text:
    A98A1701.
    DEPARTMENT OF CORRECTIONS et al. v. GLISSON.
    (508 SE2d 714)
   Judge Harold R. Banke.

The Georgia Department of Corrections (“DOC”) and the State Personnel Board (“Board”) appeal the superior court’s reversal of the Board.

Prior to the inception of this litigation, Carlos D. Glisson had been an employee of the DOC assigned as a Correctional Officer II at Rogers Correctional Institution. After Glisson threatened to kill another corrections officer on the night of February 18, 1996, the DOC initiated adverse action charging Glisson with “MISCONDUCT AND UNFITNESS TO PERFORM ASSIGNED DUTIES.” The DOC notified Glisson that “your behavior destroyed your credibility and effectiveness as a correctional officer” and terminated him. Glisson appealed that decision to an administrative law judge.

At the administrative hearing, both the victim and his wife confirmed the salient facts underlying Glisson’s misconduct. According to the victim, while appearing to be armed, Glisson threatened to kill him. The victim’s wife confirmed that Glisson had come to the couple’s home and insisted that she listen to a certain tape. She testified that she was scared that Glisson was going to kill her husband, especially after she observed the black handle of what appeared to be a gun tucked into his waistband. An arresting officer, who apprehended Glisson later that night, confiscated a loaded pistol with a black handle from Glisson. Glisson admitted being upset and going to the victim’s home. Although Glisson claimed that he had not been armed, he admitted threatening to kill the victim if he ever again caught him at his house around his wife or son. Finding “the evidence presented at the hearing clearly established that Appellant did make a threat to do bodily harm to another employee of the Department,” the ALJ affirmed the termination decision.

Notwithstanding Glisson’s subsequent acquittal for the offense of terroristic threats and acts, the Board affirmed the termination decision. However, a superior court reversed the Board, focusing on the ALJ’s statement that “a not guilty verdict is not ‘conclusive evidence’ that no crime was committed.” Finding that the ALJ had made an error as to the legal meaning of Glisson’s acquittal, the trial court reversed. The Board appeals. Held:

The Board contends that the trial court abused its discretion in reversing the Board because there was sufficient evidence of just cause to support the DOC’s termination of Glisson. We agree.

Judicial review of the Board’s action is narrowly curtailed by OCGA § 45-20-9 (m). This review is “confined to the record” and a superior court cannot “substitute its judgment for that of the [B]oard as to the weight of the evidence on questions of fact.” OCGA § 45-20-9 (m). Further, the Board’s decision must be affirmed by a superior court if it is supported by any evidence. Hall v. Ault, 240 Ga. 585, 586 (242 SE2d 101) (1978); Stanley v. Dept. of Human Resources, 146 Ga. App. 450, 451 (1) (246 SE2d 459) (1978). Moreover, the evidence must be construed in a light most favorable to the prevailing party, here, the Board. Harper v. L & M Granite Co., 197 Ga. App. 157, 159 (2) (397 SE2d 739) (1990).

Examined in this manner, and “with every presumption in favor of the board’s decision indulged,” we find that the record contains some supporting evidence. (Citations and punctuation omitted.) Dept. of Corrections v. Shaw, 217 Ga. App. 33 (456 SE2d 628) (1996). The testimony of the victim and his spouse combined with Glisson’s admission provide evidence of misconduct and unfitness for duty.

Although the trial court adopted the findings of fact of the ALJ, the court did not employ an any evidence review as required by OCGA § 45-20-9 (m). Hall, 240 Ga. at 586. Instead, the trial court determined that the ALJ was obligated to assess the evidence as to whether Glisson committed the offense of terroristic threats and acts by the more stringent “beyond a reasonable doubt” standard rather than by a preponderance of the evidence. This was plainly error. Miles v. Carr, 224 Ga. App. 247, 248 (1) (480 SE2d 282) (1997). Glisson cites no authority, and we know of none, which requires that the State prove an allegation of unfitness beyond a reasonable doubt. See Ga. Bd. of Dentistry v. Pence, 223 Ga. App. 603, 609 (10) (478 SE2d 437) (1996).

Decided October 30, 1998

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Susan L. Rutherford, Senior Assistant Attorneys General, Bryan K. Webb, Assistant Attorney General, for appellants.

Callaway, Neville & Brinson, William J. Neville, Jr., for appellee.

Notwithstanding the claim to the contrary, Glisson was not terminated for committing terroristic threats but because the DOC deemed his acts of misconduct as rendering him unfit to perform his duties as a correctional officer. The fact that Glisson was acquitted of any crime does not negate the testimony in the civil proceeding concerning Glisson’s blatant misconduct. See Stanley, 146 Ga. App. at 450-451 (1) (superior court cannot substitute its judgment as to the weight of the evidence on questions of fact). Nor does Glisson’s contention that his threat did not imply “immediate” harm but rather insinuated only “future” conditional harm demand a different outcome.

Having examined the record, we find that Glisson’s termination was supported by some evidence and that the Board did not abuse its discretion. Shaw, 217 Ga. App. at 35 (2). Accordingly, the trial court erred in reversing the Board. Dept. of Human Resources v. Horne, 198 Ga. App. 341, 342 (401 SE2d 556) (1991); accord Miles, 224 Ga. App. at 247.

Judgment reversed.

Johnson, R J., and Smith, J., concur.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A98A1927.
    JENKINS v. THE STATE.
    (508 SE2d 710)
   Beasley, Judge.

Following denial of his motion for new trial, Jenkins appeals his conviction of one count of child molestation and one count of aggravated child molestation. OCGA § 16-6-4.

The victim was four years old when the crimes occurred and seven years old at the time of trial. Through infantile expressions used by the child in her trial testimony, she described acts by her stepfather Jenkins consisting of his having placed his tongue on her vagina on numerous occasions and inserting his penis into her anus once.

Also appearing as State’s witnesses were the child’s mother, great-grandmother, a criminal investigator and a social worker who had both interviewed the child, a psychologist who had evaluated her, a nurse and a physician. They testified to out-of-court statements of the child consistent with her testimony.

The great-grandmother testified that while giving the child a bath, she noticed that her rectum was inflamed after the child complained of rectal pain. Without prompting, the child related that Jenkins had inserted his penis into her anus. The great-grandmother reported this to the mother, who testified that the child later told her that Jenkins had taken off her clothes and licked her between the legs. The mother called the police. After the child repeated the allegations of both oral and anal sexual molestation to the criminal investigator and social worker, Jenkins was arrested.

The psychologist to whom the child was referred testified that, through demonstrations with anatomically correct dolls, the child showed him what Jenkins had done. He also related that the child had refused to recant her charges against Jenkins notwithstanding encouragement by others that she do so. The physician and nurse testified that their attempts to perform physical examinations were unsuccessful as a result of the child’s non-cooperation.

1. Jenkins first contends that the court’s admission in evidence of the victim’s prior consistent statements through the testimony of these other witnesses violated his state and federal due process rights.

In reliance on Tome v. United States and Division 2 of Woodard v. State, he argues that where, as here, the victim testifies to the acts allegedly engaged in by the defendant, prior consistent statements by the victim are not relevant unless the victim’s testimony is impeached or challenged as being a recent fabrication or the product of improper influence or motive. The two cases are not supportive.

(a) In Tome, the Supreme Court was interpreting Federal Rule of Evidence 801 (d) (1) (B). It provides that prior statements of a witness are not hearsay if they are consistent with the witness’ testimony and offered to rebut a charge against the witness of “recent fabrication or improper influence or motive.”

Adopting the prevailing common law view, the Supreme Court held that a prior consistent statement is admissible under this rule only if the statement was made before the alleged fabrication, influence, or motive came into being. The Court acknowledged that prior consistent statements, whenever made, might be probative on the question of whether the matters asserted therein are true, but held the rule Congress adopted does not accord non-hearsay status to prior consistent statements in this broad a fashion. The Court intimated no view concerning the admissibility of a child’s out-of-court statements under other evidentiary rules or principles.

(b) Georgia’s Child Hearsay Statute, OCGA § 24-3-16, creates an evidentiary rule under which a statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if two prerequisites are met: first, the child must be available to testify in the proceedings; second, the circumstances of the statement must provide sufficient indicia of reliability.

The Georgia statute differs from those of most other states, at least as of late 1993. They typically require the victim to testify or be shown to be unavailable. The availability requirement of our statute is met even if the victim takes the stand and is incapable of reiterating the accusations against the defendant or is uncommunicative or unresponsive. The child need only physically appear at trial.

(c) At issue in Woodard was the validity of a 1995 amendment to the Child Hearsay Statute allowing hearsay declarations made by a child under the age of fourteen who witnessed an act of sexual or physical abuse inflicted on another to be introduced as substantive evidence in a criminal trial, so long as the two statutory conditions were met.

The Supreme Court noted in Division 1 of Woodard that it has repeatedly upheld the constitutionality of the Child Hearsay Statute to the extent that it allows the introduction of hearsay statements made by the victim. Applying the statute, the Court held that such statements, in which the child recounted the incident of abuse to law enforcement authorities and social workers, were admitted properly because it was undisputed that the statutory conditions were met.

The question addressed in Division 2 of Woodard was whether the child witness’ prior consistent statements were admissible under Cuzzort v. State, the landmark case decided before enactment of the Child Hearsay Statute. Cuzzort allowed the admission at trial as substantive evidence of a prior consistent statement made by a witness who testifies and is subject to cross-examination. The Court held that Cuzzort authorizes the admission at trial of a witness’ prior consistent statement only where the veracity of a witness’ trial testimony has been placed in issue. It disapproved prior cases which had interpreted Cuzzort more broadly. Consistent with Federal Rule of Evidence 801 (d) (1) (B), Cuzzort concluded that a witness’ veracity is placed in issue so as to permit the introduction of a prior consistent statement only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination. After noting that Woodard had not attempted to impeach the veracity of the child witness’ testimony and raised no allegations of recent fabrication or improper influence or motive, the Court concluded that the prior consistent statement was improperly admitted to bolster the witness’ credibility.

In Division 3 of Woodard the Court held that the 1995 amendment violated the equal protection clauses of our state and federal constitutions. The grounds were that the compelling reasons that support admission of hearsay statements by a child victim are not applicable to child witnesses, and the disparity which the amendment created in the substantive evidence against criminal defendants charged with identical acts of molestation based on nothing more than the age of the witness is without any rational basis.

(d) In Jenkins’ case, the first condition was met, as the victim testified at trial. As to the second condition, the court was authorized to find that, although the child gave differing accounts as to the number of times Jenkins had molested her, under the totality of the circumstances her out-of-court statements bore sufficient indicia of reliability to authorize their admission in evidence.

We note that although the Child Hearsay Statute does not additionally condition admissibility of testimony concerning the victim’s out-of-court statements on a challenge to the victim’s credibility, Jenkins did challenge the victim’s credibility. He questioned whether she had merely observed sexual acts either by watching pornographic videotapes to which she had access or by venturing into his and her mother’s bedroom while they were having sexual relations. He also questioned whether her testimony was motivated by her desire to reunite her natural parents.

2. Jenkins contends that the Child Hearsay Statute violates his equal protection rights under state and federal constitutions because prior consistent statements are not similarly admissible in other classes of criminal cases.

The Supreme Court has exclusive jurisdiction of all cases in which the constitutionality of a law is drawn in question. Jenkins’ appeal of this case to the Supreme Court was transferred to this court because no issue concerning the constitutionality of a statute was properly raised and ruled on in the trial court. In addition to the procedural deficiency, Jenkins would have to surmount Weathersby v. State and Dobbins v. State, where challenges similar to Jenkins’ were rejected. And in Sims v. State the Court recognized that child molesters are not similarly situated to all other criminals.

Decided October 30, 1998

Cook, Noell, Tolley & Wiggins, Edward D. Tolley, Ronald E. Houser, for appellant.

Robert W Lavender, District Attorney, Kathleen R. Johnson, Assistant District Attorney, for appellee.

3. Since the hearsay testimony as to the victim’s out-of-court statements was admissible, the failure of Jenkins’ trial lawyer to object to it did not constitute ineffective assistance of counsel.

4. The remaining enumerations are not reached because they raise questions for the first time on appeal.

Judgment affirmed.

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

       513 U. S. 150 (115 SC 696, 130 LE2d 574) (1995).

       269 Ga. 317 (496 SE2d 896) (1998).

       See Smith v. State, 228 Ga. App. 144, 146 (3) (491 SE2d 194) (1997).

         See The Georgia Child Hearsay Statute and the Sixth Amendment: Is There a Confrontation?, 10 Ga. State Univ. L. Rev. 367, 379 (1994).

        Bright v. State, 197 Ga. App. 784, 785 (1) (400 SE2d 18) (1990).

        Gibby v. State, 213 Ga. App. 20, 22 (2) (d) (443 SE2d 852) (1994).

       See Thornton v. State, 264 Ga. 563, 567 (449 SE2d 98) (1994); Allen v. State, 263 Ga. 60 (428 SE2d 73) (1993); Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987).

       254 Ga. 745 (334 SE2d 661) (1985).

       See generally Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991).

       See Smith v. State, 199 Ga. App. 378, 381 (1) (e) (405 SE2d 78) (1991).

       Art. VI, Sec. VI, Par. II (1) of the Ga. Const. of 1983.

       262 Ga. 126, 128 (4) (a) (414 SE2d 200) (1992).

       262 Ga. 161 (1) (415 SE2d 168) (1992).

       260 Ga. 782 (1) (399 SE2d 924) (1991).

        Ross v. State, 231 Ga. App. 793, 799 (10) (499 SE2d 642) (1998).

        Moreno v. State, 204 Ga. App. 463, 464 (3) (419 SE2d 735) (1992).


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

text:
    A97A0183.
    AGGELES v. THEATER OF THE STARS, INC. et al.
    (507 SE2d 856)
   Smith, Judge.

In Aggeles v. Theater of the Stars, 227 Ga. App. 227 (488 SE2d 724) (1997), in which the facts are fully set out, we affirmed the trial court’s grant of summary judgment to Theater of the Stars in this personal injury action filed by Elizabeth Ann Aggeles against the theater. The Supreme Court granted Aggeles’s petition for writ of certiorari and then remanded the case to this Court for reconsideration in light of its holding in Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997). We conclude that Robinson requires reversal of the trial court’s grant of summary judgment to the theater.

In Robinson, the Supreme Court engaged in an extensive discussion of the “pendulum-like” treatment of slip and fall cases by the appellate courts of this state. Id. at 735. The Court focused in large part on the swing of that pendulum toward “the rare case which escaped summary adjudication” after the issuance oí Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980). Robinson at 736. This analysis includes discussion of the “weighty burden placed on slip- and-fall plaintiffs by Alterman Foods,” id. at 747, after Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) was decided and a modification of Alterman Foods “to regain balance in the allocation of the burden of proof.” Robinson at 747.

Under Robinson, a plaintiff need no longer come forward with evidence disproving his or her negligence until it is established the defendant had actual or constructive knowledge of the hazard, and the defendant presents evidence that the plaintiff’s injuries were caused by his or her own voluntary negligence or failure to exercise ordinary care. Id. at 748. And to show negligence on the part of a plaintiff, the defendant in a slip and fall case must show “that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.” Id. at 749. A court ruling on a motion for summary judgment must determine “whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.” Id. at 748.

We observed in our previous decision that just before descending the staircase, Aggeles successfully ascended it using the outside handrail on the opposite side. We further noted that the handrails on each side of the staircase are identical in their placement. Aggeles, supra at 227. Before Robinson was issued, under this evidence, summary judgment in the theater’s favor was warranted; Aggeles testified that she had no problem seeing as she ascended the stairs, and the law authorized a holding that she therefore should have known of the handrail’s condition on either side of the stairway.

But in light of the mandate in Robinson that the evidentiary burden on plaintiffs be lightened and its emphasis on the expediency of summary adjudication in only plain, palpable, and undisputed cases, id. at 748, we conclude that summary judgment in the theater’s favor was not appropriate. The record does not show that Aggeles actually knew that the handrails on either side were identically constructed, and the evidence therefore does not demand a finding that she successfully negotiated the stairway moments earlier and thus had knowledge of the condition equal to that of the theater. See Ray v. Restaurant Mgmt. Svcs., 230 Ga. App. 145, 146 (495 SE2d 613) (1998). Moreover, we cannot say as a matter of law that Aggeles was required to look at each handrail before ascending the stairway, nor are we at liberty to hold as a matter of law that any failure to observe the condition of the handrails amounted to an intentional and unreasonable exposure to a risk. The issues in this case are simply routine ones relating to whether a defendant had superior knowledge of a hazard and whether an invitee exercised ordinary care for her own safety. These issues therefore are not subject to summary adjudication, and the trial court erred in granting summary judgment to the theater.

Judgment reversed.

Senior Appellate Judge Harold R. Banke concurs. McMurray, P. J., and Eldridge, J., concur specially. Andrews, C. J., Beasley and Ruffin, JJ, dissent.

McMurray,

Presiding Judge, concurring specially.

By order dated January 5, 1998, “the judgment of the Court of Appeals [was] vacated, and the case [was] remanded to the Court of Appeals for reconsideration of the merits of [plaintiff-]petitioner’s appeal in light of [the Supreme Court of Georgia’s] holding in Robinson v. Kroger Co., [268 Ga. 735 (493 SE2d 403)].” Like the majority, I conclude that reversal of the previous grant of summary judgment is mandated by the Supreme Court of Georgia’s recent decision, but not because of policy statements about the burden of proof. Rather, this result is mandated by the holdings of Robinson, whereby the Supreme Court of Georgia “disapprove^] of the appellate decisions which hold as a matter of law that an invitee’s failure to see before falling the hazard which caused the invitee to fall constitutes a failure to exercise ordinary care. [The Supreme Court of Georgia also took] issue with the Court of Appeals’ holding . . . that an invitee fails to exercise ordinary care for personal safety as a matter of law when the invitee admits she failed to look at the location where she subsequently placed her foot.” Robinson v. Kroger Co., 268 Ga. 735 (1), 743, supra. Consequently, I adhere to my original view that, “[b]ased on the record before us, a jury would be authorized to conclude that the fact the wall and outside handrail attached to it did not continue down the final five steps to the ground floor (coupled with the darkness of the area and other patrons also falling that night) amounted to a hazardous condition on the premises, and such condition, while static, was not patent due to the very, very dark conditions of the theater. Consequently, defendants have, in my judgment, failed to establish the non-existence of every material fact. Moreover, plaintiff testified she used the rail to guide herself along the dimly lit staircase. ‘This testimony is some evidence that (plaintiff) exercised reasonable care for (her) own safety (in descending the Grand Staircase). (Cit.) The evidence thus did not demand a finding that (plaintiff) failed to exercise reasonable care, ((cit.)); OCGA § 9-11-50, and the (trial court) erred (in granting defendants’ motion for summary judgment).’ Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485).” Aggeles v. Theater of the Stars, 227 Ga. App. 227, 231 (1) (488 SE2d 724) (McMurray, P. J., and Eldridge, J, dissenting).

I am authorized to state that Judge Eldridge joins in this special concurrence.

Andrews, Chief Judge,

dissenting.

A review of the facts set forth in Aggeles v. Theater of the Stars, 227 Ga. App. 227 (488 SE2d 724) (1997) demonstrates that our prior decision affirming the grant of summary judgment to Theater of the Stars was correct, and that the Supreme Court’s decision in Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997) supports this conclusion.

Aggeles fell as she was descending the staircase in the lobby of the Fox Theater in Atlanta. Aggeles, 227 Ga. App. at 227-228. She claimed the handrail she was using on the staircase was constructed in such a manner that it posed an unreasonable risk of harm to her and caused her fall. Id. at 227-229. Specifically, she pointed to the fact that the outside handrail she was using to descend the staircase did not extend all the way to the bottom of the staircase — it ended five steps before the bottom. Id. We pointed out in our previous decision that, only moments prior to descending the staircase, Aggeles had successfully ascended the staircase using the outside handrail on the opposite side of the staircase which was constructed in the exact manner as its counterpart and which also ended five steps before the bottom of the staircase. Id. at 227, 229. We also pointed out that Aggeles testified by deposition that “she had no problem seeing as she ascended the stairs and that the lighting as she descended the stairs was no different than the lighting as she walked up the stairs.” Id. at 227. There was also a handrail down the center of the staircase which was available to Aggeles and which extended all the way to the bottom step. Id. at 229. There was no evidence that anyone had previously fallen on the staircase because of any alleged defect in the handrails. Id. at 228. Furthermore, it was undisputed that the Fox Theater is a historic landmark building and that, as part of the preservation of the theater as a historic landmark, the staircase at issue was required under federal historic preservation guidelines established by the Secretary of the Interior to be preserved in its original form without outside handrails for the bottom five steps, despite the fact that this did not comply with the Standard Building Code. Id. at 228. Accordingly, we concluded in our prior decision that the undisputed evidence established that the theater’s status as a historic landmark exempted it from the Standard Building Code regulations. Id. at 228.

The Supreme Court reiterated in Robinson v. Kroger Co. that “[w]hile not an insurer of the invitee’s safety, the owner/occupier is required to exercise ordinary care to protect the invitee from unreasonable risks of harm of which the owner/occupier has superior knowledge.” Id. at 740. It is undisputed that the staircase in the Fox Theater and the handrails on it were in the exact historical condition required by the federal historical preservation guidelines. This included the preservation of the clearly visible center handrail on the staircase extending all the way down to the bottom step, which was available for use by Aggeles. Under these circumstances, the staircase did not present an unreasonable risk of harm to invitees, nor was the Theater of the Stars negligent in maintaining the premises in its historically preserved condition in accordance with federal standards. To hold otherwise would make the Theater of the Stars an insurer of Aggeles’ safety in violation of the express holding of Robinson v. Kroger Co.

In our prior decision, we discussed the fact that the stairs at issue were maintained in compliance with federally imposed standards for historic landmark buildings. Aggeles, 227 Ga. App. at 228-229. Based on this fact and undisputed evidence that Aggeles could have used the center handrail extending to the bottom of the staircase, we concluded that Aggeles could not recover. Id. at 228-229. Despite the Supreme Court’s clear mandate that we reconsider our prior decision in light of Robinson v. Kroger Co., the majority opinion now reverses our prior decision without mentioning these facts and without making any attempt to reconsider our prior conclusion on these facts in light of Robinson v. Kroger Co.

The facts also show another reason supporting the grant of summary judgment to the Theater of the Stars: (1) the handrail at issue was a visible, static condition, (2) Aggeles used the opposite handrail while successfully ascending the staircase only moments before she used the identical outside handrail on the other side of the staircase and fell while descending, and (3) the lighting was adequate for Aggeles to see the handrail ascending and descending.

This Court has reviewed similar facts after the Supreme Court’s decision in Robinson v. Kroger Co. and concluded that summary judgment in favor of the proprietor was demanded. “When a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. In cases where this rule has been applied, . . . the defect causing the fall invariably has been a static condition readily discernible to a person exercising reasonable care for his own safety.” (Citations and punctuation omitted.) Anderson v. Reynolds, 232 Ga. App. 868, 870 (502 SE2d 782) (1998); Pierce v. Wendy’s Intl., 233 Ga. App. 227 (504 SE2d 14) (1998); Ray v. Restaurant Mgmt. Svcs., 230 Ga. App. 145, 146 (495 SE2d 613) (1998). Under Robinson v. Kroger Co., a plaintiff invitee must still prove that she “lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Id. at 748-749. Accordingly, the true ground of liability in a slip and fall action remains the owner/occupier’s superior knowledge of the hazard that was the proximate cause of the invitee’s slip and fall. McCoy v. West Building Materials &c., 232 Ga. App. 620, 621 (502 SE2d 559) (1998); Anderson, 232 Ga. App. at 869; Denham v. Young Men’s Christian Assn. &c., 231 Ga. App. 197, 199 (499 SE2d 94) (1998). Because the facts plainly demonstrate that Aggeles had knowledge of the alleged dangerous condition and exposed herself to it, she cannot recover. Robinson v. Kroger Co., 268 Ga. at 739-741, 748-749.

Decided October 15, 1998

Reconsideration denied November 2, 1998.

Wheeler & Watson, David K. Wheeler, James A. Watson, for appellant.

Gorby & Reeves, Michael J. Gorby, Gray & Hedrick, Amanda H. Burri, for appellees.

I am authorized to state that Judge Beasley and Judge Ruffin join in this dissent.


author: Eldridge, Judge.

text:
    A97A0432.
    GRAVES v. THE STATE.
    (508 SE2d 450)
    Decided November 2, 1998.

      Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

      June D. Green, Solicitor, Steven E. Rosenberg, Assistant Solicitor, for appellee.
   Eldridge, Judge.

In Graves v. State, 269 Ga. 772 (504 SE2d 679) (1998), the Supreme Court reversed the judgment of this Court’s opinion in Graves v. State, 227 Ga. App. 628 (490 SE2d 111) (1997). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment reversed.

Andrews, C. J., Pope, P. J., Johnson, P. J, Blackburn, Ruffin, JJ, and Senior Appellate Judge Harold R. Banke concur.


text:
    A97A2122.
    GRAIN DEALERS MUTUAL INSURANCE COMPANY v. PAT’S RENTALS, INC. et al.
    (508 SE2d 449)
    Decided November 2, 1998.

      Bovis, Kyle & Burch, William B. Barrickman, Jana B. Tabor, for appellant.

      Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, Susan G. James, for appellees.
   Eldridge, Judge.

In Grain Dealers Mut. Ins. Co. v. Pat’s Rentals, 269 Ga. 691 (505 SE2d 729) (1998), the Supreme Court reversed the portion of this Court’s opinion in Grain Dealers Mut. Ins. Co. v. Pat’s Rentals, 228 Ga. App. 854 (492 SE2d 702) (1997), finding that punitive damages arising out of the claims for negligent hiring and retention were covered under Grain Dealers Mutual Insurance Company’s policy of insurance. Therefore, we vacate that portion of our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment reversed.

Ruffin, J, and Senior Appellate Judge Harold R. Banke concur.


author: McMurray, Presiding Judge.

text:
    A98A0828.
    BROWN v. LEVINE.
    (508 SE2d 449)
    Decided November 2, 1998.
   McMurray, Presiding Judge.

Appellant Henry Brown filed this direct appeal from prison after the trial court disposed of appellant Brown’s legal malpractice action via summary judgment. The Prison Litigation Reform Act of 1996 provides that “[a]ppeals of all actions filed by prisoners shall be as provided in Code Section 5-6-35.” OCGA § 42-12-8. Appellant Brown did not comply with the requisite discretionary procedures set forth in OCGA § 5-6-35 when he filed this appeal. We therefore have no jurisdiction to consider appellant Brown’s appeal. Botts v. Givens, 223 Ga. App. 139 (476 SE2d 816). Accordingly, we must dismiss appellant Brown’s appeal.

Appeal dismissed.

Blackburn and Eldridge, JJ, concur.

Henry Brown, pro se.

Karsman, Brooks & Callaway, R. Krane Riddle, for appellee.


text:
    A98A0920.
    DEDON v. ORR et al.
    (508 SE2d 445)
   McMurray, Presiding Judge.

William Gayle Dedon, Sr. filed a legal malpractice action against Lynda Wilson Orr and three other attorneys and their respective law firms, alleging these lawyers bungled his automobile accident suit against Rubin Eugene Hawkins by failing to serve Hawkins within 120 days after the case was docketed in federal court as required by Rule 4 (m) of the Federal Rules of Civil Procedure. Dedon alleged that this negligence prompted dismissal of his damage claims against Hawkins and various insurance carriers after expiration of the applicable statute of limitation. Attorney Orr and her law firm moved for summary judgment, arguing that Orr’s alleged malpractice was not a proximate cause of Dedon’s loss because “the 120-day time limit to perfect service under federal law expired more than a year before [attorney] Orr and [her law firm] were associated on [Dedon’s] case.” The facts relevant to this assertion reveal the following:

On April 23, 1993, Dedon, a Louisiana resident, was injured when Hawkins, a Georgia resident, drove his car into the rear of Dedon’s son’s car. While the wreck occurred in Georgia, Dedon’s Louisiana lawyers initiated a personal injury action against Hawkins and certain insurance carriers in a Louisiana trial court. The case was filed on February 14,1994, but was removed to a federal trial court in Louisiana on March 24, 1994, before Hawkins was served with process. Although Rule 4 (m) of the Federal Rules of Civil Procedure required Dedon to serve Hawkins by July 22, 1994, his Louisiana attorneys never attempted to have Hawkins served.

On September 13, 1994, Dedon’s case was transferred to the United States District Court for the Northern District of Georgia and Georgia attorney Robert T. Guggenheim was retained to represent Dedon in that court on October 28, 1994. Even though Hawkins had not been served with process, attorney Guggenheim never attempted to serve Hawkins with process. After the statute of limitation expired on Dedon’s tort action on April 23,1995, Dedon’s Louisiana attorneys discharged attorney Guggenheim and replaced him with Georgia attorney Lynda Wilson Orr and her law firm on August 29, 1995. Attorney Orr retrieved Dedon’s file from Guggenheim on October 8, 1995, and began preparing Dedon’s portion of an overdue pretrial order. Attorney Orr entered an appearance in Dedon’s action on November 20, 1995, filed a pretrial order on January 19, 1996, and posted a letter (dated January 19, 1996) to the United States District Court judge assigned to Dedon’s case requesting additional time to serve Hawkins. This United States District Court judge dismissed Dedon’s case on February 8, 1996, and entered the following findings of fact and conclusions of law: “Counsel for [Dedon] has responded timely to this Court’s January 10, 1996 order directing [Dedon] to show cause why this action should not be dismissed in its entirety. However, it is clear that during the pendency of this case, particularly since this case has been transferred to the Northern District of Georgia, that neither the individual defendant, Rubin Eugene Hawkins, nor his insurer . . . has ever been served. While the Court realizes that there were apparently numerous problems with previous local counsel engaged in this case, the failure of [Dedon’s] Louisiana counsel or current local counsel to perfect service prior to this date is inexcusable.”

The Superior Court of Gwinnett County, Georgia, granted summary judgment in favor of attorney Orr and her law firm, concluding that it would be too speculative to “say . . . that [the federal trial judge who dismissed Dedon’s case] would have exercised his discretion, allowed the service, and not dismissed the case [had attorney Orr served Hawkins with process before dismissal of Dedon’s case on February 8, 1996].” This appeal followed. Held:

To prevail in this legal malpractice case, Dedon would have to show that service on Hawkins sometime after attorney Orr was retained “would have” prevented dismissal of Dedon’s automobile accident case — “ ‘might have’ or ‘could have’ is not enough. See Hunt v. Tomlinson, 799 F2d 712 (1) (11th Cir. 1986) (applying Georgia law).” Meiners v. Fortson & White, 210 Ga. App. 612, 614 (436 SE2d 780). In the case sub judice, Dedon argues that his tort case would not have been dismissed had attorney Orr attempted to serve Hawkins because the federal court’s dismissal order provides that attorney Orr’s failure “to perfect service prior to [February 8, 1996] is inexcusable.” We do not agree.

By the time attorney Orr agreed to represent Dedon on August 29, 1995, over a year had passed since expiration of Federal Rule of Civil Procedure 4 (m)’s service of process period and almost a year had elapsed since Dedon’s case was docketed in the United States District Court for the Northern District of Georgia. Further, the order dismissing Dedon’s tort case indicates that “good cause” did not exist for the lack of service on Hawkins before attorney Orr was hired on August 29, 1995. Under such circumstances, any decision to allow service on Hawkins beyond Rule 4 (m)’s 120-day service of process period would (at best for Dedon) have been subject to a very broad discretion. We therefore agree with the Superior Court of Gwinnett County’s assessment in the case sub judice that it would be too speculative to “say . . . that [the federal trial judge who dismissed Dedon’s case] would have exercised his discretion, allowed the service, and not dismissed the case [had attorney Orr served Hawkins with process before dismissal of Dedon’s case on February 8, 1996].” As there is no evidence that Dedon’s tort action would not have been dismissed had attorney Orr served Hawkins with process after she was retained, the Superior Court of Gwinnett County did not err in granting summary judgment in favor of attorney Orr and her law firm. See Houston v. Surrett, 222 Ga. App. 207, 209 (2) (474 SE2d 39).

Decided November 2, 1998.

Jones, Copeland, Lefkowitz & Greer, Taylor W. Jones, Rebecca A. Copeland, for appellant.

Troutman Sanders, Daniel S. Reinhardt, Joan B. Cravey, Brad L. Schoenfeld, Carmie L. McCurry, for appellees.

Judgment affirmed.

Blackburn and Eldridge, JJ., concur.

       This rule pertinently provides as follows: “If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.”

       Alta Faye Taylor Dedon was a party to this malpractice action and William Gayle Dedon, Sr.’s personal injury case, but she is not a party to this appeal.


author: Smith, Judge.

text:
    A98A1512.
    COOPER v. THE STATE.
    (508 SE2d 447)
   Smith, Judge.

Tawana Jean Cooper filed a notice of appeal from the judgment of conviction entered on a jury verdict finding her guilty of the offenses of operating a motor vehicle without effective proof of insurance and operating a motor vehicle without functioning tail lights. The trial court dismissed her appeal, and Cooper appeals pro se from the trial court’s order dismissing the appeal. We find no error, and we affirm the dismissal.

The record shows that Cooper was convicted on April 23, 1997. Acting pro se, she filed her notice of appeal on April 25, 1997. On May 23, 1997, Cooper moved the trial court to waive the costs of record preparation, which the court denied because Cooper had failed to comply with the requirements of OCGA § 9-15-2 (a). Cooper then filed an affidavit asserting her indigence, as required by the statute, and after a hearing the trial court granted the motion. On December 15, 1997, the State filed motions to dismiss Cooper’s appeal and to lift the stay and impose sentence. After a hearing on January 30, 1998, the trial court granted the State’s motion. The order dismissing the appeal recites that “there has been an unreasonable delay attributed to the defendant in this case in that no transcript has been filed and that such unreasonable delay is cause to have the appeal dismissed under OCGA § 5-6-48 (c).”

1. Cooper contends the trial court erred in finding that the unreasonable delay in filing the transcript was attributable to her. She argues that at the hearing on the motion to dismiss the appeal she “clearly showed that she did not cause the delay,” but instead “pursued the matter as vigorously and rapidly as she could, however, her time was limited due to her employment.” She asserts in her brief that she attempted to respond by telephone to a notice from the court clerk’s office regarding filing the transcript, but was “constantly put on hold and transferred to the wrong person.”

But this Court cannot accept Cooper’s statement in her brief as evidence of what transpired at the hearing. Error must be demonstrated by the record, and none of Cooper’s allegations regarding what she “clearly showed” appears in the record. It was Cooper’s responsibility to provide this Court with record evidence supporting her allegations of error on the part of the trial court. Because we have no transcript of the hearing on the motion to dismiss, we must presume that the trial court’s findings were supported by the evidence presented. Intl. Indem. Co. v. Saia Motor Freight Line, 223 Ga. App. 544, 547 (3) (478 SE2d 776) (1996).

2. OCGA § 5-6-48 (c) authorizes the trial court to dismiss an appeal when “there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party.” Cooper does not appear to dispute the trial court’s finding that the delay was unreasonable. Citing Young v. Climatrol Southeast Distrib. Corp., 237 Ga. 53 (226 SE2d 737) (1976), however, she maintains the trial court erred in dismissing her appeal because the order included no express finding that the delay was inexcusable. In Young, the trial court found that a two-day delay was inexcusable but made no finding that it was unreasonable. The Supreme Court held in that case that because the trial court failed to make that finding, it was error to dismiss the appeal. Id. at 55.

Although OCGA § 5-6-48 (c) “sets forth the conditions upon which the trial court may dismiss an appeal for delay, it does not by its terms require the court to make a formal recitation of those conditions in its order.” (Emphasis in original.) Lee v. White Truck Lines, 143 Ga. App. 94, 95 (238 SE2d 120) (1977) (construing virtually identical predecessor statute to OCGA § 5-6-48 (c)). In Lee, this Court considered the Supreme Court’s holding in Young and concluded that it did “not relate to the absence of a specific recital in the order as the vitiating factor but rather to the trial court’s apparent assumption that any delay at all, no matter how small, resulted in an automatic dismissal.” Lee, supra at 96. “Young did not read into [OCGA § 5-6-48 (c)] an otherwise absent requirement of pro forma recitals.” Id. Accord Karlsberg v. Hoover, 142 Ga. App. 590 (236 SE2d 520) (1977).

Decided November 2, 1998.

Tawana J. Cooper, pro se.

Ralph T. Bowden, Jr., Solicitor, Eleanor L. Barnwell, Joseph N. Walden III, W. Cliff Howard, Assistant Solicitors, for appellee.

Since no requirement exists that the trial court make specific recitals of the elements necessary to authorize dismissal, “the presumption should adhere as in other appeals that the judgment was correct, with the burden upon appellant to show otherwise to the reviewing court.” Lee, supra at 95. Again, Cooper has failed to demonstrate to this Court that the delay in her case was excusable. We therefore presume that the trial court did not abuse its discretion in dismissing her appeal.

Judgment affirmed.

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


text:
    A98A1549.
    NORTH GEORGIA READY MIX CONCRETE COMPANY, INC. v. L & L CONSTRUCTION, INC.
    (508 SE2d 722)
   McMurray, Presiding Judge.

Plaintiff-appellee L & L Construction, Inc. (“L & L”) brought this contract action against defendant-appellant North Georgia Ready Mix Concrete Company, Inc. (“Ready Mix”), alleging that, as part of plaintiff’s contract with S & S Mills, Inc. to construct a carpet warehousing facility in Whitfield County, Georgia, plaintiff engaged Ready Mix “to furnish concrete to be used ... in the floor of said facility[, based in part because Ready Mix] represented] that its product would conform to the specifications for the concrete floor incorporated into . . . the plans and specifications . . . and [also in part because of Ready Mix’s] professed capability to furnish a product that would resist drying shrinkage.” Throughout June 1994, defendant sold to plaintiff “approximately 3800 yards of 4,000 PSI concrete purportedly made with natural as opposed to manufactured sand. . . .” Despite pouring the concrete slab using defendant’s materials in a workmanlike manner, plaintiff subsequently discovered “significant and unacceptable amounts of drying shrinkage resulting in a phenomenon referred to in the industry as ‘curling,’ . . .” as a result of which, plaintiff was “forced to effect repairs to a large portion of the concrete slab at. . . substantial cost. . . .”

Plaintiff further alleged that this “curling” was proximately caused by defendant’s wilful neglect in failing to supply plaintiff with a product fit for its intended purpose, despite plaintiff’s reliance on defendant’s assurances that the product was suitable for its intended application.

Defendant admitted it sold plaintiff 3,800 yards of 4,000 PSI concrete for the S & S Mills, Inc. project but denied the material allegations of breach of warranty. Defendant further counterclaimed for $15,303.75 allegedly owed it by plaintiff on account and also sought OCGA § 13-6-11 expenses of litigation for plaintiff’s alleged stubborn litigiousness and bad faith. The case was tried before a jury which returned a $100,000 verdict in favor of plaintiff against defendant. Defendant’s motion for judgment notwithstanding the verdict or a new trial was denied, and this appeal followed. Held:

1. In five related enumerations of error, defendant contends the trial court erred in denying its motions for directed verdict, arguing plaintiff failed to prove the existence of a contract to provide concrete with 80 percent natural sand and 20 percent manufactured sand; failed to prove any express warranty regarding mix design; failed to prove any intended particular purpose; failed to prove its privity with defendant; and failed to prove any breach was the proximate cause of the damages sustained.

“ ‘If 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, such verdict shall be directed.’ OCGA § 9-11-50 (a). ‘In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the “any evidence” test. [Cit.]’ [Cit.]” Dept. of Human Resources v. Thomas, 217 Ga. App. 174 (1) (a) (456 SE2d 724). Viewed in the light most favorable to the party securing the verdict, the evidence at trial showed the following:

The floor slab specifications called for “.4[-inch] compacted ‘pug mix’, a graded aggregate base material. . . . The floor will have a 4 mil polyethylene vapor barrier and will be reinforced with 6x6-10/10 welded wire mesh. . . . The floor will be 6" of [4,000] P.S.I. concrete poured on grade. The concrete mix will have natural white sand. . . . The floor will receive a trowel finish and will be sealed with one coat of concrete sealer and hardener. . . . The floor will be sawed into areas approximately 780 sq. ft. . . .” Phillip Gerald Leonard, president of L & L, testified that he did not consider using Ready Mix for this concrete job because he experienced “problems with . . . Ready Mix with curling in the late Eighties,” for which Ready Mix had to reimburse L & L more than $17,000. Leonard repeatedly told Gerald Edward Long, defendant’s area manager for sales, that plaintiff “want[ed] the concrete to be all-natural white sand and no fly ash. . . . Gerald would say, ‘Jerry, no problem, just trade with us [at Ready Mix]. We’ve got the best quality concrete mixes in the area. We have solved our curling problem.’ And this was told to [Leonard] at least probably fifteen (15) to twenty (20) times.” In discussing the details, “Gerald [Long] says, ‘Jerry [Leonard], I would like to add some blue sand in this mix.’ [Leonard] said, ‘Gerald, you know I don’t like blue sand, or manufactured sand at all.’ He [Gerald Long] says, T know that, but we [Ready Mix] need a little bit for coarseness in this mix.’ ” Gerald Long initially proposed a mixture of “[s]eventy percent (70%) natural, thirty percent (30%) on the blue, or the manufactured [sand]. [Leonard was] will[ing to] allow . . . ten percent (10%) . . . blue sand, ninety percent (90%) on the natural sand. . . . Gerald [Long] said, ‘, . . I need more than that.’ And [Leonard] said, ‘Gerald, you know I don’t want any of it. I don’t like it. [Gerald Long replied,] T know that, Jerry, but trust me, we’ve got our curling problem worked out. We have no problem with curling. Just let me go with twenty percent (20%) on the manufactured sand, eighty percent (80%) on white natural.’ [Leonard] said, ‘Gerald, don’t ask me no farther; eighty/twenty (80/20) is as far as I’ll go.’ He [Gerald Long] said, ‘Fine.’ And that’s the way the job was traded on, eighty percent (80%) natural white, twenty percent (20%) blue.” The only reason Leonard even “considered] a trade . . .” with Ready Mix is because of the assurances that Ready Mix had resolved its prior problems with curling.

But Gerald Long “convinced [Leonard] to try to let him use an all blue sand in the footing, and said, ‘Jerry, just let me start with that and we’ll be able to save a little money by doing so. . . .’ He [Gerald Long] said, ‘. . . just let me try it. If we have any problem with it, all you have to do is let me know and I [Gerald Long] will immediately change it. . . .’ The next morning after the [first] pour, [Leonard saw]. . . hairline cracks lead away from [a grade] stob to each side of the width of the footing. [Leonard] called Gerald [Long] up and [told him], ‘Gerald, change the concrete. I don’t want no more of this.’ He [Gerald Long] said, ‘No problem.’ ” Leonard intended that Ready Mix go back to the agreed-upon mixture of 80 percent white natural sand and 20 percent blue manufactured sand. Leonard thought “the concrete that evening worked much, much better.” In Leonard’s experience, one does not have “near the shrinkage in natural sand that [one does] with the manufactured sand. Manufactured sand does have much more shrinkage, in turn, it could be in the form of cracking and also in the form of curling. . . . Also, [i]t’s a very harsh mix. To use total blue sand without putting a fly ash with it, it will be a harsher mix. You can add a fly ash to it and it will flow better.” To soften such harshness, “the main thing would be adding water. Water makes concrete flow better. . . . [But,] [w]ater has to leave the concrete and, in turn, causes shrinkage which can, in turn, be cracking and curling.”

Leonard described the 12 pours involved in the floor slab as “the smoothest operation that [he had] ever been around. . . . And when . . . completed this, this was . . . the nicest, most level floor [Leonard had] ever seen.” But after three months, Leonard was informed that there was visible “movement with the hysters that went across a joint.” Leonard tried to remedy this by filling the joint with epoxy. But he “received a call from S & S Mills that they were having some additional movement in joints. . . . [A]t this time, [Leonard] felt sure [they] were having some curling problems.” Upon inspection, the slab sustained “[v]ery excessive . . .” curling. Additionally, “there was spalling over a large part of the warehouse spread out throughout the building.”

James Robert Longley, majority owner and vice-president of Ready Mix has known Leonard for a number of years, knew that Leonard believed “that concrete made out of blue sand would crack,” and further knew that the particular purpose for this concrete would be a warehouse where “hysters that carried heavy carpet was going to be running over that floor. . . .” Longley confirmed that, “looking at the raw numbers in [his company’s] batch records, the portions [are] about sixty-five/thirty-five (65/35). . . .” That is Ready Mix’s “standard 4000-pound mix. . . .” Gerald Edward Long confirmed he changed the mix design after the first day’s pour from 308 to 310, “an all white [sand] mix . . . [but then, on the third day’s pour, he] went back to a 308 . . . [and] [n]ever [did] tell [Leonard] that [Ready Mix] went back to a blue mix. . . .” Donald E. Dixon, a consultant in forensic engineering, performed petrographic testing on core samples drilled from the slab. He confirmed the presence of both “a natural sand and a manufactured sand, which appeared to be from the same source as the coarse aggregate, the larger aggregate.” Specifically, he found “sixty-five (65) manufactured sand and thirty-five (35) natural.” In Dixon’s opinion, “the water demand, or the amount of water necessary to make this concrete workable for a floor slab is too great[,] . . . producing a very high shrinkage which resulted in the curling problem.” To recreate a two- and three-quarter-inch slump in the Ready Mix formulation used on most of the slab, Dixon “had to add 2.4 pounds of water[, the] equivalent to ninety-six (96) pounds added to a cubic yard batch for 330 total pounds of water, as opposed to 234 shown on the batch records.” Dixon concluded the “mix that was actually furnished on the job . . . the shape of the manufactured sand is so bad, so harsh, that it increased the water demand by a great amount. [Consequently,] the more water you have, the more shrinkage you have.” In Dixon’s opinion, if one “assume[s] that [this same] floor was placed, the same concrete but without the poly [vapor barrier], and if you quartered those panels,. . . the shrinkage problem is still there[, not] changed it at all.”

In summary, the evidence authorizes findings that Gerald Long and Leonard agreed to a concrete mix containing no less than 80 percent white or natural sand and no more than 20 percent blue or manufactured sand. Gerald Long prevailed upon Leonard to permit a higher mixture of blue sand to pour the footings, upon Gerald Long’s express promise to “change it,” i.e., return to the original specifications, if Leonard were dissatisfied. Leonard was not satisfied and instructed Gerald Long to stop using the mixture containing a high proportion of blue sand. Defendant Ready Mix complied with this instruction, but only for one day, after which, defendant returned to the high blue sand mixture without informing Leonard. This high blue sand mixture is harsh, requiring substantial excess water for convenient pouring, and such extra water causes shrinkage and curling as observed in this floor.

“Any description of the goods which is made a part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” OCGA § 11-2-313 (1) (b). This is consistent with long-standing authority that, “[a]s applied to sales of personal property a warranty has been defined, as follows: A warranty is a statement or representation made by the seller of goods, contemporaneously with and as a part of the contract of sale, though collateral to the express object of it, having reference to the character, quality, or title of the goods, and by which he promises or undertakes to insure that certain facts are or shall be as he then represents them. The warranty may be express or implied. It is the former when created by the apt and explicit statements of the seller; the latter, when the law derives it by implication or inference from the nature of the transaction, or the relative situation or circumstances of the parties.’ [Cit.]” Elgin Jewelry Co. v. Estes & Dozier, 122 Ga. 807, 809 (50 SE 949). In the case sub judice, the description of a concrete mix containing no more than 20 percent manufactured sand was not met, and the evidence authorizes the jury’s determination that this failure to fulfill the contract under this description caused the concrete slab to sustain excessive curling. The first, second, and fourth enumerations are without merit.

2. The third and fifth enumerations, regarding implied warranties, are rendered moot by our affirmance on the basis of the breach of an express warranty.

Decided November 2, 1998.

Minor, Bell & Neal, William E Jourdain, James E. Looper, Jr., for appellant.

Avrett, Ponder & Withrock, Robert M. Withrock, Smith, Currie & Hancock, Joseph C. Staak, for appellee.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: McMURRAY, Presiding Judge.

text:
    A98A1656.
    BAILEY v. LAWRENCE et al.
    (508 SE2d 450)
   McMURRAY, Presiding Judge.

The following chronology is relevant to the disposition of this appeal: Seeking to recover for personal injuries sustained in a March 11, 1995 motor vehicle collision, plaintiff Thomas Herbert Bailey filed this tort action in the Superior Court of DeKalb County on March 6, 1997. Named as defendants subject to venue and jurisdiction in DeKalb County were the driver, defendant Frank Lawrence, Jr., and, ostensibly under the family purpose doctrine, the vehicle’s owner, defendant Gwendolyn E. Moore. Personal service on defendant Frank Lawrence, Jr. was attempted on March 8,1997, by leaving the summons and complaint with defendant Gwendolyn E. Moore at her residence, 5346 Windfern Court, Stone Mountain, Georgia 30088. Gwendolyn E. Moore answered, denying the applicability of the “family purpose” doctrine, and the case against her was subsequently voluntarily dismissed without prejudice. “Travelers Insurance” was served on March 10, 1997, while Phoenix Insurance Company answered in its capacity as an uninsured motorist insurance carrier.

On April 1, 1997, defendant Frank Lawrence, Jr. made a special appearance to contest personal jurisdiction and raised insufficiency of process, insufficiency of service of process, and the statute of limitation as defenses. On July 20, 1997, personal service was attempted on Frank Lawrence, Jr. at 4835 Fenbrook Drive, Stone Mountain, Georgia 30088. On October 20, 1997, plaintiff moved for an appointment of “Michael Edge, or any agent of Confidential Detective and Support Group, as agent of the Court authorized to serve the Defendant FRANK LAWRENCE, JR. with a copy of the Complaint,” and this motion was immediately granted.

On January 8, 1998, defendant Frank Lawrence, Jr. made a special appearance without subjecting himself to the jurisdiction and venue of the court and moved for summary judgment on the grounds that the statute of limitation had run and he had not yet been served with the summons and complaint. The motion is supported by defendant’s affidavit, wherein he deposed that “[w]hen Plaintiff’s lawsuit was filed ... on March 6, 1997, [he] was neither domiciled at nor a resident of Defendant Gwendolyn E. Moore’s residence located at 5346 Windfern Court, Stone Mountain, DeKalb County, Georgia 30088[, and has] neither been domiciled nor resided at said residence since January 6, 1997.” Further, defendant is “a different individual than the Frank W. Lawrence, Jr. that apparently resides at 4835 Fen-brook Drive, Stone Mountain, Georgia, who was served ... on or about July 20, 1997[; that he] never lived at, resided at, or [had] been domiciled at 4835 Fenbrook Drive[; and that he] was never served with the . . . Plaintiff’s Complaint and Summons by the sheriff’s department on July 20, 1997. . . .” Defendant Frank Lawrence, Jr. has never been married to defendant Gwendolyn E. Moore, and she was not authorized to accept service of process for him at her residence on March 8, 1997. Finally, defendant Frank Lawrence, Jr. “has never been served ... by the Sheriff’s Department, Mr. Michael Edge [the special process server] or anyone else appointed by the Court to effect service of process.”

On January 13, 1998, plaintiff moved for “SERVICE BY PUBLICATION UPON DEFENDANT FRANK LAWRENCE, JR,” under the authority of OCGA § 33-7-11 (e), based upon the claim that plaintiff “has made a diligent effort to locate Defendant [Frank Lawrence, Jr.] and cannot find Defendant within this state and has no knowledge as to the present residence or whereabouts.” In support of this motion and in opposition to defendant’s motion for summary judgment, plaintiff submitted the affidavit of plaintiff’s counsel, who deposed that, after receiving the defenses raised in defendant’s special appearance, he contacted counsel for defendants Moore and Lawrence “and was informed that Defendant Lawrence did not reside with defendant Moore at the time that service occurred. . . . [Defense counsel] informed plaintiff’s counsel by letter of April 14, 1997, that Defendant Lawrence was unwilling to acknowledge service. . . . On April 21, 1997 [plaintiff’s counsel] retained Michael Edge of Confidential Detective and Support Group for purposes of locating Defendant Lawrence. Mr. Edge conducted a skip-trace and a record search [yielding three] potential addresses[, namely] the address where service had already been made on Gwendolyn Moore, another address in Stone Mountain, and a third address in Fulton County. . . . Service was attempted at the two new addresses.” The Fulton County service was attempted on July 23, 1997, but was returned unserved due to lack of an apartment number. No apartment number could be determined. “On July 20, 1997, an individual identified as Frank Lawrence, Jr. was personally served at 4835 Fen-brook Drive, Stone Mountain. . . . [The next day,] this individual contacted [plaintiff’s counsel] and informed [him] that he was not the Frank Lawrence, Jr. [sought]. . . .”

“In the meantime, on July 3, 1997, [plaintiff’s counsel] served interrogatories and requests for production on [counsel for defendants Moore and Lawrence] which included questions intended to aid in locating Defendant Lawrence. Defendants served their responses on August 5, 1997. Defendant Lawrence responded that he did not have a permanent address, that he lives with various friends and relatives in Sparta, Georgia and elsewhere, and that he had moved from Defendant Moore’s residence prior to the date of attempted service.” “On October 31,1997, Plaintiff deposed Defendant Gwendolyn Moore [who confirmed] that Defendant Lawrence had ceased residing at her residence in January 1997. She stated that Defendant Lawrence had stayed with her on one or two occasions since then, but that he no longer resided with her. She did not know of a telephone number or address for Defendant Lawrence and could not identify any friends or relatives with whom he might be staying. ... In an attempt to locate and serve Mr. Lawrence, surveillance was conducted of the residence of Defendant Moore on November 7, 10, and 18, 1997, and additionally the location was checked several times of the day and evening hours during that time period. The investigator observed no vehicles present and no signs of occupancy.” On January 13, 1998, plaintiff filed a motion for service on defendant Frank Lawrence by publication, as authorized by OCGA § 33-7-11 (e).

At her deposition, defendant Gwendolyn E. Moore described defendant Frank Lawrence, Jr. as “a wanderer. . . . He’s a gambler. . . . That’s his source of income. If he gambles and wins, then he’s got income for a few days. And then he gambles again and he [w]on’t have [any] income. . . . [H]e’s all over Atlanta. . . .” She thought Frank Lawrence, Jr.’s “driver’s license has [her] address on it.” He still received “junk mail every once in a while. . . .” But he “hasn’t gotten any recently.” Frank Lawrence, Jr. “hasn’t been to [Gwendolyn E. Moore’s] house in a few months. . . . He calls [her] every once in a while.”

Phoenix Insurance Company also moved for summary judgment, arguing that, if summary judgment were granted to defendant Frank Lawrence, then plaintiff would be unable to fulfill a condition precedent to any judgment against Phoenix as the ostensible uninsured motorist carrier, namely, a judgment against the uninsured driver, whether known or unknown. See Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 166 (268 SE2d 676). The trial court denied plaintiff’s motion for service by publication, concluding that plaintiff is “guilty of laches in failing to exercise due diligence in attempting to perfect service on defendant Frank Lawrence, Jr. subsequent to the expiration of the two year statute of limitation for personal injuries.” The trial court further granted summary judgment to both defendant Frank Lawrence, Jr. and Phoenix Insurance Company. This appeal followed. Held:

In two related enumerations, plaintiff contends the trial court erred in denying his motion to serve defendant Frank Lawrence, Jr. by publication as authorized by OCGA § 33-7-11 (e) and in granting summary judgment to defendant Frank Lawrence, Jr. on the basis of the statute of limitation, and then granting summary judgment to Phoenix. In arguing that the trial court committed reversible error, plaintiff has relied primarily on this Court’s decision in Wentworth v. Fireman’s Fund &c. Ins. Cos., 147 Ga. App. 854 (250 SE2d 543). We find that authority distinguishable in material respects and affirm.

1. “OCGA § 33-7-11 (d) requires service upon both the uninsured motorist and the uninsured motorist carrier. The plaintiff bears the burden of investigating and learning the defendant’s whereabouts. Jones v. Brown, 174 Ga. App. 632 (331 SE2d 24) (1985).” Pickens v. Nationwide Mut. Ins. Co., 197 Ga. App. 550, 551 (398 SE2d 792). “In cases where the owner or operator of any vehicle causing injury or damage is known and either or both are named as defendants in any action for such injury or damages but the person resides out of state, has departed from the state, cannot after due diligence be found within the state, or conceals himself to avoid the service of summons, and this fact shall appear by affidavit to the satisfaction of the judge[,] . . . the judge may grant an order that the service be made on the owner or driver by publication of summons.” OCGA § 33-7-11 (e). “Such service does not serve as the foundation for an in personam judgment against the tortfeasor, but it does serve as a condition precedent for recovery against the uninsured motorist carrier.” Wentworth v. Fireman’s Fund &c. Ins. Cos., 147 Ga. App. 854, 855 (I), supra.

2. “The statute permitting service by publication does not [necessarily] require a showing that service has been attempted but only that the party to be served 'has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of the summons. . . .’ OCGA § 9-11-4 (e) (1) (A).” Douglas v. Woon, 205 Ga. App. 355, 356 (1) (422 SE2d 61). In the case sub judice, the only ground urged in support of plaintiff’s motion for OCGA § 33-7-11 (e) service by publication is that after diligent efforts to locate him, defendant Frank Lawrence, Jr. could not be found within this state and that plaintiff has no knowledge of defendant’s present residence or whereabouts. “If due diligence is shown in the attempt to track down the owner or operator of the vehicle causing the injury, the request for service by publication should be granted. Due diligence ‘is a question of fact which addresses itself in the first instance to the discretion of the trial court.’ [Cit.]” Wentworth v. Fireman’s Fund &c. Ins. Cos., 147 Ga. App. 854, 855, supra. Plaintiff argues that, because he undertook the same steps as the plaintiff in Wentworth, supra, such as hiring a private investigator who performed a “skip trace” and record search, attempting service in July 1997 at the second address for a Frank Lawrence, Jr., and utilizing discovery, he is not guilty of laches.

“The plaintiff bears the burden of showing lack of fault for failure to perfect timely service. Miller v. Hands, 188 Ga. App. 256 (372 SE2d 657) (1988).” Pickens v. Nationwide Mut. Ins. Co., 197 Ga. App. 550, 551, supra. In Wentworth, that complaint was filed more than a year before the running of the statute of limitation, and the purported uninsured motorist insurance carrier moved to dismiss four months before the statute ran. That plaintiff also subpoenaed that defendant’s sister for her deposition, but one day after the limitation period expired, she failed to appear. The next day, plaintiff moved for service by publication while still pursuing the defendant. That defendant’s sister’s appearance was subsequently compelled by court order, but the information she supplied did not lead to locating that defendant. Consequently, in Wentworth, the vast majority of effort expended to locate that defendant was undertaken prior to the time the statute of limitation expired.

In contrast, the case sub judice was not filed until a week before the end of the limitation period, which expired no later than Wednesday, March 12, 1997. Since April 1, 1997, plaintiff knew that Frank Lawrence, Jr. contested jurisdiction due to insufficient service and also that defendant would not acknowledge service. It would not have been premature to move for service by publication at that point, while simultaneously pursuing such leads as the private investigator discovered. Discovery was not propounded until four months after filing the complaint and three months after defendant’s special appearance to contest jurisdiction. Plaintiff never did pursue the lead generated by defendant’s answers to interrogatories that defendant might have been staying with his mother in Sparta, Georgia. Rather, plaintiff spent time watching Gwendolyn E. Moore’s residence day and night, after she testified at her deposition that she had not seen defendant Frank Lawrence, Jr. in months. Finally, plaintiff’s motion for service by publication was filed contemporaneously with defendant’s motion for summary judgment, ten months after the statute of limitation expired. “ ‘ “The statute of limitation is tolled by the commencement of a civil action at law. OCGA § 9-11-4 (c) . . . requires that service of a complaint shall be made within five days of the filing of the complaint. If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible.” ’ Brumbalow v. Fritz, 183 Ga. App. 231, 232 (358 SE2d 872) (1987). If this is not done, laches precludes the tolling of the statute of limitation by way of relation back of service to the filing of the complaint.” Lowes v. Allstate Ins. Co., 204 Ga. App. 148, 149 (1) (418 SE2d 465). In the case sub judice, the evidentiary posture authorized the trial court to conclude that plaintiff did not use wisely or diligently such time and resources as he had in locating and serving the known but missing defendant Frank Lawrence, Jr., knowing from the start that the expiration of the limitation period was imminent when the complaint was filed and further knowing since April 1, 1997, there was a problem with service. There was no abuse of discretion in denying plaintiff’s tardy motion for OCGA § 33-7-11 (e) service by publication. Lowes v. Allstate Ins. Co., 204 Ga. App. 148, 149 (1), 150, supra.

Decided November 2, 1998

Bryan M. Pulliam, Raymond T. Brooks, Jr., for appellant.

Shivers & Associates, Charles E. Johnson III, for appellees.

3. The trial court correctly granted summary judgment to defendant Frank Lawrence, Jr., since he had not been served in the ten months since the limitation period expired. Cason v. Williams, 207 Ga. App. 550 (428 SE2d 444) (denial of motion to dismiss reversed). It follows that summary judgment was also correctly granted to Phoenix as the uninsured motorist insurance carrier. McCrary v. Preferred Risk Mut. Ins. Co., 198 Ga. App. 727, 729 (402 SE2d 519).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

       We express no opinion on the validity of noticing defendant’s deposition after his special appearance for the sole purpose of discovering his whereabouts.


author: Johnson, Presiding Judge.

text:
    A98A1715.
    HARRISON v. THE STATE.
    (508 SE2d 459)
   Johnson, Presiding Judge.

After a jury trial, Benjamin Harrison was convicted of driving under the influence of alcohol when it was less safe for him to do so and failing to signal a lane change. OCGA §§ 40-6-391 (a) (1); 40-6-123. Harrison contends the trial court erred in denying his motion to suppress breath test results because the arresting officer failed to read his implied consent rights in the exact language specified in OCGA § 40-5-67.1. We disagree and affirm.

‘When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment.” (Citations and punctuation omitted.) Bolt v. State, 230 Ga. App. 760, 761 (1) (497 SE2d 406) (1998).

The implied consent warning given to Harrison, which was recorded and transcribed, varied in the following ways from the warning set forth in OCGA § 40-5-67.1 (b) (2):

(a) The warning in the statute provides: “Georgia law requires you to submit to state administered chemical tests. . . .” The officer added “the” between “to” and “state,” and changed “tests” to “test.”

(b) The statute further provides: “If you submit to testing and the results indicate an alcohol concentration of 0.10 grams or more. . . .” The officer added “the” between “to” and “testing,” and omitted “0” before “.10.”

(c) The statute provides: “After first submitting to the required state tests, you are entitled to additional chemical tests ... at your own expense and from qualified personnel of your own choosing.” The officer said required state “test” instead of “tests” and said “at your own expense from a qualified personnel” rather than “at your own expense and from qualified personnel.”

(d) The officer also misread a part of that sentence and corrected himself, saying: “you are entitled to additional chemical tests ... of your own exp — at your own expense.”

Harrison was arrested and read the implied consent warning in November 1997. At that time, OCGA § 40-5-67.1 was interpreted as requiring the arresting officer to read the exact language contained in OCGA § 40-5-67.1 (b). See Richards v. State, 225 Ga. App. 777, 779 (2) (484 SE2d 683) (1997), rev’d on other grounds, 269 Ga. 483 (500 SE2d 581) (1998).

However, this Court has upheld the trial court’s denial of a motion to suppress where the warning given may have differed slightly from the statutory language. In State v. Hopkins, 232 Ga. App. 705 (503 SE2d 590) (1998), the officer possibly asked the defendant if he would submit to the state-administered “test” of his breath rather than to the state-administered “tests” of his breath as provided in the statute. We based our decision in part upon a finding that the change did not affect the meaning of the sentence. As in Hopkins, we hold that the trial court’s ruling in this case was not clearly erroneous inasmuch as the misstatements did not change the substance of the warning.

Decided November 2, 1998.

William F. Sparks, for appellant.

Tambra P. Colston, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.

We do not agree that cases such as State v. Halstead, 230 Ga. App. 208 (496 SE2d 279) (1998); State v. Barfield, 230 Ga. App. 141, 142 (495 SE2d 622) (1998); or State v. Fielding, 229 Ga. App. 675 (494 SE2d 561) (1997), require a contrary result.

In Halstead, we affirmed the grant of a motion to suppress where the officer told the defendant he was entitled to “an additional chemical test” when he should have said the defendant was entitled to have “additional chemical tests.” The difference between “test” and “tests” in that context is clear. In Barfield, we affirmed the grant of a motion to suppress where the officer said: “state administered tests” rather than “state administered chemical tests”; “after submitting to the required tests” rather than “after submitting to the required state tests”; “an additional chemical test” rather than “additional chemical tests”; said “this testing” rather than “testing”; and “results” instead of “the results.” The first and third of those misstatements changed the meaning of those sentences.

Finally, in Fielding, we affirmed the grant of a suppression motion where the officer said “an additional test” instead of “additional tests.” The error, which was also made in Barfield and Hal-stead, changed the meaning of the sentence; namely, whether the defendant was entitled to one or more than one additional test. And, in both Halstead and Barfield, we expressly considered whether the omissions and additions changed the meaning of the notice. In this case, the meaning of the warning did not change, and Harrison was not harmed. Construing the evidence most favorably to uphold the trial court’s ruling, we hold that there was a substantial basis for its decision to deny Harrison’s motion to suppress.

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.

       OCGA § 40-5-67.1 was amended effective March 27, 1998. It now expressly provides that the implied consent warning “need not he read exactly so long as the substance of the notice remains unchanged.” Ga. L. 1998, pp. 210, 212.


text:
    A98A1905.
    RUSSELL et al. v. PARKFORD MANAGEMENT COMPANY, INC.
    (508 SE2d 454)
   Johnson, Presiding Judge.

This is a premises liability suit brought by James Russell and Terri Johnson (hereinafter “tenants”) against Parkford Management Company, Inc. The tenants have provided this Court with a partial transcript of the trial.

Parkford is the manager of the Royal Creek Apartments where the tenants resided. The tenants allege that Michael Cole, a teenage resident of the apartments, began to harass them and other residents by making unsolicited sexual comments and advances. The tenants reported this conduct on several occasions to Parkford’s management personnel. The tenants assert that on one occasion, the assistant manager indicated to the tenants that she would handle the situation. The partial record reveals that on one occasion, Parkford’s management personnel refused to disclose Cole’s apartment address to Russell and advised Russell that he could report the matter to the police.

Cole subsequently got into an altercation with the tenants at the apartment swimming pool. At some point in the altercation, Cole pulled a knife, stabbed Russell in the neck and kicked Johnson in the ribs.

The tenants brought a suit for damages claiming that Parkford breached its duty of care to them by failing to keep the premises safe and by negligently and recklessly failing to take reasonable and prudent measures to ensure their safety. A jury verdict was returned in favor of Parkford, and the tenants appeal.

1. The tenants assert that the trial court erred in not allowing evidence that Parkford evicted the Cole family after the pool incident. According to the tenants, this evidence was admissible to refute Parkford’s evidence that it was not feasible for Parkford to evict Cole before the attack on the tenants occurred. For the following reasons, this enumeration is without merit.

The eviction evidence at issue is evidence of a subsequent remedial measure taken by Parkford following the alleged tortious incident. In this state, evidence of subsequent remedial measures generally is inadmissible in negligence actions because such evidence usually is introduced to show that the defendant thereby impliedly admitted “his realization of negligence.” Dept. of Transp. v. Cannady, 230 Ga. App. 585, 587 (1) (497 SE2d 72) (1998); Royals v. Ga. Peace Officer &c. Council, 222 Ga. App. 400, 401 (1) (474 SE2d 220) (1996). There are, however, some limited exceptions to this rule. For example, in Royals, supra, we recognized that evidence of feasibility of repair or modification could be admitted to controvert evidence admitted to show the lack of feasibility of such repairs.

The tenants contend that a “feasibility” exception exists in this case because the feasibility of evicting Cole before the tortious incident occurred was placed in issue by Parkford. We are not persuaded. Further expansion of the limited exception recognized in Royals, supra, regarding “ ‘ “feasibility of repair or modification,” ’ ” would greatly undermine the general rule that evidence of remedial measures is not admissible.

The evidence of the ultimate eviction of the Cole family was primarily being introduced for the purpose of impeaching the testimony of Parkford that it was not feasible to evict Cole before his tortious attack occurred. We have previously held that the admission of evidence of remedial measures for purposes of impeachment is controversial. Such an exception must be applied with care and admitted only in conjunction with carefully tailored limiting instructions, since any evidence of subsequent remedial measures might be thought to contradict, and so in a sense impeach, a party’s testimony that it was using due care at the time of the incident. If this counted as “impeachment,” it would swallow the rule. See Royals, supra.

While the remedial measures rule was not designed as a shield for the introduction of perjured testimony or other erroneous material facts, the trial court must apply the limited exceptions to this rule “most judiciously” so as to preserve the strong public policy against the introduction of evidence of remedial measures to prove negligence. Royal, supra. It lies in the sound discretion of the trial court whether to admit evidence of remedial measures under an impeachment exception. We will not reverse the trial court’s determination absent manifest abuse. A trial court in its discretion may exclude evidence of remedial measures, even though such evidence is otherwise admissible under an impeachment exception, if its probative value is substantially outweighed by the risk that its admission will unduly prejudice or mislead the jury or confuse the issues being tried. See id. at 402 (1); Cannady, supra at 587 (1). The trial court did not abuse its discretion in excluding the evidence at issue.

2. The tenants contend that the trial court erred in denying their Batson challenge. See Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). In support of their contention, the tenants have cited certain federal court decisions. While federal court authority is persuasive, it is not binding. Delaney v. Lakeside Villa, Ltd., 210 Ga. App. 430, 431 (3) (440 SE2d 668) (1993). Generally, this Court adopts federal court authority only when it is not in conflict with our own legal precedent and is consistent with our public policy goals.

We affirm the trial court’s denial of the tenants’ Batson challenge. Batson involves a three-step process: the opponent of a peremptory challenge must make a prima facie showing of racial discrimination. The burden of production then shifts to the proponent of the strike to give a race-neutral reason for the strike. If a race-neutral reason is given, the trial court then decides whether the opponent of the strike has proven discriminatory intent. Chandler v. State, 266 Ga. 509, 510 (2) (467 SE2d 562) (1996).

Without access to a complete transcript of the voir dire of the jury, we cannot conclude that it was clearly erroneous for the trial court to rule that the tenants failed to carry their burden of proving that the race-neutral reasons given by the proponent of the strike were merely pretexts for purposeful racial discrimination. The posture of the evidence in the partial transcript does not support the tenants’ Batson challenge. Since the voir dire was not transcribed, we must assume that the trial court did not err in its Batson ruling. See Common v. State, 269 Ga. 470, 473 (4) (b) (500 SE2d 329) (1998); Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48, 51 (3) (397 SE2d 466) (1990).

It is uncontroverted that the jury venire included twenty-seven prospective jurors, of whom ten were minorities. Parkford exercised six of its seven peremptory strikes to exclude minority venire members from the jury. Thus, the trial court determined that the tenants had made a prima facie showing of discrimination under Batson and required Parkford to explain its strikes. See generally Crawford v. State, 220 Ga. App. 786, 787 (1) (470 SE2d 323) (1996).

In response, Parkford gave the following multiple reasons for its strikes of the minority jurors: juror no. 4 witnessed domestic disputes in her home. These disputes involved police intervention, yet she did not call the police herself on these occasions. She “blithely talked about” her friends who were gang members. She was an extremely attractive woman who Parkford’s counsel perceived would identify with prospective opposing witnesses regarding any alleged claims of harassment. Juror no. 8 had been the victim of a stalker. This juror had psychological training, wanted to go to law school, and was already studying criminal justice. The juror scowled at Parkford’s counsel throughout voir dire, and as a result Parkford’s counsel perceived that the juror did not like him. Juror no. 14 was familiar with the apartment complex and had a brother who once lived there, thus suggesting that the juror may have negative information about Park-ford. She, or a member of her family, had been a victim of domestic violence. She had knowledge of or connections with a gang through family members and friends. Her general demeanor was such that she might “buy into” the plaintiffs’ arguments as to liability. Juror no. 17 had been a victim of domestic violence, as well as a victim of a theft of services, and has also been a victim of a violent crime other than domestic violence. He stated he would hesitate to call the police when threatened with harm. He lived down the street from the apartments, and he appeared to have limited intelligence, based upon his demeanor. Juror no. 20 was familiar with the apartment complex. She was studying for the SAT college entrance examination, and Parkford’s counsel did not want to distract her from her studies because the result of the SAT apparently would determine whether the juror would be admitted into college. She experienced domestic violence in her home, yet had not called for help. She had been raped and robbed at an ATM, and was perceived as being sympathetic to Johnson’s position in the case. Juror no. 26 had been a victim of domestic violence. She was familiar with the apartment complex and passes by it every day. She was 19 years old, lived with her parents and had never lived in an apartment. She was the alternate choice to juror no. 27, an individual unfamiliar with the apartment complex, except that he had inspected the pool where this incident occurred and was familiar with its layout.

At the second step of the inquiry, the proponent of the strike is required to enunciate a race-neutral explanation for striking the particular juror. The explanation is not required to be persuasive or even plausible. Jackson v. State, 265 Ga. 897, 898-899 (2) (463 SE2d 699) (1995). “Essentially, a neutral explanation is one based on something other than the race of a juror and, unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race neutral. [Cit.]” Crawford, supra at 787-788; see Jackson, supra. At this second step, “the proffered reasons must be accepted by the trial court so long as they are not inherently discriminatory. [Cit.]” Jones v. State, 226 Ga. App. 428, 429 (1) (487 SE2d 62) (1997).

Only in the third step of the inquiry does the trial court evaluate the persuasiveness of the proponent’s race-neutral explanation. Jackson, supra at 899; see McKenzie v. State, 227 Ga. App. 778, 779 (1) (490 SE2d 522) (1997). In reviewing the trial court’s evaluation, we must be mindful that the ultimate burden of persuasion regarding racial motivation in the exercise of peremptory strikes rests with, and never shifts from, the opponent of the strike. Chandler, supra. In each of these matters, “the findings of the trial court are entitled to great deference, and should not be disturbed unless clearly erroneous.” Jackson, supra at 900.

Parkford gave multiple explanations for each of its strikes against the minority jurors. “Where there are multiple reasons for striking a juror, ... it cannot be presumed that a reason applied to one juror, of one race, but not applied to another juror, of another race, is racially motivated.” (Emphasis in original.) Lingo v. State, 263 Ga. 664, 668-669 (1) (c) (437 SE2d 463) (1993). The tenants argue that in some instances white jurors were not challenged who exhibited at least one, but less than all, of the multiple race-neutral reasons which the proponents gave for the challenge of a black juror. “[A] Batson violation does not exist simply because one or more of those racially-neutral reasons was not used by the attorney to strike potential jurors of another race or gender.” (Citation and punctuation omitted.) Holt v. Scott, 226 Ga. App. 812, 817 (3) (487 SE2d 657) (1997). Moreover, the tenants’ counsel conceded on the record that he could not show that any white juror had not been challenged who had revealed the exact same combination of reasons given for the striking of a minority juror.

Decided November 2, 1998.

Deming, Parker, Hoffman, Green & Campbell, Paul M. Hoffman, for appellants.

Duncan & Mangiafico, Edgar S. Mangiafico, Jr., for appellee.

The tenants have failed to establish a strike pattern that was not race-neutral. We have carefully examined the partial transcript before us, which does not include the voir dire of the jury, and find no appearance of discrimination. “[W]e are not authorized to create an inference of discrimination where none is apparent, and where none has been found by the trial court, to whose findings we must give great deference.” Lingo, supra at 669 (1) (c). Under the totality of circumstances, as established by the partial transcript, the trial court’s ruling that the multiple explanations given for striking each of the minority jurors were race-neutral and that tenants have failed to carry their burden of proving purposeful discrimination was not erroneous.

3. The trial court did not err in denying the tenants’ motion for new trial on the grounds addressed in Divisions 1 and 2, above. As a complete trial transcript has not been provided by the tenants, we also must assume that the ruling of the trial court in denying the motion for new trial on the general grounds was not erroneous. See Atlanta Cas. Ins. Co., supra.

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.

       The partial transcript does not reveal what action, if any, the manager took following the complaint; however, Cole was not evicted prior to the incident.

       The trial court concluded that the juror’s perceived limited intelligence was not an acceptable reason under Batson.


author: Judge Harold R. Banke.

text:
    A98A2179.
    PETERSON PROPERTIES CORPORATION v. FINCH.
    (508 SE2d 463)
   Judge Harold R. Banke.

After Patricia E. Finch allegedly fell when an elevator misleveled, she sued both the elevator maintenance company, Otis Elevator Company (“Otis”), and the property management company, Peterson Properties Corporation (“Peterson”). Peterson appeals the denial of its motion for summary judgment.

The underlying case arose after Finch notified Peterson’s property manager, Steve Quarles, that she had tripped while entering an elevator. Shortly thereafter, Quarles examined and operated the elevator at issue but found nothing wrong. Quarles then removed the elevator from service and immediately contacted Otis. When Otis conducted tests on the elevator, it was unable to detect any defect. Without performing any repairs, Otis placed the elevator back in service. Because Otis was under a maintenance contract for the elevators in the office building where Finch worked, it had inspected the elevators only 11 days before this incident. According to Otis’ location manager, Otis did not receive any requests for service calls between the date of that last inspection and the date of Finch’s unwitnessed fall.

From April 1991 until September 1996, Quarles served as the property manager for this building. Quarles testified, without contradiction, that before this incident in October 1994, no one had reported any prior elevator misalignment or malfunctioning problem to him. Quarles further testified that after this incident, there had been no complaints about the elevators. According to Quarles, he was not aware that state law (OCGA § 8-2-106 (a)) required reporting such incidents to the Safety & Engineering Division of the Department of Labor. No state inspection was performed regarding the incident.

In moving for summary judgment, Peterson argued that it lacked notice of any purported defect in the elevator and that Finch failed to exercise ordinary care for her own safety. Peterson appeals the denial of its motion. Held:

1. Peterson contends that it was entitled to summary judgment because Finch failed to prove that it had superior knowledge of the alleged hazard. We agree. Pretermitting any consideration of whether Finch failed to exercise reasonable care for her own safety, we find that Peterson was entitled to summary judgment because Finch failed to show that Peterson had superior knowledge of the purported danger. Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997).

It is well established that mechanical devices such as elevators occasionally get “out of working order” and sometimes become dangerous and cause injury without negligence on anyone’s part. Ellis v. Sears Roebuck & Co., 193 Ga. App. 797, 798 (1) (388 SE2d 920) (1989). Even assuming without deciding that as the building manager, Peterson owed the same duty as a premises owner, a heightened duty of care, Peterson was not an ensurer of the safety of elevator passengers. Lane v. Montgomery Elevator Co., 225 Ga. App. 523, 524-525 (1) (484 SE2d 249) (1997); see Millar Elevator Svc. Co. v. O’Shields, 222 Ga. App. 456, 458 (2) (475 SE2d 188) (1996) (common carriers owe duty of “extraordinary diligence”); accord Ruben’s Richmond Dept. Store v. Walker, 227 Ga. App. 867, 868 (1) (490 SE2d 536) (1997).

Proof of the occurrence of a fall, even an elevator-related one, does not establish liability. Gyles, Inc. v. Turner, 184 Ga. App. 376, 377 (361 SE2d 538) (1987); see Wilson v. Duncan, 211 Ga. App. 814, 815 (440 SE2d 550) (1994). The true ground of liability is a defendant’s superior knowledge of the defective condition. Roberts v. Gardens Svcs., 182 Ga. App. 573, 574 (356 SE2d 669) (1987) (physical precedent only).

To avert summary judgment, Finch had to offer some evidence that Peterson knew or should have known of the purported misleveling hazard. See Steele v. Rosehaven Chapel, 233 Ga. App. 853, 855 (505 SE2d 245) (1998) (failure to satisfy either prong of the Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980), test warrants summary judgment). This Finch failed to do. Although Finch offered the affidavit of a fellow office worker who testified that she “tripped because the elevator was misaligned,” that worker did not testify that she notified Peterson. Nor did this affidavit establish whether the co-worker fell before or after the date when Finch fell or even whether the fall involved the same elevator. This evidence fails to show that Peterson knew or should have known of the alleged misleveling problem even assuming arguendo that the elevator misleveled. Having pierced an essential element of Finch’s prima facie case, Peterson was entitled to judgment as matter of law. Robinson, 268 Ga. at 748-749 (2) (b); OCGA § 9-11-56 (e).

2. Peterson contends that the trial court erred in finding that noncompliance with OCGA § 8-2-106 (a) created an adverse inference or rebuttable presumption of spoliation of evidence.

Although we offer no opinion concerning Peterson’s alleged negligence in performing a duty required by state law, nevertheless, we conclude that even assuming that such a breach of duty occurred, it was not the proximate cause of Finch’s injuries. Walker v. MARTA, 226 Ga. App. 793, 798 (2) (487 SE2d 498) (1997) (physical precedent only). See Sharpnack v. Hoffinger Indus., 231 Ga. App. 829, 830 (499 SE2d 363) (1998) (summary judgment appropriate where plaintiff cannot establish a meaningful link between underlying claims and alleged spoliation).

Decided November 2, 1998.

Shivers & Associates, Dan J. Colley, for appellant.

Thomas F. Jones, for appellee.

Finch’s reliance on Lane, supra, is misplaced. In Lane, repair and maintenance records indicated the existence of prior leveling problems with the elevators. Compare id. at 523. Here, the record contains no such evidence. Moreover, in Lane, unlike here, the evidence suggested the possibility that the elevator maintenance company had negligently repaired and maintained the elevators, making the issue of possible spoliation of evidence material. Id. at 525 (1).

Judgment reversed.

Johnson, P. J., and Smith, J., concur.