against Bailey under 42 USC § 1983. Id.; see Johnson v. Jones, 178 Ga. App. 346, 349 (343 SE2d 403) (1986). Clearly inmates at correctional institutions are entitled to due process and Eighth Amendment protection from being beaten at the hands of prison staff. See Meredith v. Arizona, 523 F2d 481, 482-484 (9th Cir. 1975). And we cannot say that Bailey is entitled to qualified immunity in this case because we cannot say as a matter of law that his discretionary use of force against plaintiff did “ ‘not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ Harlow v. Fitzgerald, 457 U. S. 800 (102 SC 2727, 73 LE2d 396) (1982); Forney v. Purvis, 190 Ga. App. 192, 195-196 (378 SE2d 470) (1989).” Bell v. City of Albany, 210 Ga. App. 371, 374 (436 SE2d 87) (1993); see Procunier v. Navarette, 434 U. S. 555, 561-562 (98 SC 855, 55 LE2d 24) (1978).

With regard to DOC, however, plaintiff’s complaint fails to set forth a viable claim under 42 USC § 1983 because DOC is not a “ ‘person’ who, under color of state law, deprives another of his federal constitutional rights.” State Bd. of Ed. v. Drury, 263 Ga. 429, 433-434 (2) (437 SE2d 290) (1993); see Will v. Michigan Dept. of State Police, 491 U. S. 58, 66-70 (109 SC 2304, 105 LE2d 45) (1989). Even if this were not so, plaintiff’s complaint does not set forth a valid § 1983 claim against DOC because DOC’s alleged liability is premised wholly on the fact that it was Bailey’s employer. The complaint is devoid of any allegations that Bailey’s actions were the result of an intentional and deliberate policy adopted or ratified by DOC’s governing body. See City of Cave Spring v. Mason, 252 Ga. 3, 5 (310 SE2d 892) (1984); Kilgo v. Dept. of Corrections, 202 Ga. App. 50, 51 (413 SE2d 507) (1991).

In light of the above, we hold that the trial court properly dismissed plaintiff’s complaint against DOC. The trial court also properly dismissed plaintiff’s complaint against Bailey to the extent the complaint was based on alleged violations of state tort law, but the court erred in dismissing the complaint against Bailey to the extent it set forth a claim for alleged civil rights violations under 42 USC § 1983.

Judgment affirmed in part and reversed in part.

Andrews and Smith, JJ, concur.

Decided May 29, 1996.

Donald V. Mattox, pro se.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Leonard C. Gregor, Jr., Assistant Attorney General, for appellees.


text:
    A96A0222.
    ROSS C. SHAW, JR., INC. v. REYNOLDS.
    (472 SE2d 125)
   Johnson, Judge.

Ross Shaw, as president of Ross C. Shaw, Jr., Inc., employed Beverly Reynolds under a three-year written contract providing that she would provide her "full time services” to the business of the company; that she would be paid at least $5,000 per month; and that her employment could be terminated prematurely only for “just cause.” Shaw terminated the contract after less than one year. Reynolds sued Shaw individually and Ross C. Shaw, Jr., Inc. (“the company”) for wrongful termination. Shaw individually moved for summary judgment, which was granted. Reynolds’ claim against the company was then tried to a jury, which returned a verdict in Reynolds’ favor. The company’s motion for a new trial was denied, and this appeal follows. We affirm.

1. Ross C. Shaw, Jr., Inc. enumerates as error the trial court’s grant of Reynolds’ motion in limine. This ruling precluded any mention during the trial that Reynolds was admittedly, at the time the company terminated the contract, pregnant by a man who was married to, and had a family by, someone else. Ross Shaw, pro se counsel for the company and its only witness, protested that the marital and family status of the father was relevant because it so affected Reynolds emotionally that she could not concentrate on her job. The company contends on appeal that the ruling deprived it of the ability to show an adequate reason, beyond the effects of a typical pregnancy, for Reynolds to be distracted from her work, thus unfairly prejudicing its ability to demonstrate to the jury "just cause” for terminating her contract.

Under the contract, the challenged evidence was not relevant, and there was thus no error in excluding it. The contract had no terms relating to Reynolds’ personal, as opposed to business, conduct, nor did it speak to reasons for possible nonperformance. It simply required Reynolds to provide her "full time services” to the business of Ross C. Shaw, Jr., Inc. The trial court correctly gave the company complete freedom to introduce relevant evidence, instructing Ross Shaw that he could expound upon how Reynolds allegedly failed to make sales calls, generate business, or otherwise perform her job. Moreover, even if we accepted Shaw’s argument that the father’s status might have some relevance, which we do not, the trial court had discretion to exclude the evidence on the ground that its potential for prejudice substantially outweighed its probative value. Kilpatrick v. Foster, 185 Ga. App. 453, 456 (3) (364 SE2d 588) (1987). We therefore find no abuse of discretion, and no error.

2. The company also enumerates as error the grant of Reynolds’ motion in limine that was in substance a motion for summary judgment on the company’s counterclaim. The counterclaim sought recovery of monies paid as draws to Reynolds, and alleged they were advances against anticipated future commissions that she never earned. Reynolds contended any debt she had to the company had been extinguished by her recent discharge in bankruptcy. The trial court agreed, and instructed Ross Shaw not to mention the counterclaim in the trial.

In order to gain a reversal, an appellant must show not only error, but harm. Stringer v. Harkleroad & Hermance, 218 Ga. App. 701, 704 (1) (463 SE2d 152) (1995). It appears the trial court’s ruling may have been erroneous, because Reynolds did not adequately prove that she had obtained a discharge applicable to the company’s claim (see generally Commercial & Exchange Bank v. McDaniel, 147 Ga. App. 378, 379 (249 SE2d 97) (1978) and Stegall v. Jones, 87 Ga. App. 115, 117 (73 SE2d 42) (1952)), and because the doctrine of recoupment would allow the company to pursue this counterclaim even after discharge, at least as a defense to Reynolds’ claim for damages of $5,000 per month for the remainder of the contract. This is because the counterclaim arose from the same contract as Reynolds’ claim against the company. Anthem Life Ins. Co. v. Izaguirre, 166 Bankr. 484, 490-493 (N.D. Ga. 1994). At least a portion of the counterclaim may also have been assertable as a defense under the setoff provision of the Bankruptcy Code, 11 USC § 553. See Ford v. Darracott, 35 Bankr. 277, 278-280 (N.D. Ga. 1983). The company has not shown harm, however, because the verdict indicates that the jury found that the company, not Reynolds, breached the contract. The company could have recovered no damages on its counterclaim unless the jury had found in its favor on the breach issue. Thus, any error does not require reversal.

3. In its final enumeration of error, the company alleges that attorney fees and expenses of litigation were improperly awarded against it. While the complaint prayed for an award of both attorney fees and litigation expenses, Reynolds limited her evidence and argument to litigation expenses only. At Reynolds’ request, the trial judge charged the jury on expenses but not fees. The verdict awarded a single amount of money, and did not specify whether any was for attorney fees or litigation expenses.

Decided May 29, 1996.

Bedford, Kirschner & Venker, Andrew R. Kirschner, for appellant.

F. Clay Bush, for appellee.

The evidence was sufficient to support a finding of bad faith in the company’s breach of the contract, which would authorize an award of litigation expenses. OCGA § 13-6-11; see Kemira, Inc. v. Williams Investigative &c., 215 Ga. App. 194, 199-200 (3) (450 SE2d 427) (1994). Moreover, Ross Shaw did not object at trial to the evidence, argument, or jury charge relating to expenses, or to the form of the verdict, and has not shown how the issue of attorney fees could have been placed before the jury. He thus did not preserve these issues for appellate review. See Boatwright v. Eddings, 180 Ga. App. 742 (350 SE2d 291) (1986). This enumeration is therefore without merit.

Judgment affirmed.

McMurray, P. J., and Ruffin, J, concur.


author: McMureay, Presiding Judge.

text:
    A96A0334.
    McMILLAN v. MOTOR WAREHOUSE, INC.
    (472 SE2d 120)
   McMureay, Presiding Judge.

Motor Warehouse, Inc. d/b/a Motor Installers (“Motor Warehouse”) installed a remanufactured engine and radiator in Cleveland McMillan’s 1988 Oldsmobile automobile. The automobile, however, was destroyed by fire before McMillan returned to redeem the vehicle from repair’ An arsonist set the automobile ablaze after business hours as the vehicle sat in Motor Warehouse’s business parking lot. McMillan later brought a bailment action against Motor Warehouse to recover for the loss of his vehicle, alleging that Motor Warehouse failed to exercise ordinary care in protecting and preserving his automobile. Motor Warehouse denied liability and counterclaimed, seeking recovery for the unpaid cost of repairing McMillan’s automobile. After a bench trial, the trial court observed that McMillan’s automobile was destroyed over a month after Motor Warehouse informed McMillan that “the repairs were completed” and concluded that Motor Warehouse, as McMillan’s bailee, “exercised the proper degree of care and diligence in protecting [McMillan’s] car. . . .” This appeal followed the denial of McMillan’s motion for new trial. Held:

McMillan challenges the trial court’s verdict, arguing that the undisputed evidence demands a finding that Motor Warehouse failed to exercise ordinary care in protecting and preserving his automobile.

“ ‘In bench trials, the trial judge sits as the trier of fact and his findings are analogous to the verdict of a jury and should not be disturbed if there is any evidence to support them. (Cit.) Further, under OCGA § 9-11-52 (a) the findings of the trial court in these cases “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” As the clearly erroneous test has the same effect as the any evidence rule, we will not disturb the findings of fact in this case if there is any evidence to sustain them. (Cit.)’ Taylor & Rozier v. Anderson, 211 Ga. App. 897, 898 (440 SE2d 767) (1994).” Jafari v. Simpson Organization, 214 Ga. App. 589, 591 (1) (448 SE2d 493). From this perspective, it is not difficult to see that the controlling issue in the case sub judice is whether there is any evidence to support the trial court’s -finding that Motor Warehouse exercised ordinary care and diligence in looking after McMillan’s automobile. See Rhodes v. Duarte, 142 Ga. App. 885 (237 SE2d 212).

Lawrence A. Marostica, Motor Warehouse’s president and stockholder, indicated on direct examination that he believed McMillan’s vehicle was safe because it “was right on a busy, well traveled highway [and] the vehicle was close to the highway. . . .” Mr. Marostica also indicated that he did not store McMillan’s automobile in Motor Warehouse’s secure parking lot (which was “at a paint shop down the road”) because the vehicle would not have been available for delivery had McMillan returned to redeem the automobile after 4:00 in the afternoon. Further, there is proof that free accessibility to McMillan’s automobile was necessary by virtue of McMillan’s indications that he may return at any time to redeem his vehicle. To this extent, McMillan admitted on cross-examination that he did not request that his automobile be stored and he affirmed that he did not redeem his automobile on at least two occasions (before destruction of the vehicle) after promising Motor Warehouse representatives that he would do so. With this proof, and a lack of evidence that Motor Warehouse experienced similar incidents of arson in its parking lot before destruction of McMillan’s automobile, we cannot say the trial court erred in concluding that Motor Warehouse exercised ordinary care and diligence by leaving McMillan’s automobile in the parking lot outside its place of business. See Rhodes v. Duarte, 142 Ga. App. 885, supra.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.

Decided May 29, 1996.

Louis F. McDonald, for appellant.

Michael L. Wetzel, for appellee.


text:
    A96A0382.
    POPE v. PROFESSIONAL FUNDING CORPORATION.
    (472 SE2d 116)
   Ruffin, Judge.

Professional Funding Corporation (“Professional Funding”) sued Total Care, Inc. and its stockholders, including Lonnie Pope, for conversion and breach of contract. Pope appeals from a judgment entered on jury verdicts rendered against him. The jury found Professional Funding had pierced the corporate veil and held Pope responsible for the debts of his corporation. It also found Pope had converted funds belonging to Professional Funding for his corporation’s benefit. We affirm these verdicts and find no error in the admission of evidence sufficient to reverse the trial court. Because Professional Funding did not elect between its contractual and tort remedies, however, we reverse the judgment and remand for that election to be made.

Pope was a financial manager of and a stockholder in Total Care, a corporation he helped establish as part of a business providing medical and chiropractic services to patients. Total Care’s two major shareholders, Drs. Ron Clark and Jose Arroyo, were also major shareholders with Pope in two related corporations: Total Imaging Center, Inc., set up to provide patients with magnetic resonance imaging services, and Quantum I R Imaging, Inc., set up to handle thermography services for the clinic. In addition, a partnership comprised of Pope, Clark, and Arroyo (“CAP Realty”) owned and managed the building from which all three corporations operated.

In early 1992, shortly after Total Care began operating, Professional Funding and Total Care entered into a contract whereby Professional Funding provided Total Care with working capital by purchasing some of its accounts receivable. Problems with paperwork and disputes with doctors affiliated with Total Care soon put Total Care in the red. Although representatives of Total Care and Professional Funding tried to reconcile these problems, by early 1993 Professional Funding stopped advancing Total Care any money. In April 1993, Professional Funding demanded from Total Care that the corporation or its guarantors (Clark and Arroyo) repurchase uncollected accounts as provided in the contract. Professional Funding’s demand was refused, giving rise to this suit and its resulting jury verdicts.

1. The trial court charged the jury on the “alter ego” or “business conduit” principles of piercing the corporate veil, and the jury found Pope and his fellow stockholders personally liable for over $100,000 resulting from Total Care’s failure to repurchase the uncollected accounts pursuant to its contract. Pope contends the trial court should have granted his motions for summary judgment and directed verdict on this issue.

“Once a case has been submitted to the jury and a judgment rendered on its verdict, the denial of a summary judgment motion is a moot issue. [Cit.]” R. T. Patterson Funeral Home v. Head, 215 Ga. App. 578, 581 (1) (451 SE2d 812) (1994) (physical precedent only). In determining whether the trial court erred by denying the motion for directed verdict, “this court reviews and resolves the evidence and any doubts or ambiguities in favor of the verdict. A directed verdict is not authorized unless there is no conflict in the evidence on any material issue and the evidence introduced, with all reasonable deductions demands a certain verdict. [Cits.]” (Punctuation omitted.) Shaw v. Ruiz, 207 Ga. App. 299, 303 (10) (428 SE2d 98) (1993).

To affirm the jury verdict piercing the corporate veil, we must find “evidence of abuse of the corporate form. [Professional Funding] must show that [Pope] disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control. . . . [Cit.]” (Punctuation omitted.) J-Mart Jewelry Outlets v. Standard Design, 218 Ga. App. 459, 460 (1) (462 SE2d 406) (1995). “Although great caution should be exercised in disregarding or going behind the corporate entity, it may be done [where the evidence shows] that the separate personalities of the corporation and the owners no longer exist; and to adhere to the doctrine of corporate entity would promote injustice. . . . [Cit.]” (Punctuation omitted.) Florida Shade Tobacco Growers v. Duncan, 150 Ga. App. 34, 35 (256 SE2d 644) (1979). When the issue is litigated, as it was in this case, the decision is generally entrusted to the jury. J-Mart, supra.

The evidence, construed most strongly in favor of the verdict, did not demand a decision in Pope’s favor. See Shaw, supra. Dr. Ron Clark, the president of Total Care, testified that he, Pope, and Arroyo set up Total Care, the two other corporations, and the partnership (CAP Realty) to handle various aspects of their clinical business. They “transferred money back and forth between [their separate businesses] as needed,” without any documentation. Although the partnership owned the building, Total Care funds were used to improve it. When Pope, Clark, and Arroyo sold the building, they realized proceeds above amounts owed on the building.

Because Total Care’s own president admitted he, Pope, and Arroyo transferred funds among their businesses without regard to corporate formalities, Pope cannot complain of the jury’s determination to disregard the corporate entity. See Sparks v. Ellis, 205 Ga. App. 263, 264 (1) (421 SE2d 758) (1992). In light of the admitted lack of documentation, the jury could infer from Clark’s testimony that Total Care’s stockholders “bled” the company to fund other business enterprises, including CAP Realty. See Brunswick Mfg. Co. v. Sizemore, 183 Ga. App. 482, 483 (359 SE2d 180) (1987); Trans-American Communications v. Nolle, 134 Ga. App. 457, 460 (1) (214 SE2d 717) (1975). With the artificial barriers between those entities fallen, Pope’s partnership — and therefore Pope personally — could be held liable for Total Care’s business debts. OCGA § 14-8-15. The trial court did not err by entering judgment on this verdict.

2. Based on evidence that Pope used for Total Care’s benefit money from payments assigned to Professional Funding, the jury found he had converted those funds. Pope contends the trial court erred by failing to grant his motions for summary judgment and directed verdict on the issue of conversion. He argues no conversion action may be maintained where the plaintiff simply seeks a money judgment on a contractual claim. We disagree, but remand to require Professional Funding to elect its remedy.

Professional Funding purchased Total Care’s accounts receivable and filed a UCC-1 financing statement showing its interest in those receivables. A provision of the accounts receivable purchase contract between Total Care and Professional Funding stated: “Any checks, cash, notes or other instruments or property received by [Total Care from payors] due on a Purchased Account shall be deemed to have been received by you in trust on account of such Purchased account. . . and shall be held by [Total Care] in trust and not deposited, and shall be immediately turned over to [Professional Funding] in the same form as received.” This language is underlined in the original contract. Professional Funding’s vice-president testified that Total Care retained approximately $40,000 of payments on assigned accounts. A former Total Care employee testified she heard Pope direct that certain payments received on assigned claims be deposited into Total Care’s account to “meet payroll.” Professional Funding’s expert accountant reviewed Total Care’s financial and bank statements and discovered that approximately $40,000 in funds assigned to the lender had been diverted to Total Care’s bank accounts.

These facts sufficiently support a verdict finding conversion, a tort defined as “[a]n exercise of dominion or control over property . . . which is inconsistent with the legal rights of a secured party. ... A secured interest in accounts receivable is a legal interest. [Cit.]” Privitera v. Addison, 190 Ga. App. 102, 106 (3) (378 SE2d 312) (1989). As a corporate manager who took part in this tort, Pope is personally liable for it. Brown v. Rentz, 212 Ga. App. 275, 276 (2) (441 SE2d 876) (1994). See Shaw, supra.

Although Professional Funding could maintain its action both on breach of contract and conversion theories, it could not obtain a double recovery and was required to elect its remedy. Nat. City Bank of Rome v. Busbin, 175 Ga. App. 103, 104-105 (1) (332 SE2d 678) (1985). The complaint and evidence show the lender sought recovery for a stated amount of money due on uncollected accounts. It contended that some of those funds were uncollectible and that others were converted by Total Care. The jury awarded Professional Funding the entire balance of payments it had not received and also awarded a separate amount covering converted payments. We therefore vacate that portion of the judgment and remand the matter to require Professional Funding to elect between its contractual and toyt remedies. Id.

3. In his third enumeration of error, Pope asserts the trial court erred in excluding from evidence an order on a motion for summary judgment in a connected case. The trial court ruled it irrelevant, but Pope contends the evidence was necessary to show that a dispute among defendants brought out in prior testimony had been resolved in Pope’s favor. He was allowed to do so by questioning the witness. “[T]he admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion. [Cits.]” (Punctuation omitted.) Piggly Wiggly Southern v. Snowden, 219 Ga. App. 148, 150 (3) (464 SE2d 220) (1995). We find no abuse of discretion, especially after reviewing the proffered order containing many pages of technical legal explanation and citation. A trial court may exclude even relevant evidence which would confuse a jury. Kilpatrick v. Foster, 185 Ga. App. 453, 456 (3) (364 SE2d 588) (1988).

4. Neither did the court err by allowing Professional Funding’s witness to relate the statement of Carl Clark that Pope had mismanaged the business. Clark was a defendant in this case and made this statement to the witness during the course of representing Total Care’s interests. The witness said Clark had represented himself as a new manager of Total Care. The trial court did not err in admitting this admission made by a defendant. Smoky, Inc. v. McCray, 196 Ga. App. 650, 651 (3) (396 SE2d 794) (1990); OCGA § 24-3-33.

5. The trial court did not err by allowing Professional Funding’s attorney to ask a leading question, as the court did not abuse its broad discretion to allow parties to lead witnesses. Knight v. State, 266 Ga. 47, 49 (4) (464 SE2d 201) (1995).

Decided May 29, 1996.

Burroughs & LeFevre, John D. Burroughs, for appellant.

Whelchel & Dunlap, William L. Rogers, Jr., Thomas E. Raines, for appellee.

6. Pope also asserts error in the trial court’s admission into evidence of a summary of account information prepared by Professional Funding’s expert witness and used in his testimony. He contends the court’s admission of this document unduly emphasized the witness’s testimony. The trial court gave a limiting instruction to ensure the jury would give no undue emphasis to the document, and by failing to object to that limiting instruction, Pope waived this ground of error. Espy v. State, 259 Ga. 587, 589 (3) (385 SE2d 659) (1989). Furthermore, the witness testified in detail as to the document’s contents, so “[a]t worst the [summary was] merely cumulative and any error in admitting [it] was harmless. [Cit.]” Pembrook Mgmt. v. Cossaboon, 157 Ga. App. 675, 678 (4) (278 SE2d 100) (1981).

7. Pope’s remaining enumeration of error is supported by neither argument nor citation of authority and is deemed abandoned pursuant to Court of Appeals Rule 27 (c) (2).

Judgment affirmed in part, vacated in part, and remanded with instruction.

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

       Contrary to Pope’s argument, the evidence could lead a jury to infer monies were shifted between Total Care and the partnership as well as among the corporations.