author: Smith, Judge.

text:
    A95A1188.
    WILLIAM GOLDBERG & COMPANY, INC. et al. v. COHEN et al. COHEN v. WILLIAM GOLDBERG & COMPANY, INC. et al. COHEN et al. v. WILLIAM GOLDBERG & COMPANY, INC. et al.
    A95A1189.
    A95A1190.
    (466 SE2d 872)
   Smith, Judge.

These appeals arise out of extensive litigation concerning a 1986 business transaction. Structured as a stock exchange, that transaction represented an attempt to combine three business entities: William Goldberg & Company, Inc. (“WGC”), the personal services corporation of business broker and financial and management consultant William S. Goldberg; the T-Shirtery, Inc., a screen printing and embroidery business owned by Jay Cohen (“Jay”); and All-Star Imprinting, Inc., owned by Steve Radford through his holding company, the Hightower Corporation. Jay Cohen’s father, J. Joseph Cohen (“Joe”), occasionally provided both advice and loans to Jay, and at the time the transaction in issue was pending, Joe held a security interest in inventory, equipment, receivables and other personal property of the T-Shirtery. It is undisputed that this security interest was perfected by filing a U.C.C. financing statement.

The transaction fell through, and litigation commenced. Jay filed suit seeking a declaration that no enforceable contract existed, and Goldberg, WGC, Radford, Hightower, and All-Star filed numerous counterclaims. Joe was permitted to intervene; upon his subsequent death his estate (represented by his son Brent and his widow Betty, who were co-executors) was substituted as a party to the litigation. The trial court dismissed many of the claims made by Jay and the estate and realigned the parties, making WGC a plaintiff and Jay and the estate defendants.

In Cohen v. Wm. Goldberg & Co., 202 Ga. App. 172 (413 SE2d 759) (1991) (“Cohen J”), this Court consolidated four appeals brought by Jay and the estate and addressed a number of issues. We held in Cohen I that the trial court properly denied Jay’s motion for summary judgment on the issue of whether an enforceable contract existed, concluding that a question of fact remained regarding the circumstances surrounding the execution of the deferred compensation agreement. A jury must decide whether certain unfulfilled conditions terminated the contract by its own terms or constituted a breach of the contract. Id. at 176-177 (1) (f).

We also decided in Cohen I that Joe was not a party to the contract, id. at 177 (2), but an intended beneficiary, and thus he could not be held liable for tortious interference with the contract, id. at 177-178 (3). We also held that certain claims based upon violations of federal and state securities laws were inappropriate because those laws were inapplicable to this transaction. Id. at 179-180 (5). Finally, we reinstated the remainder of Joe’s and Jay’s claims, id. at 180-184 (6), but declined to hold that the trial court abused its discretion in realigning the parties. Id. at 184-185 (7). The Supreme Court granted certiorari as to the holding of this Court regarding the applicability of the securities laws. Following reversal of our holding that the securities laws were inapplicable, Cohen v. William Goldberg & Co., 262 Ga. 606 (423 SE2d 231) (1992) (“Cohen II”), the case returned to the trial court.

Upon remittitur, a different judge entered orders on several motions, including renewed cross-motions for summary judgment or to dismiss claims and renewed motions on realignment. The three present appeals are taken by WGC, Goldberg, Radford, Hightower, and All-Star (collectively “WGC”), Jay, and Joe’s estate from the various rulings by the trial court after remittitur; we have consolidated the three appeals for review in this opinion.

Case No. A95A1188 is WGC’s appeal from those portions of the trial court’s various orders eliminating all its claims against Joe’s estate and Jay except for the claim against Jay for breach of contract. WGC also appeals from the trial court’s failure to dismiss Jay’s claim against it for attorney fees. In Case No. A95A1189, Jay appeals from those portions of the trial court’s orders granting summary judgment against him on all his claims against WGC except his claim for attorney fees, from the trial court’s refusal of his request to consider certain language in the deferred compensation agreement, and from the trial court’s denial of his motion to realign the parties. In Case No. A95A1190, Joe’s estate appeals from those portions of the trial court’s orders granting summary judgment to WGC on the estate’s claim of conversion of its collateral, and from the denial of the estate’s motion to realign the parties.

For the reasons that follow, we affirm the trial court’s rulings challenged in Case No. A95A1188.

1. WGC contends the trial court erred in eliminating its claims against Jay and the estate based upon fraud. The fraud claims fall into three general categories: (a) alleged misrepresentations in the stock exchange agreement executed by Jay (but not by Joe); (b) Jay’s alleged present intention not to perform the transaction despite execution of many of the necessary documents (and an alleged conspiracy between Jay and Joe in this regard); and (c) alleged securities fraud.

(a) WGC argues that the documents signed by Jay contained express misrepresentations because they failed to disclose the existence of Joe’s security agreement or the possibility that it could interfere with the pending transaction.

It is undisputed, however, that WGC and its attorneys had both actual and constructive knowledge of Joe’s security agreement before the documents were signed. The very purpose of U.C.C. financing statements is to provide notice to interested third parties that enforceable security interests may exist in property. See Kubota Tractor Corp. v. C & S Nat. Bank, 198 Ga. App. 830, 834 (403 SE2d 218) (1991). In addition, Goldberg was present during the closing of a loan to the T-Shirtery from Shawmut Credit Corp. — a loan he, in fact, had helped the T-Shirtery procure — during which the existence of Joe’s security interest was specifically and expressly disclosed, in relation to an inter-creditor agreement. In preparing for execution of the documents necessary to complete the proposed transaction, WGC’s attorneys also performed a routine U.C.C. search, which revealed the existence of the U.C.C. financing statement. “It is well settled that notice to an attorney is notice to the client employing him, and that knowledge of an attorney is knowledge of his client, when such notice and knowledge come to the attorney in and about the subject matter of his employment.” (Citations and punctuation omitted.) Oseni v. Hambrick, 207 Ga. App. 166, 167 (427 SE2d 559) (1993). Moreover, it appears that Goldberg’s attorney sent him a copy of the financing statement. Given this evidence, it cannot seriously be argued that WGC was without knowledge of Joe’s security interest or the terms of his security agreement with the T-Shirtery.

Rivers v. BMW of North America, 214 Ga. App. 880 (449 SE2d 337) (1994), is cited by WGC in support of its argument that actionable fraud was present here based on Jay’s reckless failure to disclose the truth. Rivers, however, involved concealment by one party to a sales contract of facts that the other party to the contract could not have discovered by the exercise of ordinary prudence. Id. at 883-884 (2). Therefore, it cannot apply to the facts in this case. For several reasons, we likewise do not agree with WGC’s argument that its position is identical to that of the defrauded party in Tower Fin. Svcs. v. Jarrett, 199 Ga. App. 248 (404 SE2d 622) (1991). First, this argument clearly does not apply to Joe. An obligation to disclose must exist before a party may be held liable for fraud based upon the concealment of material facts. Id. at 250. Even assuming that Joe’s security interest was concealed, no evidence demonstrates any obligation on Joe’s part to disclose it. Second, even as to Jay, assuming he did have such an obligation, unlike the defrauded party in Jarrett, Goldberg is a sophisticated businessman from whom greater diligence is required before reliance upon representations may be considered justified.

In light of the evidence in this case, the trial court concluded that if in fact misrepresentations existed in the stock exchange agreement and WGC relied upon any such representations that no security agreement existed, such reliance was simply “blind” reliance because WGC knew, or at the very least should have known, the representations were untrue. The trial court ruled, therefore, that WGC could not claim fraud because its reliance was not justified. We find the trial court’s reasoning to be correct.

Even were this reasoning erroneous, the trial court’s conclusion would not be undermined, since we also find that the representations in the stock exchange agreement executed by Jay were not fraudulent in this regard. That agreement contains a representation in § 2.9 that “[e]xcept as disclosed in Exhibit C . . . , neither the T-Shirtery nor All-Star is a party to ... or bound by, any written or oral . . . contracts or commitments involving any loan, guarantee, letters of credit or financing arrangement [that would be placed in default by or would interfere with or invalidate the proposed transaction].” Exhibit C accurately lists both the Shawmut loan and Joe’s letter of credit as exceptions. In addition, § 2.11 of that agreement provides that “[e]xcept as disclosed on Exhibit E, . . . each of the T-Shirtery and All-Star has good and marketable title to all of its owned properties and assets . . . subject to no mortgage, pledge, lien . . . encumbrance or charge. ...” Exhibit E, in turn, refers back to Exhibit C, stating that except for those loans referenced in Exhibit C, the T-Shirtery owns all other properties reflected on financial statements free of liens or encumbrances.

The trial court did not err in granting summary judgment to Jay and the estate on WGC’s claims of fraud consisting of express misrepresentations in the stock exchange agreement.

(b) WGC argues that Jay had a present intent not to perform his obligations as required under the documents comprising the transaction, even before executing those documents. We do not agree.

This Court held in Cohen I that a jury issue exists on the breach of contract claim because Jay’s testimony and that of Goldberg was in conflict regarding the specifics of the execution of the deferred compensation agreement, including the time and manner in which the handwritten interlineations were made. 202 Ga. App. at 174-175. We did not hold, however, or even suggest, that Jay intended not to perform under these documents before executing them. We now conclude that the evidence (including the voluminous record in Cohen I) does not show such an intent on Jay’s part or a “conspiracy” or plan between Joe and Jay not to perform. No evidence exists to support the allegation that Jay deceived his own attorney. Those portions of the evidence pointed to by WGC as supporting this contention, including statements made by Brent, are either misconstrued, mischaracterized, or misrepresented.

Jay’s deposition testimony, as outlined in Cohen I, was that his main concern was payment for his stock in the T-Shirtery; he stood ready to complete the transaction if an agreement could be reached regarding this payment. He desired payment in the form of a note secured by stock in WGC. Goldberg, on the other hand, proposed payment in the form of deferred compensation based upon future profits of the combined entities. The proposed transaction fell apart precisely on this issue: Goldberg insisted on his absolute right to fire Jay, with a concomitant forfeiture by Jay of all unpaid deferred compensation (which was also payment for Jay’s stock in the T-Shirtery) if such an event occurred. Although Jay agreed to accept deferred compensation, he refused to agree to grant to Goldberg the right to fire him at will and deprive him of payment for his stock by withholding deferred compensation. See Cohen I, 202 Ga. App. at 173-175 (1) (a), (b).

In addition to being aware of Joe’s security interest, WGC knew from the beginning that Joe opposed the “deal.” Joe’s opposition to the transaction is not evidence that Jay intended not to perform. In fact, Jay persisted in going forward with this transaction despite his family’s attempts to dissuade him.

Relying upon McFarland v. Kim, 156 Ga. App. 781 (275 SE2d 364) (1980), WGC insists that Jay’s present intent not to perform is shown by his failure to deliver documents he promised to deliver under the escrow and modification agreement. This failure cannot be used, however, to establish present intent not to perform at the time of making the agreement. The evidence as to this issue has not changed, and the law of this case, as established in Cohen I, is that “a question of fact exists whether the parties abandoned their performance of the escrow agreement in direct response to Cohen’s alleged breach of the sale contract, see OCGA § 13-4-23, or whether the failure to satisfy the escrow agreement was so unrelated to the dispute over the [deferred compensation agreement] as to constitute an independent basis for holding that the sale contract terminated, per the escrow agreement provision, because the escrow was never completed.” Id. at 177 (1) (f).

Moreover, this contention by WGC directly contradicts a position it previously took on the same evidence. In its response to Jay’s first motion for summary judgment, WGC admitted by implication that Jay did not harbor a present intent not to perform; WGC alleged, rather, that Jay had “second thoughts” after executing the documents. Since a pleader is bound by the allegations in his own pleadings, State Hwy. Dept. v. Lumpkin, 222 Ga. 727 (152 SE2d 557) (1966), WGC may not now claim the contrary is true. The trial court correctly granted summary judgment to Jay and the estate on WGC’s fraud claim based upon Jay’s present intent not to perform.

(c) WGC maintains the trial court erred in granting summary judgment to Jay and the estate on WGC’s claims for securities fraud. It is unclear how the claim of securities fraud differs from the allegations of express misrepresentation in the stock exchange agreement and the alleged violation of the securities laws. To the extent that it involves the same claims of misrepresentation addressed in Division 1 (a), supra, we agree with the trial court that it required the same showing of justifiable reliance. Consequently, our holding in Division 1 (a) controls this contention as well. To the extent that it involves the violation of securities laws, we address it in Division 2, infra.

We note that WGC’s position that the trial court did not address all its claims based upon fraud is not well taken. A trial court need not address specifically all possible allegations. Nevertheless, the court summarized the fraud allegations and recited that it was granting summary judgment as to Counts III and IV of WGC’s complaint, as amended. This is an unambiguous statement that no fraud claims remain pending. The trial court properly granted summary judgment to Jay and the estate as to all WGC’s allegations of fraud and conspiracy to defraud.

2. As to WGC’s claims involving the violation of securities laws, the Supreme Court in its opinion reinstated “all claims arising from the alleged violations” of the securities laws. 262 Ga. at 611 (3). We agree with Jay, however, that despite this apparently inclusive language, the Supreme Court reinstated only those securities law claims raised by Jay. The Supreme Court granted certiorari to review that portion of this Court’s opinion dealing with the securities law claims; our opinion in Cohen I dealt only with the securities law claims raised by Jay. Although the trial court had granted cross-motions for summary judgment on all the securities law claims, WGC did not appeal the grant of summary judgment to Jay on its securities law claims; neither did it file a cross-appeal when Jay appealed to this Court. The elimination of WGC’s securities law claims was thus unappealed. It is subject to the law of the case rule and consequently was the settled law of this case when Cohen I was decided. We need not now address, therefore, the substance of WGC’s contentions regarding these claims.

3. WGC asserts error in the trial court’s elimination of its claims against Jay and the estate based upon interference with contractual relations. It is beyond cavil that all such claims relating to Joe’s interference with the transaction in issue were decided against WGC in Cohen I and may not be raised here. After remittitur, however, WGC added claims that Joe and Jay tortiously interfered with All-Star’s business relationships — claims the trial court refused to allow Rad-ford to add several years earlier — and that they conspired to breach the stock exchange agreement.

WGC contends these claims are based not upon tortious interference with the stock exchange agreement, as were the claims in Cohen I, but at least in part upon other conduct of Joe and Jay (and later Brent). WGC alleges that Joe and Jay prevented All-Star from producing products during the time period after the execution of the stock swap documents when it was operating on the premises of the T-Shirtery, and that this resulted in All-Star’s demise. WGC also contends its claims are partly for tortious interference with All-Star’s “prospective business advantage” by Jay and Joe. The trial court concluded that these claims were barred by the holdings in Cohen I. We agree with the trial court’s conclusion. The addition of Jay as a target of the allegations of tortious interference and of Joe as a conspirator to breach the contract does not serve to change the nature of either cause of action. The gist of the action is not any alleged conspiracy; it lies within the nature of the tort alleged. As it did prior to Cohen I, WGC alleges in these amended claims the tort of interference with contractual relations. The fact that the tort is now alleged against additional parties, that interference with All-Star’s future business relations or “prospective business advantage” is now claimed by WGC, or that a conspiracy is part of the claim is of no consequence. No new facts are alleged; the evidentiary posture of the case is no different in this regard now than it was when we held in Cohen I that WGC’s tortious interference claim was extinguished in its entirety.

A claim of tortious interference is now precluded by the law of the case. If other facts could have been summoned by WGC to support its claim for tortious interference, WGC was required to state them then. Instead, it stood on its pleaded allegations. After remittitur, relying on exactly the same facts, WGC recast its complaint to assert new “theories” of recovery on essentially the same claim of tortious interference. These theories were “ascertainable” under the original complaint, however, and accordingly did not survive the holding in Cohen I. Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 605 (203 SE2d 173) (1974). The trial court properly granted summary judgment against WGC on these claims.

4. The trial court left standing Jay’s claim against WGC for attorney fees pursuant to OCGA § 13-6-11. WGC asserts this was error, because the trial court left no other claims of Jay pending. The trial court’s order states no reason for denying WGC’s motion for summary judgment as to this claim. It is true, as WGC argues, that expenses of litigation are not recoverable pursuant to OCGA § 13-6-11 unless some other damages are recoverable as well. Connell v. Houser, 189 Ga. App. 158, 160 (5) (375 SE2d 136) (1988). Because our decision in Division 6 (b), infra, reinstates at least one of Jay’s claims, however, summary judgment was properly denied to WGC on Jay’s claim for attorney fees under OCGA § 13-6-11.

5. Case No. A95A1189 is Jay’s appeal from other rulings made by the trial court. We affirm those rulings in part and reverse in part.

In Cohen I, this Court held that the trial court properly denied Jay’s motion for summary judgment on the issue of whether an enforceable contract existed. Jay now contends the trial court erred in failing to consider a legal argument, raised for the first time after remittitur, supporting his contention that the parties failed to reach a meeting of the minds and no enforceable contract exists. His argument focuses on the opening words of the deferred compensation agreement: “Jay Cohen (‘Employee’) and William Goldberg & Co., Inc. (‘Employer’) agree to enter into a deferred compensation agreement providing as follows: . . .” (Emphasis supplied.) Jay maintains these words constitute an unenforceable “agreement to agree.”

We will not address the merits of this argument. The trial court properly refused to consider it, although not for the reason given in its order. The argument may not be considered because it is precluded by the law of the case.

Nothing in OCGA § 9-11-56 limits the right of a party to move again for summary judgment after denial of such a motion. When the denial is affirmed on appeal, however, it establishes as the law of the case that the movant is not entitled, on the basis of the record as it then existed, to summary judgment. Premium Distrib. Co. v. Nat. Distrib. Co., 157 Ga. App. 666, 667-668 (1) (278 SE2d 468) (1981). See OCGA § 9-11-60 (h); compare T. L. Rogers Oil Co. v. S. Carolina Nat. Bank, 203 Ga. App. 605, 606 (2) (417 SE2d 336) (1992) (renewed motion not barred because denial of original motion not appealed). It is well established that when a ruling is appealed, the appealing party must raise all available grounds. Lankford v. Milhollin, 201 Ga. 594, 603 (3) (40 SE2d 376) (1946). The deferred compensation agreement language in issue was part of the record in Cohen I, and it is now raised in support of a contention made both in the trial court and on appeal in Cohen I: that no enforceable contract was created. Consequently, the trial court was not authorized to consider it. We therefore affirm the trial court’s refusal to consider this argument under the principle that a trial court’s ruling right for any reason will be affirmed. Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 590 (452 SE2d 159) (1994).

6. Jay also maintains the trial court erred in granting WGC’s motion for summary judgment on his remaining claims of common law fraud, securities fraud under both federal and state law, and breach of fiduciary duty.

Jay’s claims under the securities acts are based upon the same misrepresentations that form the basis for his claim of fraud. Therefore, as noted by the trial court, they require the same elements and will be addressed together. These claims are based upon two categories of alleged misrepresentation by Goldberg.

(a) Jay first claims Goldberg misrepresented All-Star’s financial condition to him in an effort to induce him to enter into the transaction in issue. Jay alleges he had a confidential relationship with Goldberg, trusted him completely, and because of that trust, relied upon representations made by Goldberg regarding All-Star’s financial condition. He argues that under these circumstances, Goldberg’s misrepresentations constituted both common law and securities fraud and breached Goldberg’s fiduciary duty to him personally. We agree with the trial court that these claims fail because Jay’s alleged reliance on the misrepresentations was not justified.

Goldberg played several roles and wore a number of hats in his relationship with Jay and the T-Shirtery. A confidential relationship may have existed between the T-Shirtery and Goldberg prior to this transaction, when Goldberg was working within his role as financial consultant to the T-Shirtery. Even assuming without deciding, however, that a confidential relationship existed with Jay personally at some point, no such relationship existed at the time the alleged misrepresentations were made. Contrary to Jay’s assertion that he did not terminate his confidential relationship with Goldberg until after the documents were signed, the record establishes that when negotiations began with respect to this transaction, any such relationship was abandoned. During the negotiations, Goldberg was not acting within his role in a confidential relationship; he was interested in the outcome of the proposed transaction not merely as an advisor or consultant to All-Star and the T-Shirtery, but either personally or to derive benefit for his own corporation, WGC. This is evidenced by the fact that each party was represented during the negotiations by separate and independent counsel.

The buyer and seller of property are not, by virtue of their status as such, placed in a confidential relationship to each other but are presumed to be dealing at arm’s length. Gardiner v. McDaniel, 202 Ga. App. 663, 664 (1) (415 SE2d 303) (1992). Moreover, when negotiations intensified, Goldberg “insisted on maintaining an arm’s length relationship with [Jay].” (Emphasis supplied.) Cohen I, supra at 174 (1) (a). Because this transaction was at arm’s length, no confidential relationship existed. The fact that Jay had confidence in Goldberg’s business acumen and trusted him does not mandate a finding that a confidential relationship existed. “In the majority of business dealings, opposite parties have trust and confidence in each other’s integrity, but there is created no confidential relationship by this alone. [Cits.]” Big Bend Agri-Services v. Bank of Meigs, 174 Ga. App. 493, 495 (1) (330 SE2d 422) (1985). The trial court did not err in granting summary judgment to WGC on Jay’s claim for breach of fiduciary duty.

The contract documents contain no warranties relating to All-Star’s financial condition. Because no confidential relationship existed, Jay had an obligation to verify any representations concérning All-Star. He and his counsel had access to, and could have examined, All-Star’s books and records. Because they failed to do so, any reliance on Goldberg’s representations concerning All-Star’s financial condition was indeed “blind” and unjustified. See Consulting Constr. Corp. v. Edwards, 207 Ga. App. 296, 298 (1) (427 SE2d 789) (1993); Southern Intermodal Logistics v. Smith & Kelly Co., 190 Ga. App. 584, 586 (1) (379 SE2d 612) (1989). Justified reliance is an essential element of any fraud claim, and the absence of this element supports the trial court’s grant of summary judgment to WGC on all Jay’s claims of common law and securities fraud based upon these misrepresentations. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

(b) Jay also maintains Goldberg made false representations to Shawmut (the T-Shirtery’s lender) about the T-Shirtery’s financial condition that induced Shawmut to make additional monetary advances to the T-Shirtery. He claims these misrepresentations contributed heavily to the T-Shirtery’s eventual insolvency and damaged him personally because when the T-Shirtery could not repay these advances, Shawmut drew on the letter of credit from Joe, which Jay had backed with a personal guaranty. The trial court ruled that this claim arose from an injury to the T-Shirtery, and it was therefore derivative in nature and could not be asserted in a direct action by Jay. We do not agree with this ruling.

In Phoenix Airline Svcs. v. Metro Airlines, 260 Ga. 584 (397 SE2d 699) (1990), this Court adopted the principle (codified under Delaware corporations law but embodying established common law) that in order to have standing to sue individually rather than derivatively on behalf of a corporation, a shareholder must allege a “special injury,” i.e., an injury different from and more than the wrong to the corporation. Id. at 585-586; see Elster v. American Airlines, 100 A2d 219, 221-223 (Del. Ch. 1953); Kramer v. Western Pacific Indus., 546 A2d 348, 351 (II) (Del. 1988). If the injury suffered by the shareholder is common to all shareholders, it is not a “special injury” and may be redressed only in a derivative action on behalf of the corporation. To gain the right to sue directly, the shareholder must be injured directly — independently of the corporation’s injury. Id.

Claims of mismanagement or waste of corporate assets and the concomitant devaluation of the shareholder’s stock have generally been found to be derivative. In contrast, in this case, although certain aspects of Jay’s claim appear to be based upon mismanagement, the basis for Jay’s particular injury is Jay’s status as a guarantor of the corporate debt. We have found no law specifically addressing whether a shareholder’s liability under a personal guaranty of corporate debt is a “special injury.” Both common sense and established Georgia law, however, persuade us that it is.

A guaranty is a contract separate and distinct from the obligation it guarantees. See Graybar Elec. Co. v. Opp, 138 Ga. App. 456, 458 (2) (226 SE2d 271) (1976). Harm to the corporation from the tortfeasor’s act or omission therefore does not necessarily limit a guarantor of corporate debt to a derivative action on behalf of the corporation when the tortfeasor’s action also causes injury to him individually under his contract of guaranty. See Lipton v. News Intl., 514 A2d 1075, 1079 (Del. 1986).

Moreover, a personal guarantor of corporate debt need not be a shareholder. Although Jay was, in fact, the sole stockholder in the TShirtery, the personal guaranty was not executed in his capacity as a shareholder, and owning stock is certainly not a prerequisite to giving such a guaranty. Jay would not have been liable personally for the TShirtery’s debt but for the execution in his individual capacity of an independent contract agreeing to assume that liability if certain contingencies occurred. His liability on the guaranty contract is therefore independent of his status as a shareholder, and the injury did not occur to him as a shareholder. Given the independent nature of the guaranty contract, both in law and logic, and the clear distinction between Jay’s injury as guarantor and the injury to the corporation and its shareholders, we hold that Jay’s liability on this contract was a “special injury” entitling him to bring a direct action. The trial court erred in ruling otherwise.

7. In Case No. A95A1190, the appeal by Joe’s estate from two rulings of the trial court, we conclude that these rulings were erroneous, and we therefore reverse.

The estate first contends the trial court erred in granting summary judgment in favor of WGC on the estate’s claim for conversion of its collateral. We agree with this contention. We note for the sake of clarity that we do not here hold that WGC converted T-Shirtery property in which Joe had an interest; a jury question remains as to that issue because the evidence is in conflict regarding whether WGC’s actions relating to the collateral were proper. We hold only that the trial court erroneously concluded that WGC was entitled to judgment as a matter of law against Joe’s estate on its claim for conversion of collateral. The estate asserts that Goldberg and WGC converted T-Shirtery inventory that served as collateral under a security agreement for Joe’s letter of credit and other debt of the T-Shirtery to Joe.

The record reveals that in December 1987, an involuntary Chapter 11 bankruptcy petition was filed against the T-Shirtery which, in October 1989, was converted to a Chapter 7 bankruptcy. The assets of the T-Shirtery were liquidated and the Shawmut loan was fully paid, in part by Shawmut calling Joe’s letter of credit and in part from the liquidation of T-Shirtery inventory, which was also collateral for Joe’s letter of credit. By August 1989, the T-Shirtery’s secured debt to Joe reached $320,000, including amounts owed for payment of Joe’s letter of credit ($150,000), a fee for obtaining that letter of credit ($5,000), and an additional secured $25,000 note from the T-Shirtery to Joe. The debt also included more than $110,000 in attorney fees and expenses incurred in collecting this debt, and approximately $30,000 in accrued interest. This debt to Joe’s estate was secured by T-Shirtery inventory, receivables, and other personal property.

Joe’s claim against the T-Shirtery was settled by agreement in the bankruptcy case. The settlement agreement recites that the claims of Joe’s estate against the trustee were settled in return for payment of $143,000 plus certain interest amounts and funds in the “Jay Cohen note account” for a total payment admitted by the estate in its brief on appeal to be $245,000. The agreement also provides that although the parties to the agreement release the trustee in bankruptcy and the T-Shirtery from any claims, the Joe Cohen estate “does not hereby release Jay Cohen ... or anyone who may for any reason be liable to the Joe Cohen estate for any or all of the Joe Cohen estate’s claims against the T-Shirtery.”

The estate argues that the trial court erred in two respects: first, in failing to apply the proper formula for determining the measure of damages to its interest in the converted property as a secured creditor; and second, in overlooking evidence of actual damage to the estate under the correct formula.

(a) Contrary to WGC’s argument, a secured creditor need not have foreclosed its interest to maintain an action for conversion of its collateral. A secured creditor has a right of action for conversion if property subject to its security interest is disposed of without the creditor’s authorization. The elements of such a claim include the showing of a valid security interest in the debtor’s property, disposition of that property, absence of the creditor’s authorization for the disposition, and resulting damage to the creditor. See generally Trust Co. &c. v. Associated Grocers Co-op, 152 Ga. App. 701, 702 (2) (263 SE2d 676) (1979); accord Privitera v. Addison, 190 Ga. App. 102, 106 (3) (378 SE2d 312) (1989). The record clearly includes some evidence of the first three of these elements, although the conversion is disputed. The primary issues for decision here are whether the estate has remaining damage after the bankruptcy settlement, and if so, whether such damage is recoverable.

It has long been the law in Georgia that the measure of damages for conversion of an ownership interest in property is the highest value of the property existing between its conversion and the time of trial. OCGA § 44-12-152. The measure of damages for conversion of an interest in property less than complete ownership is limited to the value of that interest. Jeweler’s Fin. Svcs. v. Chapes, Ltd., 181 Ga. App. 872, 873-874 (4) (354 SE2d 200) (1987); Zugar v. Glen Falls Indem. Co., 63 Ga. App. 660, 662 (11 SE2d 839) (1940). Where the interest is a security interest, the measure of damages is the lower of the value of the converted property or the outstanding amount of the debt. Hodges v. Cummings, 115 Ga. 1000, 1001 (42 SE 394) (1902); Jeweler’s Fin. Svcs., supra at 873 (3) (measure of damages for conversion of purchase money security interest in ring is not value of ring but balance due on purchase price). Finally, the outstanding balance of the debt must be measured as of the date of trial. Holmes v. Langston & Woodson, 110 Ga. 861, 867 (2) (36 SE 251) (1900); accord Rose City Foods v. Bank of Thomas County, 207 Ga. 477, 481-482 (2) (62 SE2d 145) (1950). After all, if all or a portion of the debt has been paid after conversion, the secured creditor would not be entitled to recover the portion that has been paid; the outstanding balance of the debt “provide [s] the ceiling for any monetary recovery the [secured creditor] could receive. [Cit.]” Hudson Properties v. C & S Nat. Bank, 168 Ga. App. 331, 334 (4) (308 SE2d 708) (1983). The trial court erred in ruling that the damages recoverable on this claim would be “the value of [Joe’s] security interest at the time of the property’s alleged conversion.”

(b) The record shows Goldberg used T-Shirtery property, including inventory and receivables worth over $168,000, for the benefit of others, whether properly or not. It is undisputed that this property was also collateral for the debt to Joe. The estate demonstrated that T-Shirtery debt to it reached $320,000, of which $245,000 was paid, leaving $75,000 in unpaid debt. That $75,000 is the lower of the value of the property allegedly converted and the outstanding debt. It remains unpaid to date.

The trial court apparently believed that this amount was attorney fees and that this lawsuit “is not a proper vehicle via which to recover general damages, or attorney’s fees as are sought herein.” We agree with the estate that the trial court apparently mischaracterized the nature of the claim. The estate does not seek to recover attorney fees from WGC, but only to recover the outstanding balance of the debt owed by the T-Shirtery that was secured by the collateral converted. Part of that debt included a sum representing the T-Shirtery’s contractual obligation to pay attorney fees incurred to recover its debt. The $75,000 is the outstanding balance on that entire debt, and as such this lawsuit is “a proper vehicle via which to recover” this amount, if conversion is proved. The trial court’s ruling as to this claim must be reversed.

8. Both Jay and the estate enumerate as error the trial court’s denial of their motion to realign the parties to their original positions. This claim was also raised by Jay in Cohen I. In that case, we affirmed the trial court’s refusal to realign the parties, holding that unlike the situation in Cawthon v. Waco Fire &c. Co., 259 Ga. 632, 633 (386 SE2d 32) (1989), where the appellant showed an abuse of discretion by the trial court in denying its motion to realign parties, Jay had “failed to demonstrate how the realignment of the parties constituted an abuse of the trial court’s discretion here.” Cohen I at 184.

In the current appeal, the parties have demonstrated harm similar, although not identical, to that demonstrated by the appellant in Cawthon. In Cawthon, the demonstrated harm was a resultant allocation of jury strikes among parties with adverse interests. The challenged alignment in Cawthon gave the party representing one interest only three strikes, while “parties asserting contrary legal and factual contentions [had] nine jury strikes. [Cit.]” Id. at 634. Here, no such prejudicial allocation of jury strikes occurred. As a result of our holdings in these appeals, however, if the current alignment is maintained the estate would remain a party defendant although it has a viable claim (which we have reinstated) against WGC and no claims are pending against it. It would bear the burden of proof cast upon a plaintiff without being afforded the concomitant rights that balance that burden: making the first opening statement, presenting its casein-chief first, and opening and closing argument.

Because the trial court’s rulings also eliminated the estate’s conversion claim (and all Jay’s claims except attorney fees under OCGA § 13-6-11), this anomalous posture was not a factor in the trial court’s ruling. We cannot, therefore, and we do not, hold that the trial court’s denial of the estate’s motion was an abuse of discretion. Nevertheless, since our holdings impact upon that posture, they require that the trial court be given the opportunity to reconsider its ruling on realignment. Accordingly, the trial court’s “Order on Joe Cohen’s and Jay Cohen’s Motion to Realign the Parties” is vacated. The court is directed to rule anew on Jay’s and the estate’s motion to realign the parties in light of our holdings in this appeal and giving consideration to the factors set forth in Cawthon, supra.

Judgment affirmed in Case No. A95A1188. Judgment affirmed in part, reversed in part, and vacated in part and remanded with direction in Case No. A95A1189. Judgment reversed in part, vacated in part, and remanded with direction in Case No. A95A1190.

Birdsong, P. J., and Blackburn, J., concur. Johnson, J., disqualified.

Decided November 28, 1995

Reconsideration denied December 20, 1995

Bedford, Kirschner & Venker, Andrew R. Kirschner, for William Goldberg & Company, Inc.

Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Meadows, Ichter & Trigg, James D. Meadows, for Jay Cohen.

Byrne, Eldridge, Moore & Davis, William L. Rothschild, Branch, Pike & Ganz, Gregory J. Digel, for Brent Cohen.

       That issue still remains for decision.

       Although in the prior appeal, as in this one, Joe’s interests were represented by his estate, it was noted in Cohen I that for the sake of clarity Joe would be referred to as a party to the appeal.

       We note that all WGC’s claims against Joe’s son Brent, individually, and its claim against Jay, Joe, and Brent sounding in conversion were also dismissed by the trial court, but the dismissal of these claims is not appealed.

         WGC had maintained previously that until informed by Joe’s lawyer in early June 1986, it had no knowledge of Joe’s security interest. In 1993, however, WGC acknowledged that Goldberg “had knowledge” of a security interest claimed by Joe.

       The trial court also granted summary judgment against Jay on his claim of intentional infliction of emotional distress, but this ruling is not enumerated as error or addressed in Jay’s brief on appeal. We conclude, therefore, that Jay has abandoned this claim.

       We note that the 1988 revision of the Georgia Corporation Code permits a shareholder in a “statutory close corporation” to bring a direct action for relief, including damages, for certain wrongs to the corporation. OCGA § 14-2-940 (a) (1). The injury here, however, predated the revision of the Code.

       Certain contractual rights of shareholders may also be addressed directly rather than derivatively, but these are not at issue here. See Holland v. Holland Heating &c., 208 Ga. App. 794, 797-798 (3) (432 SE2d 238) (1993).

       The estate also claimed that WGC fraudulently conveyed T-Shirtery funds while the T-Shirtery was insolvent; this claim has been dropped on appeal. The estate concedes that unlike its claim for conversion, which asserts an interest in specific property, its claim based upon fraudulent conveyance passed to the trustee in bankruptcy under bankruptcy law.

       Contrary to WGC’s assertion, the security agreement does specify that attorney fees equal to 15 percent of principal and interest owed are recoverable.


source: Caselaw Access Project

author: Ruffin, Judge. Beasley, Chief Judge,

license: Public Domain

text:
    A95A1233.
    STUDARD v. DEPARTMENT OF TRANSPORTATION et al.
    (466 SE2d 236)
   Ruffin, Judge.

Martha Studard sued the Georgia Department of Transportation (“DOT”) and four DOT employees for injuries she sustained in an automobile collision on a DOT road construction site. The jury returned a verdict in favor of the defendants. Studard appeals, enumerating as error the trial court’s refusal to admit certain evidence. For reasons which follow, we affirm.

The collision occurred in a highway construction zone where a DOT contractor was resurfacing the road. Beginning 1,500 feet before both ends of the construction zone, signs were placed every 500 feet warning of the construction zone and containing advisory speed limits. Throughout the zone signs also warned of lane closures and flagmen. There was a pilot car with a sign reading “follow me” to lead drivers around the paving operation, and signs instructed drivers to merge due to a lane drop. Because all previous road markings were covered with new asphalt, temporary lane and centerline markings were put in place. Along that portion of the highway where the accident occurred, there were such temporary markings delineating one southbound and two northbound lanes. The accident occurred when a southbound vehicle veered off the roadway, traveled approximately 250 feet on the shoulder of the road and suddenly crossed over the centerline and one northbound lane, colliding head-on with Studard’s northbound car.

It is undisputed that another accident occurred approximately 500 feet south of the location of Studard’s accident four days before Studard’s accident. It is also undisputed that the day after Studard’s accident, the DOT placed “low shoulder” signs throughout the project and white pavement edge line in the area of both collisions. The court granted defendants’ motions in limine prohibiting the introduction of any evidence concerning either the prior accident or the remedial measures taken by defendants immediately after Studard’s accident. Although the transcript of the motion hearing is not included in the appellate record, in an order denying Studard’s motion for reconsideration, the trial court ruled that Studard made “an inadequate showing of substantial similarity between the two collisions.” Accordingly, the court found “that the introduction of evidence of the [prior] collision would not fall within the limited evidentiary exception to the general rule of inadmissibility of prior events.” The court also ruled, without explanation, that the defendants’ motions in limine regarding the subsequent remedial measures were granted.

1. In her first two enumerations of error, Studard asserts the court erred in granting the defendants’ motions in limine. We find no error.

“ ‘The burden is on the party alleging error to show it affirmatively by the record. (Cits.)’ [Cit.] . . . Unfortunately for [Studard], there is no transcript of the . . . hearing [on the motions]. ‘Without a transcript of the evidence presented, we will in keeping with very old authority in this state presume in favor of public officers, in the absence of all proof to the contrary, that they discharged their duty in compliance with the law. [Cits.]’ ” Gillespie v. Gillespie, 259 Ga. 838 (388 SE2d 688) (1990). Thus, we must assume as a matter of law that the evidence adduced at the hearing on defendants’ motions in limine supported the trial court’s rulings. Id. See also Gay v. State, 199 Ga. App. 80 (1) (403 SE2d 895) (1991).

2. During the trial, Studard again tried to present evidence showing that after the accident, DOT employee and co-defendant Ben Hess directed the placement of the white edge line along the southbound shoulder of the roadway in the immediate vicinity of both accidents. Although this evidence had already been ruled inadmissible by the court’s ruling on the defendants’ motions in limine, Studard contends that it should have been admissible for impeachment purposes because Hess testified that the traffic controls in place at the time of the accident were adequate. We disagree.

The record shows that during Studard’s cross-examination of Hess, the following exchange took place: “Q: Would it be fair to say that you felt that the traffic controls in place at any time you drove through prior to September the 10th, 1986 were adequate? A: I didn’t see anything that jumped out as being inadequate, no, sir. Q: Your answer is they were adequate? A: Yes, sir.”

Generally, “ ‘[e]vidence of subsequent repairs following an injury is not admissible on the trial of negligence cases, the usual purpose of such evidence being as a basis for drawing the inference that the defendant thereby impliedly admitted his realization of negligence. [Cits.]’ [Cits.]” Chastain v. Fuqua Indus., 156 Ga. App. 719, 722 (3) (275 SE2d 679) (1980). The reason for excluding such evidence lies in sound public policy “that men should be encouraged to improve, or repair, and not be deterred from it by the fear that if they do so their acts will be construed into an admission that they had been wrongdoers.” Ga. Southern &c. v. Cartledge, 116 Ga. 164, 168 (1) (42 SE 405) (1902). Although we have allowed certain exceptions to this rule, we have only suggested in dicta that evidence of subsequent remedial measures may be used for impeachment purposes. See Chastain, supra.

While our decision here is not intended to proscribe such use of subsequent remedial evidence in future cases, we do not believe the trial court erred in excluding it here. Federal cases addressing the use of such evidence under Fed. R. Evid. 407 provide valuable insight. In Hardy v. Chemetron Corp., 870 F2d 1007 (5th Cir. 1989), the court warned against the admission of such evidence to prove prior negligence under the guise of impeachment: “This exception must be applied with care, since any evidence of subsequent remedial measures might be thought to contradict and so in a sense impeach a party’s testimony that he was using due care at the time of the accident. . . . If this counted as ‘impeachment’ the exception would swallow the rule.” (Citation and punctuation omitted.) Id. at 1011. See also Bickerstaff v. South Central &c. Co., 676 F2d 163 (5th Cir. 1982) (citing authorities that urge limitations on the use of subsequent repair evidence for impeachment purposes).

Heeding the warning in Hardy and deferring to the discretion the trial judge has in deciding such evidentiary matters, we find no abuse of discretion. We note that if we found the evidence admissible in this case, defendants would be required to either admit their negligence or face the admission of subsequent repair evidence. That is, Studard’s question to Hess concerning the adequacy of traffic controls was in essence an inquiry into whether Hess believed he was negligent in placing inadequate traffic controls on the roadway. Hess had but two choices in answering the question, either state that the controls were adequate or state that they were inadequate, thereby admitting his own and DOT’s negligence. If we were to allow the subsequent repair evidence to contradict and impeach Hess’s testimony under these circumstances, the exception would indeed swallow the rule.

Moreover, “[a] trial judge has the discretion to exclude even relevant evidence if he finds that its probative value is substantially outweighed by the risk that its admission will unduly prejudice or mislead the jury or confuse the issues being tried. [Cits.]” Kilpatrick v. Foster, 185 Ga. App. 453, 456 (3) (364 SE2d 588) (1988). Considering the extremely prejudicial nature of the evidence sought to be admitted here, the trial court did not abuse its discretion in refusing to admit it.

3. In her last enumeration of error, Studard contends the trial court erred in precluding her from arguing that the state waived its sovereign immunity to the extent its agencies and employees were covered by insurance. However, Studard has not cited any portion of the record showing that she requested to make such an argument, or more importantly, that the trial court denied such a request. Court of Appeals Rule 27 (c) (3) (i) requires that “[e]ach enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.” (Emphasis supplied.) That vexing and vexatious search for error through an appellate record where no citation is in appellant’s brief is not the function of appellate judges. Accordingly, this enumeration presents nothing for consideration. See Crowder v. State, 218 Ga. App. 630, 632 (3) (462 SE2d 754) (1995).

Decided December 5, 1995

Reconsideration denied December 20, 1995

Mundy & Gammage, John S. Husser, Robert K. Finnell, for appellant.

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, C. Latain Kell, Assistant Attorney General, Gerard & Matthews, William T. Gerard, Susan J. Levy, for appellees.

Judgment affirmed.

Beasley, C. J., concurs specially. Pope, P. J., concurs.

Beasley, Chief Judge,

concurring specially.

I concur fully in Divisions 1 and 3 but not in all that is contained in Division 2; I concur in its ruling.


author: Beasley, Chief Judge. Pope, Presiding Judge,

text:
    A95A1246.
    MARTIN v. GAITHER et al.
    (466 SE2d 621)
   Beasley, Chief Judge.

After he was injured as a pedestrian, Georgia State University Police Officer Gaither and his wife sued MARTA, the bus driver, and car operator Martin for negligence and loss of consortium. We permitted Martin’s interlocutory appeal from the denial of her motion for summary judgment. It had rested on the theory that the fireman’s rule applies to police officers.

The evidence construed in a light most favorable to Gaither and his wife shows that on February 3, 1993, Gaither was directing traffic on Gilmer Street in Atlanta. Martin, who is a university student, was traveling down Gilmer Street on her way to one of the school’s parking lots. When she arrived at the lot, it was full, and Gaither motioned for her to continue moving. Martin complied, drove around the block, and returned to Gaither’s location. She stopped her car in the street adjacent to a “No Stopping or Standing” sign. Gaither, who was on the sidewalk at the time, instructed Martin to move her car, but Martin failed to obey. Consequently, Gaither entered the street to talk to her on the driver’s side and again told Martin to move her car. As Martin began to pull away, Gaither straightened up and was struck by a MARTA bus that had changed lanes in an attempt to go around Martin. The bus knocked Gaither into the back of Martin’s car, causing him injury.

The first question in this case is whether the fireman’s rule should be applied to the plaintiff police officer Donald Gaither in this negligence action. He and his wife allege that Martin negligently operated her vehicle, creating a trafile hazard. This, it is alleged, in concert with the negligence of the bus driver, caused the injury-producing collision of Gaither first with the bus and then with Martin’s car.

Generally speaking, the fireman’s rule is that “while a fireman may recover for negligence independent of the fire, a landowner is not liable for negligence in causing the fire. . . . [0]ne ‘cannot complain of negligence in the creation of the very occasion for his engagement.’ ” Ingram v. Peachtree South, 182 Ga. App. 367, 368 (355 SE2d 717) (1987). The trial court was correct in stating that the fireman’s rule has not yet been applied to police officers in Georgia. The court in Bycom Corp. v. White, 187 Ga. App. 759, 762 (1) (371 SE2d 233) (1988), stated that the rule was applicable to “public safety employee [s],” including both firemen and policemen. But this purported holding in Bycom is mere dicta, as that case involves a fireman who was seriously burned by exploding natural gas when firemen were summoned to investigate a gas leak. The issue was whether the fireman’s rule, ordinarily stated in terms of a landowner’s liability, precluded recovery from an off-premises tortfeasor. The court adopted a broader view of the rule than had been stated in Ingram and held that it applied and thus defeated recovery despite the fact that defendant was not a landowner on whose property the injury occurred. Thus, whether the fireman’s rule applies to law enforcement officers is still open.

The fireman’s rule, as such, was introduced into Georgia law less than a decade ago by a federal trial court, in Brown v. Gen. Elec. Corp., 648 FSupp. 470 (M.D. Ga. 1986). The diversity case was governed by Georgia law, and although the court recognized that the Supreme Court of Georgia had not yet addressed the rule, it concluded that the Supreme Court would adopt the rule if it had the opportunity to do so. Reasoning that the doctrine of assumption of the risk is a solid part of Georgia negligence law and that there was widespread adoption of the rule in other states, the court applied it in the case as Georgia law. It articulated the rule as “precluding] a fireman injured while fighting a fire from bringing an action against the party whose negligence allegedly caused the fire.” Id. at 471.

The plaintiff was a fireman who was injured when he jumped off a burning building after an explosion. He alleged that the fire was initiated by a defective coffee maker manufactured by defendant. The court awarded summary judgment to the defendant as to both negligence and strict liability because it concluded that the fireman had assumed the risk of the injury as a matter of law: “jumping off a burning building is one of the precise risks a fireman knows he will confront when fighting fires. . . .” Id. at 472.

The next year, in Ingram, supra, we were faced with the plaintiffs’ contention that “the fireman’s rule is antiquated and should be abolished.” Id. at 368. Finding that under Georgia law, firemen are treated as licensees of the landowner upon whose property they come to fight fires, we acknowledged the validity of the fireman’s rule without referring to it as such and turned to the determination of “what duty is owed the fireman with regard to events extrinsic to the fire’s inception.” Id. at 368. The fire had been started in the vacant building by a vagrant, and the firemen sued the premises owner for negligently maintaining the building. We concluded in effect that there was a lack of proximate cause, that “[plaintiffs’ injuries resulted not from any pitfall [created or allowed by defendant] but from the fire’s sudden intensity,” which led to the firemen falling or jumping to the street. Id. at 369. Moreover, plaintiffs had at least equal knowledge of the condition of the premises. These factors precluded recovery, and summary judgment to defendant was affirmed. See, in this connection, 40 Mercer L. Rev. 377, 387-388 (1988).

The Eleventh Circuit Court of Appeals, in a two-to-one decision in White v. Edmond, 971 F2d 681 (11th Cir. 1992), reviewed this beginning history of the fireman’s rule in Georgia, referring to the “equal knowledge” aspect as an application of an assumption of risk rationale, and went on to examine Bycom Corp., supra. It interpreted the Bycom Corp. decision as expanding the fireman’s rule of landowner nonliability to cover the alleged off-premises negligence of a party who was not the landowner. See also 41 Mercer L. Rev. 355, 357-358 (1989). Defendant, manufacturer of an allegedly defective auto, was granted summary judgment because “as a fireman, [plaintiff] White knowingly and voluntarily assumed all risks normally associated with fighting fires, including the explosion of part of the Volvo automobile.” Edmond, supra at 682. The Eleventh Circuit rejected a narrow view of the fireman’s rule as being Georgia’s view and applied the rule to the situation in that case because “[t]he possibility of an unexpected explosion of some object in the Edmonds’ burning house and garage was . . . ‘within the anticipated risks of firefighting.’ ” Id. at 689. This applied to both the negligence and strict liability claims and was based on the two-fold rationale of assumption of risk and public policy found in other states’ cases and accepted as sound in Bycom Corp. The dissent expressed the opinion that “ ‘the issue of whether the Fireman’s Rule will bar recovery for negligence against the manufacturer of a product whose explosion during the course of a fire injures a firefighter’ ” should be certified to the Supreme Court of Georgia. Id. at 689-690.

The strength of the assumption of risk doctrine to persons employed in security is shown in Atlanta Braves v. Leslie, 190 Ga. App. 49 (378 SE2d 133) (1989). Although there was the premises liability peg upon which to hang it, as in the firefighter cases, since two defendants were the landlord and tenant of the place where plaintiff was shot by a robber, the court viewed plaintiff as a special kind of invitee because he was on the premises as an armed security guard, an employee. It reasoned: “The possibility of a face-to-face encounter with a criminal is an ordinary and obvious risk incident to employment as an armed security guard. Accordingly, as a matter of law, Leslie, by accepting employment as ARA’s security guard, assumed the risk that he would have such encounters on the stadium premises. Leslie was, in effect, hired to provide an element of the very security that he alleges was negligently lacking.” Id. at 50. Thus, there was no liability to this business invitee because he assumed the risk.

The court went further to hold that, even without the premises liability foundation, and even if Leslie was an independent contractor so not foreclosed by a Workers’ Compensation Act defense, Leslie was precluded from recovery against his employer because by accepting employment as an armed security guard, he assumed the risk of injuries “resulting from the ordinary and obvious danger of encountering a criminal on the premises.” Id. at 52. The court did not even find it necessary to invoke the additional justification of “public policy” to deny recovery as a matter of law.

Wilbanks v. Echols, 209 Ga. App. 210 (433 SE2d 134) (1993), is a non-precedential opinion which seems to be the latest case on the subject at hand. Wilbanks was a volunteer firefighter with a county fire department. He fell into a pit and was injured as he walked towards the fire on property other than that of the landowner who was suffering the fire. He sued the house builders who dug the pit for their debris on the building site. The court refused to apply the fireman’s rule because the injuries were caused “not by reason of the fire but . . . while trying to get to the fire ... by events which were extrinsic to the fire’s inception.” Id. at 211. That aside, the court analyzed the house builders’ duty to the fireman. Since there was some evidence that part of the pit was on the public right-of-way and the pit was a dangerous static condition, there was “a material question of fact . . . whether the defendants . . . were negligent.” Id. at 213. Although the court initially seemed to regard plaintiff as a licensee, to whom a duty is owed only for wilful and wanton conduct, it assigned a higher duty to one who maintains a dangerous nuisance where it might injure someone who “ ‘ “from lawful necessity or convenience” ’” comes upon it. (Citations omitted.) Id. In such situations, the court held, the duty is not to be negligent, whether the injured party is a licensee or invitee.

Thus, the fireman’s rule has been viewed as adopted in Georgia, broadly construed to cover tortfeasors other than those whose acts prompted the presence of the fireman at the place of injury, narrowly construed to exclude subsequent or extrinsic acts of negligence other than the initial reason for the fireman’s professional presence, and in dicta, broadly construed to apply to “public safety employee [s]” including police officers. We hold that it does include them.

In this case, Gaither was on the scene not because of someone’s negligence; he was not responding to a particular call for service but was assigned to that location to control traffic. His occupation as a traffic cop intrinsically or inherently requires risk-taking in or about traffic. But there is no negligence of another in this primary stage of assumption of risk.

With respect to this particular incident, plaintiff assumed no specific risk when defendant stopped; he just waved her on and she went, while he was on the sidewalk. When she came back around, he assumed no risk at first but again waved her on when she stopped when the sign said “no stopping or standing.” When she refused to move, negligently or wilfully in violation of law, he assumed the risk of injury by going out into the street and traffic to enforce the law. Her latter action (or inaction) is what prompted his being “on the scene” in the narrower sense of the street location and in the narrower time frame than his period of duty that day. He went into the street to fulfill his professional duty to keep traffic moving and drivers obedient to the law. Adopting the rationale in Krauth v. Geller, 157 A2d 129, 130-131 (31 N. J. 270) (1960), he assumed the risk of just such an injury “as an inherent incident of his occupation.”

“ ‘A public safety officer . . . cannot base a tort claim upon damage caused by the very risk that he is paid to encounter and with which he is trained to cope. . . Flowers v. Sting Security, 488 A2d 523, 534 (62 Md. App. 116) (1985), quoted with approval in Bycom, supra at 761. It is instead society’s responsibility to compensate public safety employees for the risk-taking which their respective professions intrinsically require and for the consequences of that risk-taking. Although the alleged tortfeasor was obliged to follow the law and to heed the policeman’s direction, she did not owe him a duty to exercise care “so as not to require the special services for which he is trained and paid.” Krauth, supra at 131.

This is analogous to the degree of duty a landowner owes to a fireman, the law being that it is only the duty owed to a licensee because of public policy: first, the fireman’s right to go on premises to extinguish fire is based on the law’s permission and not the landowner’s invitation; second, too high a degree of foreseeability would be required to guard against such a remote and unpredictable injury. Baxley, supra at fn. 1. See also Restatement of the Law, Torts 2d, p. 228, § 345, comment c.

It is repeated in Ingram, supra at 368, that “one ‘cannot complain of negligence in the creation of the very occasion for his engagement.’ [Cit.]” We cannot distinguish defendant’s action as being independent of the reason for the officer’s presence. His injury was proximately related to controlling the flow of traffic and the enforcement of traffic laws, the very reason for him being on the scene.

Applying the fireman’s rule to public safety employees means that they are precluded from recovery for injuries received when they are injured as a result of the negligence that caused them to be called to the scene. However, like firemen, they are not precluded from recovery for injury from pitfalls, mantraps and things of that kind or wanton and wilful conduct. See Baxley, supra at 669 (1). This case does not involve premises liability, but rather only the duty of a driver on a public street. She would be liable, then, only for wanton and wilful conduct, not mere negligence.

Wanton and wilful conduct differs from negligence. Central of Ga. R. Co. v. Moore, 5 Ga. App. 562, 564 (2) (63 SE 642) (1909). It is conduct “ ‘such as to evidence a wilfull intention to inflict the injury, or else was so reckless or so charged with indifference to the consequences ... as to justify the jury in finding a wantonness equivalent in spirit to actual intent.’ [Cit.] . . . There is an element of intent, actual or imputed, in ‘wilful and wanton conduct’ which removes such conduct from the range of conduct which may be termed negligent. Proof of wilful or wanton conduct will remove the shield of sovereign immunity; proof of negligence will not.” (Emphasis omitted.) Truelove v. Wilson, 159 Ga. App. 906, 908 (4) (285 SE2d 556) (1981); Hendon v. DeKalb County, 203 Ga. App. 750, 758 (5) (417 SE2d 705) (1992).

The complaint alleged that defendant Martin “negligently operated her vehicle creating a traffic hazard on ... a public roadway. . . .” Plaintiffs’ submission for the pretrial order, which was incorporated into it, alleges that the basis for Martin’s liability is “for creating a traffic hazard and illegally parking in the roadway.” It was not until plaintiffs filed a response to defendant Martin’s motion for summary judgment, after entry of the final pretrial order, that they stated that their theory of recovery was that she “illegally disobeyed the traffic control signs which directed her not to stop in the roadway [and] wilfully and wantonly, with reckless indifference to the consequences, refused to obey the instructions of a law enforcement officer, forcing officer Gaither into a position of great peril.” In plaintiffs’ brief in support of their response, they characterize the failure to obey the signs as negligence and the failure to obey the officer’s instructions as a wilful and wanton act of “negligence.” Martin understood their theory of recovery as that of negligence, as alleged in the complaint.

Even if the newly advanced theory were permitted on the principle that pleadings generally are construed by the particular acts alleged and not by the characterizations put on them by the pleader, there is no evidentiary support for it. It would stretch beyond reason the allowance given inferences, to authorize a finding that she intended to inflict injury on the officer or acted so recklessly and with such indifference to the consequences of her acts that it was equivalent to intent to injure.

A public safety employee (firefighter, police officer) does not assume the risk of injury when subjecting himself or herself in the line of duty to another’s wilful and wanton conduct, but this must be properly pled and proof presented. Summary judgment was required as to Martin because she “demonstrate [d] 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 [i.e., plaintiffs Gaithers’] case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991).

Judgment reversed.

Birdsong, P. J., Andrews, Johnson and Smith, JJ., concur. McMurray, P. J., Pope, P. J., Blackburn and Ruffin, JJ., dissent.

Pope, Presiding Judge,

dissenting.

I respectfully dissent to the majority’s opinion to the extent that it applies the fireman’s rule to bar plaintiffs’ recovery in this case.

Generally speaking, the fireman’s rule “precludes recovery for injuries received by firefighters when they are injured as a result of the negligence that [originally] caused them to be called to the scene of the fire.” (Citation omitted.) Wilbanks v. Echols, 209 Ga. App. 210, 211 (433 SE2d 134) (1993). Although the trial court was correct in stating that the fireman’s rule has not yet been applied to police officers in Georgia, in Bycom Corp. v. White, 187 Ga. App. 759, 762 (1) (371 SE2d 233) (1988), we specifically stated that the rule was applicable to public safety employees. This includes both firemen and policemen. Id. Consequently, I agree with the majority’s determination that the fireman’s rule does apply to police officers. I do not, however, agree with the majority that that rule should be applied in this case.

Under the fireman’s rule, firemen and police officers are not “barred from recovery in all instances in which they are injured by negligent acts. The relevant inquiry is whether the negligently created risk which resulted in the fireman’s or policeman’s injury was the very reason for his presence on the scene in his professional capacity. If the answer is yes, then recovery is barred; if no, recovery may be had.” (Citation and punctuation omitted.) Id.

In this case, it is undisputed that Gaither had been directing traffic on Gilmer Street for 15 to 20 minutes before Martin arrived. Therefore, it cannot be said that the original reason for Gaither’s presence at the scene had anything to do with the negligence on Martin’s part. Moreover, even if Gaither was not considered “on the scene” until Martin actually stopped her car in the middle of the street in violation of OCGA § 40-6-203 (a) (1) (K), Martin’s initial act of negligence in stopping her car did not result in Gaither having to subject himself to the risk of walking out into the street. Instead, it was Martin’s subsequent wilful failure to obey Gaither’s instructions in violation of OCGA § 40-6-2 that caused Gaither to subject himself to possible injury. Although the majority concludes that Gaither failed to demonstrate that Martin’s refusal to obey his instructions amounted to reckless or wanton and wilful conduct, which admittedly would preclude application of the fireman’s rule, based on the evidence of record, such a determination is better left to a jury. Consequently, I believe that the fireman’s rule, and its underlying rationale (assumption of the risk), should not be applied to bar recovery here as a matter of law.

Decided December 5, 1995

Reconsideration denied December 20, 1995

Dennis, Corry, Porter & Gray, R. Clay Porter, Thomas D. Trask, for appellant.

Joe A. Weeks, for appellees.

I am authorized to state that Presiding Judge McMurray, Judge Blackburn and Judge Ruffin join in this dissent.

       But see Todd v. Armour & Co., 44 Ga. App. 609 (162 SE 394) (1932), holding that a fireman who enters premises in the exercise of his duty is a licensee; Baxley v. Williams Constr. Co., 98 Ga. App. 662, 669 (1), (2) (106 SE2d 779) (1958), where two of the three judges agreed that a fireman is a licensee when he goes on premises to extinguish a fire, so that defendant was liable only for “pitfalls, mantraps and things of that kind” or wanton and wilful conduct.

       The court was not persuaded by plaintiff that Georgia had already considered and rejected the fireman’s rule in Walker Hauling Co. v. Johnson, 110 Ga. App. 620 (139 SE2d 496) (1964). This Court did not view plaintiff Johnson as a “fireman” and held that the doctrine of rescue applied, so plaintiff was not precluded from recovery for negligence. Assumption of risk was not an issue, this Court ruled, “since the doctrine of rescue necessarily contemplates an assumption of the risk inherent in the peril created by the defendants’ negligence and allows recovery for injuries thereby incurred, for the reason that the defendants were charged with the foreseeability of their negligence attracting rescuers to assume the risks.” Id. at 625. It is evident that this did not constitute rejection of the fireman’s rule.

       The court ruled that summary judgment stood alternatively on another base, that any defect in the coffee maker could not be considered the proximate cause of the plaintiff fireman’s injuries. The court cited two Georgia cases which depended on this same footing for the preclusion of recovery by injured firemen from those whose negligence caused the fire.

       It should be noted that the case did not involve any question of the robber’s civil liability to Leslie.

       This latter statement demonstrates the general harmony between a public safety employee’s immunity from liability for negligent acts causing injury to others and the immunity of those being served from liability for negligent acts causing injury to the public safety employee.


author: McMurray, Presiding Judge. Beasley, Chief Judge, Andrews, Judge, Smith, Judge,

text:
    A95A1309.
    DILL’S FOOD CITY, INC. v. JOHNSON.
    (466 SE2d 250)
   McMurray, Presiding Judge.

Plaintiff Avalene Johnson brought this tort action against defendant Dill’s Food City, Inc., seeking to recover for personal injuries sustained when plaintiff slipped and fell because the floor of defendant’s grocery by the delicatessen “was wet with tea.” Defendant denied the material allegations of negligence and, after a period of discovery, moved for summary judgment. Defendant’s motion contended that since “the tea substance Plaintiff allegedly slipped in was of a muddy brown consistency and the floor of Defendant’s premises is white, there is no question that, at most, Plaintiff can only show equal knowledge of the alleged brown substance and not superior knowledge on behalf of Defendant. . . .” Defendant further contended that, “regardless of whether Defendant was negligent, Plaintiff’s failure to exercise ordinary care for her own safety demands summary judgment in Defendant’s favor.”

In support of these contentions, defendant introduced the deposition testimony of plaintiff, who entered defendant’s store with her four-year-old daughter to purchase one specific item, tobacco. It had not been raining that day and the lighting in the store was such that plaintiff “could see everything fairly well. ...” Plaintiff conceded that the light brown puddle of tea contrasted with the white tile of the floor and that the spill was “a little bigger . . .” in diameter than a 12-inch pizza. Defendant relies on the following particular deposition evidence to support its claim that plaintiff failed to exercise ordinary care for her own safety: “[DEFENSE COUNSEL:] Well, if you’d looked down at the floor before you fell, would you have noticed there was mud and something mixed in with the tea in front of you on the floor? [PLAINTIFF:] (No response.) [DEFENSE COUNSEL:] I mean if the floor’s white — [PLAINTIFF:] Yes. [DEFENSE COUNSEL:] and you’ve got some brown substance in front of you, if you’d looked down at that area, would you have seen that before you fell? [PLAINTIFF:] Yes.”

In opposition to defendant’s motion, plaintiff submitted her affidavit that defendant had no warning sign placed to alert customers of the wet floor, nor was any mop or bucket visible; that plaintiff could see Louise Tillman, defendant’s employee, behind the deli counter; that from her position behind the counter, Louise Tillman had a clear view of the aisle where plaintiff was walking; that the distance from the deli counter where defendant’s employee stood to the area where plaintiff fell was 20 feet but that Louise Tillman never gave plaintiff any warning; that only after she fell did plaintiff notice a good bit of liquid on the floor; that Louise Tillman took plaintiff to the manager’s office, where the manager prepared an incident report reciting: “[Plaintiff’s] statement was she was going down in front of deli. Tea was spilled on the floor. She did a split when she fell. She was complaining she had pain in [her] left leg. . . . Dill employee Louise Tillman . . . was mopping up the tea. She turn[ed] to go get a Wet Floor sign but did not see her fall.” Plaintiff further showed that, at her deposition, she first stated “I don’t know . . .” to whether she could have seen the puddle before she fell, “because it was like mud — mud or something mixed up with it.”

The trial court denied defendant’s motion for summary judgment but certified its order for immediate review. Defendant’s application for interlocutory appeal was granted and a timely notice of appeal was filed. Held:

Defendant enumerates the denial of its motion for summary judgment, arguing that plaintiff can show only the defendant’s equal knowledge, and further arguing that plaintiff’s “failure to exercise ordinary care for her own safety demands summary judgment in Defendant’s favor.” We disagree.

The evidence, when viewed in the light most favorable to plaintiff as the non-movant, would authorize a jury’s finding that defendant had actual knowledge of the hazard, established by the incident report drafted by defendant’s manager indicating the presence of Louise Tillman, mopping up the spill, and would further authorize a finding that plaintiff was without knowledge of that hazard, since Louise Tillman failed to warn plaintiff of the spill before Louise Tillman turned to go get a Wet Floor sign. In our view, the case sub judice is therefore controlled favorably to plaintiff-invitee Avalene Johnson by the rationale employed in such recent whole court decisions as Jackson v. Camilla Trading Post, 218 Ga. App. 164, 167 (460 SE2d 849) and Dept. of Human Resources v. Thomas, 217 Ga. App. 174 (1) (a), 176 (456 SE2d 724), cert. denied. In each of those cases, a majority of this Court agreed that the question whether a plaintiff failed to exercise ordinary care on her own behalf, because she should have seen the hazardous foreign substance that she claimed she did not see, was for the jury to determine. Moreover, the case sub judice is factually distinguishable from Bruno’s, Inc. v. Pendley, 215 Ga. App. 108 (449 SE2d 637), in the material aspect of the state of plaintiff’s knowledge. In Bruno’s, Inc. v. Pendley, supra, it was undisputed that the plaintiff “observed a yellow ‘wet floor’ sign next to [leaking] ice bags.” Id. Thus, unlike the case sub judice, in Bruno’s, Inc. v. Pendley, supra, that plaintiff’s actual knowledge of the precise hazard was undisputed. The dissent’s reliance thereon in this case is, therefore, misplaced.

Contrary to the dissent’s characterization of the undisputed facts as indicating that nothing distracted plaintiff to prevent her from discovering the hazard, (dissent, p. 657, post), plaintiff testified at her deposition that she was “walking down by the shelf[, . . .] looking at pickles or something,” while holding her four-year-old daughter’s hand. While plaintiff was “looking on the shelf[, she . . . walked a little further and a little further and then [she] fell.” Although plaintiff confirmed she was not “looking at any merchandise on the shelves . . .” after looking at pickles, she subsequently explained that, before her fall, she was looking straight ahead, i.e., “on the shelf, and then I fell.” The unfavorable testimony cited by the dissent was adduced in the following manner: “[DEFENSE COUNSEL:] As you were looking at the pickles and walking, right before you fell, did anything distract you or divert your attention from what you were looking at? [PLAINTIFF:] No.” Properly viewed in the light most favorable to plaintiff as the non-movant, the form of this cross-examination does not elicit a self-contradictory statement from plaintiff. Rather, this question concedes that she is already distracted by the merchandise on display. In our view, the case sub judice falls within that class of cases where a jury question is presented as to the plaintiff’s exercise of ordinary care for her own safety, even though the 12-inch brownish puddle contrasted with the white tile floor. Dept. of Human Resources v. Thomas, 217 Ga. App. 174 (1) (a), 176, supra. “ ‘One is not bound to the same degree of care in discovering or apprehending danger in moments of stress or excitement or when the attention has been necessarily diverted as at other times.’ In Big Apple Super Mar ket of Rome v. Briggs, 102 Ga. App. 11 (115 SE2d 385) the petition of a plaintiff who stumbled over a box negligently protruding into a store aisle was held to present a jury question on the issue of the plaintiff’s exercise of ordinary care for her own safety under the circumstances. Chief Judge Felton stated: ‘The question whether the plaintiff might have discovered the articles in the aisle by the exercise of ordinary care must be determined in the light of the attendant circumstances. Kitchens v. Davis, 96 Ga. App. 30 [(99 SE2d 266)]. The [deposition evidence in the case sub judice authorizes the inference] that her attention was diverted by displays of merchandise on nearby shelves. It is therefore a question for the jury whether she should, in the exercise of ordinary care, have discovered the [spilled tea] in the aisle and avoided [slipping in] it. [Cits.]’ ” (Emphasis supplied.) Redding v. Sinclair Refining Co., 105 Ga. App. 375, 377 (2), 379 (124 SE2d 688). Compare Riggs v. Great A&P Tea Co., 205 Ga. App. 608, 610 (423 SE2d 8).

The trial court in the case sub judice correctly perceived that genuine issues of material fact remain for jury determination. Consequently, its order denying summary judgment is affirmed.

Judgment affirmed.

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

Beasley, Chief Judge,

concurring specially.

I concur in the judgment, but the undisputed facts in this case do not call for any analysis under the distraction theory. Merchandise on shelves is not a “distraction” in the legal sense it is used in the law of negligence. Riggs v. Great A & P Tea Co., 205 Ga. App. 608 (423 SE2d 8) (1992).

Andrews, Judge,

dissenting.

Johnson sued Dill’s Food City for injuries she sustained when she slipped and fell in a puddle of tea while shopping at the Dill’s Food City store. The store was well lit and the floor was white. Johnson walked down the pickle aisle, looking at the shelves in search of pickles, until she slipped and fell in a muddy puddle of tea. Johnson did not see the puddle until after she had fallen in it. In her deposition, Johnson admitted that the brown puddle on the white floor was larger than a 12-inch pizza and she would have seen it if she had looked down at the floor. She further stated that she was looking at pickles on the shelf before she fell and that nothing else was distracting or diverting her attention at the time. Johnson also stated that a store employee told her that she was aware of the puddle and had been trying to warn customers to avoid it.

“[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

Even if we construe the employee’s statement to Johnson as probative evidence that Dill’s had actual knowledge of the puddle under an exception to the hearsay rule (compare Brooks v. Kroger Co., 194 Ga. App. 215, 216 (390 SE2d 280) (1990)), the second part of the Alterman Foods test requires Johnson to show that, despite exercising ordinary care for her own safety, she was without knowledge of the puddle’s presence. While Johnson stated in her deposition that she did not see the puddle, she also stated that the puddle was clearly visible and that she would have seen it had she looked down at the floor.

Under the second prong of Alterman Foods, “ ‘(t)he customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.’ ” Alterman Foods, supra at 623. Thus, under Alterman Foods Johnson cannot recover if, by the exercise of ordinary care, she should have seen and avoided the plainly visible puddle.

The duty to exercise ordinary care to discover and avoid defective conditions does not require a customer to continuously scan the floor for defects under all circumstances, but it does require, as a matter of law, the use of one’s eyesight to discover and avoid plainly visible hazards in one’s path. Vermont American Corp. v. Day, 217 Ga. App. 65, 66 (456 SE2d 618) (1995); J. H. Harvey Co. v. Johnson, 211 Ga. App. 809, 811 (440 SE2d 548) (1994); Yeaple v. Grand Union Co., 207 Ga. App. 15, 16 (427 SE2d 13) (1992); Sinclair v. Orozco, 205 Ga. App. 498, 499 (423 SE2d 25) (1992). Accordingly, where, as here, Johnson claims she was injured by a plainly visible defect in her path, and it is undisputed that she would have seen the defect if she looked, this Court has consistently held under the second prong of Alterman Foods that the plaintiff is barred from recovery, as a matter of law, for failure to exercise ordinary care for her own safety. Vermont American Corp., supra at 66-67; Edwards v. Wal-Mart Stores, 215 Ga. App. 336, 338 (449 SE2d 613) (1994); Bruno’s, Inc. v. Pendley, 215 Ga. App. 108 (449 SE2d 637) (1994); Colevins v. Federated Dept. Stores, 213 Ga. App. 49, 52 (443 SE2d 871) (1994); J. H. Har vey Co. v. Kinchen, 213 Ga. App. 868, 869 (446 SE2d 218) (1994); Johnson, supra at 811; Winn Dixie Stores v. Carroll, 212 Ga. App. 234 (441 SE2d 432) (1994); Foodmax v. Terry, 210 Ga. App. 511, 513 (436 SE2d 725) (1993); Sinclair, supra; Riggs v. Great A & P Tea Co., 205 Ga. App. 608, 609 (423 SE2d 8) (1992).

Moreover, any claim by Johnson that she was looking at the pickles on the shelf rather than at the floor does not create a question of fact under the “distraction doctrine.” Looking at items on the shelves of stores is not a distraction attributable to the defendant store but is a self-induced distraction which did not excuse Johnson from exercising ordinary care to discover and avoid the plainly visible hazard. Riggs, supra at 609-610; Terry, supra at 513; Redding v. Sinclair Refining Co., 105 Ga. App. 375, 379 (124 SE2d 688) (1962). Accordingly, Johnson cannot claim that “for some reason attributable to the defendant [she] was prevented from discovering the [hazard].” Alterman Foods, supra at 623.

Johnson admitted the puddle was plainly visible and that she would have seen it had she looked at the floor. There is no evidence that she was prevented from seeing and avoiding the puddle for some reason attributable to the store. Accordingly, she failed, as a matter of law, to exercise ordinary care by discovering and avoiding the puddle and is barred from recovery under Alterman Foods, supra.

I am authorized to state that Presiding Judge Birdsong, Judge Johnson and Judge Smith join in this dissent.

Smith, Judge,

dissenting.

While I concur fully in Judge Andrews’ dissent, I write separately to point out that the majority in this case is attempting to create a new rule of law on the issue of actual and constructive knowledge, a rule which is contrary to the Georgia Supreme Court’s holding in Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). That decision clearly requires that a business invitee must avoid the effect of a proprietor’s negligence “after it becomes apparent to him or in the exercise of ordinary care he should have learned of it.” 246 Ga. at 623.

The majority here attempts to create a new rule that actual knowledge of a proprietor is always “superior” to constructive knowledge on the part of an invitee. This reasoning conflates the two separate parts of the Alterman test, which have always been addressed separately by the Georgia courts. See, e.g., Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991). Moreover, this approach erases the requirement that the invitee use ordinary care to discover hazards in his path. I can find no basis in the existing decisional law for such a major alteration in the Alterman rule.

I am authorized to state that Presiding Judge Birdsong, Judge Andrews and Judge Johnson join in this dissent.

Decided December 5, 1995

Reconsideration denied December 20, 1995

Chambers, Mabry, McClelland & Brooks, Lawrence J. Hogan, C. Gregory Ragsdale, for appellant.

Adams, Clifton & Sanders, Russell W. Smith, for appellee.