author: Judge Harold R. Banke. Smith, Judge,

text:
    A96A0117.
    COWETA COUNTY et al. v. ADAMS et al.
    (473 SE2d 558)
   Judge Harold R. Banke.

Barbara Jean Bell was killed and her two passengers, Edward F. Adams II, and Joseph Thierry, Jr., (collectively “Adams”) were seriously injured when their pickup truck struck a railing on the Andrew Bailey Road Bridge (“bridge”) in Coweta County. Adams sued the tire manufacturer, a car dealership, the Georgia Department of Transportation (DOT), Coweta County, the Coweta County Department of Public Works and unnamed employees of Coweta County (collectively “County”). We granted the County’s interlocutory appeal to review the denial of its motion for summary judgment.

To prevail at summary judgment under OCGA § 9-11-56, the County, as movant, must demonstrate that there is no genuine issue of disputed material fact, and that the undisputed facts, viewed in the light most favorable to Adams, the non-movant, warrant summary judgment as a matter of law. OCGA § 9-11-56 (c). Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the evidence was as follows: As the Chevrolet S-10 pickup truck which Bell was driving approached the County’s bridge, the left rear tire blew or lost air pressure. As Bell was attempting to regain control of the vehicle, the left front corner of the truck struck a portion of the bridge railing. The railing allegedly impaled Bell, and a lower portion of railing ruptured the gas tank causing the pickup to burst into flames. Due to the truck’s continued momentum, and allegedly because of poor quality of maintenance and repair, the railing gave way and allowed the truck to plunge down an embankment to the creek below turning upside down as it traveled. Adams claimed, inter alia, that the County negligently installed, repaired and maintained the bridge and the railings. Adams alleged that when the bridge was rebuilt in August 1990, the County failed to obtain a performance bond as required by law and that County liability accrued under OCGA §§ 32-4-70 and 32-4-71 (b).

In opposition to summary judgment, Adams presented evidence that the welds affixing the horizontal portions of the rail to the vertical portions were faulty due to improper welding at the time of construction, the County used improper welding equipment, and untrained prison laborers performed some welding repairs. One of Adams’ experts, James Burke, testified that when the defective welds gave way, instead of stopping the truck, the railing penetrated the truck and the driver. The expert testified that had the rail been properly welded, it would have collapsed upon impact in an accordion-like fashion instead of piercing the truck. Burke opined that the truck would likely have remained on the bridge and sustained moderate front end damage. Burke testified that the defective welds were obvious, discoverable upon visual inspection, and that some welds were so deficient as to have been only ten percent effective. Another expert, Carl Matricardi, testified that the welds were poorly done and not complete, and that the “fact the weld was missing allowed that thing to literally spear through the vehicle.” Matricardi attested that had the railing been properly welded, the metal would have twisted, slowing the vehicle down or stopping it. Thierry, the only adult passenger, testified that Bell braked, straightened the truck’s path, and seemed to have regained control of the vehicle just as it hit the rail. According to a Georgia DOT inspection report, which the DOT provided to the County, the railings on the bridge were non-conforming to American Association of State Highway and Transportation Officials (AASHTO) guidelines which were in effect at the time of the DOT’s inspection. Although the County alleges eight enumerations, its appeal focuses on the issues of negligence and proximate cause. Held:

At the outset, we emphasize the unique factual circumstances underlying this case. First, the incident at issue occurred on November 11, 1990, prior to the effective date of the 1991 amendment to Art. I, Sec. II, Par. IX of the Ga. Constitution of 1983, and therefore, Coweta County is not entitled to sovereign immunity. Adams v. Coweta County, 208 Ga. App. 334 (1) (430 SE2d 599) (1993). Second, with respect to the alleged maintenance and repair defects, the County conceded its liability under OCGA § 32-1-3, stating, “Coweta County acknowledges that it may be liable for all injuries caused by reason of any defective bridges, whether erected by contractors or county authorities.” The holding of this case is obviously restricted to these most unusual facts, and will not judicially create liability for counties in Georgia for negligence claims relating to bridges or bridge railings. Under current law, negligent bridge claims are essentially foreclosed by sovereign immunity, and no county liability was created by OCGA § 32-4-1 et seq. Kordares v. Gwinnett County, 220 Ga. App. 848 (470 SE2d 479) (1996). Contrary to the mistaken alarm sounded by the dissent, nothing in the holding here requires counties to bring non-conforming public structures up to national standards nor mandates any change in governmental liability. In fact, the holding of Kordares, supra, effectively precludes the far-reaching liability implications purportedly feared by the dissent.

1. Adams’ evidentiary showing of disputed issues of material fact regarding the County’s alleged negligence precludes summary judgment. Adams’ evidence was that the County occasionally used untrained prison laborers to do welding repairs on the bridge, the welding had been improperly performed, the defective welding created a dangerous condition and the railing failed to conform with industry standards. Because there are unresolved issues of material fact as to the County’s alleged negligent construction, maintenance and repair of the railing at issue, the trial court’s denial of summary judgment to the County on the issue of negligence was proper. Storer Communications v. Burns, 195 Ga. App. 230 (393 SE2d 92) (1990).

2. The trial court correctly determined that proximate cause under these facts is an issue for jury determination. The County contends that regardless of any alleged negligence on its part, it cannot be held liable because any act or omission on its part did not proximately cause the injuries. Although the County conceded statutory liability under OCGA § 32-1-3, for injuries caused by reason of defective bridges, it claimed that its statutory duty was only to “construct and maintain” the bridge in “a workman-like manner” so that the bridge could be used in ordinary travel but not for extraordinary occasions such as where a sudden emergency causes the driver to lose control of the vehicle. McDaniel v. Southern R. Co., 130 Ga. App. 324 (203 SE2d 260) (1973). However, whether the bridge was constructed and maintained in a “workman-like manner” is disputed. See Division 1.

The County’s reliance on McDaniel is misplaced because in that case, the driver’s act of falling asleep was determined to be the sole proximate cause of the accident. Id. at 326. Because a county had no duty to anticipate a sleeping driver operating a vehicle on a bridge, we determined that specific activity fell within the “domain of the unusual and extraordinary” and was unforeseeable as a matter of law. Id. In this case, as the trial court noted, a blown tire is not an unusual or extraordinary occurrence, and “guard rails are often placed upon bridges for the very reason that it is foreseeable that a driver may lose control of his vehicle and leave the roadway.” Moreover, in McDaniel, there was no defect in the bridge which was a contributing cause toward rendering the vehicle uncontrollable. Id. Whereas in this case, Thierry testified that as Bell was in the process of regaining control of the vehicle, she was impaled by a portion of railing, which if true, could have been a contributing cause toward rendering her vehicle uncontrollable. Nor can it be said as a matter of law that it was unforeseeable that the rail’s inability to properly collapse would cause injury when the rail was struck by a driver whose vehicle left the roadway.

Nor would a different result be demanded by the case relied upon by the dissent, Ga. Power Co. v. Collum, 176 Ga. App. 61, 63 (3) (334 SE2d 922) (1985). In Collum, the pivotal issue was not “ordinary use” of the roadway but proximate cause and foreseeability. Id. In that case, we employed a foreseeability analysis and determined that proximate cause was lacking because no act of Georgia Power was the cause of Collum’s injuries since the separate and independent act of an earlier driver, who struck and broke a utility pole knocking a span guy wire into the roadway, broke the chain of causation to Collum’s injuries. Id. at 64 (3). Questions of proximate cause are peculiarly reserved for jury determination except in clear, plain, and undisputed cases. Lozynsky v. Hutchinson, 159 Ga. App. 715 (285 SE2d 70) (1981); Lockhart v. Walker, 124 Ga. App. 241 (183 SE2d 503) (1971). This is not such a case.

Finally, we reject the County’s conclusory position that Bell’s loss of control of the truck was the sole proximate cause of the injuries sustained. A jury must determine whether the combined negligence of the County and another party caused the injuries at issue. See Burns, 195 Ga. App. at 232. Where separate and distinct but concurrent acts or omissions of negligence of different parties are the proximate cause of one indivisible injury, compensation for the entire loss may be recovered from either or both of the responsible parties. Gay v. Piggly Wiggly Southern, 183 Ga. App. 175, 178 (2) (358 SE2d 468) (1987). As we have previously noted, there may be more than one proximate cause of an injury. Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 157 (1) (B) (256 SE2d 916) (1979).

3. Having determined that material issues of disputed fact remain for jury resolution, we need not address the remaining enumerations.

Judgment affirmed.

Beasley, C. J., McMurray, P. J., Birdsong, P. J., Pope, P. J., Johnson, Blackburn and Ruffin, JJ, concur. Smith, J., dissents. Andrews, J., not participating.

Smith, Judge,

dissenting.

I must respectfully dissent, because McDaniel v. Southern R. Co., 130 Ga. App. 324, 325-326 (4) (203 SE2d 260) (1973), clearly controls the extent of the county’s responsibility for the maintenance of structures adjoining the public roadway. To hold otherwise will radically change the established law of Georgia governing such structures and impose a consumer products liability analysis which is inappropriate in this instance.

The facts of McDaniel are virtually identical to those presented here: a driver left the roadway and was impaled by an allegedly defective railing on a bridge approach. The only distinction is that the loss of control in McDaniel was caused by the driver falling asleep at the wheel instead of a blown tire. Contrary to the majority’s assertion, however, this variance is not a valid distinction, because it is completely immaterial to the holding. McDaniel explicitly states its analysis in terms of proximate cause: “[T]his falls within the ‘domain of the unusual and extraordinary, and therefore, in contemplation of law, of the unforeseeable,’ there being no defect in the bridge which was a contributory cause toward rendering the automobile uncontrollable. [Cit.]” (Emphasis supplied.) Id. at 326 (4).

Whether the collision is caused purely by driver error, as in McDaniel, or an alleged product defect combined with alleged driver error, as in this case, the proximate cause is not the bridge railing. In fact, proximate cause in this case is even more attenuated than in McDaniel, because there is one more link in the chain of causation: the allegedly defective tire. The proximate cause analysis and case law employed in McDaniel have been approved regularly and recently by this Court. See, e.g., Gray v. Gober, 185 Ga. App. 624, 627 (365 SE2d 279) (1988), citing Ga. Power Co. v. Murray, 57 Ga. App. 141, 149, 150 (194 SE 403) (1937)] Atlanta Obstetrics &c. Group, P.A. v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990), citing Eberhart v. Seaboard Air-Line R. Co., 34 Ga. App. 49, 54-55 (129 SE 2) (1925). The proper application of this analysis does not leave the plaintiffs here without a remedy or recovery; the tire manufacturer remains a defendant, and it appears that its product, if defective, was the proximate cause of the collision.

While almost directly on point here, the McDaniel decision is only one case in a large body of Georgia law governing liability for structures adjoining the public way. For liability to be imposed, such structures must impinge on the traveled way, i.e., make contact with a vehicle while it has its wheels on the road. If the driver had to leave the roadway to contact the structure, there is no liability. “Ordinary use of the public streets and highways contemplates use as provided by law. Stated another way, when the public streets and highways are used in such a manner as to violate the law, such use is not ‘ordinary.’ ” (Citations and punctuation omitted; emphasis supplied.) Ga. Power Co. v. Collum, 176 Ga. App. 61, 62-63 (1) (334 SE2d 922) (1985).

Despite the majority’s attempt to employ a foreseeability analysis more appropriate to consumer products liability law, that standard is clearly improper in the context of structures beside the public roadway: “In the context of the instant case, appellant is not being sued as the manufacturer of any defective personal property sold as new property.” Id. at 61 (1). Focusing on this alleged bridge defect as though it were a consumer product defect is a major alteration of the established law. Strict products liability is a creature of statute. OCGA § 51-1-11. Moreover, the manufacturer of a consumer product is held to a particular standard regarding the anticipation of misuse as “ordinary use.” See, e.g., Center Chemical Co. v. Parzini, 234 Ga. 868, 869-870 (3) (218 SE2d 580) (1975). The duties of governments and public utilities maintaining structures adjacent to the public roads are evaluated under a different standard.

As a public policy matter, this distinction seems eminently reasonable. Given the many miles of roadway, finite resources, and fiscal responsibilities to the public involved, it is a rational public policy goal to set limits on the liability of governments and public utilities for structures beside the public roads. The law under McDaniel and Collum directly encourages governments and public utilities to give priority to the repair of structures that pose a hazard to drivers using the roadway in a lawful and ordinary manner. These hazards are those most likely to affect the largest number of drivers on a daily basis, and public policy rightly encourages the prompt and effective repair of those hazards by imposing liability.

The majority’s reasoning also places this Court in the difficult position of holding that the county should anticipate a blowout or other mechanical failure combined with subsequent driver failure to keep control, while retaining the McDaniel rule that the county need not anticipate driver error standing alone. Because so many vehicular collisions are caused by driver error, such as incompetence, misjudgment, fatigue (as in McDaniel), or the influence of drugs or alcohol, we would in effect be holding that mechanical failure is “not unusual or extraordinary” under a products liability analysis and thus not unusual in this context, while continuing to insist that a far more common cause of vehicular collisions is “unusual or extraordinary.” This position is, in my opinion, untenable.

Public policy also requires that a county not be held to new construction standards not in effect at the time a bridge was constructed, and McDaniel recognizes this distinction. 130 Ga. App. at 325 (4). The record reflects that the bridge at issue here is at least 35 years old, while the standards relied on by the majority were promulgated in 1988 and 1992, the latter after the collision at issue here. The majority in effect argues that governmental entities are required to bring all public structures up to current standards as soon as a federal or state inspection has identified structures as currently nonconforming. The liability implications of such a holding would be far reaching, particularly at a time when decaying public infrastructure is a nationwide concern.

Decided June 26, 1996

Hawkins & Parnell, H. Lane Young II, Kimberly A. Houston Ridley, for appellants.

Love & Willingham, Allen S. Willingham, Novy, James & Vaughan, Eugene Novy, Deborah M. Vaughan, for appellees.

Moreover, the standards cited go entirely to construction and design, not maintenance, and issues of construction and design were explicitly removed from consideration here by this Court’s earlier decision. Adams v. Coweta County, 208 Ga. App. 334, 335 (2) (430 SE2d 599) (1993). We cannot revisit issues already decided by this Court. OCGA § 9-11-60 (h).

For these reasons, I must respectfully dissent.

       The parties refer to the structure at issue as a “guardrail” and a “handrail.” However, a more apt description would be a “bridge rail” or “bridge railing.”

       Uniroyal Goodrich Tire Company, the tire manufacturer, the car dealership, the Georgia DOT and its named employees are not part of this appeal.

       Part of Adams’ evidentiary burden at trial will be to prove that the County knew that the railings at issue were not maintained in a “workman-like manner” and that the alleged deficiencies caused the injuries. Contrary to the dissent’s contention, this opinion neither requires nor suggests that government entities bring public structures up to current AASHTO standards.

       Despite the County’s apparent concession, OCGA § 32-1-3 does not create liability for counties for defects in bridges. Under former Code 1933, § 95-1001, counties had liability for defective bridges.

       The issues raised here would not have been reached, however, but for the county’s concession, noted in the majority, that it could be held liable for injuries caused by reason of defective bridges under OCGA § 32-1-3. See Kordares v. Gwinnett County, 220 Ga. App. 848 (470 SE2d 479) (1996).


source: Caselaw Access Project

author:
Ruffin, Judge.
      Beasley, Chief Judge, SMITH, Judge,

license: Public Domain

text:
    A96A0135.
    RABERN v. STATE OF GEORGIA.
    (473 SE2d 547)
   Ruffin, Judge.

The State filed a complaint instituting in rem forfeiture proceedings pursuant to OCGA § 16-13-49 against approximately 5.2 acres of real property owned by John Wesley Rabern. The proceedings were instituted after an April 1994 search of the property produced 450 small marijuana plants, weighing a total of 68.3 grams, a grow light, fertilizer bags, wheelbarrows, shovels, and various other gardening tools.

After a bench trial, the trial court determined that Rabern’s property was being used to manufacture and store marijuana for distribution in violation of the Georgia Controlled Substances Act. The trial court ordered the property forfeited to the county. Rabern appeals, alleging (a) OCGA § 16-13-49 is unconstitutional, (b) the trial court erred in admitting hearsay testimony, (c) the forfeiture is excessive in violation of the Eighth Amendment, and (d) the evidence failed to support the court’s judgment of forfeiture. For reasons which follow, we vacate the trial court’s decision and remand with directions.

1. In his first enumeration of error, Rabern contends the trial court erred in ruling that OCGA § 16-13-49 is constitutional. The trial court correctly found that this forfeiture statute is constitutional. The constitutionality of OCGA § 16-13-49 and its predecessor, Ga. Code Ann. § 79A-828, has been upheld by Georgia’s Supreme Court. See Lang v. State, 168 Ga. App. 693, 695 (3) (310 SE2d 276) (1983); Tant v. State, 247 Ga. 264 (1) (275 SE2d 312) (1981). In addition, the constitutionality of the specific section denying a right to trial by iury was upheld in Swails v. State of Ga., 263 Ga. 276 (431 SE2d 101) (1993).

2. Rabern’s second enumeration of error asserts the trial court erred in allowing hearsay testimony into evidence. Under OCGA § 16-13-49 (s) (1), “the trial court may consider any evidence that would be admissible in determining probable cause at a preliminary hearing.” Carr v. State of Ga., 212 Ga. App. 36, 38 (1) (441 SE2d 85) (1994). The evidence complained of includes information from an informant which eventually led to obtaining the search warrant and the official report from the State Crime Laboratory.

We find the hearsay statements regarding information obtained from the informant were properly admitted in determining probable cause and explaining the conduct of the officers. “The testimony that a witness received certain information upon which he acted is admissible not as independent evidence to establish the truth of such information, but as an inducement and explanation by the witness that, acting on such information, he discovered other facts connecting the accused with the crime in question. . . . [Cit.]” (Punctutation omitted.) Shellnut v. State, 215 Ga. App. 58, 59 (2) (449 SE2d 652) (1994); Lloyd v. State, 139 Ga. App. 625, 626 (2) (229 SE2d 106) (1976).

Regarding the official report of the State Crime Laboratory, we find that any error which may have occurred in admitting this report was harmless in light of the officers’ testimony regarding the marijuana at issue. Both the Georgia Bureau of Investigation officer specifically assigned to the Governor’s Task Force on Marijuana Eradication and the Henry County Police Department officer specifically assigned to the narcotics unit testified they observed 450 marijuana plants growing in small containers. “[I]dentification of a material or substance may be made by other than expert testimony. [Cit.]” Burroughs v. State, 190 Ga. App. 467, 470 (1) (379 SE2d 175) (1989). Furthermore, except for an initial objection regarding foundation, Rabern did not object to this testimony and does not claim that the substance was anything other than marijuana.

3. In two enumerations, Rabern asserts that his offense did not authorize forfeiture pursuant to OCGA § 16-13-49 (e), which provides: “[a] property interest shall not be subject to forfeiture under this Code section for a violation involving . . . four ounces of marijuana or less unless said property was used to facilitate a transaction in or a purchase of or sale of. . . marijuana.” (Emphasis supplied.) While OCGA § 16-13-49 (d) (2) allows forfeiture of “[a]ll property which is, directly or indirectly, used or intended for use in any manner to facilitate a violation of this article or any proceeds derived or realized therefrom,” OCGA § 16-13-49 (e) provides an exception to this general rule for a violation involving four ounces or less of marijuana. It is not disputed that less than four ounces of marijuana was found on Rabern’s property. While this amount considered by itself would not authorize a forfeiture, the trial court ordered the forfeiture based on facts other than the amount, determining the property was used to manufacture and store marijuana presumably for sale.

In interpreting OCGA § 16-13-49 (e), several rules of statutory construction are applicable. “Because it is a special statutory proceeding, we are required to strictly construe the forfeiture statute. In interpreting the statute, we look to the intent of the legislature and construe the statute to effect that intent. We are also required to give words, except those of art, their ordinary significance.” (Citations omitted.) State v. Henderson, 263 Ga. 508, 509 (436 SE2d 209) (1993). Following these rules, we find that Carr, supra, the case relied on by the appellant, interpreted this statute too narrowly. While we agree with the Court’s ultimate conclusion in Carr based on the facts presented in that case, we specifically hold that OCGA § 16-13-49 (e) does not require evidence of an actual sale or purchase of marijuana, and we overrule Carr to the extent that Carr required an actual sale of marijuana to support forfeiture.

“OCGA § 16-13-49 sets out and balances two legislative intentions: (1) the prompt disposition of property subject to forfeiture under the statute; and (2) the protection of property interests of innocent owners, as defined by the statute.” (Citations and punctuation omitted.) Alford v. State, 208 Ga. App. 595, 596 (1) (431 SE2d 393) (1993). As rewritten in 1991, the legislature included the following subsection: “This Code section must be liberally construed to effectuate its remedial purposes.” OCGA § 16-13-49 (z).

In addition to those facts already discussed, the evidence presented at the hearing in support of the forfeiture included the following. An informant notified police that a marijuana cloning operation existed at the property. According to the informant, who had assisted in the cloning operation, 1,000 marijuana plants had been cloned and were growing at this location. Pursuant to a search warrant, the 450 marijuana plants were discovered in a room attached to the lower level of the house on the property. This room had what appeared to be a window which had been removed to allow access to and from the remainder of the house. Electrical cords ran from the remainder of the house to this room to supply it with electricity. The officers further testified that 5.2 acres of wooded land could have provided sufficient area for the plants after they had outgrown the room. There were a number of trails in the wooded area behind the residence.

In Carr, supra at 38, this Court concluded that OCGA § 16-13-49 (e) “provides for forfeiture only where there is actual use of the property in a transaction, sale or purchase, where small amounts of drugs are involved.” Accordingly, in Carr we limited forfeiture under OCGA § 16-13-49 (e) to instances where the evidence showed an “actual sale” of marijuana. The Court found insufficient evidence to support the forfeiture since there was no evidence of an actual sale or a large quantity of drugs ready-packaged for sale. Id. In Carr, the officers found only seven grams of marijuana on a bedside table, several smoked marijuana cigarette butts in various locations around the house, two plastic bags that tested positive for cocaine residue in the basement, fifty to one hundred small plastic bags, a packet of cigarette papers, large amounts of cash in several locations, and a gun which was located in a truck. We agree that this evidence was insufficient to support forfeiture. However, we now conclude that our prior analysis requiring an actual sale to support forfeiture under OCGA § 16-13-49 (e) was improper.

Carr was correctly decided not because there was no evidence of an actual sale, but because the evidence did not support a conclusion that the property owners were using the marijuana other than for personal use. There was no large quantity of marijuana and nothing. to tie the plastic bags, gun or money to facilitating a transaction, purchase or sale of marijuana. In the present case, however, the sheer number of marijuana plants, coupled with the other evidence, demonstrate that the property was being used to facilitate a marijuana sale. Liberally construing OCGA § 16-13-49 (e) to effectuate its remedial purposes, we conclude that an actual sale is not necessary to support forfeiture when the amount of marijuana equals four ounces or less. While the State does need to show a strong nexus between the property and the alleged violation if the amount of marijuana seized totals four ounces or less, the State can show this nexus in cases where an actual sale does not occur. In Carr, the State failed to show the property was being used to facilitate a transaction, purchase or sale of marijuana. In the present case, the State showed the property was being used to grow a large amount of marijuana for sale.

“In a bench trial the court sits as trier of fact and its findings will not be set aside unless clearly erroneous.” (Citations and punctuation omitted.) Lanier v. State of Ga., 212 Ga. App. 51, 52 (441 SE2d 87) (1994). In the present case, the trial court reasonably concluded the State showed by a preponderance of the evidence that Rabern’s property was subject to forfeiture. Resolution of the use or intended use of the property for facilitating a transaction or a purchase of or a sale of marijuana was the duty of the trial court. Id. at 52. “This is true even where, as in the case sub judice, such resolution is based upon circumstantial evidence since reasonable inferences were raised.” (Citations and punctuation omitted.) Id.

“Although we construe this statute strictly, our holding in this case also comports with the remedial purposes of the statute.” State v. Henderson, supra. Accordingly, the trial court did not err by ordering that the property be forfeited to the State. However, the question remains as to the proper extent of forfeiture.

4. Rabern contends the trial court erred in forfeiting his home and entire tract of land to the State in that this was an excessive fine in violation of the Eighth Amendment. Rabern is correct that the Eighth Amendment’s prohibition against excessive fines applies to civil in rem forfeitures under OCGA § 16-13-49. Austin v. United States, 509 U. S. 602 (113 SC 2801, 125 LE2d 488) (1993). In Thorp v. State of Ga., 264 Ga. 712 (450 SE2d 416) (1994), the Georgia Supreme Court fashioned a three-factor analysis for determining whether a forfeiture is constitutionally excessive. The three factors to be evaluated are: (1) consideration of the inherent gravity of the offense compared with the harshness of the penalty; (2) whether the property was close enough to render it “guilty”; and (3) whether the criminal activity involving the property was extensive in terms of time and/or spatial use. Id. at 717.

“Proper application of these factors requires the trial court to make certain mixed findings of law and fact. Normally a trial court’s findings of fact as to these matters must be accepted by an appellate court unless clearly erroneous. [Cit.]” Thorp v. State of Ga., 217 Ga. App. 275, 276 (2) (457 SE2d 234) (1995). In this case, the trial court has not had the opportunity to render its factual determinations and apply the Supreme Court’s Thorp analysis.

Therefore, as in Thorp, 217 Ga. App. 275, and Evans v. State of Ga., 217 Ga. App. 646 (458 SE2d 859) (1995), we must remand this case for further proceedings in the trial court. The trial court is directed to hold a post-trial hearing for the determination of the Eighth Amendment issue presented here. The trial court is authorized to conduct such additional factfinding as deemed necessary in the interests of the discovery of the truth (OCGA § 24-1-2) and to protect its judgment (Art. VI, Sec. I, Par. IV, Ga. Const, of 1983). Either party shall be entitled to appeal the trial court’s new order within 30 days of its entry. See id.

Judgment vacated and case remanded with direction.

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

Beasley, Chief Judge,

concurring specially.

1. I note first that the case was transferred to this Court by the Supreme Court, to which Rabern’s appeal had been taken, by an order which is based on the conclusion that “the only ruling [involving constitutionality] he invoked from the trial court involves a matter regarding which there are well-settled principles of law. . . .’’The first enumeration of error, challenging constitutionality, is beyond our jurisdiction to consider. Miller v. Ga. Ports Auth., 217 Ga. App. 876, 878 (2) (460 SE2d 100) (1995).

2.1 concur because, even without the hearsay evidence from the informant to which the property owner objected, the evidence supported the trial court’s finding of fact that, by a preponderance, the real property was used, and in fact was being used at the time of the search, “to manufacture and store marijuana for distribution.” See Bloodworth v. State of Ga., 185 Ga. App. 880 (366 SE2d 324) (1988), regarding burden of proof.

Owner Rabern was charged with manufacturing marijuana in violation of OCGA § 16-13-30 (b), to which he pleaded guilty. The large number of small plants being nurtured in the room or shed attached to Rabern’s house constitutes circumstantial evidence that they were in the early stages of cultivation for ultimate sale or at least distribution. The evidence supported the inference that it was the grower’s intention to sell or otherwise dispose of the plants in “a transaction” rather than simply grow them as a hobby or experiment or for personal use. Thus the property was in use as a nursery to produce the product which would constitute the object of future sale or transaction; the real property “was used to facilitate” the enterprise in this fashion.

This case does not involve a loophole in the last sentence of OCGA § 16-13-49 (e) but rather a proper construction of that sentence in context. It creates an exception that does not cover this case because, although less than “four ounces of marijuana” was involved, the other factor necessary for the exception was absent. The majority’s proper construction does not obliterate the exception. Growing a plant or small number of plants of marijuana, for example, would probably not support as reasonable the inference that the property hosting the plant or plants “was used to facilitate a transaction in ... or sale of . . . marijuana.” More likely would be the facilitation of personal use. It is evident from the wording that the legislature intended to exclude such host property from the severe penalty of forfeiture. The property subject to forfeiture, when small amounts of contraband are involved, must be in current or past use to facilitate a transaction, purchase, or sale which is current or past or intended for the future.

I agree that Carr v. State of Ga., 212 Ga. App. 36 (441 SE2d 85) (1994), was correctly decided. It need not be overruled despite the statement that “subsection (e) provides for forfeiture only where there is actual use of the property in a transaction, sale or purchase, where small amounts of drugs are involved.” Id. at 37. That statement must be disapproved as an incorrect construction of the statute because it excludes the intended future, which is the purpose of the current or past use of the property.

3. The majority applies two seemingly contradictory principles of construction. One is the rule of strict construction for special statutory proceedings. State v. Henderson, 263 Ga. 508, 509 (436 SE2d 209) (1993). The other is the rule of liberal construction to effect the remedial purposes of the forfeiture statute, which rule the legislature expressly incorporated into the statute. OCGA § 16-13-49 (z). The rules are compatibly applied in our construction of the sentence in subsection (e) which is at issue, because the ordinary significance of the words makes the legislature’s intention plain. Franklin v. Hill, 264 Ga. 302, 304 (2) (444 SE2d 778) (1994).

SMITH, Judge,

dissenting.

I must respectfully dissent. While the majority is properly concerned with an apparent loophole in the forfeiture statute, and while I have every reason to agree with the majority’s attempt to close that loophole, the attempt made here violates the plain language of the statute and places us in the position of rewriting the General Assembly’s requirements for forfeiture.

As Carr v. State of Ga., 212 Ga. App. 36 (441 SE2d 85) (1994), points out, the distinctions between the general forfeiture language of OCGA § 16-13-49 (d) and the exception created by OCGA § 16-13-49 (e) are significant. Subsections (d) (2) and (4) define property subject to forfeiture in such broad and general language as property “directly or indirectly . . . intended for use ... to facilitate” or “available for use ... to facilitate” a violation of the drug laws. No actual use need be shown; the property need only be intended or available to facilitate a violation. “Available” means simply “capable of being used,” or “that can be got, had, or reached,” while “intended” means “designed; purposed; planned” or “prospective; future.” Webster’s New Universal Unabridged Dictionary (2d ed. 1983).

In contrast, the exception created by subsection (e) provides: “A property interest shall not be subject to forfeiture . . . for a violation involving . . . four ounces of marijuana or less unless said property was used to facilitate a transaction in or a purchase of or sale of a controlled substance or marijuana.” (Emphasis supplied.) This subsection requires, in the case of small amounts of drugs, that actual use, not availability or intention, be shown. Carr, supra, 212 Ga. App. at 37.

Decided June 26, 1996.

James P. Brown, Jr., for appellant.

Tommy K. Floyd, District Attorney, Gail M. Travillian, Assistant District Attorney, for appellee.

“In interpreting statutes, courts must look for the legislature’s intent, ‘keeping in view at all times the old law, the evil, and the remedy.’ OCGA § 1-3-1 (a). All words, except words of art, shall be given their ordinary significance. [Cit.] ‘(W)here a constitutional provision or statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.’ [Cit.]” Franklin v. Hill, 264 Ga. 302, 304 (2) (444 SE2d 778) (1994).

What the majority leaves unsaid is perhaps as important as what is stated. The majority says “the State should not be forced to wait until these marijuana plants grow another fraction of an inch and their total weight exceeds four ounces before making the arrest and proceeding with forfeiture.” But it must follow that the majority also is saying, at least implicitly, that the State “should not be forced to wait” until an individual attempts to sell marijuana plants in an immature state. By this reasoning, the distinctive language of OCGA § 16-13-49 (e) is obliterated, and the rule swallows the exception. If this result was intended by the General Assembly, it is for the legislature, not this Court, to say so. “It is not the function of this court to rewrite the laws enacted by our General Assembly.” Lam v. State, 208 Ga. App. 324, 325 (3) (430 SE2d 775) (1993).


author: Beasley, Chief Judge.

text:
    A96A0192.
    CROWN FORD, INC. v. CRAWFORD.
    (473 SE2d 554)
   Beasley, Chief Judge.

Tonya Crawford sued Crown Ford, Inc. (“Crown”), claiming the car dealer defrauded her and violated the Georgia Fair Business Practices Act (“FBPA”), OCGA § 10-1-390 et seq., by selling her a car that had been driven over 20,000 miles but which Crown misrepresented as having only 4,156 miles. She claims she learned of the discrepancy only after the car broke down and the manufacturer informed her the warranty had expired. Crawford claims compensatory damages, including costs of rental, repair, and the cost of the manufacturer’s warranty she “was led to believe she had.” She also seeks punitive damages. The trial court granted summary judgment in her favor as to “liability only” on both her fraud and FBPA claims, leaving the question of damages for a jury. We affirm the grant of summary judgment.

Crawford established without dispute that she purchased a used 1992 Hyundai Excel from Crown on June 10, 1994. When she purchased it, Crown furnished her an “odometer disclosure form” reflecting an odometer reading of 4,172 miles. This form bore the warning, “Federal law (and State law, if applicable) requires that you state the mileage upon transfer of ownership. Failure to complete or providing [sic] a false statement may result in fines and/or imprisonment.” Although the form contained a box which could be checked to indicate the odometer did not reflect the car’s actual miles, that box was left empty. She also received a purchase order showing this 1992 Hyundai Excel had 4,172 miles.

After giving Crawford materials indicating the Hyundai’s odometer read 4,156 miles without discrepancy, Crown checked the box showing a mileage discrepancy and forwarded the form to the appropriate state agency. Crawford denies she was ever informed of any mileage discrepancy.

Crown purchased this car from a Ms. Brown on April 14, 1994. In its answer, the dealer admitted that the car’s odometer had been replaced by Ed Voyles Hyundai on November 10, 1993. Crawford presented another “odometer disclosure form” covering this same car, dated April 16, 1994 and signed by a Mr. Douglas and someone on behalf of Crown, listing Crown Ford as the transferee. This disclosure form shows the vehicle’s odometer reading as 20,387 miles. Crown admitted this particular document “appears to be” an odometer disclosure statement signed by Mr. Douglas.

Crown responded to Crawford’s motion for summary judgment by supplying the affidavits of its president and used car manager. These witnesses stated that Crown has policies to comply with state regulations regarding odometer disclosures and has “no policies to make intentionally false statements about mileage or odometer readings to its customers,” and that any problem with the odometer statement would have resulted from “clerical or typographical error or mistake.” These witnesses also opined that a 1992 Hyundai with 20,000 miles would be worth, at most, $1,000 less than a 1992 Hyundai with 4,000 miles.

“There is no such thing as a ‘default summary judgment.’ ” McGivern v. First Capital Income Props., 188 Ga. App. 716, 717 (1) (373 SE2d 817) (1988). To affirm a grant of summary judgment, it must affirmatively appear from the record that no question of material fact exists and the moving party is entitled to judgment as a matter of law. Id. Crawford is entitled to summary judgment in this case only if she pierced the defenses set up in Crown’s answer and Crown failed to respond with specific facts showing a genuine issue for trial. Soni v. Coppedge, 159 Ga. App. 889, 890 (1) (285 SE2d 604) (1981). In making this determination, we review only those parts of the record available to the trial court. Medley v. Boomershine Pontiac-GMC Truck, 214 Ga. App. 795, 796 (1) (449 SE2d 128) (1994).

1. The trial court did not err by granting summary judgment on the Fair Business Practices Act claim. A dealer’s sale of a used car with an odometer reflecting less than actual mileage is an act which falls within the ambit of the FBPA because it takes place “within the context of the consumer marketplace.” (Citation and punctuation omitted.) Regency Nissan v. Taylor, 194 Ga. App. 645, 646 (2) (391 SE2d 467) (1990). See Paces Ferry Dodge v. Thomas, 174 Ga. App. 642, 643 (2) (331 SE2d 4) (1985) (sale of new car with defect); Attaway v. Tom’s Auto Sales, 144 Ga. App. 813 (242 SE2d 740) (1978) (seller represented mileage shown on altered odometer as actual mileage). “[A] single instance of an unfair or deceptive act or practice is a sufficient predicate upon which to base a claim for damages . . . if the public consumer interest would be served thereby. . . .” Zeeman v. Black, 156 Ga. App. 82, 86 (273 SE2d 910) (1980). Where available, the FBPA’s remedies are cumulative of other available causes of action. Attaway, supra at 815; OCGA § 40-8-5 (g) (1) (penalties of odometer alteration law are “in addition to any other penalty provided by law”).

“A private FBPA claim has three essential elements: a violation of the act, causation, and injury. [Cit.]” Taylor, supra at 647 (2). A violation of the act requires no knowledge of the deception or intent to deceive. Id. Crawford proved a violation by showing that “before [this car was] sold in the consumer marketplace, [Crown was] placed on reasonable notice [of the odometer discrepancy] and thereafter in blatant disregard of the rights of innocent purchasers fail[ed] to take reasonable measures to ascertain the true state of facts concerning [the car’s actual mileage] before consummating the sale.” (Emphasis in original.) Id. at 648.

The evidence showed without question of material fact that Crown violated the FBPA because it had ample reason to know it had misrepresented to Crawford the actual mileage on the Hyundai. It purchased the vehicle used and did not deny receiving an odometer disclosure statement, signed by its employee, indicating the vehicle had been driven in excess of 20,000 miles. Although Crown furnished Crawford an odometer disclosure statement and purchase order showing the vehicle’s mileage as 4,172, it informed the State of Georgia that this mileage figure was inaccurate.

In its defense, Crown contends only that it did not “intentionally” deceive Ms. Crawford and argues the FBPA does not apply to this transaction. Under these circumstances, Crawford has pierced Crown’s defense and has shown a violation; Crown has not responded with specific facts showing an issue for trial on this element of the FBPA claim. See Soni, supra at 890.

With regard to the remaining elements of this claim, causation and injury, Crawford stated in her verified complaint that, in reliance on the incorrect odometer disclosure statement, she purchased a vehicle worth less than she paid. Although justifiable reliance is an essential element of an FBPA claim, Zeeman, supra at 87, Crown has raised no specific facts showing Crawford did not rely on its representations. Soni, supra. Compare Thomas, supra at 643-644, in which we held the question of a copsumer’s diligence to be for a jury; see also Reilly v. Mosley, 165 Ga. App. 479, 480-481 (301 SE2d 649) (1983). Crown contends the evidence shows no injury but admits the difference in value between the Hyundai it promised and the Hyundai Crawford received might be as much as $1,000. The trial court committed no error by granting summary judgment on these elements of the claim, leaving the question of damages for a jury.

2. In connection with its claim of “no injury,” Crown contends it made a $1,000 offer of settlement pursuant to OCGA § 10-1-399 (b) and argues that offer cuts off Crawford’s cause of action. The statute reads: “Any person receiving [á claim for damage caused by a deceptive practice] who, within 30 days of the delivering of the demand for relief, makes a written tender of settlement which is rejected by the claimant may, in any subsequent action, file the written tender and an affidavit concerning this rejection and thereby limit any recovery to the relief tendered if the court finds that the relief tendered was reasonable in relation to the injury suffered by [the claimant].” (Emphasis supplied.) As the plain language of the statute indicates, such a tender may limit the amount of damages recoverable but does not deprive Crawford of her cause of action. Because the trial court did not grant Crawford summary judgment on the issue of damages, and because Crown neither requested the trial court to rule on the sufficiency of its alleged tender nor filed an appeal from the trial court’s failure to do so, questions concerning this letter are not properly before us. See Nat. Equip. &c. v. Hamrick Mfg. & Svcs., 186 Ga. App. 400, 401 (367 SE2d 287) (1988).

3. Crown asserts jury issues remain as to whether it defrauded Crawford. After reviewing fully the record before us, we disagree. Her claim for fraud requires her to prove: 1) Crown falsely represented the vehicle’s actual mileage; 2) Crown made this representation knowing it was false; 3) by making this representation, Crown intended to induce her to purchase the vehicle; 4) she justifiably relied on the representation and purchased the car; and 5) Crown’s actions proximately caused her damage. Pecora v. First Bank of Ga., 217 Ga. App. 190, 191 (1) (457 SE2d 200) (1995). A defrauded plaintiff may elect whether to rescind her contract or affirm it and sue for damages. Bill Spreen Toyota v. Jenquin, 163 Ga. App. 855, 856 (1) (294 SE2d 533) (1982).

No issue of fact remains as to whether Crown defrauded Crawford. As discussed in Division 1, the evidence shows without question of material fact that Crown, having knowledge of the actual mileage on this Hyundai, misrepresented that mileage to Crawford, and that she relied on Crown’s representation to her injury. The only remaining issue, therefore, is whether Crown through its personnel intended to deceive Crawford.

“Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this. [Cit.]” Branam v. State, 204 Ga. App. 205, 206 (1) (419 SE2d 86) (1992). “Rarely, if ever, can a fraudulent intent be shown by direct proof. . . .” Bucher v. Murray, 212 Ga. 259, 260 (3) (91 SE2d 610) (1956). Crawford presented evidence of circumstances surrounding her receipt of the erroneous documents which create an inference that Crown intended to deceive her. Crown was thus required to come forward with specific facts creating a jury issue on the matter of intent. Soni, supra.

Crown submitted no affidavit of the salespersons who dealt with Crawford nor any explanation for this void. Although Crown’s corporate representatives filed affidavits denying any intentional deception, those affidavits do not show, and it does not appear from the record, that either one was based on the witnesses’ personal knowledge as to this issue. The witnesses’ statements that this deception occurred through “clerical or typographical error or mistake” are mere suppositions without any factual basis. See Sullivan v. Fabe, 198 Ga. App. 824, 826 (1) (403 SE2d 208) (1991). They do not allow an inference of innocence contrary to the inference of fraudulent intent which is based on the facts shown by Crawford. This being a civil case, she must only show intent by a preponderance of the evidence. The purported evidence submitted by Crown does not create an issue of fact as to the element of intent.

It is true that in ruling upon a motion for summary judgment, the court must construe all reasonable inferences in favor of the nonmovant. Here, however, “[o]ur search of this record discloses no specific fact other than general arguments that may lead to inferences [favorable to Crown].” Booker v. Eddins, 183 Ga. App. 449, 452 (359 SE2d 211) (1987). Crown’s failure to present specific evidence creating an issue for trial brings this case within the limited scope of those “plain and palpable cases” in which the issue of scienter may be decided by the court as a matter of law. Brown v. Techdata Corp., 238 Ga. 622, 625 (234 SE2d 787) (1977).

Judgment affirmed.

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

Decided June 26, 1996

Rolader & Rolader, Donald A. Rolader, Lisa G. Shippel, for appellant.

Jeffrey M. Fishman, for appellee.


author: Blackburn, Judge.

text:
    A96A0452.
    BOWERS et al. v. THE STATE.
    (473 SE2d 201)
   Blackburn, Judge.

Sheena Bowers and Wesley Gilliam filed this interlocutory appeal of the trial court’s denial of their motion to suppress evidence of contraband found during a search of their rental vehicle, based upon the illegality of the search, a lack of probable cause to stop appellants’ vehicle initially, and the lack of a valid consent to said search.

In reviewing the trial court’s decision on a motion to suppress, this Court must ensure that there was a substantial basis for the decision. We construe the evidence most favorably to upholding the trial court’s decision and will not disturb the trial court’s findings as to disputed facts and questions of credibility unless they are clearly erroneous. See State v. Jones, 214 Ga. App. 593 (448 SE2d 496) (1994).

The record reflects that Bowers and Gilliam were traveling northbound on 1-95 in a rental van when they were stopped by Deputy Todd of the Camden County Sheriff’s Office, who was assigned to traffic enforcement and drug interdiction and was cruising with his drug dog Herman along 1-95 at the time of the subject stop. The arresting officer testified that he initially stopped Gilliam for changing lanes without using a turn signal. The officer testified that he observed Gilliam’s van from a distance of approximately 100 yards behind the van and there were no other vehicles in the area. There was no evidence that the lane change made by Gilliam was not accomplished with reasonable safety.

After stopping Gilliam, Officer Todd detected no evidence of alcohol or drug consumption by Gilliam and his driver’s license appeared in order. Gilliam stood in front of Officer Todd’s vehicle in very chilly weather for approximately 20 minutes at around midnight on January 8, 1995, while Officer Todd conducted his investigation. A review of the videotape of the subject incident does not support Officer Todd’s contention that Gilliam displayed signs of great nervousness. The tape reflects a normally acting, polite, compliant individual, who was very cold. Officer Todd did not request a driver’s license check as was normally done when checking the status of a minor traffic offender, but rather requested a felony criminal history for a black male. After quizzing the defendants at length about their travels and apparently satisfying himself concerning the “improper” lane change, Officer Todd gave Gilliam an oral warning about changing lanes without using a signal, returned his driver’s license to him and concluded the traffic investigation.

As he turned to depart, Officer Todd, who had requested backup, and whose drug dog was on ready, advised Gilliam of the problems they were having with drug traffic on this expressway and requested Gilliam’s permission to search the vehicle for drugs. After some comments about being cold and after having already stood in the January night for 20 minutes, Gilliam “consented” to the search. Through the use of Herman, the officer’s drug dog, cocaine was found in the trunk of the vehicle, and both Bowers and Gilliam were charged with drug trafficking.

Prior to trial, the defendants filed separate motions to suppress all evidence of any contraband found in the vehicle. The trial court denied their motions, and we granted their application for interlocutory appeal.

“ ‘Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. . . . This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination.’ . . . [Cit.]” Id. “An 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; emphasis supplied.) Brown v. State, 188 Ga. App. 184, 186-187 (372 SE2d 514) (1988).

The officer testified that the defendants were pulled over for making an improper lane change in violation of OCGA § 40-6-123, which provides in pertinent part: “No person shall. . . change lanes or move right or left upon a roadway unless and until such movement can be made with reasonable safety. ... A signal of intention to turn right or left or change lanes when required shall be given continuously for a time sufficient to alert the driver of a vehicle proceeding from the rear in the same direction or a driver of a vehicle approaching from the opposite direction” (Emphasis supplied.)

It is clear from this statutory language that the intention of the legislature was that no turn signal is required as long as a lane change can be made with “reasonable safety.” Otherwise, the use of the phrase “when required” would be rendered meaningless. The stated purpose of the statute is to alert other drivers. Clearly there is no need to alert other drivers when none are present. This purpose gives meaning to the “when required” phrase contained in the statute. See Jones, supra at 594 (no turn signal required when no other driver is on the road); see also Clark v. State, 208 Ga. App. 896, 897-899 (432 SE2d 220) (1993) (physical precedent) (no turn signal required when the closest following vehicle was 300 feet behind a driver merging onto an exit ramp). In the instant case, the nearest following car was approximately 100 yards away, and there was no evidence to suggest that the road or traffic conditions were such that it was unsafe for the defendants to have changed lanes without using a turn signal. There was no objective basis for a reasonable suspicion that the defendants were, or were about to be, engaged in criminal activity. See Jones, supra; see also Clark, supra at 899. No other ground for the stop was provided. Therefore, there was no violation of OCGA § 40-6-123, and no basis for the initial stop by Officer Todd. Thus, the stop was unauthorized.

The only remaining issue is whether the “consent” given by Gilliam under the above circumstances was a valid consent so as to authorize the subsequent search of his vehicle which resulted in the discovery of cocaine therein. In evaluating the validity of the consent given in the present circumstances, this Court has held that “in order to eliminate any taint from an involuntary seizure or arrest, there must be proof both that the consent was voluntary and that it was not the product of the illegal detention. Proof of a voluntary consent alone is not sufficient. The relevant factors include the temporal proximity of an illegal seizure and consent, intervening circumstances, and the purpose and flagrancy of the official misconduct.” Brown, supra at 187.

The present case is controlled by Brown, where we held that “[i]n the case sub judice, we find that there was no significant lapse of time between the unlawful detention and the consent, that no intervening circumstances dissipated the effect of the unlawful detention and that the [officer’s] conduct had no arguable legal basis. Therefore, we hold that the consent was the product of the illegal detention, and that the taint of the unreasonable stop was not sufficiently attenuated.” Id.; see also Tarwid v. State, 184 Ga. App. 853, 856 (363 SE2d 63) (1987).

While Gilliam’s consent was voluntary, under the standard provided by Brown it was the product of the illegal detention for the same reasons outlined therein. As a result, the trial court’s denial of the defendants’ motion to suppress was clearly erroneous under the law.

Decided June 26, 1996.

Lane & Crowe, Robert L. Crowe, for appellants.

Glenn Thomas, Jr., District Attorney, George C. Turner, Jr., Assistant District Attorney, for appellee.

Drug trafficking is without question one of the major concerns of our society, and the policing of such activities is a dangerous and often thankless job. While it is with deep regret that this Court ever reverses a criminal case, such as the present case, where drugs were without question in the possession of the defendants, we are a nation of laws, and it is the duty of this Court to ensure that the State itself follows the laws of criminal procedure in the enforcement of our criminal statutes for the protection of all citizens. The law cannot be bent because of the culpability of the defendant, for that case would then become the precedent by which the truly innocent would be incarcerated. This is the price we pay to ensure the integrity and fairness of our criminal justice system and to ensure that the government conducts itself within the constitutional and statutory constraints provided by law.

Judgment reversed.

Birdsong, P. J, concurs. Beasley, C. J., concurs in the judgment only.

       Although the officer also testified that the defendants’ vehicle weaved into the emergency lane, this did not occur until after the officer had activated his blue lights, and was not listed as a ground for a stop.


author: Smith, Judge.

text:
    A96A0794.
    POOR v. LEADER FEDERAL BANK FOR SAVINGS.
    (473 SE2d 563)
   Smith, Judge.

Jody Poor appeals the trial court’s grant of a writ of possession to Leader Federal Bank.

1. Poor enumerates as error the trial court’s failure to enter findings of fact and conclusions of law. She did not, however, request entry of findings and conclusions below. Consequently, such entry was not required. OCGA § 9-11-52 (a). Middlebrooks v. Fleet Finance, 217 Ga. App. 263 (2) (456 SE2d 627) (1995). Poor relies on an earlier decision in which we remanded a case for entry of findings of fact and conclusions of law because the record did not affirmatively show that findings and conclusions were waived. Fry v. J. I. Kislak Mtg. Corp., 167 Ga. App. 775 (307 SE2d 302) (1983). That case, though, was decided under OCGA § 9-11-52 (a) before its extensive amendment in 1987. Under the former statute, entry of findings and conclusions was required, unless waived by the parties. See Ga. L. 1987, pp. 1057-1058, § 1. Under the amended statute, however, entry of findings and conclusions is mandatory only upon request by a party. Id.

We reject Poor’s contention that findings of fact and conclusions of law were required under OCGA § 44-7-56, the section providing for appeals in dispossessory proceedings. Under that section, “after the notice of appeal is filed with the clerk of the trial court, the clerk shall immediately notify the trial judge of the notice of appeal and the trial judge may, within 15 days, supplement the record with findings of fact and conclusions of law.” (Emphasis supplied.) This section makes entry of findings of fact and conclusions of law permissive, not mandatory. We agree with Poor that the record does not indicate whether the required notice was given by the clerk of court to the trial judge that a notice of appeal had been filed. Assuming that the notice was not sent, however, we find no harm to Poor; the requirement that notice be sent from the clerk to the trial judge does not impose a burden on the trial judge to enter findings and conclusions in the absence of a request by one of the parties.

Decided June 26, 1996.

Macklyn A. Smith, for appellant.

Morris, Schneider & Prior, Susanne O. Torres, for appellee.

2. Poor also contends the trial court erroneously granted the writ of possession, maintaining that she did not receive proper notice of the prior foreclosure sale as required by the security deed. We find no merit in this contention. Poor has pointed to no evidence supporting her claim, and we find none in the record. Moreover, her attack on the basis of the improper foreclosure is one on the landlord’s title, an attack that is not permissible in a dispossessory proceeding. Bridges v. City of Moultrie, 210 Ga. App. 697, 698 (1) (437 SE2d 368) (1993); Partin v. Southern Discount Co., 167 Ga. App. 798, 799 (307 SE2d 697) (1983).

Judgment affirmed.

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


author: Ruffin, Judge. McMurray, Presiding Judge,

text:
    A96A0229.
    KAPPA SIGMA INTERNATIONAL FRATERNITY et al. v. TOOTLE et al.
    (473 SE2d 213)
   Ruffin, Judge.

Sonya Tootle sued the Kappa Sigma International Fraternity and its local chapter (collectively “the Fraternity”) for the alleged wrongful death of Ernest Tootle, who was killed in an automobile accident with Clinton Fair. Fair was intoxicated at the time of the accident, and Tootle alleged that under OCGA § 51-1-40 (b) the Fraternity proximately caused the accident because it furnished Fair with alcoholic beverages. The Fraternity appeals from the trial court’s denial of its motion for summary judgment. We reverse.

“[A]t 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 each essential element of the case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).

1. The Fraternity asserts the trial court erred in denying its motion for summary judgment on Tootle’s claim under OCGA § 51-1-40 because the undisputed evidence shows that it did not knowingly sell, furnish, or serve alcoholic beverages to Fair.

OCGA § 51-1-40 (b) provides that a person “who knowingly sells, furnishes, or serves alcoholic beverages to a person who is in a state of noticeable intoxication, 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 . . . person when the sale, furnishing, or serving is the proximate cause of such injury or damage.”

In this case, the Fraternity presented undisputed evidence showing it did not sell, furnish, or serve alcohol to Fair. The evidence showed that on the day of the accident, Fair, who was 21 years old and not a Fraternity member, attended a party sponsored by the Fraternity. Before the party, Fair and two friends went to a store where they purchased a cooler and three twelve-packs of beer. After purchasing the beer, they went to an apartment and met with several other people who were attending the party. Fair drank two or three of the beers while at the apartment and took the remaining beers with him to the party.

Approximately 150 to 200 people attended the party which was held at a farm. The Fraternity hired a band and served hamburgers and hot dogs to members and guests in attendance. There were several coolers containing beer and other alcohol “just sitting [sic] around on the sand” and a keg on the back of a truck. However, Fair testified in his deposition that he only drank beer from his cooler and did not drink any other alcohol. Similarly, Fair stated in an affidavit that the Fraternity did not sell, serve, or furnish him with any alcoholic beverages at the party. The Fraternity president and several of its members stated in affidavits that the Fraternity “did not sell, furnish or serve any alcoholic beverages at the luau party” and that “[a]ll the alcohol present at the party was brought by the individual members or guests who wanted to consume alcohol.” In addition, other individuals who attended the party with Fair stated that they saw him drinking only the beer he purchased earlier that day. Fair’s girl friend drove him home from the party, and the fatal accident occurred later that day while Fair was driving around town looking for friends.

In response to this evidence, Tootle points to what she contends is circumstantial evidence that Fair consumed alcohol provided by the Fraternity. This evidence showed that one Fraternity member brought a cooler of alcoholic punch to the party and that at least one non-member drank some of the punch. Tootle also points to evidence showing that a Fraternity member was operating the beer keg and that anybody could get beer from the keg. Tootle argues that a jury could reasonably infer from this evidence that the Fraternity served alcohol to Fair. We disagree.

“Where direct and positive testimony is presented on an issue, the opposing party must show some other fact which contradicts the testimony. If this other fact is direct evidence, that is sufficient to allow the case to go to the jury; if the other fact is circumstantial evidence, it must be inconsistent with the defendant’s evidence, or if consistent, it must demand a finding of fact on the issue in favor of the plaintiff.” (Citations and punctuation omitted.) McElroy v. Cody, 210 Ga. App. 201, 202 (435 SE2d 618) (1993).

In this case, the only evidence Tootle relies on is circumstantial evidence that is consistent with the Fraternity’s direct evidence that it did not provide Fair with any alcoholic beverages. The evidence that some Fraternity members had alcoholic beverages at the party and served them to non-members is not inconsistent with the evidence that the Fraternity organization did not provide any alcohol to Fair and that Fair did not consume any alcohol provided by the Fraternity. Furthermore, Tootle’s circumstantial evidence does not demand a finding of fact in her favor. Even if Fair did consume alcohol other than the beer he brought to the party, the evidence shows that it could have been provided by any number of guests who brought their own alcohol to the party. There is simply no evidence disputing Fair’s own testimony that he did not consume any alcohol provided by the Fraternity.

We also disagree with the dissent’s view that the Fraternity can be held liable simply because Fair became intoxicated while attending a Kappa Sigma party. If the General Assembly intended to impose liability under such circumstances, it could have simply stated so. See OCGA § 1-3-1 (a). Rather, what is at issue here is whether the Fraternity knowingly sold, furnished, or served alcoholic beverages to Fair. The undisputed evidence showed that it did not.

Although it is undisputed that the Fraternity sponsored the party at which Fair consumed alcohol, that is insufficient to impose liability upon the Fraternity. “OCGA § 51-1-40 (b) does not impose liability upon one who merely furnishes the premises upon which alcohol is consumed. It imposes liability only upon one who furnishes the alcohol itself. Furnish is to provide for use; to supply. A furnisher is one who furnishes or provides supplies of any kind. A furnisher is one who supplies or fits out. To furnish or supply necessarily carries with it the idea of ownership, property in, or dominion over the thing furnished by the one who furnishes. The uncontroverted evidence of record demonstrates that [the Fraternity] did not furnish any alcohol to [Fair].” (Citations and punctuation omitted; emphasis supplied.) Viau v. Fred Dean, Inc., 203 Ga. App. 801, 802 (1) (418 SE2d 604) (1992).

Accordingly, because the Fraternity demonstrated that it did not sell, furnish, or serve any alcohol to Fair, and Tootle has not pointed to any evidence disputing this essential fact, no triable issue exists as to whether the Fraternity is liable to Tootle under OCGA § 51-1-40 (b). See id.; Lau’s Corp., supra. It is therefore unnecessary to determine whether the Fraternity knew Fair was intoxicated or that he would be driving, and the trial court erred in denying the Fraternity’s motion for summary judgment on this claim. See Viau, supra; McElroy, supra.

2. The Fraternity asserts that the trial court erred in denying its motion for summary judgment on Tootle’s claims based on general negligence principles because under the facts presented OCGA § 51-1-40 (b) is her exclusive remedy. We agree.

OCGA § 51-1-40 (a) provides that “[t]he General Assembly finds and declares 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.” (Emphasis supplied.)

In this case, to the extent that Tootle’s complaint states claims for the Fraternity’s general negligence, such claims are based on the Fraternity allegedly providing alcohol to Fair or allowing Fair to drive under the influence of alcohol. Thus, such claims are governed by OCGA § 51-1-40 (b). Tootle’s contentions that these claims are supported by a non-statutory duty on the part of the Fraternity to operate the party in a non-negligent manner are without merit. A provider of alcoholic beverages is insulated from liability to third parties except as provided in subsection (b). See Riley v. H & H Operations, 263 Ga. 652 (1) (436 SE2d 659) (1993). Accordingly, the trial court erred in denying the Fraternity’s motion for summary judgment on Tootle’s general negligence claims.

Judgment reversed.

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

McMurray, Presiding Judge,

dissenting.

I, respectfully, dissent as I cannot go along with the majority’s holding, which allows a social host such as Kappa Sigma to dodge liability under Georgia’s Dram Shop Act by simply calling upon its members and guests to provide “beer [and] liquor” at a party the fraternity planned, organized and sanctioned. It is my view, that Ernest Edwin Tootle’s death at the hands of a college student who became intoxicated at a Kappa Sigma party is all that is necessary to subject the fraternity to host-liability under the Dram Shop Act. I, therefore, do not believe the controlling issue in the case sub judice is whether the fraternity provided alcohol to Fair (as the circumstances reveal that the fraternity did via the efforts of its individual members). I believe the issues we must resolve are whether the fraternity knew or should have known that Clinton Earl Fair was in a state of noticeable intoxication before leaving the luau party and, if so, whether the fraternity knew or should have foreseen that Fair would soon be driving. OCGA § 51-1-40 (b); Riley v. H & H Operations, 263 Ga. 652, 654 (2) (436 SE2d 659). And to this end, I have examined the evidentiary record and find proof which supports the trial court’s determination that genuine issues of material fact remain as to Kappa Sigma’s liability under Georgia’s Dram Shop Act.

1. Is Kappa Sigma a provider of alcohol as contemplated by the Dram Shop Act? I believe so, in view of the principle that all legitimate inferences must be drawn in favor of the party resisting a motion for summary judgment. See Anderson v. Redwal Music Co., 122 Ga. App. 247, 249 (176 SE2d 645).

Kappa Sigma operates a chapter at Georgia Southern University (“the university” or “Georgia Southern”) and is regulated by the university’s division of student affairs. Four days before the party in question, Kappa Sigma’s social chairman filed an appeal with the university’s division of student services so that the fraternity could deviate from the university’s Code of Student Conduct and serve alcohol at its upcoming luau party. Kappa Sigma declared in its appeal that there is no reason for deviating from the university’s guidelines for using alcohol; that “Beer [and] Liquor” will be present at the party and that the party’s alcohol supply will be furnished on a “B.Y.O.B.” basis. The fraternity also promised to provide security at the party, to enforce a system for controlling underage drinking and to provide “sober drivers” for party patrons who become too intoxicated to drive. These assurances, as well as other promises relating to safety measures at the party, induced Georgia Southern to approve Kappa Sigma’s appeal. The resulting party, however, did not measure up to the university’s expectations.

According to Ricky Darrell Lovett, a security guard at the Kappa Sigma party, the event was conducted at a remote farm and the party grounds comprised several acres, a small lake or pond, a bandstand, a water slide, a waterfall, a “man-made beach” and two large parking areas. Lovett testified that the party started late in the morning, ended late in the afternoon and was attended primarily by young college students. Lovett explained that the fraternity supplied party patrons with disposable cups for the consumption of alcohol; that coolers of beer were randomly scattered over the party grounds and that he noticed Kappa Sigma fraternity members making trips to their cars during festivities, apparently to re-stock the party’s alcohol supply. Lovett also affirmed that, by the end of the party, “a majority of the people at this party were [noticeably] intoxicated.” Lovett explained, however, that neither he nor any other security officers monitored “who was leaving as far as the level of sobriety [because] that’s not our duty, to see who is driving what.”

The depositions of other party attendees reveal that considerable quantities of beer and liquor were openly available at the party and that any party patron who desired to consume alcohol could do so, including persons who were legally too young to drink alcohol. There is also testimony indicating that at least one Kappa Sigma member distributed alcohol at the party from a large keg of beer; that coolers of liquor-laden punch were openly available to any person who wished to drink; that Clinton Earl Fair (along with others) left his cooler of beer unattended at the party; that such coolers were a primary source of the party’s alcohol supply and that Clinton Earl Fair left his cooler behind when he left at about 4:30 in the afternoon.

In light of the above circumstances, I think it is absurd to say (as a matter of law) that Kappa Sigma was not a provider of alcohol as contemplated by Georgia’s Dram Shop Act. Indeed, it can be easily inferred from the above circumstances that the beer Clinton Earl Fair brought to Kappa Sigma’s party was merely his admission pass or ticket, so to speak, to the festivities. Notwithstanding, the simple truth is that Clinton Earl Fair drank excessive amounts of alcohol at Kappa Sigma’s party, Kappa Sigma planned to have alcohol at its party and Kappa Sigma members and guests supplied alcohol, as planned, on a “B.Y.O.B.” basis. To me, these circumstances are sufficient to subject Kappa Sigma to scrutiny under Georgia’s Dram Shop Act. To say otherwise, in my opinion, is nothing more than “a wink and a nod” method of diluting the effect and reach of the Dram Shop Act.

2. The controlling issues. I believe the controlling issues in the case sub judice are whether Kappa Sigma knew or should have known that Clinton Earl Fair was in a state of noticeable intoxication and, if so, whether the fraternity knew or should have foreseen that Fair would soon be driving. OCGA § 51-1-40 (b). See Riley v. H & H Operations, 263 Ga. 652, 654 (2), 655, supra. To this extent, Kappa Sigma cites undisputed proof that Fair was a passenger in his girl friend’s Jeep when he left the party and argues that this fact alone precludes the possibility that any “reasonable jury could conclude that Kappa Sigma knew or should have known that Clinton Earl Fair would soon be driving. . . .” This argument is without merit.

In Riley v. H & H Operations, 263 Ga. 652, supra, the Supreme Court disapproved the trial court’s interpretation “that to be held liable under the [Dram Shop] Act, the provider of alcohol must have actual knowledge that the buyer is a minor who will be driving soon.” (Emphasis in original.) Id. at 654 (2). The Supreme Court then adopted a “reasonable care” test in construing the operative statutory language — “knowing that such person will soon be driving . . .” — and thus focused on issues relating to foreseeability rather than duty, as I suggested in my dissent in Manuel v. Koonce, 206 Ga. App. 582, 589 (2), 590 (425 SE2d 921). See Riley v. H & H Operations, 263 Ga. 652, 654 (2), 655, supra. The Supreme Court then presented the following rule for measuring liability under Georgia’s Dram Shop Act: “If one in the exercise of reasonable care should have known that the recipient of the alcohol was a minor [or (as can be reasonably inferred) in a state of noticeable intoxication] and would be driving soon, he or she will be deemed to have knowledge of that fact.” Id. at 654 (2), 655.

Decided June 27, 1996

Bovis, Kyle & Burch, Steven J. Kyle, John H. Peavy, Jr., for appellants.

Brown & Livingston, Charles H. Brown, Becky D. Livingston, Barrow, Sims, Morrow & Lee, A. Mark Lee, for appellees.

In the case sub judice, there is no question that ample proof exists regarding the fact that Clinton Earl Fair was in a state of noticeable intoxication when he left Kappa Sigma’s luau party. The only question, then, is whether any Kappa Sigma member or agent should have foreseen that Fair would soon be driving. To this extent, I observe evidence indicating that the Kappa Sigma member who invited Fair to the party knew that Fair had driven his girl friend’s Jeep to the remote party grounds and that he had done so after consuming alcohol. I also observe evidence indicating that Fair announced his departure from the party at 4:30 in the afternoon, in the presence of several Kappa Sigma fraternity members; that no Kappa Sigma fraternity member or security guard inquired as to Fair’s means of transportation home and that no Kappa Sigma fraternity member or guard asked Fair about his state of intoxication or his ability to drive.-1 believe these circumstances, along with the fact that the party was at a remote location and the fact that the Kappa Sigma member who invited Fair to the party knew that Fair’s truck was parked at the location where he and Fair had assembled with others on the morning before the party, raise genuine issues of material fact as to whether Kappa Sigma should have foreseen or even cared to determine whether Fair would soon be driving after leaving the luau party. I, therefore, do not think the trial court erred in denying Kappa Sigma’s motion for summary judgment.

       Dr. James Darby Orr, Jr., Associate Dean of Students and Greek advisor at Georgia Southern University, testified in his deposition that Georgia Southern expects all social fraternities to abide by creeds which reflect high moral standards and honorable social goals. Dr. Orr extended the following explanation: “The word social fraternity is misunderstood in many ways. Historically, the word social means in and of society, not party. Basically, a social fraternity is a fraternity which, hopefully helps the man or woman, and the word fraternity is a generic term used for both fraternities and sororities, become an active, productive member of society, and to that end, they do a lot of things that, hopefully, give them that ability.... First of all, obviously, one of the aims, and historically it has been an aim, is that, in effect, it provides a kind of family away from family while the student is at college. They have as their objectives the desire and the program, hopefully, to help their members achieve well academically. Traditionally, Greeks are above the academic average of non-Greeks. Secondly, they foster brotherhood or sisterhood, as the case may be, to help provide this family atmosphere and help one another learn. Thirdly, they all have a set of standards that they will enforce on their members, and if you wish to be a member of that group, you have to meet that set of standards. Fifthly, they all have as part of their creed the requirement that you learn how and participate in community service, which all of our Greeks do [at Georgia Southern University], Learning to give to society and to be a productive member of society is part of this. The sixth thing that all of them attempt to do is to instill in their members leadership ability, their ability to work with other people closely for common objectives.”

       Lovett explained this conclusion during the following examination: “[PLAINTIFF’S ATTORNEY:] And what do you mean by that, observable [intoxication]? You could tell they were intoxicated? [LOVETT:] Oh, yeah, you can tell when — you can tell the difference between normal, rational behavior and getting out and jumping, because when these kids party, they party. I mean, they have a good time, and they’re jumping all over the place and jumping on each other, and you can tell when the line has crossed and everybody is just having a good time. It’s just one of those natural things. Q. And would you say a majority of the people that attended this party had crossed that line? A. Yes, I would.”

       I think it important to clarify that Clinton Earl Fair was not just a 21-year-old man who wandered in on Kappa Sigma’s luau party. He was an invited guest and, at the time, a scholarship athlete at Georgia Southern University.


author: McMURRAY, Presiding Judge.

text:
    A96A0295.
    SERVICE MERCHANDISE, INC. v. JACKSON.
    (473 SE2d 209)
   McMURRAY, Presiding Judge.

This is a foreign substance slip and fall case. Plaintiff Jackson was shopping in a retail store operated by defendant Service Merchandise, Inc. After leaving the store’s rest room, plaintiff was searching for her shopping companions, her daughter and grandchildren, when she slipped on a liquid on the floor and fell. Defendant appeals from a jury verdict in favor of plaintiff. Held:

1. Defendant first enumerates as error the denial of its motion for directed verdict. “ ‘In considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion; and a verdict shall be directed only where there is no conflict in the evidence as to any material issue, and the evidence introduced with all reasonable deductions therefrom, shall demand a particular verdict. . . . (Cit.)’ Strong v. Wachovia Bank of Ga., 215 Ga. App. 572, 573 (3) (451 SE2d 524) (1994).” Dept. of Transp. v. Brown, 218 Ga. App. 178 (1), 179 (460 SE2d 812). See also OCGA § 9-11-50 (a).

Under OCGA §§ 9-11-56 (c) and 9-11-50 (a), summary judgments and directed verdicts are appropriate only when the court, viewing all the facts and reasonable inferences from those facts, in a light most favorable to the nonmoving party, concludes that there are no issues to be tried. Lau’s Corp. v. Haskins, 261 Ga. 491 (4) (405 SE2d 474); Hall v. Rome Automobile Co., 181 Ga. App. 621 (1) (353 SE2d 542). The granting of summary judgment or directed verdict “is a very, very grave matter. By such act, the case is taken away from the jury, and the court substitutes its own judgment for the combined judgment of the [jury].” Johnson v. Curenton, 127 Ga. App. 687, 688 (195 SE2d 279).

In granting such motions, we must remain mindful of the jury’s role in the process to resolve any and all conflicts in the evidence. “It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. The situation is best summed up by the language of Justice Bleckley speaking for the court, in Brown v. Matthews, 79 Ga. 1 (4 SE 13): Truth is often dim, but is truth nevertheless. Frequently amongst the facts best proved is one which no witness has mentioned in his testimony, such fact being an inference from other facts.” (Citations and punctuation omitted.) McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178, 183 (2) (129 SE2d 408). From this perspective, it is preferable not to have a single trial judge stand in the shoes of the several men and women of various backgrounds who make up a jury and determine what inferences they may draw from the evidence. It is for this reason that trial judges should grant a motion for summary judgment or directed verdict only where the evidence is truly clear, palpable and undisputed. Pique v. Lee, 218 Ga. App. 357, 359 (461 SE2d 302).

Trial and appellate judges should not take such matters lightly, for what is at stake is of constitutional magnitude. When a trial court or appellate court determines that summary judgment or a directed verdict is appropriate, it is in effect a determination that a party is not entitled to his or her right to a trial by jury even after a demand for jury trial has been made. See Ga. Const, of 1983, Art. I, Sec. I, Par. XI; OCGA § 9-11-38. A trial court should reluctantly grant such a motion, and on appeal, the trial court’s decision should be scrutinized with great care by the reviewing court. See Lingo v. Kirby, 142 Ga. App. 278 (236 SE2d 26). In this case, as with the numerous other cases that have come before this Court from rulings on motions for summary judgment and directed verdict, the evidence was conflicting. Neither the trial court nor this Court is permitted to weigh that evidence or determine its credibility, as those tasks are within the exclusive province of the jury. Faced with conflicting evidence and inferences, the jurors would have been authorized to find in either the plaintiff’s or the defendant’s favor. See Price v. Whitley Constr. Co., 91 Ga. App. 257, 265 (2) (85 SE2d 528). Parties are entitled to have a jury of their peers make that determination, and except in clear cases, the judgment of a single judge should not be a substitute.

As often stated, the true ground of liability of the proprietor in slip and fall cases, or other cases arising from static defective conditions on the property, is the proprietor’s superior knowledge of the perilous instrumentality. Ballard v. Southern Regional Med. Center, 216 Ga. App. 96 (1), 97 (453 SE2d 123). In a foreign substance case, such as this, the first element of the resulting two-prong test is that the proprietor had actual or constructive knowledge of the foreign substance. Bruno’s, Inc. v. Pendley, 215 Ga. App. 108, 109 (449 SE2d 637); Hudson v. Quisc, Inc., 205 Ga. App. 840 (424 SE2d 37). The proprietor’s knowledge is uncontroverted in the case sub judice. One of the store’s management-level employees discovered a spill, went to a janitorial closet to get a mop, and damp mopped the spill himself, leaving some liquid on the floor. After mopping the area, the manager placed a shopping cart over the area to ensure that the mopped area was protected and proceeded to return to the janitorial closet.

Before the manager reached the janitorial closet, plaintiff’s fall occurred. When plaintiff reached the area of the spill, there was no shopping cart covering the area and she did not see the liquid on the floor until after her fall because she was looking for her shopping companions and not at the floor. The second element which plaintiff had to show in order to recover was that she had no knowledge of the substance on the floor or was prevented from discovering it by some reason attributable to the proprietor. Bruno’s, Inc. v. Pendley, 215 Ga. App. 108, 109, supra; Hudson v. Quisc, Inc., 205 Ga. App. 840, supra. In the case sub judice, we are concerned primarily with the first of these alternative statements of the second element and with the duty of the plaintiff to exercise ordinary care for her own safety. A plaintiff seeking to recover on the basis that she had no knowledge must show not only that she was without knowledge of the peril, but also that she could not have discovered and avoided the peril by the exercise of ordinary care for her own safety. Minor v. Super Discount Mkt., 211 Ga. App. 123, 124 (438 SE2d 384). In other words, plaintiff was under a duty to look where she was walking. Riggs v. Great Atlantic &c. Tea Co., 205 Ga. App. 608 (423 SE2d 8). Plaintiff must use her eyesight to discover obstructions. Sinclair v. Orozco, 205 Ga. App. 498 (423 SE2d 25). Where, as in the case sub judice, a plaintiff fails to see a hazard in the plaintiff’s path because the plaintiff was not looking in the appropriate direction, we have recognized that the critical issue becomes whether the plaintiff could have seen the hazard had the plaintiff looked. Jester v. Ingles Mkt., 206 Ga. App. 327, 329 (425 SE2d 323); Smith v. Wal-Mart Stores, 199 Ga. App. 808, 809 (406 SE2d 234).

Defendant maintains that the liquid on which plaintiff slipped was clearly visible, so that she would have seen it if she had looked. If this fact had been established by uncontradicted evidence, this would have demanded a defendant’s verdict since plaintiff, being deemed to have the knowledge she could have obtained through the required exercise of ordinary care, could not show one of the elements of her claim, a lack of knowledge of the perilous instrumentality. But the evidence concerning the visibility of the liquid in which plaintiff slipped was not without contradiction of the conclusion sought by defendant and includes testimony from several witnesses showing that the liquid was thin, clear, and barely visible unless one was down near the floor. The jury was authorized to conclude that plaintiff had no knowledge of the liquid on the floor and would not have seen it if she had looked. Under these circumstances, the trial court did not err in denying defendant’s motion for directed verdict. Lister v. Scriver, 216 Ga. App. 741, 744 (1) (456 SE2d 83).

2. The remaining enumeration of error maintains that the trial court erred in failing to charge the jury on the definition of “ordinary care.” The sole argument made in support of this contention is that in the absence of this definition, the jury was not given the proper parameters with which to assess the actions of the parties. Yet, no written request to charge defining “ordinary care” was submitted by defendant, and there can be no error in the denial of an oral request. Shaw v. Hughes, 199 Ga. App. 212, 215 (5) (404 SE2d 309); May v. Poole, 174 Ga. App. 224, 226-227 (2) (329 SE2d 561); Hudson v. City of Columbus, 139 Ga. App. 789, 790 (2) (229 SE2d 671). Furthermore, see McDuffie v. Tanner, 108 Ga. App. 213, 216 (4) (132 SE2d 675) holding that “the words ‘ordinary care’ are self-explanatory, and failure to define their meaning, in absence of timely request, is not reversible error. [Cits.]” This enumeration of error lacks merit.

Decided June 27, 1996.

McLain & Merritt, Albert J. Decusati, for appellant.

Forrest B. Johnson, for appellee.

Judgment affirmed. Johnson and Ruffin, JJ., concur.