author: Birdsong, Presiding Judge. Eldridge, Judge,

text:
    A97A1842.
    SHARFUDDIN v. DRUG EMPORIUM, INC.
    (498 SE2d 748)
   Birdsong, Presiding Judge.

Rubab Sharfuddin appeals the grant of summary judgment to Drug Emporium, Inc. in her lawsuit seeking damages for injuries she allegedly sustained when she slipped and fell in a Drug Emporium store. Her complaint averred that in the store she slipped on water that Drug Emporium failed to remove. Following discovery, Drug Emporium moved for summary judgment based upon Sharfuddin’s deposition testimony. The motion contended that there was no evidence to prove the essential elements of her cause of action that Drug Emporium had actual or constructive knowledge of the water on the floor and that she was without knowledge of the water.

In response, Sharfuddin asserted only that genuine issues of material fact existed because Drug Emporium did not prove that it had a reasonable inspection program in operation on the day of her fall. Subsequently, the trial court granted summary judgment to Drug Emporium, but did not specify on which basis the motion was granted. Sharfuddin has now filed this appeal in which she asserts that the grant of summary judgment was in error because genuine issues of material fact remained for trial. Held:

1. Although this case was decided before our Supreme Court’s recent decision in Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403), concerning grants of summary judgment in slip and fall cases, appellate courts must apply the law as it exists at the time of the appellate court’s judgment, even though doing so might change the judgment of the trial court which was correct at the time it was rendered. Clary v. State, 151 Ga. App. 301 (259 SE2d 697). Careful examination of Robinson v. Kroger shows that the trial court’s judgment in this appeal is not affected by that decision.

The Supreme Court “granted certiorari [in Robinson] to examine ‘the proper standard for determining whether the plaintiff in a “slip and fall” premises liability case has exercised ordinary care sufficient to prevail against a motion for summary judgment,’ ” (id.) and “to examine the appellate decisions which have as their crux a determination as a matter of law that an invitee failed to exercise ordinary care for personal safety.” Id. at 739. Neither topic is present in this case. Nevertheless, while considering those matters, the Supreme Court also addressed the “distraction doctrine,” took the opportunity to explain the Court’s earlier decision in Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485), and also addressed the parties’ burdens of proof in slip and fall cases in light of its decision in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). The Supreme Court labeled these issues as other “troubling aspects of the judicial treatment of the invitee’s exercise of ordinary care for personal safety.” Robinson, supra at 744.

The distraction doctrine is not an issue in this appeal, and careful examination of Robinson reveals that the focus of the Supreme Court’s analysis of the burden of proof in slip and fall cases was on the second prong of the elements of a foreign substance slip and fall cause of action concerning the plaintiff’s knowledge of the foreign substance (see Alterman Foods v. Ligon, 246 Ga. 620, 623-624 (272 SE2d 327)) and not the defendant’s actual or constructive knowledge of the foreign substance which falls within the first prong. See Robinson v. Kroger, supra at 746-747.

In fact, in Robinson, the Supreme Court reaffirmed, without modification, that “to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard.” Id. at 748-749. Further, the Supreme Court held that its modification to the plaintiff’s burden of coming forward with the evidence on the second prong applies only after the first prong had been established or assumed for purposes of a motion for summary judgment. Id. at 748. Consequently, we find the Supreme Court’s decision in Robinson did not change either the first prong of a plaintiff’s cause of action under Alterman Foods or the burden on movants for summary judgment on the first prong as established in Lau’s Corp. v. Haskins, supra.

Nevertheless, we are mindful of the Supreme Court’s admonition in Robinson v. Kroger, supra at 748, that the routine issues of premises liability, including a defendant’s negligence, i.e., the defendant’s actual or constructive knowledge of the hazard, generally are not susceptible to summary judgment. Thus, summary judgment should be granted and affirmed even under the first prong only when the evidence is plain, palpable, and undisputed, i.e., where reasonable minds cannot differ on the conclusion to be reached. Wade v. Mitchell, 206 Ga. App. 265, 268 (424 SE2d 810). For the reasons discussed in detail below, we find this to be such a case because Sharfuddin presented no evidence that Drug Emporium had actual or constructive knowledge of the water on the floor and no evidence from which such knowledge could be inferred.

2. The standards applicable to motions for summary judgment under the first prong of Alterman Foods are as announced in Lau’s Corp. v. Haskins, supra. Further, when ruling on a motion for summary judgment, the opposing party must be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). Also, when reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432); Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (1) (392 SE2d 535). In these proceedings, the rules on admissibility of evidence apply, and hearsay has no probative value unless it is part of the res gestae. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (397 SE2d 576). Indeed, “[evidence offered on motion for summary judgment is held to the same standards of admissibility as evidence at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment.” (Punctuation omitted.) Hall v. Cracker Barrel &c., 223 Ga. App. 88, 92 (476 SE2d 789). Thus, it is the duty of each party at summary judgment to present his case in full or risk judgment going against him (Summer-Minter & Assoc, v. Giordano, 231 Ga. 601, 604 (203 SE2d 173)), and it is only where the contradiction by other witnesses is to a matter relevant and material to the issue that it is error to grant a motion for summary judgment. Raven v. Dodd’s Auto Sales &c., 117 Ga. App. 416, 422 (160 SE2d 633). Lastly, on appeal, a grant of summary judgment will be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (431 SE2d 746).

3. Contrary to the assertion in the dissent (which was not raised by Sharfuddin either in the trial court or on appeal), this is a foreign substance slip and fall case, and not a case under the second category of Alterman Foods in which the proprietor intentionally placed a substance on the floor. See Alterman Foods, supra at 623-624. The dissent’s argument to the contrary is based on Sharfuddin’s testimony at one point that the water looked as if it had been left on the floor by somebody cleaning. For the reasons discussed below, Sharfuddin’s deposition testimony was not admissible evidence sufficient to create a question of fact on this issue. See Hall v. Cracker Barrel, supra. The true nature of her testimony can be appreciated only when it is considered in context.

Sharfuddin testified that after her fall she saw separate drops of water on the floor near where her foot slipped in an area that was no larger than three inches by three inches. Within that area, some of the drops were closer together and some more separated, but all of the water in the drops would fill only two tablespoons.

Sharfuddin was asked: “And is the water in the shape as if it was a splashdown, like a spillage, or is it just like sitting, almost circular?” Sharfuddin answered: “It was like a sitting one like just somebody has cleaned it or left, you know, like cleaning stuff, but not like a splash. It was not like a splash.” Question: “Okay. Not like a splash but you said it seemed as if someone had been cleaning and left it there?” Sharfuddin: “Maybe, just like it was there for, you know, a long time. Not long time. It was there. You know, if — that’s what I can’t get from this. If you drop something, it’s scattered too many areas but it was not that, too many areas. Drops were there but that’s what I saw at that point. That that was a splash, I cannot know.” Later, Sharfuddin was asked, “Okay. And then what made you say it looked as if someone had been cleaning, that that’s the way it looked?” Answer: “Because I was just assuming because you said that is it a — was split.” (Emphasis supplied.) Question: “A splash?” Answer: “A splash. It was there. The water showed it was there for, you know, like before that. It was not like a recent something as, you know, just now and then it was just like — there was no — ” Sharfuddin’s counsel: You’re doing fine.”
Question: Yeah, and I would like to know what was it about the water that told you it was here not recently or a long time because I heard you — didn’t you say something like that, you could tell it hadn’t just happened?” Sharfuddin: Yes. You were saying that it was like it was a splash. I’m sorry. What was that word?” Her counsel: “Splash?” Question: “Splash?” Sharfuddin: “Something dropping from it. It doesn’t seem like it just dropped from something, like any type or thing. It was like, you know, you left water. Was like there. I don’t know what maybe —”
Question: “Then what was it made you say it had been there a long time? Let me ask you this. What is a long time to you?” Answer: You asked me was it a splash. I said it was not a splash. It seems that it was not there. It was not a splash.” Question: “Okay.” Sharfuddin: “That’s what I told you that made me think that it was not a splash because you asked me is it a splash, spillage or something. It doesn’t seem like that. That’s what I said. It was not.”
Question: “Okay. Now I’m with you on that. How long had the water been there before you fell?” Sharfuddin’s counsel: “If you ask it in terms of what she observed, that’s fine. If you’re asking her to speculate, I’m going to object.” Defense counsel: “Well, do you have an answer? Do you know how long it was there?” Sharfuddin: “No, I cannot, you know, see backwards after. I cannot tell you the time. You cannot tell the time by this spillage.” Question: “All right. So am I correct to say you don’t know how long those droplets of water were in aisle seven before you fell?” Sharfuddin: Yes.”

This testimony shows that the statement, relied upon by the dissent, was not an admissible expression of fact or opinion that the two tablespoonfuls of water drops dispersed in a three-by-three inch area was the residue of someone cleaning. Sharfuddin merely “assumed” that the water came from someone cleaning because she was asked if the water was splashed. Thus, this testimony was merely an unfounded assumption.

(a) Even if this statement could be labeled an inference she reached from looking at the drops, without some other evidence, however, any such inference that these two tablespoonfuls of water came from Drug Emporium cleaning the floor rather than some other source is unreasonable. An inference cannot be based on mere conjecture or possibility (Derry v. Clements, 197 Ga. App. 173, 174 (397 SE2d 594)), and “[a]n inference cannot be based on evidence which is too uncertain or speculative. . . .” (Punctuation omitted.) Butler v. Huckabee, 209 Ga. App. 761, 762 (434 SE2d 576). Thus, any inference from this evidence alone is unreasonable, and as a non-movant is entitled only to the benefit of reasonable inferences {Lau’s Corp., supra at 495), this unreasonable inference does not aid her case. In the same manner and for the same reasons, the dissent’s purported inferences derived from the black scuff marks on the floor are also unreasonable. As the black scuff marks were merely near the water drops, no reasonable inference can be drawn to connect them.

(b) Additionally, Sharfuddin is not authorized to state her opinion about the source of these water drops. “Lay witnesses . . . may state their opinion only when it is based upon their own observations, and a lay opinion is admissible only when it is necessary in order for the witness to convey those same observations to the jury. The opinion of a lay witness is not admissible when all of the facts and circumstances upon which it is based are capable of being clearly defined, so that the jury may readily reach its own opinion therefrom.” (Footnotes omitted.) Johnson v. Knebel, 267 Ga. 853, 855 (485 SE2d 451). Sharfuddin’s opinions about what she “assumed” to be the source of these drops were not necessary to convey her observations about the drops, and examination of her testimony shows that she otherwise gave a full description of the drops. Therefore, her opinion, if it can be called that, was not admissible to prove that the water came from any particular source.

(c) Even assuming Sharfuddin somehow could be considered qualified to testify that the water was dripped and not spilled or splashed, whether the water was dripped, dropped, or splashed is not the issue here. The issue is whether Drug Emporium applied the water to the floor so that this case would fall within the second category of cases under Alterman Foods. Thus, because the water could have been dripped, dropped, or splashed by another customer or someone unconnected with Drug Emporium, it is the source of the water and not the nature of the drops that is important. No admissible evidence in Sharfuddin’s testimony is sufficient to create a jury issue on whether Drug Emporium put the water on the floor, much less establish that this is not a foreign substance case.

(d) Further, Sharfuddin’s testimony is self-contradictory in regard to the source of the water and the time in which the water may have been on the floor. Her testimony contains not one positive statement on these topics that she did not contradict later in her deposition. Consequently, the contradictory testimony rules must be applied because Sharfuddin offered no explanation for the contradictions. Gentile v. Miller, Stevenson &c., Inc., 257 Ga. 583 (361 SE2d 383); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680). Therefore, the favorable portions of Sharfuddin’s contradictory testimony must be eliminated, and then the remaining testimony, as it then stands, must be construed in her favor. Id. at 28. Doing so leaves no evidence showing that the water drops were the result of cleaning the floor, or that the drops had been on the floor for a long time.

(e) Review of Sharfuddin’s deposition also shows that her testimony was vague and equivocal. Because at trial vague or equivocal testimony is not sufficient to overcome a motion for a directed verdict (Prophecy Corp., supra at 28; Douglas v. Sumner, 213 Ga. 82, 85 (97 SE2d 122)), this vague and equivocal testimony is also insufficient to create a triable issue at summary judgment. “Summary judgment may be granted on evidence that would compel the direction of a verdict.” (Punctuation omitted.) Eiberger v. West, 247 Ga. 767, 769 (281 SE2d 148).

4. Therefore, this appeal was properly treated as a foreign substance slip and fall case, and because Sharfuddin’s response to the motion for summary judgment conceded that Drug Emporium had no actual knowledge of the water, our consideration is limited to whether Drug Emporium had constructive knowledge of the water. In this regard, Sharfuddin also conceded that no Drug Emporium employee saw her fall and no employees were working close enough nearby to see the water. She further testified that she did not see any Drug Emporium employees with cleaning materials before or after her fall, and she saw no water any place other than the drops where she fell.

Under this record, Drug Emporium discharged its obligation under Lau’s Corp. by showing there was no evidence, as required by the unmodified first prong of Alterman Foods, supra, that it had knowledge, actual or constructive, of the water on the floor. Consequently, Sharfuddin could not rest on her pleadings, but was required to point to specific evidence giving rise to a triable issue on the question of Drug Emporium’s knowledge. Lau’s Corp., supra at 491. As Sharfuddin produced no evidence directly showing that Drug Emporium had constructive knowledge of the water nor any evidence from which such knowledge might be inferred, the trial court did not err by granting summary judgment to Drug Emporium.

As no evidence exists from which one can conclude that Drug Emporium had knowledge of the water, it is unnecessary to consider whether Sharfuddin had or should have had knowledge of the water.

5. The dissent has misconstrued and impermissibly redefined the burden on movants for summary judgment stated in Lau’s Corp. v. Haskins, which was not altered by Robinson v. Kroger Co., supra. Regarding the first prong of Alterman Foods in a foreign substance slip and fall case, Lau’s Corp. clearly sets forth the burden on defendants who move for summary judgment on the grounds no evidence supports the plaintiffs’ cause of action: “[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.” Lau’s Corp. v. Haskins, supra at 495.

Even after Robinson v. Kroger Co., plaintiffs in foreign substance slip and fall cases seeking to establish their cause of action must prove that the defendants had actual or constructive knowledge of the hazard, i.e., foreign substance, on the floor. Robinson v. Kroger Co., supra at 748; Alterman Foods, supra at 623; Hartley v. Macon Bacon Tune, 227 Ga. App. 679, 683 (490 SE2d 403); Coffey v. Wal-Mart Stores, 224 Ga. App. 824, 826 (482 SE2d 720). Although our Supreme Court in Robinson v. Kroger Co. modified the burden on the parties on the second prong of the elements of a foreign substance slip and fall case, the Supreme Court did not revise the contents of the first element nor modify the burden of proof on this element.

Thus, Robinson v. Kroger Co. did not change the fact that “[t]hese elements are part of the plaintiffs’ cause of action, and, consequently, are not affirmative defenses.” Hartley v. Macon Bacon Tune, supra at 684 (8). Therefore, under Lau’s Corp. a defendant/movant who seeks summary judgment because no evidence supports the first element of , a foreign substance of the plaintiff’s cause of action only “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.” Lau’s Corp., supra at 495.

As the burden the dissent would impose on Drug Emporium exceeds, and is different from, the burden set forth in Lau’s Corp. and Robinson v. Kroger Co., this effort to construct a new burden for defendants in slip and fall cases must fail because “ ‘[t]he decisions of the Supreme Court shall bind all other courts as precedents.’ Ga. Const. 1983, Art. VI, Sec. VI, Par. VI; Coffey v. Wal-Mart Stores, [supra at 827].” Hartley v. Macon Bacon Tune, supra at 682 (4). Further, after Robinson v. Kroger Co., there can be no reason to do so. Thus, “it is not useful for this Court to attempt to revise or redefine the burden stated in Lau’s Corp. so that a different burden appears to be placed on movants for summary judgment from the one stated in Lau’s Corp. at 495.” Bruno’s Food Stores v. Taylor, 228 Ga. App. 439, 452 (491 SE2d 881) (special concurrence). Of course, the burden of producing evidence on the second prong of these elements was changed by Robinson v. Kroger Co., supra at 747-749, but that is not an issue in this appeal.

Therefore, Drug Emporium has met its burden as a movant for summary judgment when the appropriate standards in Robinson v. Kroger Co., Lau’s Corp., and Alterman Foods are applied.

6. Moreover, Sharfuddin’s contention that Drug Emporium was under a burden to prove that its inspection program was in operation before she was required to show Drug Emporium’s prior knowledge of the water is not well taken. “Cases holding that a proprietor must first show that a reasonable inspection and cleaning program was used before the plaintiff is required to show how long the substance was on the floor either were decided before Lau’s Corp. eliminated the burden on movants to establish the nonexistence of any genuine issue of material fact or disprove the plaintiff’s cause of action, or were decided after Lau’s Corp. but erroneously relied upon implicitly overruled authorities decided before the decision in Lau’s Corp.

“Therefore, [Drug Emporium] had no burden to show that it had an inspection procedure in place. As [Sharfuddin] produced no evidence that [Drug Emporium] had any knowledge, actual or constructive, that the [water] was on the floor, [she] failed to carry [her] burden on one of the essential elements of [her] claim and [her] claim must tumble like a ‘house of cards.’ Lau’s Corp., supra.” Hartley v. Macon Bacon Tune, supra at 685. As this issue concerns the first prong of a slip and fall plaintiff’s cause of action, nothing in Robinson v. Kroger Co. alters this result. Accordingly, Sharfuddin’s contention is without merit.

Therefore, the trial court did not err by granting summary judgment to Drug Emporium.

Judgment affirmed.

Andrews, C. J., Pope, P. J., Johnson and Ruffin, JJ., concur. Blackburn and Eldridge, JJ., dissent.

Eldridge, Judge,

dissenting.

As much as the majority may wish, Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997), is applicable to this case. Robinson specifically singled out Blake v. Kroger Co., 224 Ga. App. 140 (480 SE2d 199) (1996), which dealt with constructive knowledge and the failure to prove compliance with the owner/occupier’s inspection policy. Quoting from Blake, the Supreme Court held, “ ‘[u]nder Lau’s Corp. [ v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991)], the defendant proprietor has no burden whatsoever on summary judgment to produce evidence to negate the plaintiff’s theory of recovery’; [cits.] Because the Lau’s Corp. decision modified the practical application of the [standard under] Alterman Foods[ v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980)], we must modify Alterman Foods somewhat in order to regain balance in the allocation of the burden of proof.” Robinson, supra at 747. “As a group, these rulings are suspect for several reasons. First, by routinely adjudicating as a matter of law questions of the plaintiff’s and defendant’s negligence, proximate cause, and the exercise of ordinary care, these decisions have made commonplace what is, in reality, an unusual circumstance in tort law, since ‘(a)s a general proposition, issues of negligence, contributory negligence and lack of ordinary care for one’s own safety are not susceptible of summary adjudication . . . but should be resolved by trial in the ordinary manner. The trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable.’ ” (Citations omitted.) Id. at 739. “Where reasonable minds can differ as to the conclusion to be reached with regard to questions of whether an owner/occupier breached the duty of care to invitees and whether an invitee exercised reasonable care for personal safety, summary adjudication is not appropriate. Pound v. Augusta National, 158 Ga. App. 166 (279 SE2d 342) (1981).” Id. at 740. “As a result, a defendant who moved for summary judgment achieved success by establishing either that it had no actual or constructive knowledge of the foreign substance, or that the plaintiff had been negligent by either confronting the hazard with actual knowledge of its presence or by failing to exercise ordinary care to ascertain the hazard’s presence. See Hilsman v. Kroger Co., 187 Ga. App. 570, 572 (370 SE2d 755) (1988) (Sognier, J., concurring specially): ‘The rule has been, and continues to be, that on motion for summary judgment, regardless of which party would have the burden of proof at trial, if a material fact has been alleged in the complaint, can be reasonably drawn from the pleadings, or has been raised by the evidence placed in the record by any party, the defendant-movant has the burden of proving the non-existence of that fact and it is not until the movant carries its own burden that the burden then shifts to the plaintiff-respondent. (Cits.)’ After this Court’s decision in Lau’s Corp. v. Haskins, supra, 261 Ga. 491, the weighty burden placed on slip- and-fall plaintiffs by Alterman Foods was made manifest.. Under Lau’s Corp., a defendant movant who did not bear the burden of proof at trial need no longer ‘affirmatively disprove the nonmoving party’s case; instead the burden on the moving party may be discharged by pointing out by reference to the . . . record that there is an absence of evidence to support the nonmoving party’s case.’ Id. at 491. Since the defendant had only to point to the deficiency in the plaintiff’s case and no longer had to affirmatively negate by the presentation of evidence an essential element of the plaintiff’s case, in order for a plaintiff to survive a motion for summary judgment, the plaintiff was required to establish both the defendant’s knowledge of the foreign substance and the plaintiff’s lack of negligence either before the defendant moved for summary judgment or in response to that motion. [Cits.]” Id. at 746-747. Plaintiff’s burden of coming forward with evidence is to raise a material issue of fact, not conclusively prove the fact which is for the jury to decide. Thus, Robinson directly impacts when summary judgment is appropriate, even under the first prong of Alterman Foods.

The record and plaintiff’s evidence show that plaintiff suddenly slipped and fell after stepping in some drops of water on the floor within one foot of the end of the aisle nearest the pharmacy. She was not distracted either visually or auditorially at the time of her fall.

Plaintiff fell to the floor on her buttocks and back. Her feet went out in front of her. The fall was very sudden. Plaintiff had stepped on something that caused her to slip. After her fall, she saw on the floor a few small, separate drops of water near where her foot slipped and toward the center of the aisle. When she examined the drops of water, some had been smeared by her foot. She found the drops of water were located over an area of two to three inches. The water drops did not form a puddle. They were sprinkled over the three-inch area like drips. In appellant’s opinion, the water drops were as if someone had been cleaning and left the drops; it was not a splash or spatter because the water drops were separate and dispersed. In her opinion, there were approximately two tablespoonfuls of water making up the drops. After the fall, her clothes were not damp.

No warning signs were posted indicating that the floor was wet. Plaintiff did not see any employees with a mop, cleaning utensils, or bucket at any time either before or after the fall. The affidavits of the defendant’s employees state precisely that there were no cleaning materials in the vicinity of plaintiff’s fall but said nothing about when they had last mopped. However, the affidavits did not say that no routine cleaning had taken place that evening at the time of the fall and stated only that there were no cleaning materials in the area of the fall. Doug Horn, the store manager, testified in his first affidavit that the store was mopped and swept routinely twice daily, “once in the morning and again in the evening. This policy was followed on December 14, 1994.” (Emphasis supplied.)

Plaintiff did not see the water drops prior to her fall. In the general area just before the location of her fall, plaintiff saw black scuff marks, some of which were straight and others diagonal to the aisle. The scuff marks appeared to have been caused from dragging something across the floor. The black scuff marks did not have water drops across them. Plaintiff testified that the small number and pattern of water drops appeared to her to have resulted from someone dripping water while cleaning, instead of from a splash or splatter. This lay opinion based upon a factual predicate in conjunction with Horn’s testimony that routine cleaning had occurred that evening creates a factual issue as to the defendant’s actual or constructive knowledge of its own acts.

The majority seeks to exclude such lay opinion evidence, because it creates a jury question. This will be the post -Robinson methodology to dispose of premises liability cases — use either Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986) or some other evidentiary pretext to exclude plaintiff’s evidence which creates a jury question and which the Court cannot do on summary judgment on the record in this case. Is it any wonder then that cases in the area of slip and fall from this Court the Supreme Court finds “[a]s a group, these rulings are suspect. . . .” Robinson, supra at 739.

However, OCGA § 24-9-65 reads: “Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor. If the issue shall be as to the existence of a fact, the opinions of witnesses shall be generally inadmissible.” The Supreme Court has held that non-expert opinion evidence as to maintenance of floors was admissible as a matter in the common experience of laypersons when the factual basis and reasons were given, and such non-expert opinion evidence was sufficient to defeat summary judgment. Martin v. Sears, Roebuck & Co., 253 Ga. 337, 338 (320 SE2d 174) (1984). “The evidence given involves the kind of information which is within the common knowledge and experience of men. OCGA § 24-9-65.” Horton v. State, 258 Ga. 489, 490 (4) (371 SE2d 384) (1988). “The conclusion of a non-expert witness, or his opinion, is admissible when predicated upon facts stated by the witness.” Dean v. Littleton, 161 Ga. 651, hn. 1 (131 SE 507) (1926); see also Atlantic Coast Line R. Co. v. Godard, 211 Ga. 373 (86 SE2d 311) (1955). When a nonexpert witness observed the matter in issue and cannot adequately state or describe the data so fully or accurately to place the jury in the place of the witness when the observation was made to enable them to equally draw the inference from such data, the witness may state an opinion after providing the factual basis and reasons for such opinion. McGahee v. Phillips, 211 Ga. 118 (84 SE2d 19) (1954); Atlantic Coast Line R. Co. v. Blount, 116 Ga. App. 86 (156 SE2d 409) (1967). To the extent that a lay witness qualifies testimony as to facts as a belief, opinion, or conclusion, this is admissible as fact not opinion. Faucette v. State, 71 Ga. App. 331 (30 SE2d 808) (1944). Clearly, anyone who has used a mop or observed someone else use a mop would be able to formulate an opinion that drops of water looked as if dripped from a mop. The majority has gone to great lengths, chanting the exclusion mantra: “vague and equivocal,” “unfounded assumptions,” “unauthorized,” and “self-contradictory,” to exclude the plaintiff’s factual description of what she saw and how she explained the particular droplet pattern of small drops of water that fits the description like no other of a dripping mop, so that the majority then can say that another customer may have made such unusual pattern. Has Robinson taught us nothing?

After her discovery of the water drops, plaintiff smeared the drops more with her foot to make it dry for others’ safety. She informed the pharmacist that she had fallen. The manager came and talked to her. She took him to where she fell and pointed out the location of the water drops. The manager and other employees inspected the area, but found no water drops and denied that any had been present, which creates a material conflict in evidence.

“The plaintiff may make out a cause of action by showing an act or omission on the part of the defendant which was the proximate cause of [her] injury and which could not have been avoided by the plaintiff through the exercise of ordinary care. See, Hogg v. First National Bank, 82 Ga. App. 861 (62 SE2d 634) (1950).” Alterman Foods v. Ligon, supra at 623-624. When the slippery condition was thus created by the Active negligence of the owner/occupier’s employees or by their maintenance of the premises, such active negligence imputes actual or constructive knowledge to the owner/occupier. Lipham v. Federated Dept. Stores, 263 Ga. 865 (440 SE2d 193) (1994); Martin v. Sears, Roebuck & Co., supra at 338; Alterman Foods v. Ligon, supra at 623-624; American Nat. Bank &c. v. Howard, 117 Ga. App. 834 (161 SE2d 838) (1968); Angel v. Varsity, Inc., 113 Ga. App. 507 (148 SE2d 451) (1966). Thus, under the allegations of the complaint as framed, defendant would have constructive knowledge of the residue drops of water from its routine evening cleaning and superior knowledge. Plaintiff lacked equal knowledge, and by the testimony of the defense’s own witnesses, the water drops could not be seen or even found to exist; the dispute as to the existence of the water creates a jury question.

In this case, plaintiff testified that, in her opinion, the small water droplets looked like they had dripped “like just somebody has cleaned it or left, you know, like cleaning stuff, but not like a splash. It was not like a splash.” Such testimony gives rise to the reasonable inference that the water pattern of small drops came from a dripping mop while cleaning the floor and not like something that had made a splash or a spill as if caused by another customer. When the plaintiff gives an opinion based upon the facts that she observed regarding defendant’s negligent maintenance, such opinion testimony satisfies Alterman Foods v. Ligon, 246 Ga. at 622, and creates a fact question for the jury. See Martin v. Sears, Roebuck & Co., supra at 338. Further, the small area of water droplets was in close proximity to a number of straight and diagonal scuff marks on the middle of the aisle, which looked like something heavy had been dragged across the floor by an employee, marring the floor surface. This evidence gives rise to the reasonable and favorable inference that an employee, as part of routine afternoon cleaning and maintenance, attempted to remove the black marks and caused the small water droplets. The weather was dry, and there had been no ice, rain, sleet, or snow, so that it is not a reasonable inference that the water had been tracked into the store as a foreign substance. The appellant testified that the water appeared to have been dripped on the floor and not spilled or splashed. If, in cleaning the floor, an employee left water drops on the floor and failed to clean them up, then this is active negligence, and knowledge is presumed. Alterman Foods v. Ligon, supra at 623-624; American Nat. Bank &c. v. Howard, supra. This satisfies the first prong of the Alterman Foods test, and the issues raised should be decided by a jury.

Decided February 20, 1998

McCurdy & Stone, John D. Stone, for appellant.

“The purpose of the Summary Judgment Act is to eliminate the necessity for a trial by jury where, giving the opposing party the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence, there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. . . . On a motion for summary judgment the burden of establishing the nonexistence of any genuine issue of material fact is upon the movants and the evidence must be construed most strongly against them” (Citations and punctuation omitted; emphasis supplied.) Alterman Foods v. Ligon, supra at' 625. “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards.” Lau’s Corp. v. Haskins, supra at 491; OCGA § 9-11-56 (c).

I am authorized to state that Judge Blackburn joins in this dissent.

Hicks, Casey & Barber, Mark A. Barber, Richard C. Foster, Sharon C. Barnes, for appellee.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A97A2188.
    MONTAG v. SUTHERLAND et al.
    (498 SE2d 86)
    Decided February 20, 1998.

      Ralph J. Villani, for appellant.

      Hawkins & Parnell, Howell Hollis III, for appellees.
   Ruffin, Judge.

Jeffrey B. Montag sued attorneys Marsha Sutherland, Darryl Cohen, the law firm where Sutherland and Cohen worked, Katz, Smith & Cohen, and other named partners in the firm (collectively “the defendants”) for legal malpractice arising from Cohen’s and Sutherland’s representation of Montag in defense of a DUI charge in Gwinnett County. Montag subsequently dismissed the suit without prejudice, and the defendants moved for an award of attorney fees pursuant to OCGA § 9-15-14. Montag in turn filed his own motion for attorney fees under OCGA § 9-15-14. Without holding a hearing and making findings of fact, the trial court denied Montag’s motion for attorney fees and granted the defendants’ motion, awarding them $1,208 in fees. We reverse.

Montag enumerates as error the trial court’s fáilure to hold a hearing prior to awarding the defendants attorney fees and in failing to include findings of conduct that supported the award. The defendants do not contest Montag’s argument, stating that they “agree that the trial court should have conducted a hearing and should have entered findings of fact and conclusions of law on said motion.” We agree with both parties, as it is clear that “since the trial court’s order does not include findings of conduct which would authorize an award of attorney fees under OCGA § 9-15-14, the trial judge’s order must be vacated. [Cits.]” Hardwick-Morrison Co. v. Mayland, 206 Ga. App. 426, 427 (425 SE2d 416) (1992). See also Porter v. Felker, 261 Ga. 421, 422 (3) (405 SE2d 31) (1991).

Accordingly, we reverse and remand the case “with direction that the trial judge vacate the order, prepare appropriate findings of fact and enter a new judgment thereon, after which the losing party may appeal.” Mayland, supra.

Judgment reversed and remanded with direction.

Birdsong, P. J., and Eldridge, J, concur.


author: Smith, Judge.

text:
    A97A2374.
    CANTRELL v. THE STATE.
    (498 SE2d 90)
   Smith, Judge.

Jeffery James Cantrell appeals from the judgment entered on a jury verdict finding him guilty of the armed robbery of a Golden Gallon convenience store in Dalton, Georgia. He challenges the sufficiency of the evidence introduced against him, as well as the introduction of independent offenses. Finding no error, we affirm.

In this fact-driven appeal, the evidence is examined in a light most favorable to the verdict. As such, the evidence demonstrated that Cantrell and a co-defendant, Albert (“AT) Davis, engaged in a series of convenience store robberies along 1-75 in Tennessee and Georgia.

In its case-in-chief, the State first showed that at 3:00 a.m. on May 30, 1996, co-defendant Davis entered a Golden Gallon convenience store near 1-75 on Lee Highway in Chattanooga, Tennessee. Davis wore a green hat with an Olympic logo and a multi-colored shirt. He had a cloth in his hand, which he held over the lower portion of his face. Davis threatened the store clerk, Lisa Smith, and ordered her to give him money from the cash drawer. She did so. She did not see a weapon. Ms. Smith watched Davis exit the store, cross the street, and get into an older model, grey/blue car, “sort of like an Impala.” Davis entered the passenger side of the Impala. The car had a white license tag with red letters and numbers. The vehicle headed in the direction of 1-75.

Four hours later, the indicted offense occurred. Davis entered a Golden Gallon convenience store on Walnut Avenue in Dalton, Georgia, one mile from 1-75 in Whitfield County. The store was located approximately 30 miles from the site of the earlier robbery. Davis had a cloth wrapped around his head, masking the lower portion of his face. He was wearing a multi-colored jacket. Davis demanded that the store clerks give him money from the cash drawer. With his left hand in his pocket, as if holding a weapon, Davis threatened the employees, stating: “I have a gun, and if you don’t do as I say I’ll kill both of you.” The store clerks gave him the money. They did not see a weapon. Davis then ordered the clerks into a back room.

During this exchange, a customer had entered the Golden Gallon. Davis did not see him. The customer ascertained the situation and hid behind some shelves. When Davis left the store, the customer got into his car and followed him.

Minutes later, the Dalton Police Department received a radio lookout for robbery suspects in an older model, blue/grey Chevrolet Impala with Tennessee tags. The suspect vehicle was stopped on I-75, one mile north of the Walnut Avenue exit, heading back to Chattanooga. The time between the initial robbery call and the stop was approximately ten minutes. Cantrell was driving the Impala; Davis was the passenger. A wad of money lay on the front seat between the passenger and driver; a green hat with an Olympic logo was also on the front seat. Various articles of clothing were in the back seat, including a multi-colored jacket. The car’s Tennessee tags were red and white. The Impala belonged to Cantrell, who had bought it for his girl friend.

A store clerk from the Dalton Golden Gallon identified the jacket in the back seat as the one worn by the perpetrator. A photographic lineup was prepared, and Lisa Smith from the Chattanooga Golden Gallon identified Davis as the perpetrator of the robbery earlier that morning. Ms. Smith identified the blue/grey Impala as the vehicle in which she saw Davis, as a passenger, flee. She also identified the green hat as the one worn by Davis during the robbery.

The State then introduced a similar transaction involving a robbery committed in Chattanooga, Tennessee, on May 27, 1996, three days prior to the May 30 offenses. In that incident, Cantrell, not Davis, entered the Favorite Market on Lee Highway near 1-75. The Favorite Market is located only two or three miles from the Chattanooga Golden Gallon. A towel was draped over Cantrell’s hand, which he held over the lower portion of his face. He ordered the store clerk, Mark Arnold, to give him money out of the cash drawer. Mr. Arnold complied. He did not see a weapon. Cantrell then ordered him into a back room. Later, Mr. Arnold was shown a photographic lineup and positively identified Cantrell as the perpetrator of the Favorite Market robbery. During trial, Mr. Arnold made an in-court identification of Cantrell as the perpetrator.

Cantrell testified on his own behalf at trial. Although he had previously told the police that “A1 [Davis] has been with me for three or four days,” at trial Cantrell stated that the May 30 Golden Gallon robberies had been committed solely by Davis without Cantrell’s knowledge. As to the Chattanooga Golden Gallon robbery, Cantrell testified that Davis “used my car for a few hours” while Cantrell ate a . steak at a friend’s house. As to the Dalton Golden Gallon robbery, Cantrell testified that “A1 went to get a pack of cigarettes. He come back, jumped in the floorboard and told me to drive away. I drove away. ... I get pulled over and charged with armed robbery.” Finally, as to the similar transaction robbery at the Favorite Market, Cantrell testified: “I’ve never been in that store in my entire life.”

1. Cantrell first challenges the trial court’s denial of his motion for directed verdict.

“The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction.” (Citation and punctuation omitted.) Carter v. State, 222 Ga. App. 397 (1) (474 SE2d 228) (1996). To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Carter, supra.

In this case, Cantrell contends the State’s circumstantial evidence showed only that he was “merely present” as the driver of the Impala and failed to demonstrate that he knew of Davis’ robbery plan before it was carried out. We disagree. Evidence was presented that (1) Cantrell himself had committed the same type of convenience store robbery three days earlier; and (2) the driver of the Impala, Cantrell, had used the vehicle as a getaway car for another Golden Gallon robbery four hours earlier. This circumstantial evidence was sufficient to raise the inference that Cantrell knew of the Dalton Golden Gallon robbery plan.

Cantrell also argues that no evidence identified him as the driver of the Impala during the earlier robbery so as to support the above inference. Again, we disagree. The evidence showed that someone other than Davis drove the Impala away from the Chattanooga Golden Gallon robbery; the car belonged to Cantrell, since he bought it for his girl friend; Cantrell referred to the vehicle as “my car”; testimony and photographic evidence was presented that Cantrell and Davis had been virtually living in the Impala for days; Cantrell drove the car wherever he and Davis went; and Cantrell was driving the vehicle when it was stopped immediately following the second robbery, only four hours after the first. Further, the money from the most recent robbery was oh the seat between the two men, and articles of clothing strewn about the car were identified by witnesses from both May 30 robberies. In addition, Cantrell was clearly not averse to participation in a robbery, as evidenced by his commission of one three days earlier. We find this circumstantial evidence was sufficient to raise the inference that Cantrell was the getaway driver during both Golden Gallon robberies.

In this circumstantial evidence case, as in all such cases, it was for a jury to decide “whether the circumstances were sufficient to exclude every reasonable hypothesis save the guilt of the accused.” (Citation and punctuation omitted.) Miller v. State, 163 Ga. App. 406, 408 (294 SE2d 614) (1982). The jury heard and obviously rejected appellant’s contention that he was unaware Davis intended to rob the Dalton Golden Gallon. We find the evidence supporting appellant’s role, both direct and circumstantial, was sufficient as a matter of law to support his conviction as a party to the crime of armed robbery. OCGA § 16-2-20 (b) (3), (4); Miller v. State, supra at 408.

2. Cantrell next challenges the admissibility of the May 30 robbery at the Chattanooga Golden Gallon, which took place approximately four hours before the robbery for which Cantrell was tried. He contends (a) the State failed to provide notice of the intent to introduce that robbery as a similar transaction pursuant to Uniform Superior Court Rule 31.1; and (b) insufficient evidence of “identity” was presented to permit its introduction as a similar transaction. These contentions are without merit.

(a) The trial court admitted the earlier robbery as part of the res gestae of the indicted offense, not as a similar transaction. Thus, the notice provisions of Uniform Superior Court Rule 31.1 were inapplicable. See Stirrat v. State, 226 Ga. App. 350, 352-353 (2) (b) (486 SE2d 640) (1997).

(b) A trial judge’s determination as to the admissibility of res gestae evidence will not be disturbed on appeal unless that determination is shown to be clearly erroneous. Sypho v. State, 175 Ga. App. 833, 835 (3) (334 SE2d 878) (1985); Vick v. State, 211 Ga. App. 735, 737 (404 SE2d 508) (1994). We find no error in the trial court’s res gestae determination.

3. Finally, Cantrell contends that the May 27 robbery at the Favorite Market was too dissimilar to be admissible as a similar transaction. We do not agree.

“It is well settled that there need not be a criminal charge or conviction relating to a similar offense for it to be admissible. Although a prosecution may fall short of proving a criminal offense, evidence as to certain conduct may nevertheless be admissible in a trial of another offense if the State shows . . . the conduct or transaction is similar to or has a logical connection to the offense being tried.” (Citations and punctuation omitted.) Brown v. State, 201 Ga. App. 473, 474-475 (2) (411 SE2d 360) (1991); Randolph v. State, 198 Ga. App. 291, 292 (2) (401 SE2d 310) (1991). “While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Citations and punctuation omitted.) Looney v. State, 221 Ga. App. 224, 225 (471 SE2d 243) (1996).

In this case, the similarities between the independent offense and the indicted offense in terms of time frame, area location, targeted stores, and modus operandi are such that “proof of the former tends to prove the latter.” (Citations and punctuation omitted.) Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). Evidence of Cantrell’s prior conduct created an inference directly related to his knowledge and intent with regard to the indicted offense, i.e., that he was well aware of and condoned what Davis was doing inside the Dalton Golden Gallon, having himself done the same thing, in the same manner, in the same area, in the same type of store only three days earlier. We find no error.

Decided February 20, 1998.

Swift, Currie, McGhee & Hiers, Michael C. Cherof, for appellant.

Jeffery J. Cantrell, pro se.

KermitN. McManus, District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

        West v. State, 224 Ga. App. 190 (480 SE2d 238) (1997).


author: Johnson, Judge.

text:
    A97A2433.
    HEMMERICH v. SOUTHEAST PROPERTIES GROUP, L.P.
    (498 SE2d 87)
   Johnson, Judge.

Marsha Hemmerich appeals the trial court’s grant of summary judgment to Southeast Properties Group, L.P. (“Southeast”). Southeast filed a dispossessory action on the bases that the tenant had not paid rent and was holding over beyond the term. The trial court found that Southeast was entitled to immediate possession of the premises.

Hemmerich, who does business as The Commerce Cafe, became a tenant under a commercial lease with Southeast by virtue of a second assignment and assumption of a lease. The original lease was executed on June 15, 1989, by Commerce Center Partners, Ltd., as landlord, and John Chris Adams and Maurene S. Adams, d/b/a The Commerce Cafe, as tenant. Paragraph 4 of the lease provides, “Tenant agrees to pay Landlord throughout the Term of this Lease as rent for the Premises and utilities the sum specified [in Special Stipulation No. 1] payable in advance without notice on or before the first day of each successive calendar month during the Term hereof.”

In December 1992, COM Realty, Inc., the successor-in-interest to Commerce Center Partners, Ltd., as landlord, and John and Maurene Adams, d/b/a The Commerce Cafe, as tenant, amended the lease. The amendment modified the expiration of the lease term to March 31, 1997, and changed the amount of the monthly rent and the date the monthly rent was due. Specifically, the rent was changed to eight percent of the tenant’s gross sales per month, but no less than $1,000 per month. In addition, the tenant was required to supply a copy of its Georgia Sales & Use Tax Report with the rent check for the prior month no later than the fifteenth of the month. On June 30, 1994, Hemmerich became lessee of the premises pursuant to a lease assignment by John and Maurene Adams. Hemmerich admits she understood the amendments required that the rent be received by the landlord on or before the fifteenth of each month.

On October 18, 1996, Hemmerich was advised that she was in default of the lease for failure to pay October rent and miscellaneous charges. As with at least one previous letter, she was advised that Southeast expected strict compliance with the lease terms, including the obligation to pay rent. She was also advised that she was in default for non-monetary obligations under the lease, such as failure to provide her Georgia Sales & Use Tax Reports. Hemmerich paid the October rent by hand-delivering a check to Southeast’s property manager on October 22, 1996. The November rent was paid on November 15, 1996.

Hemmerich made no objection to the October 18 default letter until December 13, 1996, when her attorney wrote a letter denying Hemmerich was in default. While Hemmerich’s attorney acknowledged in this letter that rent was due on the fifteenth of each month, Hemmerich failed to pay the December rent and past due charges on or before December 15, 1996.

On December 17, 1996, Southeast notified Hemmerich that the lease was terminated based on her failure to pay rent and other related charges when due. Southeast also demanded immediate possession of the premises. On December 18, 1996, Southeast filed its dispossessory action.

1. The trial court correctly found that no issue of material facts existed regarding Hemmerich’s failure to timely pay rent and her default under the lease. The lease clearly provides that an event of default is Hemmerich’s failure to pay any installment of rent when it is due. Upon the occurrence of such a default, Southeast has the option to terminate the lease pursuant to its provisions. When Hemmerich failed to pay the December rent and other charges on or before December 15, 1996, Southeast elected to terminate the lease. Hemmerich has no defense to Southeast’s claim that it is entitled to possession of the premises. See Dublin Pub v. Mut. Life Ins. Co. of New York, 191 Ga. App. 677, 678 (2) (382 SE2d 654) (1989); Eason Publications v. Monson, 163 Ga. App. 370, 371 (2) (294 SE2d 585) (1982).

According to Hemmerich, she was not in default because she placed the December rent check in the mail on December 13, 1996. Despite her argument, however, Hemmerich did not provide any evidence that Southeast received the December rent payment by December 15, and Southeast provided evidence that it did not receive the December rent payment until after December 15. While Hemmerich testified that Southeast had always accepted late payments after the fifteenth of each month without objection, she acknowledged that Southeast began sending her delinquency notices for late payments after April or May 1996. Even if it could be said that Southeast and Hemmerich had mutually departed from the terms of the lease, delinquency notices as early as April or May 1996 and Southeast’s September and October letters reasonably put Hemmerich on notice that Southeast intended to rely on the exact terms in the lease. See Father & Son Moving & Storage Co. v. Peachtree Airport &c., 229 Ga. App. 860 (495 SE2d 87) (1997); OCGA § 13-4-4. In addition, while Hemmerich contends the lease provision regarding “supplying” rent payments by the fifteenth day of each month was ambiguous, she admits that, according to the lease, rent payments were to be paid on or before the fifteenth of each month.

Contrary to Hemmerich’s contentions, any bad faith conduct on the part of Southeast does not change the fact that Hemmerich was in default of the lease. Whether Southeast sent false letters to Hemmerich regarding the quality of her food or whether Southeast discouraged other tenants from patronizing the cafe does not impact Hemmerich’s obligation to pay rent according to the lease. A party does not breach its obligation of good faith where it exercises a right which it has under a contract. Automatic Sprinkler Corp. v. Anderson, 243 Ga. 867, 868-869 (257 SE2d 283) (1979); Southern Business Machines v. Norwest Financial Leasing, 194 Ga. App. 253, 256 (2) (390 SE2d 402) (1990). Furthermore, there is no claim or evidence that any allegations of bad faith on the part of Southeast prevented Hemmerich from timely paying her rent. The trial court correctly determined that no material issues of fact existed regarding Hemmerich’s default under the lease.

2. Hemmerich further contends she exercised her lease extension option because she substantially complied with the terms of the lease. We disagree.

A second amendment to the lease granted Hemmerich the option to extend the initial lease term for an additional five years. Specifically, the second amendment provided, “So long as Tenant is not in default hereunder and the quality of the food is acceptable to Landlord, Tenant shall have the right and option to extend the initial Lease Term for one (1) additional period of five (5) years beyond the initial Lease Term at the then current market rate and upon delivery of written notice of the exercise of such option not later than one hundred eighty (180) days prior to the Termination Date.” According to Southeast, 180 days prior to the termination date of the lease, Hemmerich was in default for failure to pay August and September rent and other charges and neither Southeast nor its representatives received any written notice that Hemmerich desired to exercise her lease extension option.

Paragraph 27 of the lease provides that all notices should be mailed by U. S. mail, postage prepaid, certified/return receipt mail, or personally delivered by a commercial carrier service. Hemmerich admits that prior to October 24, 1996, when her husband sent a copy of the handwritten letter dated July 1, 1996, to Southeast by facsimile, the only method she used to deliver the alleged written notice of the exercise of the option was by laying it on the desk in the property manager’s office. She further admits that no one was in the office when she delivered the notice. Hemmerich and her husband were both informed that Hemmerich had failed to properly exercise the option.

Decided February 20, 1998.

Evan M. Altman, David J. Salome, for appellant.

Harman, Owen, Saunders & Sweeney, Perry A. Phillips, Hicks, Casey & Barber, Mark A. Barber, for appellee.

Contrary to Hemmerich’s assertion, this case is not “on all fours” with Labat v. Bank of Coweta, 218 Ga. App. 187, 190 (4) (a) (460 SE2d 831) (1995). In Labat, the agreement at issue allowed the bank to close an account by mailing a notice with a check for the balance. Instead, the bank notified Labat in person and hand-delivered her a check for the balance in the account. The parties agreed that notice was received. We held that personally notifying the individual and hand-delivering the check were substantial compliance with the agreement. Id.

In the present case, however, although Hemmerich claims she left her notice on the desk of Southeast’s property manager, Southeast claims it never received the notice. Hemmerich did not have the notice personally delivered by a common carrier service or otherwise follow the lease terms regarding the extension option. Based on these facts, we do not find that Hemmerich substantially complied with the terms of the lease. As in Turman v. MacLachlan, 257 Ga. 69 (1) (354 SE2d 825) (1987), the lease was not renewed as a matter of law and, therefore, expired on March 31, 1997. The trial court properly granted summary judgment to Southeast and entered a writ of possession in favor of Southeast.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


text:
    A97A2354.
    ASBELL et al. v. BP EXPLORATION & OIL, INC.
    (497 SE2d 260)
   Johnson, Judge.

Elizabeth Asbell, as next of kin and the administratrix of the estate of James Douglas Hill, Eddie Huntley and Robin Patrice Huntley filed an action against BP Exploration & Oil, Inc. (“BP”), Terrance Lamar Andrews, Marcus Emilio Davis, Gary Deandre Bulger, and John Doe. The Asbell claim pertains to the shooting death of Hill, which occurred at a Northside Drive BP service station on October 24, 1993. The Huntley claims arise from a shooting and injury claim of Eddie Huntley, which occurred at a Headland Drive BP service station on November 30, 1993, and a related loss of consortium claim filed by Robin Huntley. The trial court granted BP’s motion for summary judgment, and Asbell and the Huntleys appeal. We affirm.

The record shows that on October 24, 1993, Hill was working at the Northside Drive BP when Andrews, Davis and Bulger (collectively referred to as the “perpetrators”) attempted to rob the service station and shot Hill. Hill was employed by Ronald Dean, an independent dealer, who operated the Northside Drive BP service station pursuant to a Dealer Lease and Supply Agreement with BP.

According to Andrews and Bulger, they stopped at the Northside Drive BP to pick up money from Andrews’ mother, Linda Fowler, who was employed there. Andrews testified he entered the service station to purchase cigarettes and that he inadvertently pulled his gun from his pocket and it ended up on the counter in front of the cash register. A struggle over the gun ensued, and it discharged, striking and killing Hill. Andrews pled guilty to felony murder, but stated that he did so to help his friends get lesser sentences. Andrews denied that he intended to take money from Hill or commit any crime.

On November 30, 1993, Eddie Huntley was shot by an unknown assailant during an armed robbery while working at a BP convenience store located on Headland Drive. The property and physical building were owned by BP, but operated by Gerald Arienzo pursuant to a Dealer Lease and Supply Agreement.

The complaint alleged that BP owned and participated in operating the Northside Drive and Headland Drive BP locations, that BP breached its duty to keep the premises safe from unlawful acts, that BP breached its duty to keep the premises in proper repair, that BP knew or should have known that its service stations were targets of crime in part due to the design of its shops, that BP failed to provide appropriate security devices, that BP knew or should have known that there had been incidents of criminal activity at and in the area surrounding the Northside Drive and Headland Drive BP locations prior to each of the incidents at issue, and that BP maintained a private nuisance due to the possibility of crime at the Northside Drive and Headland Drive BP locations.

1. In their first two enumerations of error, Asbell and the Huntleys contend the trial court erred in concluding as a matter of law that BP fully parted with possession of the subject locations, had no right to control the operations of the subject locations, and did not participate in the time, method and/or manner of operations at the subject locations. We disagree.

Contrary to Asbell’s allegation that BP participated in the operations at the Northside Drive BP, the evidence established that the Northside Drive BP was at all times operated by Dean pursuant to the Dealer Lease and Supply Agreement between BP and Dean. Dean was at the time of this incident, and still is, an independent dealer and the CEO of Northside Gulf, Inc. Northside Gulf, Inc. operates the Northside Drive BP. Dean’s company has operated the 24-hour service station at Northside Drive since about 1977. Prior to entering into the agreement with BP in 1989, Dean operated under a lease agreement with Gulf Oil.

BP owns the property at the Northside Drive location and leases the premises to Dean. Dean testified as follows: “I operate any way I want, per se, as long as it’s good business practices. In other words, I’m relatively free to conduct business as the business goes. It’s a service station, service bay work, convenience store, so there [are] really no restrictions.” Dean controls the operation of the Northside BP station according to his desires within the purview of the dealer agreement. Although he is required to sell BP gasoline, he can sell any brand of tires, batteries and accessories. He institutes his own policies, such as restricting the presence of family members during work hours. He also installed video cameras in the service station, without the knowledge or participation of BP, so he could monitor store activity.

The Headland Drive BP facility was owned and operated by BP until BP and Arienzo signed the Dealer Lease and Supply Agreement in 1992. Arienzo testified that the only product he is required to purchase from BP as part of the Dealer Lease and Supply Agreement is gasoline; Arienzo purchases oil and other products for retail sale from other suppliers. Arienzo is allowed to set his own prices and is only asked to be competitive. In addition, while the Dealer Lease and Supply Agreement specifies that the convenience store should be open twenty-four hours each day, seven days a week, Arienzo testified that eighteen hours is sufficient.

The Dealer Lease and Supply Agreements, which are essentially identical for these two facilities, provide, “[i]t is mutually agreed that the business conducted by Dealer at the Facility is the independent business of Dealer, and this Agreement shall not be construed as reserving to or conferring upon BP any right to direct or control Dealer or any of Dealer’s employees in the conduct of Dealer’s business.”

The Dealer Lease and Supply Agreements at issue do not support a finding that BP controlled the dealers’ time, method, or manner of operations, but merely set forth the terms and conditions under which the dealers were permitted to operate a facility using the name “BP.” The rules and regulations within the Dealer Lease and Supply Agreements simply impose various building, construction and/or operational requirements as a means of permitting BP to achieve a certain level of quality and uniformity within its system. See Anderson v. Turton Dev., 225 Ga. App. 270, 273 (2) (483 SE2d 597) (1997). BP can require results in conformity with the dealer agreements without creating an agency relationship. See Holiday Inns v. Newton, 157 Ga. App. 436, 437 (278 SE2d 85) (1981).

Moreover, as with the use of distinctive colors and trademark signs, the requirement that a dealer’s employees wear uniforms which display a company logo or emblem does not evidence control by BP, but represents no more than notice that BP’s products are being marketed at the station. See Texaco v. Youngbey, 211 Ga. App. 789 (440 SE2d 533) (1994). The trial court did not err in concluding that BP did not reserve the right to, or act to, control the day-to-day operations at either BP location under the Dealer Lease and Supply Agreements and that the plaintiffs failed to provide any evidence to support their arguments that BP controlled the time, method or manner of operations at either BP location. See generally McMullan v. Georgia Girl Fashions, 180 Ga. App. 228, 229 (2) (348 SE2d 748) (1986); Manis v. Gulf Oil Corp., 124 Ga. App. 638 (185 SE2d 589) (1971).

Since BP had fully parted with possession and control of the property to the dealers, its duties are limited to those imposed under OCGA § 44-7-14. See generally Plott v. Cloer, 219 Ga. App. 130, 131 (1) (464 SE2d 39) (1995). Pursuant to this statute, BP only owed a duty to ensure that the leased premises were properly constructed and maintained. Id. These issues are addressed below in separate enumerations.

2. Asbell and the Huntleys contend that the trial court erred in concluding as a matter of law that BP contractually delegated its duties of repair and maintenance to the BP dealers at the Northside Drive and Headland Drive facilities. We disagree.

With respect to maintenance at company-owned, dealer-operated facilities such as the Northside Drive and Headland Drive BP facilities, BP provided specified and limited items of maintenance. The dealer agreements provide that “Dealer further agrees at Dealer’s own cost and expense to maintain the Facility and BP’s equipment in accordance with the Maintenance Schedule attached as Exhibit E.” According to the dealer agreements, BP is responsible for maintaining the gallon or dollar totalizers on the fuel dispensing equipment after being informed by the dealer that maintenance was required. BP is also responsible for major repairs or modifications, in its discretion. The maintenance schedules provide the frequency of maintenance to be performed by the dealer and BP. Pursuant to the maintenance schedules, the dealer performs all daily and weekly inspections necessary to maintain the air compressor, lifts, pumps, tanks, heating and cooling, building, yard and exterior lighting. BP provides maintenance when notified by the dealer or as scheduled.

According to the Dealer Lease and Supply Agreements, the dealers were obligated to “[pjrovide a safe place to work for [his] employees, and maintain and operate the Facility in compliance with all applicable laws, regulations and rules concerning safety of the work place.” This provision reinforces BP’s contention that the duty of maintaining the premises in a safe condition is on the dealers. See Ragsdale v. Harris, 162 Ga. App. 888, 890 (293 SE2d 475) (1982).

The only allegation raised on the issue of failure to repair at the Headland Drive BP facility concerns the sufficiency of the exterior lighting. However, this claim fails since the Huntleys produced no evidence that inadequate lighting caused or contributed to Eddie Huntley’s shooting. See Jones v. Campbell, 198 Ga. App. 83, 85 (2) (400 SE2d 364) (1990); Brown v. RFC Mgmt., 189 Ga. App. 603, 605 (376 SE2d 691) (1988). In fact, Eddie Huntley testified that on the evening of the shooting, he saw a black male walking outside the facility and that he believed the man was suspicious because of the way the man was dressed. In addition, testimony established that the Headland Drive facility has a canopy which contains thirty-two lights, each having four hundred watts, and that the absence of four canopy lights and one yard/security light, located over one of the street driveway entrances, would have little effect on the adequacy of the exterior lighting.

3. There is no evidence in the record to support Asbell’s and the Huntleys’ allegations that the Northside Drive and Headland Drive BP stations were improperly constructed. According to their brief, there should have been fencing, protective barriers, and additional lighting and locks at the BP facilities. However, there is no evidence that a different building design would have prevented or decreased the likelihood of the criminal attack by the perpetrators.

With respect to fencing, the appellants’ expert faulted BP for not installing perimeter fencing around its retail locations, yet admitted he did not check to see whether such fencing would have violated the local building code and/or zoning requirements. Asbell and the Hunt-. leys also failed to establish how the installation of perimeter fencing would have prevented the shootings at these BP facilities.

Asbell and the Huntleys further failed to establish that the absence of a bullet-resistant partition around the cashier’s counter constituted negligent construction. The appellants’ expert testified that he is not aware of any data showing that protective barriers prevent or reduce crime in any way. This expert further testified that while working as a security consultant for other convenience store chains, he could not recall ever recommending the installation of bullet-resistant glass partitions and admitted that he was not aware of any industry standard regarding the installation or use of bullet-resistant glass partitions in convenience stores.

No evidence in the record indicates that the installation of a bullet-resistant partition constitutes an industry standard in the gasoline station/convenience store business. In fact, both Wayne Meding, who works with Chevron, and John Manelos, who works with Amoco, testified that their respective companies install bullet-resistant partitions in company-operated locations, but did not have a company policy regarding the installation of this type of partition in dealer-operated locations.

As for additional lighting and locks, the appellants’ expert admitted that lighting at the Northside Drive BP was not an issue. The Northside Drive BP also had a pass-through window, and Dean instructed his employees to keep the front door locked after 10:00 p.m. Furthermore, as stated in Division 2, the Huntleys’ claim regarding the sufficiency of the lighting lacked merit because they failéd to show how any such insufficiency caused or contributed to Eddie Huntley’s injury.

4. Even if BP retained some right to control the Northside Drive facility so that liability would be predicated on OCGA § 51-3-1, BP still is not liable for Hill’s murder because the robbery and murder of Hill at the Northside location were not foreseeable to BP. According to Dean, the Northside service station is located in a low crime area. Dean testified that he did not think robbery was a foreseeable event at the Northside Drive station and that there had been only two incidents at the service station in the 17-18 years that he operated the facility. While one of Dean’s employees was robbed in the early 1980s, the station was owned by Gulf Oil at the time of that incident. In addition, while another employee testified that he heard Hill may have been the victim of an earlier robbery, no evidence was presented regarding if and when this incident occurred. The evidence shows that BP was not and is not aware of any similar criminal activity that may have occurred at the Northside BP prior to Hill’s robbery and murder. BP did not monitor its dealer-operated service stations for criminal activity and did not require Dean to report criminal incidents to BP. BP did not have a duty to investigate police files to determine whether criminal activities had occurred on the premises. See Sun Trust Banks v. Killebrew, 266 Ga. 109 (464 SE2d 207) (1995).

Asbell relies on the testimony of a security expert to support her contention that Hill’s death was foreseeable because convenience stores were targets for crime and because the Northside location was located in a high crime area. However, the security expert testified that he did not have any statistical data to support his conclusion that the Northside Drive BP was located in a high crime area. He also acknowledged that he was not aware of any statistical data showing that glass enclosures reduced the risk of crime and contended the use of these devices depended on factors such as the conditions and circumstances involved in a given location or area. He also had no opinion as to whether the use of glass enclosures was standard in the industry and no opinion as to what the trend was as far as the frequency of robberies at convenience stores.

Furthermore, while Asbell argues that this incident was foreseeable because the day after Hill was murdered, bullet-resistant glass was installed at the Northside Drive BP, the evidence shows that Dean made the decision to install this glass and paid for its installation. BP had no involvement in the purchase or installation of the glass at the facility.

The trial court did not err in concluding that the criminal attack on Hill was not foreseeable to BP.

5. Asbell and the Huntleys further contend that the trial court erred in concluding as a matter of law that BP is not liable because, according to the appellants, BP had specific knowledge of the danger of robbery, undertook to provide security, and provided inadequate security.

The evidence does not show that BP had specific knowledge of the danger of robbery at the Northside Drive and Headland Drive BP locations. Asbell and the Huntleys contend the Metro Armed Robbery Squad (“MARS”) and the Southeastern Petroleum Association (“SEPA”) were formed as a result of the high incidence of crime at convenience stores, and that these associations provided knowledge to BP of the danger of robbery. However, the appellants’ statements in their brief are inaccurate. MARS was formed in 1991 by the FBI because of a high incidence of bank robberies in Atlanta. When a source of funding became needed, MARS approached petroleum companies because “[t]hey have money and they’re big companies,” not because of an unusually high crime rate at convenience stores. Likewise, SEPA was formed to provide an agency for funding MARS and to provide a liaison agency for security issues for petroleum companies operating in the Southeastern United States. An FBI agent used a bank robbery chart when he made his presentation to SEPA and was trying to convince SEPA to support MARS.

As stated in Division 4, there was no evidence that the robbery and murder at the Northside Drive station were foreseeable to BP. As for the Headland Drive station, a Vulnerability Analysis Site Report performed in November 1990, when this location was company-operated, indicated that the crime rate in the area was “moderately low.” Contrary to the appellants’ allegations, there is no evidence that Arienzo was informed by BP that the general area would be difficult to operate in because of crime; he was told it would be “[t]ough from a standpoint of profit.”

The Dealer Lease and Supply Agreements specifically state that the dealers are required to “[pjrovide a safe place to work for [his] employees, and maintain and operate the Facility in compliance with all applicable laws, regulations and rules concerning safety of the work place. Dealer shall provide all employees with adequate training concerning workplace safety and safe work practices. . . . Dealer acknowledges that safety of the workplace is Dealer’s responsibility and not BP’s.”

BP provided limited security assistance to company-owned, dealer-operated locations such as those at Northside Drive and Headland Drive. For example, BP provided pre-employment screening for a fee, assistance with credit card fraud investigation, a reward program for information leading to arrests and convictions, and the installation of pass-through cash windows at some locations. For these types of facilities, BP did not administer company guidelines regarding security, did not perform security vulnerability assessments, and did not perform any security upgrades. BP neither employed security personnel nor represented that it provided security of any type. Hill’s and Eddie Huntley’s injuries were the result of the independent, criminal conduct of third persons which occurred on premises over which the dealers had complete control. See Plott, supra. While BP’s Security Department provides assistance to dealer operations upon request, the dealer agreements make it clear that BP does not undertake a duty to provide a safe and secure workplace.

Dean testified that he installed three video cameras in 1992 when he converted the Northside Drive BP facility to a convenience store. These cameras were paid for by Dean and installed by a company hired by Dean, without the knowledge or assistance of BP.

According to Arienzo, BP gave him the option of purchasing the security system it had in place at the Headland Drive facility when he signed the Dealer Lease and Supply Agreement, but Arienzo thought it was too costly and replaced BP’s system with his own security system. Subsequently, Arienzo asked BP to install protective glass near the cash register, but was told that BP’s policy was that dealers could install the glass at their own expense after submitting remodeling plans to BP for approval. Although a BP representative told Arienzo it was against BP policy, Arienzo kept a gun under the store counter.

BP did not maintain control over the Northside Drive and Headland Drive facilities so as to require it to keep the premises and approaches safe pursuant to OCGA § 51-3-1. Moreover, BP did not assume that responsibility, but specifically stated in the dealer leases that it was the dealer’s responsibility to provide a safe and secure workplace. According to the record, both dealers assumed that responsibility. Although the appellants’ expert sets out additional security measures that were available, such as those discussed in Division 3, it was not BP’s responsibility or decision to implement them • at dealer locations such as Northside Drive and Headland Drive. This enumeration lacks merit.

Decided February 9, 1998

Reconsideration denied February 23, 1998

Bauer & Deitch, Gilbert H. Deitch, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Wayne D. McGrew III, Adam L. Appel, McLain & Merritt, William S. Sutton, for appellee.

6. Asbell and the Huntleys maintain that BP was a concurrent proximate cause with co-defendants Andrews, Davis and Bulger for the robbery of Eddie Huntley and murder of Hill because BP did not keep the Headland Drive and Northside Drive stations safe or did not properly construct and repair the stations. Since we previously determined that BP did not owe any duty to provide a safe workplace, and since we previously determined that BP did not breach its duty to properly construct and repair the Northside Drive and Headland Drive facilities, this enumeration of error lacks merit.

7. The trial court did not err in concluding as a matter of law that it did not need to rule on the appellants’ claim for nuisance (OCGA § 41-1-1) because BP had fully parted with possession of the BP locations. Without an agency relationship, BP cannot be found responsible for the creation and/or existence of any alleged private nuisance. See generally Colquitt v. Rowland, 265 Ga. 905, 906-907 (1), (2) (463 SE2d 491) (1995); Howell Gas of Athens v. Coile, 112 Ga. App. 732, 737 (1) (146 SE2d 145) (1965).

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


text:
    A97A2588.
    BAYER v. THE STATE.
    (497 SE2d 266)
   Johnson, Judge.

A jury found Brian Bayer guilty of driving under the influence of alcohol to the extent it was less safe to drive, speeding, and driving with an open container of alcohol. Bayer appeals. We affirm.

Viewed in the light most favorable to support the verdict, the evidence showed that Bayer went to a friend’s house on the evening of the arrest. While there, Bayer drank beer. After leaving his friend’s house, Bayer was stopped by a police lieutenant after his radar calculation and visual speed estimation showed Bayer traveling at approximately 60 mph in a 45 mph speed zone.

The officer testified that Bayer’s vehicle smelled of alcohol, that Bayer had bloodshot, watery eyes, a flushed face, and slurred speech, and that Bayer fumbled for his license and had difficulty opening the glove box to produce his insurance card. The officer further stated that Bayer was unsteady on his feet. Bayer failed the horizontal gaze nystagmus test and the one-leg stand test. He then refused to take any further field sobriety tests and, after being read the implied consent warning, refused to take the state-administered breath test.

The police officer noticed a can of beer lying on the floorboard of the vehicle and what appeared to be beer dripping from the dashboard. Evidence of a similar transaction was admitted.

1. In his first enumeration of error, Bayer contends he was denied his constitutional right to a fair trial because the state’s police officer, who was a witness for the state, spoke to defense witnesses during the course of the trial. At the motion for new trial hearing, it was shown that during the trial, Bayer’s three witnesses were sitting in the hallway across from the doors leading into the courtroom. After the police officer testified, he left the courtroom and engaged in conversations with Bayer’s witnesses. The officer said to Kenneth Bayer: ‘You must be Brian’s brother,” and continued with “I’m sorry to have to do what I have to do to your brother but it’s my job.” According to Kenneth Bayer, the officer continued talking about other matters and Kenneth Bayer felt uneasy. However, Kenneth Bayer admitted that the police officer did not talk about Kenneth Bayer’s testimony.

While Bayer’s witnesses claimed they were intimidated by the police officer and subsequently forgetful and distracted on the witness stand, there is no evidence that the officer in any way threatened or coerced Bayer’s witnesses. See generally Simmons v. State, 155 Ga. App. 716 (1) (272 SE2d 506) (1980). Nor is there any evidence that the officer held Bayer’s witnesses “captive” or that Bayer’s witnesses asked the officer not to talk to them. Based on the facts in the record, Bayer was not denied his right to a fair trial. There has been no showing of harm, and the mere fact that one witness was a police officer does not make this exchange improper conduct. See Owens v. State, 213 Ga. App. 693 (2) (445 SE2d 818) (1994).

2. In his second enumeration of error, Bayer asserts that the police officer’s conduct discussed in Division 1 violated the rule of sequestration. OCGA § 24-9-61 provides that in all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other. The Supreme Court of Georgia has held that the purpose of this rule is to prevent a witness who has not testified, or who has not completed his or her testimony, from overhearing and having his or her testimony affected by the testimony of another witness. See Lackey v. State, 246 Ga. 331, 334 (5) (271 SE2d 478) (1980). “The rule literally prohibits only witnesses from being examined in the hearing of each other.” (Emphasis omitted.) Johnson v. State, 258 Ga. 856, 857 (4), n. 3 (376 SE2d 356) (1989); Byrd v. Brand, 140 Ga. App. 135, 136 (4) (230 SE2d 113) (1976) (witness allowed to testify after she had been seen eating lunch with the defendant).

Bayer does not allege that the police officer spoke with the witnesses about their testimony or that any witness heard his testimony. As in Owens, supra, this exchange did not violate the purpose of the rule of sequestration.

3. The trial court properly admitted evidence of a previous DUI offense into evidence as a similar transaction. Two conditions must be satisfied before evidence of independent crimes is admissible. First, there must be evidence that the defendant was, in fact, the perpetrator of the independent crime. Bayer does not contest this issue. Second, there must be sufficient similarity or connection between the independent crime and the offense charged so that proof of the former tends to prove the latter. Goodwin v. State, 222 Ga. App. 285, 286 (2) (474 SE2d 84) (1996). There is no requirement that the two transactions be identical in every respect. Id.

In the context of DUI cases, we have previously held that “[u]nlike assault or robbery or other crimes against the person or property of a victim and which can be committed under varying factual circumstances, the crime[ ] of. . . driving under the influence [is] essentially committed under the same factual circumstances. The type of vehicle driven or the degree or source of intoxication may vary, but it is the simple act of driving . . . while under the influence that establishes the commission of [the crime]. A prior act of driving . . . while in that condition would, regardless of any slight variance of circumstances, be relevant to prove bent of mind or course of conduct.” Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638) (1992).

In both the instant and the previous cases Bayer admitted drinking beer before driving, and in both cases the officer smelled beer. “Evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the perpetrator has the bent of mind ‘to get behind the wheel of a vehicle when it’s less safe for him to do so.’ ” Fields v. State, 223 Ga. App. 569, 571 (2) (479 SE2d 393) (1996). The trial court properly concluded that Bayer’s prior offense was logically connected to the instant offense and relevant to establish Bayer’s bent of mind and course of conduct in this case. Accordingly, the evidence was admissible.

Decided February 9, 1998

Reconsideration denied February 23, 1998

Wallace C. Clayton, Amelia G. Pray, for appellant.

Ben F. Smith, Jr., Solicitor, Joel C. Pugh, Assistant Solicitor, for appellee.

4. In bis fourth enumeration of error, Bayer asserts the evidence was insufficient to support the jury’s verdict. We disagree. The evidence showed that, based on radar and the officer’s visual estimation, Bayer was speeding; that he admitted to drinking alcohol earlier that evening; that an officer smelled the odor of alcohol in Bayer’s vehicle; that an officer saw an open can of beer lying on the floorboard of the vehicle and beer dripping from the dashboard; that Bayer had bloodshot, watery eyes, a flushed face, and slurred speech; that Bayer fumbled for his license and had trouble opening the glove box to produce his insurance card; that Bayer was unsteady on his feet; that Bayer failed two field sobriety tests; and that he refused to take any further field sobriety tests.

On appeal, Bayer no longer enjoys the presumption of innocence, and this Court views the evidence in the light most favorable to support the verdict without speculating which evidence the jury chose to believe or disbelieve. Gurlaskie v. State, 196 Ga. App. 794 (1) (397 SE2d 66) (1990). Although Bayer recites all the evidence presented at trial which was favorable to him, we conclude there was sufficient evidence to enable a rational trier of fact to find him guilty beyond a reasonable doubt of driving under the influence of alcohol to the extent he was a less safe driver, speeding, and driving with an open container of alcohol under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Strickland v. State, 221 Ga. App. 120, 122 (5) (470 SE2d 508) (1996).

5. Based on our findings in Divisions 1-4, the trial court did not err in denying Bayer’s motion for new trial.

Judgment affirmed.

Pope, P. J, and Senior Appellate Judge Harold R. Banke concur.