author: Barnes, Judge.

text:
    A02A0015.
    BAKER v. THE STATE.
    (567 SE2d 738)
   Barnes, Judge.

Devone Baker was indicted for violation of the Georgia Controlled Substances Act. Following the denial of his motion to suppress and subsequent conviction after a bench trial based primarily on stipulated facts, he appeals. Baker contends that the trial court erred in denying his motion to suppress because (1) the stop of his vehicle was unaccompanied by reasonable articulable suspicion and (2) the consent to search his car was not freely and voluntarily given.

Baker argues that the stop of his vehicle was not supported by reasonable and articulable suspicion. We agree.

Upon review of the denial of the motion to suppress, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Allenbrand v. State, 217 Ga. App. 609 (1) (458 SE2d 382) (1995). Further, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous, and the reviewing court must construe the evidence most favorably to upholding the trial court’s findings and judgment. Stokes v. State, 238 Ga. App. 230 (518 SE2d 447) (1999).

So viewed, the evidence shows that shortly after midnight on May 12, 2000, Officer Ed Mashburn of the Riverdale Police Department was on routine patrol of a commercial area known as McElroy’s Alley. Officer Mashburn testified that commercial patrols are conducted to look for “suspicious vehicles or persons in commercial areas that are not normally open for operation.” He said that he routinely patrolled McElroy’s Alley looking for criminal activity, such as “burglaries, thefts, things of that nature.” He described McElroy’s Alley as a commercial area in the center of the city comprising primarily automobile repair businesses. A private road runs through the alley and connects two state highways — Highways 85 and 139, which is also known as Church Street. He said that the area is not well lighted and that he has responded to several theft and burglary calls in McElroy’s Alley during his eight years with the department.

While on patrol that night, he saw Baker’s car traveling eastbound in McElroy’s Alley. He testified that he became suspicious of the vehicle when it turned down a narrow, poorly maintained road in the alley which was not used for normal traffic. He said that Baker’s route would have placed him in the back parking lot of a used car lot which had experienced numerous thefts. The officer activated his blue lights, pulled Baker over and asked for his license and proof of insurance. Baker had a valid Georgia tag registered to an Atlanta address, but he was carrying a temporary Alabama license. Baker told the officer that he recently moved to Georgia and had not changed his residence. According to the officer’s testimony, Baker said that he was in McElroy’s Alley to meet someone at Jim’s Repair Shop, a nearby business. He could not, however, produce the name of the person, but said that he drove a Chevrolet convertible. The officer testified that he knew the owner of the repair shop and that the owner drove a Dodge Ram pickup truck and a Harley Davidson. The officer testified that although he was not concerned about Baker’s Alabama license, he was still worried about Baker’s presence in McElroy’s Alley, so he asked for consent to search the car to look for “burglary tools” and “things of that nature.” Baker consented and said that “he had nothing to hide.” The officer found a small wooden box containing marijuana and a pipe in the floorboard between the passenger and driver’s seat.

When asked for the precise reason that he stopped Baker, the officer testified that it was because “|h]e was in an area that was a commercial area that was, you know, all the businesses were closed at that time of night, and the amount of thefts and things of that nature in that area.” When asked if there was access to one of the major highways from Baker’s locale, the officer indicated that there was, although the area is difficult to traverse because of a telephone pole with guy wires hanging down and bad potholes. The officer also indicated that while he was trying to confirm whether a crime had been committed, he was not aware of a particular report of any criminal activity at that time. Further, the officer was not aware of any traffic violations that Baker may have committed. The officer also indicated that Baker did not appear to be overly nervous, nor were there any symptoms of alcohol use.

The trial court denied Baker’s motion to suppress, holding that in light of the location, time and officer’s experience, the officer had the requisite articulable suspicion to stop Baker.

1. Police may briefly detain, someone for investigatory purposes if they have an articulable suspicion of criminal conduct. Brown v. State, 188 Ga. App. 184, 186 (372 SE2d 514) (1988); see Terry v. Ohio, 392 U. S. 1, 30 (V) (88 SC 1868, 20 LE2d 889) (1968). However, “[a]n investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” (Citations and punctuation omitted.) Id. “Such articulable suspicion that the law has been or is about to be violated is ‘less than probable cause, but greater than mere caprice.’ [Cit.]” Garmon v. State, 271 Ga. 673, 677 (2) (524 SE2d 211) (1999).

The U. S. Supreme Court recognized the difficulty in defining the elusive concept of what cause is sufficient to authorize police to stop a person, and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity. This demand for specificity in the information upon which police action is predicated is the central teaching of the Supreme Court’s Fourth Amendment jurisprudence.

(Citations and punctuation omitted.) State v. Winnie, 242 Ga. App. 228, 229-230 (529 SE2d 215) (2000).

While “[c]learly an officer is justified in ‘closely observing’ a vehicle that pulls into ... a closed business . . . such conduct itself is not illegal.” State v. Winnie, supra, 242 Ga. App. at 230. In Attaway v. State, 236 Ga. App. 307 (511 SE2d 635) (1999), in which the police received reports that a car was circling around a subdivision several times late at night, we noted:

[n]o evidence was introduced that such activity violated any local ordinance or other applicable law, or that there was any other basis for the stop. While the police officer testified that there had been past incidents of vandalism in the area, the police received no information that Attaway had committed any such acts. Although . . . the police might have been justified in closely observing Attaway’s actions, his behavior did not provide a particularized and objective basis for suspecting him of criminal activity sufficient to justify an investigatory stop.

(Citation and punctuation omitted.) Id. at 309.

Likewise in Winnie, where an officer stopped a truck that turned into the parking lot of a Salvation Army facility at 4:00 a.m. because it appeared suspicious since the facility was closed, we noted that “[a]lthough [the officer] might have suspected an attempted burglary when he saw the truck enter the parking lot, the basis for such suspicion disappeared when the truck started to leave the parking lot. [The officer] did not claim that the truck had been parked or out of his sight long enough to have already accomplished a burglary.” State v. Winnie, supra, 242 Ga. App. at 230.

In this case, the officer never saw Baker stop his car, never indicated that Baker was in close proximity to a business, and never indicated that Baker did anything other than turn down a road in McElroy’s Alley that would have been difficult to traverse had he continued. The officer even indicated that, as was his practice, he rode through the area “without any lights on at all and also at a low speed with the car in low just with my windows down to see if I can hear anything,” and there was no evidence of any criminal activity afoot.

Although the officer said that Baker’s statements about meeting someone at a repair shop aroused his suspicions, those facts were not within the officer’s knowledge at the time of the stop. Therefore, those facts may not be used in support of a finding of reasonable articulable suspicion. See Harvey v. State, 266 Ga. 671, 673 (469 SE2d 176) (1996) (actions must rely on current knowledge, not hindsight).

Decided June 24, 2002.

Lloyd J. Matthews, for appellant.

Keith C. Martin, Solicitor-General, for appellee.

Accordingly, because at the time the officer made the stop, he had no “particularized and objective” reason for believing that Baker was engaged in criminal activity, evidence obtained as a result of the ensuing search of Baker’s vehicle should have been suppressed. Therefore, we reverse the trial court’s judgment and remand the case with direction to grant the motion to suppress.

2. Because of our holding in Division 1, we need not address Baker’s second enumeration of error.

Judgment reversed and remanded with direction.

Pope, P. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A02A0102.
    HARBOR COMPANY v. COPELAN.
    (567 SE2d 723)
   Phipps, Judge.

This dispute involves the ownership of a six-inch strip of land in Greene County that separates property owned by The Harbor Company (THC) from a county road. THC sought injunctive and declaratory relief to establish that it had the right to use the strip to access the county road, even though respondent Jesse Copelan, Jr. held legal title to the strip. After a bench trial, the trial court denied the requested relief, finding that THC had no right to use the strip. THC appeals, arguing that Copelan is estopped from denying it access to the strip and that Greene County acquired the strip from Copelan through prescription. We disagree and affirm.

The record shows that in 1990, Copelan owned Tracts 6 and 7 in the Harbor Club, a gated residential community. On September 20, 1990, he conveyed the tracts to Harbor Club, L.R (LP) via warranty deed. The deed did not precisely describe the property, but incorporated by reference two survey plats showing that the tracts were bordered on the north by a 28-foot-wide right-of-way for Club Drive, a public road.

The same day, Copelan conveyed to Greene County via warranty deed the piece of land called Club Drive that, according to survey plats, bordered Tracts 6 and 7 on the north. This deed also contained no precise description of the property, but referred to a survey plat showing a 27-foot-wide right-of-way for the road.

Thus, the plat associated with LP’s deed showed that the right-of-way for Club Drive was one foot wider than shown on the plat associated with Greene County’s deed. A former employee of LP testified that the reason for this discrepancy was to allow Copelan to retain title to a six-inch strip on either side of Club Drive. The trial court found that Copelan retained the strip on the south side of Club Drive “specifically for the reason of preventing direct access from Tracts 6 and 7 to Club Drive and forcing access to them to be through the security gate of the Harbor Club gated community, thereby increasing the value of these lots.” The court further found that because of this strip, Tracts 6 and 7 do not abut Club Drive.

Department of Transportation records show that the blacktop portion of Club Drive is 26 feet wide, not including the curbs and gutters. The curbs and gutters, which were built in 1990, measure approximately two feet on each side.

In April 1995, after one or more intervening conveyances, THC purchased Tracts 6 and 7 from Imogene Thomas, who is not a party to this action. As with the 1990 deeds, THC’s deed incorporated by reference the same survey plats showing that Tracts 6 and 7 were bordered by a 28-foot right-of-way for Club Drive. The trial court found that before purchasing Tracts 6 and 7, THC learned that Copelan owned the six-inch strip of land and that there was no direct access from Tracts 6 and 7 to Club Drive. The court further found that THC did not purchase Tract 6 or 7 in reliance on any representation by Copelan, who was not involved in the 1995 conveyance.

THC seeks direct access to Club Drive from Tracts 6 and 7. At trial, THC stipulated that Copelan holds title to the six-inch strip between the tracts and the south side of Club Drive. THC argued, however, that Copelan was equitably estopped from denying it access to the strip and that Greene County had acquired the strip through prescription. The trial court rejected both arguments, finding that neither THC nor Greene County has any right to use the strip.

1. Ordinarily, a claim of equitable estoppel requires proof that the defendant falsely represented or concealed material facts with the expectation that the plaintiff would rely on the misrepresentation or concealment. In addition, the plaintiff must show that it lacked knowledge of the true facts and changed its position prejudicially in reliance on the defendant’s conduct.

THC acknowledges its inability to prove a traditional estoppel claim due to the trial court’s findings that it knew Copelan owned the six-inch strip of land when it purchased Tracts 6 and 7 and did not change its position because of any representation by Copelan. Nevertheless, THC asserts that it can establish estoppel under the principles set forth in our Supreme Court’s decision in Schreck v. Blun. We disagree.

In Schreck, Blun sold Schreck a parcel of land via a deed that described the southern boundary of the land as “Gwinnett street extended.” Both before and after this sale, Blun owned the land denominated as “Gwinnett street extended.” After the sale, Schreck sued Blun to enjoin him from putting up gates to restrict Schreck’s access to Gwinnett Street. The Supreme Court ruled that Blun was estopped from denying Schreck full access to the street because the deed had stated that Schreck’s land abutted the street. “[A] person conveying premises by description in terms bounding them by a street of a specified width, the title to which [the grantor] also owns, ordinarily gives his grantee the right to insist upon the existence and enjoyment of such street.” In other words, if the deed shows that the grantee’s land borders a right-of-way owned by the grantor, the grantor must give the grantee access to the right-of-way.

In this case, unlike in Schreck, the trial court found that Tracts 6 and 7 do not abut Club Drive because Copelan retained a six-inch strip between the tracts and the street, and THC does not dispute that finding. Moreover, the court found that THC did not rely on any representation by Copelan in purchasing the tracts. Based on these facts, the trial court correctly concluded that THC did not prove the elements of equitable estoppel.

THC suggests that, in Schreck, the court held that a grantee need not prove reliance when his deed shows that his property abuts a right-of-way. While it is true that the court did not address the issue of reliance, that does not mean the court ruled that reliance is irrelevant in an estoppel claim. Here, although the plat attached to THC’s deed indicated that Tracts 6 and 7 directly abutted Club Drive and did not show Copelan’s six-inch strip, there was evidence that THC knew when it purchased Tracts 6 and 7 that Copelan had retained the strip. In addition, it is undisputed that Copelan was not involved in the sale to THC. In light of this clear evidence of THC’s prior knowledge of the six-inch strip and lack of reliance on any rep-reservations or concealments by Copelan, THC’s deed and incorporated plat did not give it any reasonable expectation that Tracts 6 and 7 would have direct access to Club Drive.

2. THC also argues that, even though Copelan initially held title to the six-inch strip, Greene County has acquired it through prescription. THC further argues that, because its land abuts a public roadway, it is entitled to access to that roadway. However, the elements of prescriptive acquisition have not been met here.

In order to obtain prescriptive rights over a roadway, the possession must not originate in fraud, must be public, continuous, exclusive, uninterrupted, peaceable, and accompanied by a claim of right. The use must also be adverse rather than permissive, and in the case of public roads acquired by prescription, public authorities must have either accepted the road or exercised dominion over it. Lastly, there must have been unlimited public use of the roadway for at least the seven years preceding the claim of prescriptive acquisition.

The undisputed evidence showed that Greene County had not accepted or exercised dominion over the six-inch strip owned by Copelan. The blacktop portion of Club Drive is 26 feet wide, well within the amount of land deeded to Greene County. On either side of the blacktop are curbs and gutters, a portion of which covers the six-inch strips retained by Copelan. But these curbs and gutters were not constructed by the county; they were commissioned and paid for by LP, with the express knowledge and consent of Copelan. Copelan testified that he agreed to the construction of the curbs and gutters because they would make the Harbor Club development look “a lot neater, a lot nicer.”

Moreover, it is undisputed that although Greene County repaved the blacktop portion of Club Drive in 1999, it has never performed any repairs or maintenance on the curbs and gutters. THC points out that the county manager testified that no work has been needed on the curbs and gutters. Nevertheless, there was no evidence that the county considers the maintenance of the curbs and gutters to be its responsibility or that it would perform any repairs should they become necessary. Because the curbs and gutters were privately installed for aesthetic reasons and have not been maintained by Greene County, we cannot conclude that the county has accepted or exercised dominion over them.

Even if the county had accepted or exercised dominion over the curbs and gutters, the evidence showed that any possession of the curbs and gutters by the county was permissive, not adverse to Copelan. Copelan consented to the construction of the curbs and gutters on his property. There was no evidence that the county ever gave him notice that it was asserting any claim adverse to his right of ownership.

Decided June 24, 2002.

Blasingame, Burch, Garrard, Bryant & Ashley, J. Ralph Beaird, Richard W Schmidt, Christopher G. Conley, for appellant.

Adams & Ford, Francis N. Ford, for appellee.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       See Medders v. Smith, 245 Ga. App. 323, 324 (1) (537 SE2d 153) (2000).

       Id. at 324-325.

       131 Ga. 489 (62 SE 705) (1908).

       Id. at 490.

       Id. at 491.

       The fact section of the opinion states that Schreck alleged and Blun denied that “the purchase was made on the faith that Gwinnett street extended was as represented on the plat attached to the deed.” 131 Ga. at 491. However, the opinion does not indicate how, or even if, the trial court resolved this factual dispute.

       (Footnotes omitted; emphasis supplied.) Chandler v. Robinson, 269 Ga. 881, 883 (2) (506 SE2d 121) (1998); see also OCGA § 32-3-3 (c).

       See McClung v. Schulte, 214 Ga. 426, 429 (105 SE2d 225) (1958) (no adverse possession where owner gave permission for encroachment and plaintiff never gave owner notice of any adverse claim).


author: Ruffin, Judge.

text:
    A02A0359.
    LUMPKIN et al. v. MELLOW MUSHROOM et al.
    (567 SE2d 728)
   Ruffin, Judge.

Eighteen-year-old Christian Lumpkin died from injuries he sustained when he fell out of a Jeep driven by his friend, Seth Callaway. Lumpkin’s parents sued Mellow Mushroom, alleging that the defendant caused their son’s death by negligently serving him alcohol. The trial court granted Mellow Mushroom’s motion for summary judgment, and the Lumpkins appealed. For reasons that follow, we affirm.

At summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. In other words, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to [an] essential element of the case.

Viewed in this light, the evidence shows that Mellow Mushroom was known among Christian’s peers as an establishment that served beer to underage patrons. On the evening of June 7, 2000, Christian sat at Mellow Mushroom’s bar and drank beer. It is unclear how much beer Christian consumed, but several witnesses who had seen him that night reported that he did not appear to be drunk, while another stated that he may have been “mildly” intoxicated.

Christian left Mellow Mushroom at approximately 12:30 a.m. and drove to Callaway’s house. Once there, he and Callaway decided to buy some beer and visit a friend. They went to the store in Callaway’s Jeep, which did not have a passenger side door. Callaway drove, and Christian sat in the passenger seat. During the drive to the friend’s house, Christian unbuckled his seat belt and began hanging out of the Jeep. At some point, Christian apparently lost his grip and fell out of the Jeep. He was taken to the hospital, where he later died from his injuries.

The Lumpkins sued Mellow Mushroom, alleging that the defendant was negligent in serving beer to Christian because he was under the legal drinking age. Mellow Mushroom moved for summary judgment, arguing that under OCGA § 51-1-40 (a), it was not the proximate cause of Christian’s death as a matter of law. Although we are troubled by Mellow Mushroom’s alleged practice of selling beer to minors, we agree with the trial court that the defendant was entitled to summary judgment.

To prevail on its claim that Mellow Mushroom was negligent, the Lumpkins were required to show that the defendant had a duty “to conform to a certain standard of conduct,” that it breached this duty, that there was “[a] reasonable close causal connection between [Mellow Mushroom’s] conduct and the resulting injury,” and that they suffered some loss or damage. On summary judgment, we accept as true that Mellow Mushroom breached its duty to abstain from serving Christian alcohol. Georgia’s Code clearly provides that, “[e]xcept as otherwise authorized by law[,] [n]o person knowingly, directly or through another person, shall furnish, cause to be furnished, or permit any person in such person’s employ to furnish any alcoholic beverage to any person under 21 years of age.” Because Christian was only 18 years old at the time, Mellow Mushroom violated the law and the duty it imposed.

But under the facts of this case, the Lumpkins cannot show that Mellow Mushroom’s breach proximately caused Christian’s death. Under the common law, “no redress exists against persons selling, giving, or furnishing intoxicating liquor, or their sureties, for resulting injuries or damages due to the acts of intoxicated persons.” The common law rule “holds the [person] who drank the liquor liable and considers the act of selling it as too remote to be a proximate cause of an injury caused by the negligent act of the purchaser of the drink.” Though we, as judges, may find the common law rule harsh, and at times unreasonable, “courts have no authority to grant recoveries or authorize actions unknown to the common law. That is a matter for the legislature.”

In 1988, our legislature enacted a host liability statute that recognized the vitality of the common law rule, but created limited exceptions to the rule. In keeping with the common law,

[t]he General Assembly [found and declared] that the consumption of alcoholic beverages, rather than the sale or furnishing or serving of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person, except as otherwise provided in subsection (b) of this Code section.

The exception provides, in pertinent part, that:

a person who willfully, knowingly, and unlawfully sells, furnishes, or serves alcoholic beverages to a person who is not of lawful drinking age, knowing that such person will soon be driving a motor vehicle . . . may become liable for injury or damage caused by or resulting from the intoxication of such minor . . . when the sale, furnishing, or serving is the proximate cause of such injury or damage.

The statutory language clearly reflects a legislative intent to limit the exception to those cases in which the underaged person causes an injury while driving. Here, the undisputed evidence shows that Christian was not driving when he fell out of the Jeep, and it is undisputed that the exception does not apply.

Decided June 24, 2002.

Savage, Turner, Pinson & Karsman, Brent J. Savage, C. Dorian Britt, for appellants.

Instead, the Lumpkins squarely rest their claim against Mellow Mushroom on the defendant’s violation of OCGA § 3-3-23, which prohibits serving alcohol to an underage person. They argue that Mellow Mushroom’s breach of this statutory duty establishes a cause of action for ordinary negligence, negligence per se, and under the rule stated in OCGA § 51-1-6, which provides that, “[w]hen the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.”

These contentions, however, ignore the common law rule of no liability and the legislature’s explicit declaration that, except in limited circumstances, the furnishing or serving of alcoholic beverages is not the proximate cause of any injury inflicted by an intoxicated person upon himself.

Thus, so long as the common-law rule is adhered to, it matters not whether the act of furnishing liquor may be considered as simple negligence or as negligence per se in violation of the criminal statute — it cannot, alone, leap the common law’s chasm of causation. This is why the violation of liquor laws cannot be analogized to other types of negligence per se, and why legislation is required which directly imposes liability in derogation of the common law

For the same reason, OCGA § 51-1-6 does not establish a cause of action based on the violation of OCGA § 3-3-23. Notwithstanding Mellow Mushroom’s breach of a statutory duty, the legislature has declared that the breach of that duty was not a proximate cause of Christian’s death. Accordingly, the Lumpkins were unable to establish an essential element of their claim, and the trial court properly granted Mellow Mushroom’s motion for summary judgment.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

Brennan, Harris & Rominger, Edward R. Stabell III, Kristine B. Shehane, for appellees.

       The Lumpkins also sued Callaway and his father, but they are not parties to this appeal.

       (Citation and punctuation omitted.) Kappa Sigma Intl. Fraternity v. Tootle, 221 Ga. App. 890, 891 (473 SE2d 213) (1996).

       (Punctuation omitted.) Sutter v. Hutchings, 254 Ga. 194, 196-197 (1) (327 SE2d 716) (1985).

         OCGA § 3-3-23 (a) (1).

       (Punctuation omitted.) Keaton v. Kroger Co., 143 Ga. App. 23, 27 (237 SE2d 443) (1977).

       (Punctuation omitted.) Id. at 26.

       (Punctuation omitted.) Id. at 25.

       See OCGA § 51-1-40 (enacted by Ga. L. 1988, p. 1692, § 1).

       OCGA § 51-1-40 (a).

       OCGA § 51-1-40 (b). See also Riley v. H & H Operations, 263 Ga. 652, 653 (1) (436 SE2d 659) (1993).

       OCGA § 51-1-40 (a).

       (Citations omitted; emphasis supplied.) Kroger Co., supra at 27. See also Tootle, supra at 893 (2).

       See OCGA § 51-1-40 (a).

       See Tootle, supra; Kroger Co., supra.


author: Andrews, Presiding Judge.

text:
    A02A0395.
    RICE v. ELLIOTT et al.
    (567 SE2d 721)
   Andrews, Presiding Judge.

Mark Rice’s 11-year-old son, Michael, fractured his wrist while skating on in-line skates as a guest on a ramp at a neighbor’s home. As parent and next friend of the child, Rice sued the homeowners, Charlotte and Johnny Elliott, claiming they negligently maintained a dangerous condition on the premises and negligently failed to properly supervise the child. Rice appeals from the trial court’s grant of summary judgment in favor of the Elliotts. Because the facts establish as a matter of law that the Elliotts violated no legal duty owed to the child or Rice, we affirm.

Michael was invited by the Elliotts’ 13-year-old child to skate on an inclined ramp located on the Elliotts’ property. The Elliotts were not home at the time and did not know Michael was using the ramp. After skating up and down the ramp for about fifteen minutes, Michael climbed to the top of the four-foot-high ramp, sat down, and then slid down the ramp on his backside, fracturing his wrist in the process.

As a social guest, Michael occupied the status of a licensee at the time of the injury. Bowers v. Grizzle, 214 Ga. App. 718, 719-720 (448 SE2d 759) (1994); Stewart v. Harvard, 239 Ga. App. 388, 392 (520 SE2d 752) (1999). Accordingly, the Elliotts owed the duty not to injure a licensee wilfully or wantonly. OCGA § 51-3-2 (b); Stewart, 239 Ga. App. at 392; Barnes v. Fulton, 213 Ga. App. 806, 807 (446 SE2d 213) (1994). This standard applies even if the licensee is a child who may not be able to appreciate the danger of a particular situation as readily as an adult. Handiboe v. McCarthy, 114 Ga. App. 541-542 (151 SE2d 905) (1966). Although a landowner owes a duty to use ordinary care to protect anticipated licensees from dangerous activities being conducted on the premises or from hidden perils, where the alleged negligence arises from a dangerous static condition on the premises, the duty remains not to injure the licensee wilfully or wantonly. Id. at 542; Bronesky v. Estech, Inc., 170 Ga. App. 724, 725 (318 SE2d 194) (1984); see Trammell v. Baird, 262 Ga. 124, 125-126 (413 SE2d 445) (1992) (setting forth the same rule for trespassers).

The ramp at issue was an open and obvious inclined structure sloping to the ground from a height of about four feet. The injury occurred when the child slid down the ramp. This is not a case where a licensee was injured by being within the range of a dangerous act being done on the premises or by coming into contact with a pitfall, mantrap, or other hidden peril on the premises. The ramp was a visible structure that constituted a passive, static condition on the premises.

Decided June 24, 2002.

Mark Rice, pro se.

Hawkins & Parnell, William H. Major III, David H. Wilson, for appellees.

Since there is no evidence that the Elliotts breached their duty not to wilfully or wantonly inflict injury on the child, the trial court properly granted summary judgment on this claim. Bronesky, 170 Ga. App. at 725-726.

As to the negligent supervision claim, the record shows that the Elliotts were not home at the time of the injury and did not know Michael was using the ramp. There is no evidence that the Elliotts undertook any duty to supervise Rice’s child. Herron v. Hollis, 248 Ga. App. 194, 195-196 (546 SE2d 17) (2001). Under the circumstances, “Wt would normally be the duty of a parent or other adult having primary supervisory control over the child to see to it that a child would not be going into a place of obvious danger.” (Citation and punctuation omitted.) Id. at 196. The trial court properly granted summary judgment to the Elliotts on this claim.

Judgment affirmed.

Phipps and Mikell, JJ, concur.


text:
    A02A0563.
    BING v. THE STATE.
    (567 SE2d 731)
   Andrews, Presiding Judge.

Antavian Demond Bing, convicted of aggravated assault with intent to commit rape, aggravated child molestation, and child molestation, appeals, contending that the trial court erred in granting the State’s motion in limine regarding the victim’s having had consensual sex with her boyfriend before the acts committed by Bing. Finding no error, we affirm.

1. Viewed in favor of the jury’s verdict, the evidence was that T. M., then 15 years old, snuck out of her family home at 3:00 a.m. on July 12, 2000, to meet her boyfriend, Suresh May, and his friend, Kenny Johnson. The three drove around for a while and then went to Johnson’s house. May eventually left, and T. M. and Johnson were alone for an hour or two, during which they fell asleep. Upon awakening, T. M. realized she needed a ride back to her home. Johnson told T. M. that Bing, who lived a few houses away, would give her a ride. They went to Bing’s house, and he invited them into his entertainment room where the three played video games. Then all three went into a bedroom. Johnson, who was late for work, told Bing and T. M. that he needed to hurry. Johnson and Bing then left T. M. in the bedroom and consulted outside. Johnson then told T. M. that Bing would take her home.

When Johnson left the room to use the telephone, Bing committed the acts charged in the indictment. During those acts, he placed a stun gun to T. M.’s neck. Johnson returned to the bedroom and pulled Bing off T. M. When asked what happened, T. M. was too upset to answer. She still needed a ride home, but Johnson could not take her. T. M. then allowed Bing to take her home, sitting in the backseat while he took her to her cousin’s house, the first house on her block. Her cousin told T. M. her family had been looking for her all morning. T. M., upset and crying, told her cousin what happened, and police were summoned. A medical examination of T. M. and the resulting laboratory tests revealed no physical evidence of the charges. Although T. M. could not tell the police Bing’s address, she pointed the house out to them and described the interior to them. Officers obtained a search warrant and were in the process of knocking Bing’s door in with a sledgehammer to execute the warrant, after repeatedly knocking loudly, when Bing finally opened the door. The officers discovered a stun gun belonging to Bing in the bedroom.

Bing denied that either T. M. or Johnson had been in his home. Bing later gave a statement to officers at the police station in which he again denied that T. M. and Johnson had been in his house. He denied any sexual contact with T. M. and contended that her knowledge of an unusual mark on his penis must have come when he scratched in her presence and he and Johnson discussed his rash or Johnson told her about it. In a third statement, Bing again denied T. M.’s and Johnson’s presence in his home. Finally, on advice of his attorney, Bing acknowledged that the two had been in his home that day, but still denied any sexual contact with the victim.

The evidence was legally sufficient to support the jury’s verdict under the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Price v. State, 252 Ga. App. 273, 274 (1) (556 SE2d 168) (2001).

2. Relying on Villafranco v. State, 252 Ga. 188, 193 (1) (313 SE2d 469) (1984), and Williams v. State, 180 Ga. App. 562, 563 (349 SE2d 797) (1986), Bing contends that he should have been allowed to introduce as part of the res gestae the fact that, prior to T. M.’s coming to his house with Johnson, she had consensual sex with her boyfriend, May.

The Rape Shield Statute bars the admission of evidence relating to the victim’s past sexual behavior unless it directly involves the accused’s participation and supports an inference that the accused could have reasonably believed that the victim consented to the conduct at issue. Griffin v. State, 224 Ga. App. 225, 227-228 (2) (480 SE2d 608) (1997); OCGA § 24-2-3 (b). The evidence may also be admitted on a finding that it “is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence.” OCGA § 24-2-3 (c) (2); Brown v. State, 214 Ga. App. 676, 677 (2) (448 SE2d 723) (1994). We review the trial court’s exclusion of the evidence for abuse of discretion. Hicks v. State, 222 Ga. App. 828, 829 (1) (476 SE2d 101) (1996).

Davis v. State, 235 Ga. App. 362, 363 (1) (509 SE2d 655) (1998).

Since Bing denied having any sexual contact with T. M. and there was no evidence that, prior to the charged acts, he had any knowledge of T. M.’s sexual activities, the trial court correctly concluded that the Rape Shield Statute barred her prior sexual history as having any relevance to Bing’s intent at the time. Davis v. State, supra (prior sexual activity with the defendant not admissible); Bates v. State, 216 Ga. App. 597 (454 SE2d 811) (1995) (prior sexual activity with boyfriend not admissible).

Williams, supra, involved statements made to a nurse over several hours by two 13-year-old victims who had been kidnapped, held for eight days, and repeatedly raped and sodomized by Williams. The trial court properly found these statements met the statutory requirements of res gestae so as to be free “from all suspicion of device or afterthought.” Williams, supra at 563.

Villafranco, supra, involved a victim’s statement, prior to encountering Villafranco, that she wanted to go to the party “to get some nookey.” There, the statement was held admissible to show her existing motive and state of mind. In that case, there was a dispute regarding whether, prior to the charged acts, the victim had acted amorously toward Villafranco. If so, that would be one of the situations where a trial court could find the evidence met one of the exceptions to the Rape Shield Statute.

Neither case is similar to Bing’s, and Green v. State, 221 Ga. App. 436, 437 (472 SE2d 1) (1996), is controlling. In Green, as here, the trial court rejected the theory that the victim’s past sexual activity with her boyfriend was relevant. Green argued that such evidence would show she might have made false accusations of rape because she was afraid she was pregnant by her boyfriend. That evidence did not go to show the victim’s state of mind at the time of the rape, Villa franco, supra, was not otherwise admissible, and such bootstrapping would allow defendants to circumvent the Rape Shield Statute, which is not allowed. Green, supra.

Decided June 24, 2002.

Robert J. Storms, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps and Mikell, JJ, concur.


text:
    A02A0703.
    COHEN v. TARGET CORPORATION et al.
    (567 SE2d 733)
   Phipps, Judge.

Susan W. Cohen appeals from the trial court’s entry of summary judgment in favor of defendants Target Corporation and Fourth Quarter Properties I, Inc. in this slip and fall case. The trial court ruled that Cohen failed to prove that the defendants had actual or constructive notice of any hazardous condition. We affirm for a reason presented to but not ruled on by the trial court — that Cohen failed to present competent evidence that a hazard existed.

To win summary judgment, the moving party must show 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 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.

We review a trial court’s grant of summary judgment de novo, and we affirm if the decision is right for any reason presented to the trial court.

The record shows that Cohen went to a Target store in Fayette County on a rainy day in August 1997. As she stepped onto a manufactured concrete incline in front of the store, her foot “hydroplaned” and she fell, injuring her left wrist and shoulder. In her affidavit, Cohen opined that her fall “was caused by the slick, yellow painted [ ] surface of the incline which when ‘moistened’ by the mild rain created a ‘slip-n-slide’ ready to hurt whomever stepped onto it.”

Cohen claims that after she fell, a woman whom she believed to be a Target employee approached her and said “that something needed to be done about the slick surface on the incline because I was the second person that very day to have slipped and fallen on it.” According to Cohen, a male Target employee who was standing nearby overheard this remark yet did not “refute, deny, or explain” it. Cohen could not give the name of either the man or the woman, and she was able to describe them only in general terms. The man escorted Cohen to the manager’s office, where Target employee Penny Searcy told Cohen in a “defensive tone” that the paint on the incline was not fresh. From this remark, Cohen inferred that Searcy knew others had fallen on the incline and that it was dangerous.

Cohen sued Target Corporation, which occupied the premises where she fell, and Fourth Quarter Properties, which owned them. Both defendants sought summary judgment on the grounds that Cohen had failed to prove that a hazardous condition existed or that they had knowledge of such a condition. The trial court granted summary judgment on the second ground. Cohen argues that issues of fact as to defendants’ knowledge preclude summary judgment.

We, however, conclude that summary judgment was warranted on the first ground urged by defendants — that Cohen failed to show the existence of any defect or hazard. “ ‘The plaintiff’s first burden in a premises liability case is to show the premises were defective or hazardous.’ ” Although Cohen asserted that the incline was defective in its design or construction, she presented no competent evidence of any defect.

She proffered no expert affidavit about the construction or maintenance of the incline or any evidence that defendants violated any rules, ordinances, or standards pertaining to the structure.

Nor did she prove the existence of a hazard by evidence that others had fallen in the area. Although Cohen claimed that an unnamed woman told her someone else had fallen there that day, the woman’s statement is not admissible. As noted in Barich v. Cracker Barrel &c. “alleged statements of unknown employees who cannot be identified, located, summoned and cross-examined” are “completely unreliable” and “the very essence of hearsay.” Cohen also pointed to the male Target employee’s allegedly telling silence following the unnamed woman’s statement, but that silence — assuming it is admissible — is meaningless in the absence of the woman’s statement. Finally, Cohen read into Searcy’s allegedly “defensive” statement that the paint on the incline was not fresh an admission that the incline was dangerous. But that inference was based on nothing more than conjecture.

The fact that Cohen fell does not, of course, establish that defendants created or maintained a defective surface. The fact that the surface may have become slippery in the rain also fails to establish any defect. It is common knowledge that water accumulates on the ground on rainy days, and the risk of harm imposed by this accumulation is not unreasonable but “ ‘is one to which all who go out on a rainy day may be exposed and which all may expect or anticipate.’ ” When an appropriate building material is used — and nothing in this record indicates that the materials used here were not appropriate — the tendency of a surface to become slippery when exposed to rainwater does not render it hazardous. As we recognized in Gibson v. Consolidated Credit Corp.,

[t]here is scarcely any material that might be used in construction that isn’t made somewhat slippery by the presence of water. That is a matter of common knowledge, and, since it is, it behooves us all to use a measure of precaution in walking upon wet surfaces. It is common knowledge that people fall on the best of sidewalks and floors.

In the absence of any evidence that defendants negligently constructed or maintained the incline, that the incline stood in violation of some applicable building code or standard, or that other people had fallen there, defendants were entitled to summary judgment on the ground that Cohen failed to present proof of a defect or hazard.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

Decided June 24, 2002

R. Keith Prater, for appellant.

Magill & Atkinson, Thomas E. Magill, Hamilton, Westby, Antonowich & Anderson, Eric S. Proser, Cobb, Grabbe, Spillers & Irwin, Alexander Gordon, for appellees.

       OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Lau’s Corp., supra.

       See Davis v. Rich’s Dept. Stores, 248 Ga. App. 116, 119, n. 16 (545 SE2d 661) (2001).

       (Footnote omitted.) Carroll v. Ga. Power Co., 240 Ga. App. 442, 443 (1) (523 SE2d 896) (1999).

       See id.

       244 Ga. App. 550 (536 SE2d 221) (2000).

       (Punctuation and footnotes omitted.) Id. at 551-552 (1).

       See Chisolm v. Fulton Supply Co., 184 Ga. App. 378, 380 (1) (361 SE2d 540) (1987) (“Proof of nothing more than the occurrence of the fall is insufficient to establish the proprietor’s negligence.”) (citation and punctuation omitted).

        Ike v. Kroger Co., 248 Ga. App. 531, 533 (3) (546 SE2d 903) (2001).

       See Hardeman v. Spires, 228 Ga. App. 723, 725 (2) (492 SE2d 532) (1997); Gibson v. Consolidated Credit Corp., 110 Ga. App. 170,171-172 (1) (138 SE2d 77) (1964).

       Supra.

       (Citation and punctuation omitted.) Id. at 172.


text:
    A02A0719.
    SUSMAN v. THE STATE.
    (567 SE2d 736)
   Phipps, Judge.

A jury found David M. Susman guilty of one count of driving under the influence of alcohol to the extent that he was less safe to drive (DUI) and two counts of violating the Georgia Controlled Substances Act for possessing marijuana and methamphetamine. He challenges the sufficiency of the evidence. Because the record reveals sufficient evidence, we affirm.

The evidence at trial showed that at about 12:50 a.m. on November 20, 1998, a law enforcement officer stopped the car that Susman was driving. Dorene Hix was a passenger. The officer asked Susman to exit the vehicle. Before complying, Susman retrieved a bag of marijuana from the car’s console and tossed it to Hix, who tried to hide it underneath the seat. She remained seated in the car.

Susman exited the car, and the officer observed that he was unsteady on his feet, had an odor of alcohol about his person, and had glassy, red eyes. An alco-sensor test indicated the presence of alcohol in Susman’s breath. Susman had problems reciting the alphabet, and his eyes were “jumpy” during a horizontal gaze nystagmus test. The officer arrested Susman for DUI.

The officer returned to the car and asked Hix to exit. As she did, the officer saw the marijuana on the passenger floorboard. He arrested Hix. During an inventory search of the car, the officer found two “baggies” of methamphetamine tucked inside a Marlboro cigarette pack, which was lying on the car’s console area. He found marijuana in a pocket of Susman’s jacket, which was lying across the front seat. Also in the jacket pocket were a set of postage scales and a pack of rolling papers, items which the officer testified were commonly found in marijuana cases. He found a partly consumed 24-ounce bottle of beer on the backseat.

About an hour after the stop, Susman underwent Intoxilyzer tests, which registered his blood alcohol level at 0.094 and 0.097 grams.

At trial Hix denied that the drugs were hers. Susman admitted owning the marijuana he had taken from the console, the scales, and the rolling papers. He also admitted that around the time of the arrest, he was a marijuana and Marlboro cigarette smoker. He stated that he always kept the empty Marlboro packs and that the Marlboro pack found in the console area possibly belonged to him. He denied, however, owning the methamphetamine and the marijuana found in his jacket. Susman testified that he consumed one beer at about 8:00 that night and that after midnight, he consumed some of the beer from the beer bottle found in the car.

1. Susman contends that the evidence was insufficient to sustain his possession convictions because Hix had equal access to the car.

The equal access rule entitles a defendant to acquittal where “(1) the sole evidence of his possession of contraband is his possession of a vehicle in which the contraband is found and (2) others had equal access to the part of the vehicle where the contraband was found or the vehicle had been in the possession of others in the recent past.” Here, Susman’s possession of the car was not the only evidence of his possession of the contraband found in it. Susman admitted that he owned some of the marijuana and the items associated with that drug and that he was a marijuana smoker. Hix testified that the drugs were not hers, and her testimony was circumstantial evidence from which the jury could infer that the marijuana and the methamphetamine must have belonged to Susman. Because there was evidence other than possession of the car, it was for the jury to determine whether Susman was guilty of the possession charges.

We do not weigh the evidence or assess the credibility of witnesses, but only determine whether the evidence, viewed in a light most favorable to the verdict, was legally sufficient under the standard of Jackson v. Virginia. We find that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Susman was guilty of two counts of violating the Georgia Controlled Substances Act for possessing marijuana and methamphetamine.

2. Susman contends that the evidence was insufficient to sustain his conviction of DUI to the extent that he was a less safe driver, a violation of OCGA § 40-6-391 (a) (1), claiming that there was no evidence that he committed any unsafe act. But there is no requirement that the driver actually commit an unsafe act to violate OCGA § 40-6-391 (a) (l). A violation occurs if the driver is “[u]nder the influence of alcohol to the extent that it is less safe for the person to drive,” and the State must prove impaired driving ability.

Decided June 24, 2002.

Brian M. House, for appellant.

Herbert E. Franklin, Jr., District Attorney, for appellee.

The State produced evidence that, at the time of the stop, Susman had glassy, bloodshot eyes, was unsteady on his feet, and smelled of alcohol. In field sobriety tests, his eyes were “jumpy,” alcohol was revealed in his breath, and he had trouble reciting the alphabet. Intoxilyzer tests showed that Susman had a blood alcohol level of approximately 0.09 grams, and Susman admitted that he had been drinking alcohol that evening. We conclude that a rational trier of fact was authorized to find beyond a reasonable doubt that Susman was driving while impaired by alcohol to the extent that he was a less safe driver.

Judgment affirmed.

Andrews, P. J, and Mikell, J., concur.

        Petty v. State, 221 Ga. App. 125, 126 (470 SE2d 517) (1996); see Fears v. State, 169 Ga. App. 172 (1) (312 SE2d 174) (1983).

       See Petty, supra.

        Fears, supra at 174.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Petty, supra at 127.

        Evans v. State, 248 Ga. App. 99, 100-101 (1) (545 SE2d 641) (2001); Ellison v. State, 233 Ga. App. 637, 638-640 (2) (504 SE2d 779) (1998); Petty, supra at 126-127.

        Duren v. State, 252 Ga. App. 257, 259 (555 SE2d 913) (2001); Vaughn v. State, 243 Ga. App. 816, 819 (2) (534 SE2d 513) (2000).

       OCGA § 40-6-391 (a) (1); see Duren, supra at 259-260.

        Duren, supra at 259.

        Jackson, supra; see Duren, supra at 259-261; Bayer v. State, 230 Ga. App. 708, 711 (4) (497 SE2d 266) (1998).


text:
    A02A0740.
    HAPPOLDT v. KUTSCHER. HAPPOLDT et al. v. KUTSCHER.
    A02A0741.
    (567 SE2d 380)
   Phipps, Judge.

The above-styled cases are appeals of summary judgment in personal injury and wrongful death actions arising from a vehicular collision at the intersection of a subdivision road and a county road. In each case, the subdivision review officer of Monroe County, John Kutscher, was named as one of multiple defendants. The plaintiffs in both cases asserted that improper construction of the subdivision road caused the county road to wash out and thereby led to the collision. They claimed that the subdivision road was constructed improperly due to Kutscher’s negligence in failing to take enforcement action to ensure compliance with county road construction standards.

The collision occurred at the intersection of North Pointe Subdivision Road and Pate Road in Monroe County. James Happoldt was driving west on Pate Road. His sister, Julie Happoldt, was seated in the rear of his car. Contemporaneously, Delores Taylor was driving east on Pate Road. The Happoldt vehicle spun out of control and collided with the Taylor vehicle, causing the death of Julie Happoldt and the infliction of serious injuries upon James Happoldt.

In Case No. A02A0740, James Happoldt sued Kutscher and others for personal injuries. In Case No. A02A0741, John Happoldt and David Buice, as administrators of the estate of Julie Happoldt, sued Kutscher and others for Julie Happoldt’s wrongful death. We will refer to all plaintiffs in both cases as “Happoldt.”

Happoldt’s theory was that as the Happoldt vehicle approached the subdivision road, its right front tire left the paved surface of the road and dropped into a rut created by a washout, thereby causing the vehicle to spin out of control. According to Happoldt, the washout was caused by storm water runoff being improperly diverted from North Pointe Subdivision Road onto Pate Road, rather than into ditches along the Pate Road right-of-way. Happoldt claimed that by failing to inspect North Pointe Subdivision Road at its bisection with Pate Road both before and after its construction, Kutscher breached ministerial duties imposed on him by the Monroe County Subdivision Ordinance and Road Standards (referred to as the “Monroe County ordinance,” the “county ordinance” and the “ordinance”).

The trial court awarded summary judgment to Kutscher in both cases under the doctrine of official immunity on grounds that he was charged with negligence in the performance of discretionary rather than ministerial functions. The court found no connection between Kutscher’s duties and the washout of the road. Happoldt appeals. We find evidence that Kutscher breached certain ministerial duties. But based on the record before us, we find no evidence of a causal relationship between breach of those ministerial duties and the road conditions alleged to have caused the collision. Therefore, we affirm.

In reviewing the grant or denial of summary judgment, this court conducts a de novo review of the evidence. [Cit.j As the movant for summary judgment, the county employee [ ] had the burden to show there was no genuine issue of material fact for trial and that the undisputed facts, viewed in the light most favorable to the plaintiffs, warranted judgment as a matter of law. [Cit.]

1. “A suit against a public officer acting in his or her official capacity will be barred by official immunity unless the public officer (1) negligently performed a ministerial duty, or (2) acted with actual malice or an actual intent to cause injury while performing a discretionary duty. [Cits.]” “A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.” “A discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” “Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty. [Cit.]”

The Monroe County ordinance imposes on the subdivision review officer a duty to make field inspections and supervise work being performed during the construction and installation of “public improvements” required by the ordinance. The purpose of these inspections is to ensure conformance - to the rules and regulations of the ordinance. Before a final subdivision plat can be approved by the county board of commissioners, the review officer is generally required to certify that the developer has completed the construction and installation of “the streets, drainage, utilities and other improvements in accordance with the laws and specifications of Monroe County.”

In Wanless v. Tatum we held that an established policy requiring employees of the county’s roads and drainage department to record and investigate citizen complaints concerning unsafe traffic conditions created a ministerial duty on the part of the employees to perform those tasks. Similarly, we concluded in Phillips v. Walls that the act of following an established policy requiring county employees to conduct an inspection after receiving complaints concerning visual obstructions to traffic control devices was ministerial.

Monroe County has established a policy requiring its subdivision review officer to inspect subdivision construction sites and to review subdivision plats to ensure compliance with all requirements of the county ordinance. Therefore, Kutscher’s duty to perform these tasks was ministerial. There is evidence of breach of duty, as Kutscher himself testified that he failed to inspect the subdivision road to determine compliance with any ordinance provision other than the one relating to right-of-way width requirements and that he did not give his approval to the final plat for North Pointe Subdivision.

We do conclude, however, that under the doctrine of official immunity Kutscher retains an immunity from liability only to the extent that the actions he was required to take during the course of the inspections were discretionary in nature. This conclusion finds support in Joyce v. Van Arsdale, wherein the county road superintendent had been instructed by the board of commissioners to close a defective bridge. Although the superintendent was given discretion in selecting the method for performing the work, we held that he was not entitled to immunity because the act of closing the bridge was ministerial. In Joyce, we recognized that “[t]he single overriding factor is whether the specific act from which liability arises is discretionary or ministerial.”

In this case, “the specific act from which liability arises” is not Kutscher’s appearance at the subdivision site to conduct inspections. Liability must arise from the acts Kutscher was required to perform during the inspections. This is shown by Kordares v. Gwinnett County, in which it was held that county employees who had generally inspected county bridges once or twice a year could not be held liable for failure to conduct subsurface inspections in the absence of any policy requiring subsurface inspections.

Happoldt charges Kutscher with negligence based on assertions that (1) North Pointe Subdivision Road was not constructed or maintained according to storm water control measures required by the county ordinance, (2) construction of the subdivision road was not in compliance with grading requirements set forth in the ordinance, and (3) the rights-of-way of Pate and North Pointe Subdivision Roads were not maintained after construction.

As to drainage, the Monroe County ordinance prohibits residential platting of land that is subject to “improper drainage” and requires that an “adequate” drainage system based on at least ten-year rainfall frequency be provided for the proper drainage of all surface water. Because the subdivision review officer was thus required to exercise personal deliberation and judgment in determining whether these standards have been met, his determination was discretionary in nature. Therefore, Kutscher cannot be held liable for negligent performance or nonperformance of these duties. As to failure to maintain rights-of-way after construction, Happoldt has failed to show that Kutscher was under any duty to conduct post-construction inspections.

As to grading, however, the ordinance provides that streets must contain maximum horizontal grades between specified percentages depending on the type of street, that changes in grade must be connected by vertical curves of certain minimum lengths, and that the subdivision developer must grade streets to their full width. These instructions are sufficiently clear and definite as to call for exercise of a ministerial duty, so Kutscher does not enjoy official immunity from any liability resulting from his failure to perform that duty.

2. Happoldt has presented no evidence, however, that the accident resulted from Kutscher’s alleged failure to ensure that the subdivision road complied with the grading requirements in the county ordinance.

Happoldt submitted an affidavit from Herman Hill, a professional engineer, who opined that Kutscher was negligent “in allowing the construction of the subdivision entrance which directed the storm water along the Pate Road pavement edge and thus developed and amplified the edge drop off problem at the location.” Hill further stated that the failure of Kutscher and another defendant to “require the proper construction of the [subdivision] road so as to prevent the washing out of the pavement edge on Pate Road . . . constituted professional negligence which resulted in the subject accident.” Finally, Hill concluded that Kutscher failed “to comply with generally accepted engineering standards . . . and to properly inspect, operate, maintain and repair this subdivision road.”

Thus, while Hill blamed the washout on inadequate storm water drainage, an “edge drop off problem” at the intersection, and a general lack of “proper construction” of the subdivision road, his affidavit did not say that the subdivision road failed to meet the grading requirements in the county ordinance or that any such failure caused the washout. In fact, Hill’s affidavit did not even mention “grading” or refer to any specific applicable grading standards, whether contained in the county ordinance or elsewhere. And even if the affidavit’s use of the term “drop off” could be construed as a reference to inadequate grading, the affidavit does not explain whether that inadequacy resulted from a lack of compliance with the ordinance or from some other source. Finally, Hill’s affidavit stated that the dropoff occurred on Pate Road, for which Kutscher had no responsibility. This suggests that any grading problem was associated with the main road, not the subdivision road.

Decided June 24, 2002.

Lovett, Cowart & Ayerbe, L. Robert Lovett, Paul R. Ayerbe, Bridgette M. Cooper, for appellants.

Misner, Scott & Grate, Donald J. Grate, Tracey K. Dewrell, for appellee.

In the absence of any evidence linking the washout to the subdivision road’s asserted lack of compliance with the county ordinance’s grading requirements, the trial court properly granted summary judgment to Kutscher on the issue of proximate cause.

Judgment affirmed.

Andrews, P. J, and Mikell, J, concur.

        Phillips v. Walls, 242 Ga. App. 309, 310 (529 SE2d 626) (2000).

       (Emphasis omitted.) Lincoln County v. Edmond, 231 Ga. App. 871, 874 (2) (501 SE2d 38) (1998).

       (Citations and punctuation omitted.) Stone v. Taylor, 233 Ga. App. 886, 888 (2) (506 SE2d 161) (1998).

       (Citation, punctuation and footnote omitted.) Todd v. Kelly, 244 Ga. App. 404, 406 (1) (535 SE2d 540) (2000).

        Coffey v. Brooks County, 231 Ga. App. 886, 889 (2) (b) (500 SE2d 341) (1998).

       A road is a public improvement. See Black’s Law Dictionary (4th ed. rev. 1968), p. 890.

       244 Ga. App. 882 (536 SE2d 308) (2000).

       Supra, 242 Ga. App. at 310 (1).

       Compare Woodard v. Laurens County, 265 Ga. 404, 406 (2) (456 SE2d 581) (1995) (action by county employees in establishing procedures for discovering and removing visual obstructions to stop sign is a discretionary function).

       196 Ga. App. 95 (395 SE2d 275) (1990).

       See also Lincoln County v. Edmond, supra, 231 Ga. App. at 874 (2) (county road superintendent had ministerial duty to remove tree blocking county road, although county policy granted him discretion to choose manner in which removal would be performed).

       (Citations and punctuation omitted.) 196 Ga. App. at 96.

       220 Ga. App. 848 (470 SE2d 479) (1996).

       See Stone v. Taylor, supra, 233 Ga. App. at 888 (2) (act of county commissioner, in inspecting county road and deciding that no modifications needed to be made to shoulders of the road, held to be discretionary); Peele v. Dobbs, 196 Ga. App. 684 (396 SE2d 600) (1990) (act of county building inspector, in inspecting and approving construction of chimney in such a way as to impose a fire hazard, held to be discretionary).


text:
    A02A1571.
    CAPES v. DOLLAR GENERAL CORPORATION.
    (567 SE2d 726)
   Phipps, Judge.

JoAnn Capes was injured while shopping at a Dollar General Store in Bremen. At the time, the aisles were strewn with boxes of merchandise to be placed on the display shelves. While attempting to step over one of the boxes, Capes tripped and fell. Capes filed this negligence action against Dollar General Corporation to recover for her injuries. She appeals the trial court’s award of summary judgment to Dollar General. We agree with the trial court’s ruling and affirm.

In Bruno’s, Inc. v. West, a shopper tripped and fell over a box in the aisle of a grocery store. We recognized that a merchant may place cartons and containers in the aisles while he places articles on the display shelves. We held that the shopper could not recover for tripping over a box in plain view.

Following this court’s decision in Bruno’s, our Supreme Court announced in Robinson v. Kroger Co. that

in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.

Thus, “an invitee might recover for personal injury in a slip and fall only when the perilous instrumentality is known to the owner or occupant and not known to the person injured. The true ground of liability is the owner or occupier’s superior knowledge of the hazard and the danger therefrom.”

“If an invitee knows of the condition or hazard, she has as much knowledge as the proprietor does and then by voluntarily acting in view of her knowledge assumes the risks and dangers incident to the known condition.”

Dollar General does not dispute that it had knowledge of the box in the aisle. Capes has thus satisfied the first prong of Robinson. As to the second prong, however, the evidence shows without contradiction that Capes chose to expose herself to the hazard posed by stepping over the box. In this regard, she testified in her affidavit that she stepped over the box because “there was no other way to access the portion of the aisle which [I] was attempting to access to locate the particular item [I] wanted to purchase.” Capes nonetheless claims that the box posed a hazard of which she was unaware. In this regard, she testified in her affidavit that the box “appeared to be closed as [I] could not see the contents thereof,” but that “the flaps of the box lid must have been cut open because after [I] fell the box turned over and the contents of the box fell on the floor.” But as she, further testified in her affidavit, the box on which she tripped was less than one foot in height. Therefore, nothing prevented Capes from observing the hazard posed. Under Bruno’s and Robinson, Dollar General was entitled to summary judgment.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

Decided June 24, 2002.

Jack F. Witcher, for appellant.

Greene, Buckley, Jones & McQueen, Harold S. White, Jr., for appellee.

       224 Ga. App. 420 (481 SE2d 2) (1997).

       268 Ga. 735 (493 SE2d 403) (1997).

       Id. at 748-749 (2) (b).

       (Citations and punctuation omitted.) Edwards v. Ingles Market, 234 Ga. App. 66-67 (506 SE2d 205) (1998).

       (Punctuation and footnote omitted.) Yasinsac v. Colonial Oil Properties, 246 Ga. App. 484, 485 (1) (541 SE2d 109) (2000).


author: Eldridge, Judge.

text:
    A02A1341, A02A1504.
    BLANTON v. BANK OF AMERICA; and vice versa.
    (567 SE2d 313)
   Eldridge, Judge.

Steven Blanton entered into a contract with an Atlanta area builder for the addition of a sunroom to his home based upon the builder’s representation he could arrange for the necessary financing through the Bank of America f/d/b/a NationsBank of Georgia, N.A. (the “Bank”). Initially, Blanton refused to close on the $16,905 second mortgage loan on his home because the Bank’s check at closing made the proceeds of the loan payable jointly to the builder and him as a lump sum. Blanton alleged that he closed on the loan later the same day after the builder and a representative of the Bank advised him that, with his endorsement and that of the builder on such check, the loan proceeds would be held by the Bank and paid out incrementally as work was done.

When the builder later failed to perform, Blanton and his wife sued the Bank claiming damages resulting from the Bank’s lien against his home upon the deed to secure debt on the loan, and averring claims for fraud, conversion, and violations of the civil Racketeer Influenced and Corrupt Organizations (“RICO”) law, OCGA § 16-14-1 et seq.

Prior to trial, Blanton amended the complaint to comply with the superior court’s order as to the Bank’s motion to dismiss or for a more definite statement dismissing Mrs. Blanton’s claims as time-barred and requiring Blanton to more definitely state his fraud claim. Thereafter, the superior court granted the Bank summary judgment regarding the fraud count of Blanton’s complaint, but denied it summary judgment as to the conversion and civil RICO counts thereof. At trial, the Bank moved for a directed verdict as to the latter, having reserved its motions at the close of Blanton’s case and at the close of its evidence except as to punitive damages. The jury, upon clear and convincing evidence, then returned its verdict and found the Bank liable to Blanton under the civil RICO Act for commission of the predicate act of theft by conversion. In addition to awarding Blanton attorney fees in the amount of $58,000, the jury awarded him $4,500 in general and special damages, and $20,000 in punitive damages. The superior court later ruled on the Bank’s motion for judgment notwithstanding the verdict (“judgment n.o.v.”) as to the award of attorney fees to Blanton and reduced the same from $58,000 to $9,666.

In Case No. A02A1341, Blanton appeals from the grant of the Bank’s motion for judgment n.o.v., contending (1) that the motion was waived at trial because the Bank failed to challenge the jury’s award of attorney fees as not supported by proof which allocated them to the specific predicate acts averred as underlying his civil RICO case; (2) that the superior court lacked authority to reduce the award of attorney fees, the civil RICO Act permitting attorney fees to be proven in the absence of such allocation; and (3) even were such proof required, the proper remedy would have been to conduct a hearing on the issue of attorney fees in order to receive such evidence.

The Bank cross-appeals in Case No. A02A1504 and contends that the superior court erred in denying its motion for a directed verdict in that (1) there was no evidence of theft by conversion, the criminal offense Blanton alleged to be the predicate act which supported his civil RICO claim; (2) the oral escrow agreement which Blanton allegedly reached with the Bank which called for the incremental payment of the proceeds of the loan was inadmissible as violative of the Statute of Frauds and barred under the parol evidence rule; and (3) there was no evidence of Blanton’s damages claims for credit impairment and future tax liability in that these were preempted and time-barred by the Fair Credit Reporting Act and too speculative, respectively.

Because the superior court erred in denying the Bank a directed verdict for want of evidence showing theft by conversion as the predicate act underlying Blanton’s civil RICO claim, we reverse upon the Bank’s cross-appeal in Case No. A02A1504 and thus dismiss the main appeal by Blanton as moot. Held:

The standard of review on appeal from the denial of a motion for directed verdict or for judgment notwithstanding the verdict is “any evidence.” OCGA § 9-11-50 (a); Crump v. McDonald, 239 Ga. App. 647, 648 (520 SE2d 283) (1999). However, “any evidence” means any evidence “sufficient under the applicable standard”; here, the standard is clear and convincing evidence. [See Tronitec, Inc. v. Shealy, 249 Ga. App. 442, 448 (547 SE2d 749) (2001) (standard of proof under RICO statute clear and convincing evidence).] As such, under a clear and convincing evidence standard there must be substantial evidence to constitute “any evidence” to support a verdict under such intermediate standard of proof; a scintilla or slight amount of evidence would not satisfy such a higher standard of proof.

In re Copelan, 250 Ga. App. 856 (553 SE2d 278) (2001).

As based on theft by conversion under OCGA § 16-8-4, Blanton’s civil RICO claim in this construction case required, among other things, that Blanton introduce clear and convincing evidence that the Bank obtained his property or funds for the purpose of making a “specified application” or disposition of his property. Lovell v. State, 235 Ga. App. 140, 142 (b) (508 SE2d 771) (1998). However, by his amended complaint, Blanton avers only that he and the Bank entered into an oral agreement which obligated the Bank to hold the proceeds of his loan and pay them over to his contractor “in small increments as work was completed on [his] house,” this, only upon an oral agreement with the Bank rather than specified in the loan documents. Pretermitting whether such oral agreement was inadmissible as in violation of the Statute of Frauds or of the parol evidence rule, theft by conversion does not lie, as a matter of law, where, as here, only a failure to disburse funds for general application in breach of contract is alleged. Id.; see Myrick v. State, 210 Ga. App. 393, 394 (436 SE2d 100) (1993) (theft by conversion requires showing that money or property be obtained under agreement to make a specific application of the money); see also Hill v. State, 198 Ga. App. 1, 2 (1) (401 SE2d 48) (1990). Moreover, “[i]n order for an individual to recover under RICO, his injuries must flow from the commission of the predicate acts. Sedima, S.P.R.L. v. Imrex Co., 473 U. S. 479 (105 SC 3275, 87 LE2d 346) (1985).” (Punctuation omitted.) Longino v. Bank of Ellijay, 228 Ga. App. 37, 40-41 (2) (491 SE2d 81) (1997). Having failed to allege the predicate act on which he purported to base his civil RICO claim, Blanton was not entitled even to sue thereon. See id. (plaintiff has standing to sue under RICO only if his injury proximately caused by commission of predicate act). It follows that there was no entitlement to the jury’s verdict. In re Copelan, supra.

Decided May 29, 2002

Reconsideration denied June 25,2002 —

Jeffrey L. Sakas, Michael P. Froman, for appellant.

Parker, Hudson, Rainer & Dobbs, William J. Holley II, Julie D. Arp, for appellee.

Inasmuch as the superior court erroneously failed to grant the Bank a directed verdict, it is unnecessary to address the Bank’s remaining claims of error in Case No. A02A1504, and Case No. A02A1341 is dismissed as moot.

Judgment reversed in Case No. A02A1504. Appeal dismissed in Case No. A02A1341.

Smith, P. J, and Ellington, J., concur.

       The record shows that the Bank never required Blanton to make a payment on the loan, forgave the loan, and released the corresponding lien on his property.

       In this regard, Blanton relies on OCGA § 16-14-6 (c) insofar as it provides “[a]ny person who is injured by reason of any violation of Code Section 16-14-4 shall. . . also recover attorneys’ fees in the trial and appellate courts and costs of investigation and litigation reasonably incurred.”

       OCGA § 16-8-4 (a) provides:
      A person commits the offense of theft by conversion when, having lawfully obtained funds or other property of another . . . under an agreement or other known obligation to make a specified application of such funds or a specified disposition of such property, he knowingly converts the funds or property to his own use in violation of the agreement or legal obligation.


author: Mikell, Judge.

text:
    A02A0157.
    COLONIAL PROPERTIES REALTY LIMITED PARTNERSHIP v. LOWDER CONSTRUCTION COMPANY, INC.
    (567 SE2d 389)
   Mikell, Judge.

Plaintiff Colonial Properties Realty Limited Partnership (“Colonial”) appeals the grant of summary judgment to defendant Lowder Construction Company, Inc. (“Lowder”) in this subrogation action. For the reasons that follow, we affirm in part and reverse in part.

The record shows that in May 1996, Colonial hired Lowder to serve as the construction manager/contractor for an apartment complex in Macon. In June 1998, a year after the complex was completed, one of the buildings was extensively damaged by a fire inadvertently started by a resident. Colonial’s insurer, Lexington Insurance Company, paid the loss, in return for which Colonial executed a loan receipt. Lexington then brought the instant subrogation action in Colonial’s name against Lowder, asserting four counts: negligent supervision, negligence per se, gross negligence, and breach of contract.

Lowder moved for summary judgment, arguing that the terms of the contract executed by Lowder and Colonial expressly mandated waiver of subrogation rights for damages occurring after final payment to Lowder, regardless of whether Lowder retained an insurable interest in the property. Lowder relied on Subparagraphs 11.3.5 and 11.3.7 of the contract. Subparagraph 11.3.5 provides that

if, after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period, the Owner shall waive all rights in accordance with the terms of Subparagraph 11.3.7 for damages caused by fire or other perils covered by this separate property insurance.

Subparagraph 11.3.7, entitled “Waivers of Subrogation,” states as follows:

The Owner and Contractor waive all rights against each other and against the Construction Manager ... for damages caused by fire or other perils to the extent covered by property insurance obtained pursuant to this Paragraph 11.3 or other property insurance applicable to the Work. ... A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged.

In opposing Lowder’s motion, Colonial contended primarily that provisions waiving subrogation rights for damages arising after the. completion of a project violate public policy. The trial court rejected Colonial’s argument and granted summary judgment to Lowder. To this ruling Colonial assigns six enumerations of error.

1. Colonial first asserts that Lowder acted in the capacity of “construction manager” and not “contractor,” as those terms were defined in the agreement. Therefore, Colonial argues, Lowder is not entitled to the benefit of the waiver of subrogation clause. This argument is based on the fact that the parties utilized the “1992 Construction Manager-Adviser Edition” of the American Institute of Architects standard form agreement, and Lowder’s name is inserted in the appropriate spaces for “Construction Manager” as opposed to “Contractor.”

This argument is meritless for several reasons. First, Colonial’s breach of contract claim is premised upon Lowder’s role as contractor. Colonial averred in this count of the complaint that “Lowder served as contractor with duties separate and apart from those as construction manager.” This constituted a binding admission in judicio. “Under OCGA § 24-3-30, admissions in judicio in a party’s pleadings bind the party so that they cannot put up evidence over objection to contradict such admissions.” Second, Subparagraph 11.3.7 expressly applies to the construction manager as well as the contractor. Finally, Colonial does not assert that any other entity served as contractor, and if Lowder did not, who did?

Colonial’s argument that no consideration existed to support a waiver of subrogation in Lowder’s favor in its role as contractor is not well founded in light of Colonial’s admission that Lowder served in this capacity and was paid for its work.

2. Colonial next asserts that the waiver of subrogation clause is inapplicable because the loss occurred after the work was completed. In support of this argument, Colonial relies on Subparagraph 11.3.1, which states:

Unless otherwise provided, the Owner shall purchase and maintain . . . property insurance in the amount of the initial Contract Sum as well as subsequent modifications thereto for the entire Work. . . . Such property insurance shall be maintained until final payment has been made . . . or until no person or entity other than the Owner has an insurable interest in the property . . . , whichever is earlier.

Based on this clause, Colonial argues that it was not required to maintain insurance after completion of the project and thus had not waived subrogation at the time the loss occurred. We disagree. “It is axiomatic that contracts must be construed in their entirety and in a manner that permits all of the terms contained therein to be consistent with one another. Of course, the terms and phrases contained in a contract must be given their ordinary meaning.” Bearing in mind these cardinal rules of contract construction, we must endeavor to harmonize all relevant provisions of the contract at issue.

The contract defines “the Work” as “the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor’s obligations.” (Emphasis supplied.) As previously noted, Subparagraph 11.3.5 also provides for a waiver of subrogation rights after final payment.

We interpret Subparagraph 11.3.1 as requiring Colonial to purchase and maintain insurance covering the project during its construction. Subparagraph 11.3.5 permitted, but did not require, Colonial to obtain a separate policy covering the completed project after final payment was made to Lowder. If Colonial obtained such a policy, then pursuant to this clause and Subparagraph 11.3.7, Colonial waived all subrogation rights for damages attributable to fire or other perils covered by this separate insurance. It follows that Sub-paragraph 11.3.1 is not inconsistent with Subparagraph 11.3.7 and that the parties intended to provide for waiver of subrogation rights for losses occurring after the project was completed.

Colonial correctly points out that the extension of subrogation clauses to cover post-project losses is an issue of first impression for this Court. However, the validity of clauses waiving subrogation for damages occurring during construction is well established. In Tuxedo Plumbing &c. Co. v. Lie-Nielsen, the Supreme Court held that OCGA § 13-8-2 (b) does not prohibit subrogation clauses in construction contracts which shift the risk of loss to one party’s insurance company regardless of who is at fault. In so holding, the Court noted that

it has been recognized by numerous authorities that where parties to a business transaction mutually agree that insurance will be provided as a part of the bargain, such agreement must be construed as providing mutual exculpation to the bargaining parties who must be deemed to have agreed to look solely to the insurance in the event of loss and not to liability on the part of the opposing party.

As neither Georgia appeals court has addressed the precise issue before us, we look to other jurisdictions for guidance. In Town of Silverton v. Phoenix Heat Source System, the Colorado Court of Appeals interpreted the same subrogation clauses as those at issue in the instant case. The case involved a contractor who installed a new roof on the town hall and a subcontractor who supplied an electric snow-melting system for the roof. After the roofing project was completed, the town hall was damaged by a fire allegedly caused by the snow-melting system, and the town sued the contractor and subcontractor. Summary judgment was granted to the defendants based on the waiver of subrogation clauses in the parties’ contract, and the appeals court affirmed. The court held that under Subparagraph 11.3.7, the fact that a contractor had finished its work and had no remaining insurable interest in the property did not terminate the waiver of subrogation rights.

Because property insurance applicable to the work, other than that obtained pursuant to paragraph 11.3.1, may remain in effect after the final completion date, so too may a waiver of subrogation rights under paragraph 11.3.7 remain in effect. Thus, we conclude that the waiver of subrogation clause barred subrogation for insured losses to the work occurring after the final completion date and the date final payment was made.

Town ofSilverton is squarely on point, and we find its reasoning persuasive. Moreover, cases cited by Colonial are distinguishable. For instance, in Automobile Ins. Co. &c. v. United H.R.B. Gen. Contractors, the contract contained a clause which specifically provided that the owner did not waive its claims against the contractor for faulty or defective work appearing after substantial completion. No such clause appears in the contract between Lowder and Colonial. The contract in Fairchild v. W. O. Taylor Commercial Refrigeration &c. Co. was a simple one-page printed form which contained, in very small print at the bottom of the page, a sentence stating, “Owner to carry fire, tornado, and other necessary insurance.” The court declined to infer from this language an intent to limit the contractor’s liability for its negligent acts for losses occurring after construction was finished. In this case, however, the parties’ intent to shift the risk of loss to insurance even after final payment and regardless of whether Lowder retained an insurable interest in the property was clearly expressed in the contract. It follows that Fairchild is inapposite.

3. Colonial next argues, as it did in the trial court, that Subparagraph 11.3.7, which waives subrogation rights regardless of whether Lowder has an insurable interest in the property, is unenforceable because it violates OCGA § 33-24-4 (b). That statute provides: “No insurance contract on property or of any interest therein or arising therefrom shall be enforceable except for the benefit of persons having, at the time of the loss, an insurable interest in the things insured.” Colonial asserts that because Lowder lacked an insurable interest in the completed project, it may not seek to enforce Colonial’s policy. That is a correct statement of law, based on the facts. However, Lowder is not attempting to enforce Colonial’s policy; it is Colonial which is relying on its own policy to pay the loss, and Colonial most assuredly has an insurable interest in the property at issue. Accordingly, this argument is meritless.

4. In its next enumeration of error, Colonial argues that the subrogation provision is unenforceable because it provides for limitless future exculpation for the contractor’s negligence, thereby violating OCGA § 13-8-2 (b). We disagree. As we noted in Glazer v. Crescent Wallcoverings,

[OCGA § 13-8-2 (b)] provides that an agreement relative to the construction or maintenance of a building which purports to indemnify the promisee for damages resulting from the promisee’s negligence is unenforceable as a matter of public policy. However, our Supreme Court has recognized that parties to a building-related contract . . . can agree to look solely to insurance to cover their losses without violating this statute, and that an intent to do so is the “well-recognized meaning” of a “waiver of subrogation” clause. See Tuxedo Plumbing &c. Co. v. Lie-Nielsen. Such an agreement does not violate the statute because it does not indemnify the promisee, but instead “shifts the risk of loss to the insurance company regardless of which party is at fault. [Cit.]” Id. at 29 (2).

In addition, Georgia public policy favors freedom of contract.

It is well settled that contracts will not be avoided by the courts as against public policy, except where the case is free from doubt and where an injury to the public interest clearly appears. In examining this case we also follow the rule that the courts must exercise extreme caution in declaring a contract void as against public policy and should do so only in cases free from doubt.

Where the parties to a commercial construction project agree to shift the risk of loss to the owner’s insurer even after the project is completed, an injury to the public interest does not clearly appear. The subrogation clause at issue does not violate OCGA § 13-8-2 (b) or any other public policy of this state.

5. Finally, Colonial contends that the trial court erred in granting summary judgment to Lowder on the gross negligence count of the complaint. As Colonial notes in its brief, the trial court did not specifically address this count.

First, Colonial argues that the subrogation clause cannot exculpate Lowder for acts of gross negligence. That is correct. “[Waiver of subrogation] clauses are intended to allows [sic] the parties to exculpate each other from personal liability in the event of property loss or damage to the work to the extent each party is covered by insurance.” “Exculpatory clauses . . . are valid and binding, and are not void as against public policy when a business relieves itself from its own negligence.” However, exculpatory clauses do not relieve a party from liability for acts of gross negligence or wilful or wanton conduct.

Colonial next asserts that genuine issues of material fact remain on its gross negligence claim. In support of its position, Colonial points to reports in the record suggesting that Lowder failed to install certain fire-blocking materials on the higher floors of the apartment building despite the fact that the materials were clearly specified on the blueprints. Experts who prepared the reports concluded that the absence of the materials caused the fire to spread immediately through the interior of the building, partially collapsing the structure.

Gross negligence ... is defined as the want of slight care and diligence, such care as careless and inattentive persons would usually exercise under the circumstances, want of that diligence which even careless men are accustomed to exercise, carelessness manifestly materially greater than want of common prudence.

Decided June 25, 2002.

Cozen & O’Connor, Michael A. McKenzie, David A. Cornelius, for appellant.

Finley & Buckley, Timothy J. Buckley III, Jonathan E. White, Seacrest, Karesh, Tate & Bicknese, Karsten Bicknese, Annarita M. Busbee, Daniel Bullard TV, for appellee.

On appeal from the grant of a motion for summary judgment, we conduct a de novo review of the law and the evidence, giving the opposing party the benefit of all reasonable doubt and construing the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Giving Colonial the benefit of all reasonable inferences that may be drawn from the reports of its experts, we conclude that a genuine issue exists as to whether Lowder was grossly negligent if, as alleged, it failed to adhere to the blueprints during construction of the apartment building.

When facts alleged as constituting gross negligence are such that there is room for difference of opinion between reasonable [people] as to whether or not negligence can be inferred, and if so whether in degree the negligence amounts to gross negligence, the right to draw the inference is within the exclusive province of the jury.

It follows that summary judgment on this count was improper and must be reversed.

Judgment affirmed in part and reversed in part.

Andrews, P. J, and Phipps, J., concur.

       The contract was written on a standard form provided by the American Institute of Architects.

       (Punctuation omitted.) Keeley v. Cardiovascular Surgical Assoc., 236 Ga. App. 26, 27 (1) (510 SE2d 880) (1999).

        Kreimer v. Kreimer, 274 Ga. 359, 361 (1) (552 SE2d 826) (2001). See also Anderson v. Anderson, 274 Ga. 224, 228 (3) (552 SE2d 801) (2001) (“A contract must be construed so as to reconcile its different provisions and to reject a construction that leads to a contradiction”).

       See May Dept. Store v. Center Developers, 266 Ga. 806 (1) (471 SE2d 194) (1996); Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27, 28 (1) (262 SE2d 794) (1980); Glazer v. Crescent Wallcoverings, 215 Ga. App. 492, 493 (451 SE2d 509) (1994); McAbee Constr. Co. v. Ga. Kraft Co., 178 Ga. App. 496, 498 (343 SE2d 513) (1986).

       Supra.

       (Citation and punctuation omitted.) Id. at 28 (1).

       948 P2d 9 (Colo. App. 1997).

       Id. at 13.

       876 SW2d 791 (Mo. App. 1994).

       Id. at 794.

       403 S2d 1119 (Fla. App. 1981).

       Id. at 1120.

        Ins. Co. of North America v. Fowler, 148 Ga. App. 509, 512 (2) (251 SE2d 594) (1978) (overruled on other grounds, Seaboard Coast Line R. v. Mobil Chem. Co., 172 Ga. App. 543 (323 SE2d 849) (1984)) (an owner may insure his interest in the property under construction, and a contractor may indemnify himself against loss during the same period of time, and both policies will be payable, in the event of a fire, to the extent of the loss of each insured under his separate policy).

       Supra.

        Glazer v. Crescent Wallcoverings, supra, 215 Ga. App. at 493 (1).

       (Citations and punctuation omitted.) Emory Univ. v. Porubiansky, 248 Ga. 391, 393 (282 SE2d 903) (1981). Cf. Bishop v. Act-O-Lane Gas Svc. Co., 91 Ga. App. 154, 166 (85 SE2d 169) (1954), interpreting OCGA § 1-3-7.

       (Citation and punctuation omitted.) Behr v. Hook, 787 A2d 499, 503 (Vt. 2001).

        My Fair Lady of Ga. v. Harris, 185 Ga. App. 459, 460 (364 SE2d 580) (1987).

        Barbazza v. Intl. Motor Sports Assn., 245 Ga. App. 790, 792 (3) (538 SE2d 859) (2000).

        Hawes v. Central of Ga. R. Co., 117 Ga. App. 771, 772 (162 SE2d 14) (1968).

       (Citation and punctuation omitted.) Rider v. Taylor, 166 Ga. App. 474 (1) (304 SE2d 557) (1983).

        Collier v. State Farm &c. Ins. Co., 249 Ga. App. 865, 866 (1) (549 SE2d 810) (2001).

       (Citation omitted.) Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 477 (1) (491 SE2d 909) (1997).


text:
    A02A0480.
    BLAKE v. SPEARS.
    (567 SE2d 401)
   Ruffin, Judge.

This case represents the most recent appeal in the ongoing litigation between Randy Blake and Robert Spears. In this incarnation, Blake challenges the trial court’s August 17, 2001 order, asserting that the trial court lacked jurisdiction to enter the order. We agree and vacate that order.

The facts of this case are set forth in Blake v. Spears, which dealt with two orders — one dated July 5, 2001, and the other dated July 11, 2001. In the July 5 order, the trial court ordered Blake incarcerated for failure to comply with a subpoena to produce evidence. In the subsequent order, the trial court gave Blake “one final opportunity” to comply with the subpoena, threatening severe sanctions if he failed to do so.

On appeal, we affirmed the trial court’s refusal to quash the subpoena and upheld that court’s authority to incarcerate Blake for his failure to comply with the subpoena. We nonetheless concluded that the trial court erred in entering the second order as the trial court had already granted supersedeas and an appeal was pending. In so doing, we noted “[t]he general rule . . . that a supersedeas suspends all further proceedings in the suit in which the judgment superseded is rendered, such as are based upon and relate to the carrying into effect of that judgment.”

On August 9, 2001, while Blake’s prior appeal was still pending, the trial court conducted a hearing on whether Blake had complied with the July 11 order. In an order dated August 17, 2001, the trial court concluded that Blake’s “production of documents is again incomplete and insufficient, and further [found and concluded] that [Blake] is again in willful contempt of. . . the valid and enforceable Subpoena For The Production Of Evidence.” The trial court then entered the ultimate sanction, striking Blake’s answer and counterclaim. The trial court also ordered Blake to pay $7,500 in attorney fees and incarcerated him for five days.

Again, Blake appeals, contending that the trial court lacked authority to issue such order while the prior case remained on appeal. For the reasons set forth in our previous decision, we agree. Having granted supersedeas on its July 5, 2001 order to enforce the subpoena to produce, the trial court lacked jurisdiction to issue subsequent orders in an attempt to enforce that subpoena. Accordingly, the August 17, 2001 order is a nullity and must be vacated.

Decided June 25, 2002.

Robert S. Sichel, for appellant.

Johnson & Ward, James E. Goodman, for appellee.

In view of this holding, we need not consider Blake’s remaining enumerations of error.

Judgment vacated.

Pope, P. J., and Barnes, J., concur.

       254 Ga. App. 21 (561 SE2d 173) (2002).

       See id. at 22-26 (1)-(5).

       See id. at 26 (6).

       (Punctuation omitted.) Id.

       See id.; Tyree v. Jackson, 226 Ga. 642-643 (177 SE2d 159) (1970).

       See DeClue v. City of Clayton, 246 Ga. App. 487, 493 (5) (540 SE2d 675) (2000).