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

text:
    A96A0643.
    DEESE v. NATIONSBANK OF GEORGIA, N.A.
    (474 SE2d 18)
   Birdsong, Presiding Judge.

Paul Deese appeals the grant of summary judgment to Nations-Bank of Georgia, N.A. f/k/a Citizens & Southern National Bank. He contends the trial court erred by granting summary judgment because genuine issues of material fact remained for trial.

The record shows that one morning Deese arrived to cash a check at a NationsBank’s branch shortly before the time the bank opened its drive-through lanes. While waiting for the bank to open, he parked his pickup truck in the drive-through lane.

A few minutes earlier, Collins, the bank’s security officer responsible for opening, noticed a man driving a car slowly around the bank’s vicinity, watching Collins’ movements and the bank. Thinking this suspicious, Collins decided to test the bank’s security procedures, so he did not put out the “all clear” signal. That signal would inform arriving employees all was normal and they could approach the bank. In the absence of this signal, employees were not to approach the building but were to go to a telephone and call the bank. Then, depending upon a code given during that call, they would make another call to the police to report a robbery in progress. The exact nature of the “all clear signal” is not in the record, but it is undisputed that it should have been visible to any approaching employee and all employees should have checked for it before approaching the bank.

Prince, the branch manager, however, approached the bank without looking for the signal or noting its absence. The suspicious man approached Prince, produced a shotgun, forced her into the bank, and robbed it. Collins had deactivated the alarm as part of his test of the security procedures, but when he placed a special code in the vault’s lock to reactivate the alarm and sound it, no alarm sounded. Nor did any alarm sound when the robber took certain “bait money,” the removal of which was designed to set off an alarm. While the robbery was in progress, several other employees also entered the bank without regard to the absence of the “all clear” signal.

While the robber was inside the bank, Roberts, a bank employee known to Deese, approached him and asked whether anyone was in the bank and how long he had been waiting. Although Roberts failed to note the ambush signal, she could tell something was amiss from looking in the bank’s windows. According to her deposition, she advised Deese something was wrong and told him to leave the premises, but she said he did not wish to do so because he was concerned about the people inside the bank, but he did say he would accompany her to a nearby store where she would make the necessary telephone calls. Deese testified, however, that she equivocally asked him to leave, which he took to be a request to leave the drive-through lane to allow the bank’s opening procedures to continue. He specifically denied Roberts told him anything was wrong. Roberts, joined by another employee, got into her own car and drove to a nearby public telephone within sight of the bank.

Deese did not go with Roberts. Instead, he testified he drove his pickup truck to the bank’s front parking lot, double parked to wait for the drive-through lanes to open, and began to read the newspaper. Unknown to anyone, however, this spot was near the bank robber’s car. When the man who robbed the bank emerged and approached his car, Deese asked him if the bank was opened. The man replied, in vulgar terms, it was none of Deese’s business. After watching the man approach his car and throw a garbage bag in the window, Deese went back to reading his paper. The man then yelled at Deese and when Deese looked up he saw the man pointing a shotgun at him and motioning for Deese to move his truck. Deese backed up, but the man kept pointing the shotgun at him through the car’s window while the man attempted to move his car and leave the parking lot.

At this time, according to his deposition, Deese did not know and had no reason to know the bank had been robbed. Instead, Deese testified that he believed the man to be a disgruntled bank employee. Nevertheless, because of his unpleasant verbal encounter with the man and because the man kept pointing the shotgun at him and might shoot him, Deese decided to ram his truck into the man’s car, disable the car, and call the police. When the man’s car stopped, Deese accelerated and crashed his pickup truck into the front part of the man’s car. The man jumped out, came around the front of his car, and shot Deese through the windshield of his pickup, but Deese avoided the full brunt of the blast by ducking. The man then went back to his own car and drove away. Despite injuries to his shoulder, hands, face, and eyes, Deese pursued in his truck. The chase ended when the car, which had been damaged when Deese rammed it, ceased to function. Deese approached a house and told the residents to call the police. They came, the robber was captured, and the money was recovered.

Deese sued the bank for damages. He contended, under a theory of premises liability (OCGA § 51-3-1), that he was injured as a result of the bank’s negligence in executing its security procedures and in failing to warn him of the danger posed that morning. He further asserts that the bank violated federal banking regulations requiring security systems and procedures, see 12 CFR §§ 21.1-21.4, and thus was negligent per se under OCGA § 51-1-6. Deese asserted that the behavior of the employees on the morning of the robbery, and the failure of the alarms to sound when they should have been activated, would allow a jury to conclude that the bank violated the duties imposed by these regulations. Deese also contends a jury could determine that the bank breached its duty to exercise ordinary care to guard him against injury from the robber because of the specific circumstances occurring on the bank’s premises that morning, and that the bank voluntarily assumed a duty to protect him by adopting security measures and breached that duty by negligently failing to follow those security measures.

Upon NátionsBank’s motion, the lower court granted summary judgment to the bank because the court found that there had been no substantially similar incident at the bank sufficient to create a duty to protect Deese from this kind of misconduct. This appeal followed. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). On appeal, the grant of summary judgment will be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (431 SE2d 746).

2. Regardless of whether NationsBank’s equipment and procedures worked properly or whether NationsBank was otherwise negligent, NationsBank can only be liable to Deese if its negligence was the proximate cause of his injuries. Atlanta Obstetrics &c. v. Coleman, 260 Ga. 569 (398 SE2d 16).

Here, the evidence, without question, leads only to the conclusion that NationsBank was not the proximate cause of Deese’s injuries. Deese was shot because of his own actions: For his own reasons, he elected to crash his truck into the side of the gunman’s car, and not because of anything NationsBank did or failed to do. Although ordinarily a jury question, lack of proximate cause may be decided as a matter of law when “the causal connection between [the defendant’s] conduct and the injury is too remote for the law to countenance a recovery.” (Citation and punctuation omitted.) Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 67 (397 SE2d 576). Thus, the question of proximate cause could be decided as a matter of law by the court. Atlanta Obstetrics &c. v. Coleman, supra at 570.

Here, Deese’s own testimony shows that NationsBank’s purported negligence was not the cause in fact of Deese’s injuries. Further, nothing in this record provides any reason to conclude that NationsBank should have foreseen either the bank robbery (see Sun Trust Banks v. Killebrew, 266 Ga. 109 (464 SE2d 207); Savannah College of Art &c. v. Roe, 261 Ga. 764, 765 (409 SE2d 848)) or that Deese would take the actions he did which resulted in his injuries. Western Stone &c. Corp. v. Jones, 180 Ga. App. 79, 80-81 (348 SE2d 478). Therefore, the evidence establishes unquestionably that NationsBank was not the proximate cause of Deese’s injuries. McAuley v. Wills, 251 Ga. 3, 7 (303 SE2d 258); Southern Bell Tel. &c. Co. v. Dolce, 178 Ga. App. 175, 176-177 (342 SE2d 497).

Consequently, summary judgment was appropriate because viewing all the facts and reasonable inferences from those facts in a light most favorable to Deese, the evidence does not create a triable issue on the question of proximate cause (Lau’s Corp., supra at 495). Accordingly, summary judgment was properly granted to Nations-bank regardless of the reasons given by the trial judge. Malaga Mgmt. Co. v. John Deere Co., supra.

Although the dissent contends that we should not reach the issue of proximate cause in this manner because it was not raised in the trial court, we find no support for that contention. NationsBank’s argument below was that it had no duty to protect Deese from the intervening cause because it was not foreseeable. In this sense, foreseeability is included within concept of proximate cause: “The requirement of proximate cause constitutes a limit on legal liability; it is a policy decision that for a variety of reasons, e.g., intervening act, the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance recovery.” (Citation and punctuation omitted.) Atlanta Obstetrics &c. v. Coleman, supra at 569. Consequently, contrary to the argument advanced in the dissent, this is not a new argument.

Judgment affirmed.

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

Beasley, Chief Judge,

dissenting.

I respectfully dissent.

1. Deese contends, under a theory of premises liability, that he was injured as a result of the bank’s negligence in executing its security procedures and in failing to warn him of the danger posed that morning. OCGA § 51-3-1. “Where an owner or occupier of land, by express or implied invitation, induces or leads another to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. “The proprietor is not the insurer of the invitee’s safety, [cit.] but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge. [Cit.] If the proprietor has reason to anticipate a criminal act, he or she then has a ‘duty to exercise ordinary care to guard against injury from dangerous characters.’ [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991). It is undisputed that Deese was the bank’s invitee.

The court’s order granting summary judgment states: “a proprietor has a duty to protect an invitee from injury caused by a third party’s criminal act only when the proprietor had knowledge of a prior substantially similar incident.” That is incorrect. “[A] showing of prior similar incidents on a proprietor’s premises is not always required to establish that a danger was reasonably foreseeable. ‘An absolute requirement of this nature would create the equivalent of a “one free bite rule” for premises liability, even if the (proprietor) otherwise knew that the danger existed.’ [Cit.]” Shoney’s, Inc. v. Hudson, 218 Ga. App. 171, 173 (2) (460 SE2d 809) (1995). The issue is whether there is “evidence of record that [the] defendant had knowledge that its customers were in danger of criminal attack” on its premises. Id. at 173-174 (2); see also Lay v. Munford, 235 Ga. 340 (219 SE2d 416) (1975); Howell v. Three Rivers Security, 216 Ga. App. 890, 892 (456 SE2d 278) (1995); Good Ol' Days Downtown v. Yancey, 209 Ga. App. 696, 697-698 (2) (434 SE2d 740) (1993).

2. Deese asserts that the bank violated federal banking regulations requiring security systems and procedures, see 12 CFR §§21.1-21.4, and thus was negligent per se. OCGA § 51-1-6; see Walter v. Orkin Exterminating Co., 192 Ga. App. 621, 624-625 (3) (385 SE2d 725) (1989); Dupree v. Keller Indus., 199 Ga. App. 138, 141-142 (1) (404 SE2d 291) (1991); Central of Ga. R. Co. v. Butts, 211 Ga. App. 619, 620 (2) (440 SE2d 218) (1994). “ ‘In determining whether the violation of a statute[, regulation,] or ordinance is negligence per se as to a particular person, it is necessary to examine the purposes of the legislation and decide (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm it was intended to guard against. (Cits.)’ [Cit.]” Horney v. Panter, 204 Ga. App. 474, 476 (2) (420 SE2d 8) (1992); accord Rabinovitz v. Accent Rent-A-Car, 213 Ga. App. 786 (446 SE2d 244) (1994).

This analysis differs from an inquiry as to whether the Bank Protection Act itself provides an independent federal cause of action. See Sadler v. Citibank, N. A., 947 F2d 642 (2nd Cir. 1991); Bowden v. McAndrew, 434 NW2d 195 (Mich. App. 1988). The cause of action is based in OCGA §§ 51-1-6 and 51-3-1; the proprietor’s duty is based in the Bank Protection Act. “OCGA § 51-1-6 provides for recovery of damages upon breach of a legal duty and specifies that the requirement under the law to perform or refrain from doing an act must be for the benefit of the injured person. ‘One of the problems arising out of the question of duty is the parties’ status and their relation to each other.’ [Cit.] Does the defendant owe the duty to this plaintiff? If a defendant owes no legal duty to the plaintiff, there is no cause of action in negligence. [Cit.] ‘ “(W)hat duty a defendant owed a plaintiff is ... a policy problem — a matter of law.” (Cit.)’ [Cit.]” Dupree, supra at 141 (1). Whether the bank owed a duty to Deese is determined by the analysis quoted above from Homey, supra.

The parties do not dispute that the bank falls under the regulations set forth in 12 CFR § 21.1 et seq., which require that each bank designate an officer responsible for developing and administering a written security program to protect the bank from robberies. 12 CFR § 21.2. The security programs must establish procedures for opening the bank for business, training the employees in their responsibilities under the security program during a robbery, and selecting and maintaining security devices. 12 CFR § 21.3 (a) (1), (3), & (4). Security devices must include an alarm system that promptly informs police of any attempted robbery, and other devices as may be appropriate in light of certain stated circumstances. 12 CFR § 21.3 (b). Deese argues that the behavior of the employees on the morning of the robbery, and the failure of the alarms to sound when they should have been activated, would allow a jury to conclude that the bank violated the duties imposed by these regulations.

The bank responds that negligence per se cannot be established because the regulations do not have as their purpose the protection of customers. 12 CFR § 21.1 et seq. was issued pursuant to 12 USC § 1882, part of the Bank Protection Act of 1968. The Code section requires administrative agencies to promulgate regulations for the “installation, maintenance, and operation of security devices and procedures ... to discourage robberies . . . and to assist in the identification and apprehension of persons who commit such acts.” The Senate Report addressing the Act contains a section entitled “Need for the Legislation.” S. Rep. No. 1263, 90th Cong., 2d Sess. (1968), reprinted in 1968 USCCAN 2530, 2531-2533. After reciting statistics concerning bank robberies and the amount of money lost to robbers, the Report states “more important than these monetary losses are the injuries and deaths often suffered by bank employees and customers during bank holdups. Law enforcement officials and innocent bystanders in the streets also sometimes fall victim to the shootings and high-speed automobile chases that follow the robbery of a financial institution. . . . Clearly, the large number of injuries and deaths in 1967 indicates a pressing need for this type of legislation.” 1968 USCCAN at 2531-2532.

The legislative history shows that the “more important” purpose behind the passage of the Bank Protection Act was to protect customers and employees from injury due to the violence that can surround a bank robbery. That was the “more important” reason behind requiring banks to adopt measures to discourage robberies. Deese, the bank’s customer, was injured by just the type of violence addressed. He was in the class of persons the Bank Protection Act intended to protect, and the harm he complains of was one of the harms the Act envisioned. Homey, supra. The regulations were put forth to further the Act, and a violation of them gives Deese a basis for a claim of negligence per se.

3. Even if the bank’s actions did not constitute negligence per se, Deese contends a jury could determine that the bank breached a duty to him that arose otherwise. He argues the bank had a duty to exercise ordinary care to guard him against injury from the robber because of the specific circumstances occurring on the bank’s premises that morning. See Days Inns of America v. Matt, 265 Ga. 235 (454 SE2d 507) (1995); Lau’s Corp., supra; Sun Trust, supra. The bank contends no duty arose because there had been no previous similar incidents of criminal attack on the premises, and Deese’s injuries were therefore not reasonably foreseeable. That is answered in Division 1 hereof.

Despite the absence of prior similar incidents on the premises, the circumstances of what occurred that morning allow a conclusion that the bank had knowledge criminal activity was in the offing. That is why Collins activated the security procedures and it is what Roberts suspected when she looked inside. The bank’s knowledge of a possible robbery makes it reasonably foreseeable a criminal attack on its customers might occur in the process and, viewing the evidence most favorably to Deese, the bank knew what was happening while Deese did not. Thus, the bank had superior knowledge of the risk involved and was required to exercise ordinary care to protect Deese from that risk. If Deese is believed, he was left ignorant of the circumstances and thus deprived of the opportunity to protect himself, while bank employees were alerted and could take appropriate measures. A jury could conclude the bank did not exercise ordinary care for Deese’s safety.

Although this factual situation has not previously been seen in Georgia reports, other states have addressed the issue of what duty a bank owes to protect its customers when it is aware it is being robbed. In Sinn v. Farmers’ Deposit Savings Bank, 150 A 163, 164 (Pa. 1930), a customer entered a bank and was directed to a teller’s window despite the fact that the teller knew a robber was in the bank with a bomb that eventually injured the customer. There, as here, “[t]he opportunity to warn plaintiff was present, for [the bank could] easily have suggested his withdrawal because of the threatened danger. Then, had he failed to heed the warning, it would have been his own fault.” Id. This differs from a situation in which a customer is present when a robbery is announced, has the same knowledge as the bank, and there is no opportunity to warn him. See Boyd v. Racine Currency Exchange, 306 NE2d 39, 41 (Ill. 1973). While the bank contends Deese was warned and did fail to heed, as noted above, that is a matter in dispute.

Despite knowledge of the possible robbery, the bank contends negligence cannot be shown because it could not have foreseen Deese would be attacked after the robbery and after he deliberately rammed the robber’s car. “ ‘ “ Tn order for a party to be liable ... for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might result. (Cits.)’ ” [Cit.]’ [Cits.]” Ga. Osteopathic Hosp. v. O’Neal, 198 Ga. App. 770, 776 (9) (403 SE2d 235) (1991). The issue is whether “ ‘ “the possibility of an accident was clear to the ordinarily prudent eye.” (Cits.)’ ” Western Stone &c. Corp. v. Jones, 180 Ga. App. 79, 80 (348 SE2d 478) (1986).

Although the specific incident which occurred would take imagination to predict, it was clearly foreseeable that some injurious consequence might result from failing to properly execute the security procedures or to advise Deese to leave the premises and remove himself from harm’s way. That the injury actually occurred after the robber left the building but while he was still on the premises does not take it outside the scope of foreseeability, nor make it “after the robbery.” The getaway was part of the criminal act, the event of which the bank had received warning.

In premises liability cases in which the ultimate injury is caused by a criminal actor, anticipating “the particular consequences” that ensue will always be difficult, but that does not end foreseeability. In Ga. Osteopathic Hosp., supra at 770, a patient was killed by police when he “went berserk” due to a drug reaction. The defendant hospital claimed that the policeman’s action must be considered the proximate cause of the death and that it was not foreseeable he would begin attacking people with a knife and be shot by police. Id. at 777 (9). We rejected that argument, stating “it was certainly foreseeable that the negligent administration of an inappropriate medication might result in injury to him.” Id. There, as here, the details of the injury might not have been predictable, but that an injury could result was foreseeable. Similarly, it was foreseeable that an injury would result because a psychotic adolescent was released on a temporary basis from a mental hospital; that he stabbed his father was a specific detail that did not affect the issue of foreseeability. Swofford v. Cooper, 184 Ga. App. 50, 53-54 (3) (360 SE2d 624) (1987), aff'd, Cooper v. Swofford, 258 Ga. 143 (368 SE2d 518) (1988). Accord Burdine v. Linquist, 177 Ga. App. 545, 546-547 (340 SE2d 198) (1986) (prior burglaries make crime foreseeable; it need not be specifically foreseen that crime will be armed robbery); Bayshore Co. v. Pruitt, 175 Ga. App. 679, 680 (1) (334 SE2d 213) (1985) (prior break-ins on ground-level apartments make break-in of second-floor unit foreseeable).

The bank also argues that any act of negligence on its part was not the proximate cause of Deese’s injuries. However, the bank raises this issue for the first time on appeal. In its motion for summary judgment, brief in support thereof, “Statement of Theory of Recovery,” and “Statement of Material Facts as to Which There Exists no Genuine Issue,” the bank only addressed the issue of whether it owed any duty to Deese. After Deese responded to the motion, the bank filed a “Brief in Reply to Plaintiff’s Brief in Opposition to Defendant’s Motion for Summary Judgment” in which, again, it only addressed the duty issue. The law of summary judgment does not place any “burden on a plaintiff to respond to issues which are not raised in the motion for summary judgment or to present its entire case on all allegations in the complaint — even on issues not raised in the defendants’ motion. Indeed, until [the bank] pierced the allegations of [Deese’s] complaint on a particular issue, he was neither required to respond to the motion on that issue ([cits.]), nor required to produce evidence in support of his complaint on that issue. [Cits.] The issues that must be rebutted on motion for summary judgment are those raised by the motion. Consequently, [Deese] was not required to present proof on all matters raised in his complaint until appellees pierced his complaint on those issues.” Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995).

Proximate cause has never been raised or argued in the trial court and this should preclude any decision by this Court on the issue. “As a court of review, this court does not decide questions which were not raised and ruled on and preserved in the record below. [Cit.]” Atlanta Gas Light Co. v. Ga. Pub. Svc. Comm., 212 Ga. App. 575, 577 (1) (442 SE2d 860) (1994).

Even if we consider the issue of proximate cause under the “right for any reason” theory, Hodge, supra at 690-691 (2), the issue should not be decided by summary judgment. Deese’s ramming of the robber’s car took place after the bank’s negligence and before his injury, and the bank argues his actions were the proximate cause of his injury so as to relieve the bank of liability as a matter of law. While proximate cause is ordinarily a question for the jury, lack of proximate cause may be decided as a matter of law when “ ‘ “the causal connection between [the defendant’s] conduct and the injury is too remote for the law to countenance a recovery.” ’ [Cit.]” Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 67 (2) (d) (397 SE2d 576) (1990). This, however, is not such a case; the bank’s conduct in not warning its customers about an armed robber on the premises is not remote from injury resulting from an attack by that robber on a customer. Compare McAuley v. Wills, 251 Ga. 3 (303 SE2d 258) (1983) (death of a baby the day after birth too remote from an accident that left the mother a paraplegic before the baby’s conception); Southern Bell Tel. &c. Co. v. Dolce, 178 Ga. App. 175 (342 SE2d 497) (1986) (injury to pay-phone patron resulting from vehicle’s brakes failing on a road adjacent to parking lot next to which telephone company placed a public phone too remote from act of placing and maintaining phone at that location).

The majority’s recitation of the facts here is accurate, but places emphasis on an irrelevancy. It does not matter whether Deese knew the man who came out of the bank and pointed a shotgun at him was a robber or a disgruntled employee. The issue as it relates to proximate cause is not Deese’s knowledge but whether the bank’s negligence in not properly following its security procedures and not warning Deese of the danger posed by the robber are too remote from the injury for the law to countenance a recovery. Strickland, supra. Deese reacted to the danger presented. Although the majority characterizes Deese’s action in ramming the robber’s car as “for his own reasons,” he clearly deposed that his reason was self-defense; he feared that when the robber had gotten his car clear he would shoot and the only way to prevent it was to take offensive action. He did so because the bank did not warn him or cause its alarms to sound. Under these circumstances it cannot be said that the reason he acted in this way was “not because of anything NationsBank did or failed to do.” While Deese had the additional goal of disabling the car and calling the police, that does not preclude a jury from determining that the bank’s negligence placed him in a position which forced him to reasonably act in self-defense.

Even if Deese’s actions after the robber exited the bank are considered an independent cause, proximate cause is still a jury question; this is not a case in which the defendant’s negligence posed “ ‘no danger . . . except because of the independent cause.’ ” Western Stone, supra at 81. Allowing an unwarned armed robbery poses a danger to customers, regardless of any later independent cause. It is not “unreasonable, as a matter of law, to resist an assailant.” Killebrew v. Sun Trust Banks, 216 Ga. App. 159, 161 (1) (453 SE2d 752) (1995), rev’d on other grounds, Sun Trust Banks v. Killebrew, 266 Ga. 109 (464 SE2d 207) (1995).

Further, the fact that federal law and associated regulations require banks to take security precautions to protect their customers from the harm posed by robbers shows federal law, at least, recognizes a degree of proximate cause between bank security measures and harm to bank customers. As noted above, protecting customers from such harm was a major reason the Bank Protection Act required banks to implement such measures. When they failed, the customer was harmed. Foreseeability and proximate cause should be left to the jury.

Decided June 28, 1996

Reconsideration denied July 12, 1996

Kirbo & McCalley, Thomas L. Kirbo III, Jon V. Forehand, for appellant.

Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins, Griffith J. Winthrop III, for appellee.

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


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A96A0822.
    GOODWIN v. THE STATE.
    (474 SE2d 84)
   Birdsong, Presiding Judge.

Gregory D. Goodwin was convicted of driving under the influence and possessing an open container of an alcoholic beverage while operating a vehicle. He now appeals this judgment, enumerating three errors. Held:

1. In his first enumeration of error, appellant contends the court erred in denying the motion to suppress the stop of his vehicle. This enumeration is without merit.

Officer David Hardwick, a Clayton County police officer, was employed by the Home Lodge hotel as a part-time security guard on the night of appellant’s arrest. The Home Lodge, at that time, unwillingly hosted a significant amount of drug traffic and prostitution. Officer Hardwick was instructed by the Home Lodge management to stop every vehicle that entered the premises and inquire whether its occupants were guests of the hotel. Upon stopping appellant’s car, Officer Hardwick noticed an odor of alcohol on appellant’s breath and person. As Officer Hardwick was off-duty, he contacted the Forest Park police department. The arresting officer was then dispatched to the scene.

Under Georgia law, Home Lodge has an obligation as an innkeeper to keep its premises safe for guests. OCGA § 51-3-1; Davis v. Garden Svcs., 155 Ga. App. 34 (270 SE2d 228). This is particularly true here, as Home Lodge was aware of the drug traffic and prostitution problems on its property. Matt v. Days Inns of America, 212 Ga. App. 792 (443 SE2d 290), aff'd Days Inns of America v. Matt, 265 Ga. 235 (454 SE2d 507).

In accordance with, this duty, Home Lodge’s management directed Officer Hardwick to stop all cars entering the premises. The trial court correctly found that at the time Officer Hardwick stopped appellant he was not acting as a sworn police officer, but rather was “acting in his capacity as a hotel security officer and not attempting to search for incriminating evidence.” Berger v. State, 150 Ga. App. 166, 168 (257 SE2d 8). Appellant incorrectly characterizes this as a defective “Terry” stop. Officer Hardwick was off duty, on private property, and stopped appellant’s car not because there were specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, but solely because of his employer Home Lodge’s legitimate instructions. See Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 20 LE2d 889). Accordingly, both the stop and the information derived therefrom were properly admitted into evidence.

Once appellant was stopped, Officer Hardwick noticed the smell of alcohol on appellant’s breath and person. Although Hardwick was then acting in a purely private capacity, all law enforcement officers have the general duty to enforce the law and maintain the peace. Quinones v. Maier & Berkele, 192 Ga. App. 585 (385 SE2d 719). They carry this duty 24 hours a day, on and off duty. Carr v. State, 176 Ga. App. 113 (1) (335 SE2d 622). That Officer Hardwick contacted the police department pursuant to this duty does not alter the admissibility of appellant’s stop.

2. Appellant, in his second enumeration, argues that the trial court erred in admitting appellant’s prior DUI conviction as a similar transaction. We disagree.

Before evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. Everhart v. State, 209 Ga. App. 82 (432 SE2d 670), quoting Aaron v. State, 195 Ga. App. 339 (1) (393 SE2d 698). There is no requirement that the other transaction must be identical in every aspect. The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. Everhart, supra, citing Faison v. State, 199 Ga. App. 447, 448 (1) (405 SE2d 277).

Applying Kirkland, we find that the trial court correctly admitted appellant’s previous DUI into evidence. Kirkland v. State, 206 Ga. App. 27 (424 SE2d 638). Appellant’s two DUI arrests occurred within three years of one another and each happened shortly after midnight on a Saturday. That appellant was in a different car and county does not negate the relevance of the prior DUI, as slight variances are comprehended by Kirkland. The type of vehicle driven or the degree or source of intoxication may vary, but it is the simple act of driving while under the influence that establishes the commissions of those crimes. Id. A prior act of DUI would, regardless of any slight variance of circumstances, be relevant to prove bent of mind or course of conduct. Id. at 28.

Decided June 27, 1996

Reconsideration denied July 12, 1996

Guy J. Notte, for appellant.

3. In his third enumeration of error, appellant alleges that the court erred by allowing testimony concerning the Intoximeter 3000 and appellant’s breath results as rebuttal evidence. “Whether the State should be permitted to introduce evidence after the defendant has closed his testimony, even if it was not strictly in rebuttal, is a matter resting in the sound discretion of the court.” (Punctuation omitted.) Smith v. State, 260 Ga. 746, 748 (1) (399 SE2d 66). Evidence should be admitted if it is admissible for any legitimate purpose. Krebsbach v. State, 209 Ga. App. 474 (433 SE2d 649). Here, the State offered evidence concerning appellant’s breath test to rebut his testimony on direct examination that he had consumed two and one-half beers on the night of his arrest. Impeachment and rebuttal of a defendant’s testimony is a legitimate purpose. Charlton v. State, 217 Ga. App. 842 (459 SE2d 455). The right to impeach a defendant/witness, as set forth in OCGA § 24-9-82, is one of the cornerstones of the adversarial process. Id. at 843. Furthermore, even if otherwise inadmissible, test results may be admitted, subject to proper foundation, as the basis for expert testimony showing that the appellant was not telling the truth about the amount of alcohol he consumed. Knisely v. State, 155 Ga. App. 673 (272 SE2d 539). Here, the breath test results and expert testimony interpreting the results were admissible as they demonstrated that appellant consumed more alcohol on the night of his arrest than he admitted during direct examination. Accordingly, we hold that the trial court did not abuse its discretion in admitting this evidence.

Judgment affirmed.

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

Keith C. Martin, Solicitor, Elizabeth A. Baker, Assistant Solicitor, for appellee.


author: McMurray, Presiding Judge. Beasley, Chief Judge, Ruffin, Judge,

text:
    A96A0165.
    BRINKWORTH v. THE STATE.
    (474 SE2d 9)
   McMurray, Presiding Judge.

Defendant Brinkworth appeals his conviction of the offense of simple battery. Held:

1. The State’s evidence as to venue was that the crime occurred at “Dugan’s Restaurant on Memorial Drive,” and when asked whether that establishment was located in DeKalb County, the victim answered: “I guess it would be.” Since there is no conflicting evidence, this slight proof of venue is sufficient to authorize a jury to conclude that this element of the State’s case was proven beyond a reasonable doubt. Casey v. State, 133 Ga. App. 161 (1), 162 (210 SE2d 375). Since the State’s evidence shows that defendant struck the victim’s chin with his hand in an unprovoked attack, the jury was authorized to conclude that defendant was guilty beyond a reasonable doubt of simple battery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. The trial court refused to instruct the jury using defendant’s requested charge that “physical contact is required to prove a simple battery.” Instead, the trial court used a charge requested by the State which used the language of OCGA § 16-5-23 (a), “A person commits the offense of simple battery when he either: (1) [ijntentionally makes physical contact of an insulting or provoking nature . . .; or (2) [ijntentionally causes physical harm to another.”

During their deliberations the jury returned to the courtroom with a question for the trial court. “May we have clarification of simple battery? Does this, in this charge, necessarily include bodily contact? Could it be just verbal in this charge?” In response, the trial court repeated its earlier charge on simple battery including the quoted language taken from OCGA § 16-5-23 (a). After the jury resumed deliberations, defendant requested that his earlier refused charge be given to the jury since it spoke directly to the issue raised by the jury’s question. This request was denied, and shortly thereafter court was recessed for the night and the jury sent home.

The following morning defendant renewed his request that the jury be given his refused charge that “physical contact is required to prove a simple battery.” Although the trial court initially agreed to do so, after argument from the prosecuting attorney and establishing on the record that the jury had no further questions following the earlier recharge, defendant’s motion was denied.

Defendant now enumerates as error the refusal to give his refused instruction in the recharge of the jury, arguing only the duty of the trial court to charge fully on the elements of the crime which was the subject of the recharge. There is no contention that the charge used by the trial court was incorrect, or that there was any detrimental reliance on the trial court’s expression of intent to give the refused charge. The most that can be drawn from defendant’s argument is a contention that the instruction used by the trial court was incomplete. But we reject this argument since the instruction used by the trial court clearly identifies “physical contact” as an element of the crime of simple battery. The trial court was not obligated to instruct the jury in the exact language requested; it was sufficient that the same principle of law was fairly covered in the instructions actually given the jury. Meeks v. State, 216 Ga. App. 630, 631 (3), 632 (455 SE2d 350).

Judgment affirmed.

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

Beasley, Chief Judge,

concurring specially.

I concur in Division 1 and also in Division 2, with respect to which it is important to consider the jury charge in the context of the accusation, which contained two counts. One charged a violation of OCGA § 16-5-23.1, battery. The other charged that Brinkworth “committed the offense of SIMPLE BATTERY by intentionally making contact of an insulting and provoking nature with [the victim] by HITTING HIM in violation of OCGA § 16-5-23.” Thus the words of the statute were used in both the accusation and the jury charge, and defendant was not entitled to a jury instruction employing other words introducing the idea that the statutory words meant other than what they clearly conveyed.

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

Ruffin, Judge,

dissenting.

As stated in Division 1 of the majority opinion, the only evidence “proving” venue in DeKalb County was the victim’s testimony that she “guessed” the crime occurred there. Although Casey v. State, 133 Ga. App. 161 (1) (210 SE2d 375) (1974), relied on by the majority, provides authority for its decision, I believe Casey was wrongly decided and should be overruled. Accordingly, I respectfully dissent.

The United States Supreme Court has observed that venue is a matter that touches “closely the fair administration of criminal justice and public confidence in it[,]” and commanded that we not treat it as “merely [a matter] of formal legal procedure.” United States v. Johnson, 323 U. S. 273, 276 (65 SC 249, 89 LE 236) (1944). It is from this perspective that I question not only the sufficiency of venue evidence in this case, but also the State’s “burden” for proving venue generally.

While the majority correctly states the general rule that where venue is not contested slight proof will suffice, it is equally true that venue is an essential element in proving guilt, and like every other material allegation, must be proved beyond a reasonable doubt. Thayer v. State, 189 Ga. App. 321, 322 (1) (376 SE2d 199) (1988); Carter v. State, 146 Ga. App. 681 (247 SE2d 191) (1978). Because all material allegations must be proven by competent, affirmative evidence, evidence showing only “[a] bare suspicion ... is not sufficient.” Diggs v. State, 90 Ga. App. 853, 857 (1) (84 SE2d 611) (1954); Sokolic v. State, 228 Ga. 788, 790-791 (187 SE2d 822) (1972). Testimony constituting mere surmise or conjecture most certainly lies within this latter category. See Marshall v. State, 154 Ga. App. 327, 328 (2) (268 SE2d 383) (1980).

In Dickerson v. State, 186 Ga. 557 (199 SE 142) (1938), our Supreme Court conducted an exhaustive review of earlier cases in which venue was and was not proven by the evidence presented. Although the Court decided that the record before it contained sufficient evidence of venue, it noted that the defendant’s argument as to venue was based on “mere conjecture, unsupported by evidence or any reasonable inference deducible therefrom.” Id. at 563. If a defendant is not permitted to attack venue with mere conjecture, the State should not be permitted to meet its burden with such testimony.

In this case, the only “evidence” of venue was conjectural. There was no competent evidence showing affirmatively that Brinkworth committed the offense in DeKalb County. At best, the victim’s indefinite testimony showed “only that it was possible the crime was committed within the jurisdiction of the court [which] is insufficient to establish venue. [Cits.]” (Emphasis in original.) Royster v. State, 108 Ga. App. 269, 270 (1) (132 SE2d 830) (1963).

Similarly, in Casey, relied on by the majority, the only evidence of venue was a witness’s “guess” that Cartersville was located in Bar-tow County. Id. at 162. The court in Casey cited three cases purportedly supporting its conclusion that venue could be established by mere guesswork. See Wells v. State, 210 Ga. 422 (2) (80 SE2d 153) (1954); Campbell v. State, 202 Ga. 705 (2) (44 SE2d 903) (1947); and Downs v. State, 175 Ga. 439 (1) (165 SE 112) (1932). However, those cases state only the general rule regarding slight evidence, and more importantly, none of the cases relied on mere conjecture to prove venue. Based on the above authority, I believe Casey should be overruled.

Decided June 18, 1996

Reconsideration denied July 12, 1996

John K. Dunlap, for appellant.

Ralph T. Bowden, Jr., Solicitor, Lisa A. Jones, Walter C. Howard, Assistant Solicitors, for appellee.

I am also compelled to note my reservations with the rule requiring only slight evidence of venue. That rule requires, in effect, that if the defendant does not produce any evidence of venue, then the State may meet its burden with only slight evidence. I believe that such a rule erroneously places a burden on the defendant to produce evidence as to an essential element of the crime. It is well settled that a defendant never has such a burden, and that the State always has the burden of proving each element of the crime beyond a reasonable doubt. Sokolic, supra.

Furthermore, a rule requiring only slight evidence diminishes the State’s burden without reason. As with other material allegations, the State is required to produce competent evidence of venue. See Thayer, supra; Weeks v. State, 220 Ga. App. 141, 143 (2) (469 SE2d 316) (1996). It is then for the factfinder to decide whether he or she is persuaded beyond a reasonable doubt that the State has proven venue. See id. The factfinder weighs the evidence and determines its credibility. Id. Whether the factfinder is persuaded by only slight evidence or some greater amount of proof should not be a matter of rules; it is a matter of presenting evidence and decision-making, functions which peculiarly belong to the prosecutor and the factfinder, respectively. The rule allowing venue to be proven by only slight evidence is at best superfluous, and only clouds the law concerning the State’s burden of persuasion, while in some cases allowing the State to escape its burden of proving venue by competent evidence, beyond a reasonable doubt. There is no virtue in a jurisprudence of hypocrisy. If truth is to take a leave of absence, such leave should not be judicially impelled nor judicially compelled.

“Where venue is not established by the State, any ensuing judgment is void, although reversal of a conviction on this basis does not prevent retrial in a court where venue is proper and proven. [Cit.]” (Punctuation omitted.) Thayer, supra at 322. See also Parks v. State, 212 Ga. 433, 435 (3) (93 SE2d 663) (1956). Because the only evidence of venue in this case constituted mere conjecture, I believe the conviction should be reversed. Accordingly, I dissent.

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


author: Blackburn, Judge.

text:
    A96A0195.
    NEESE v. BRITT HOME FURNISHINGS et al.
    (474 SE2d 44)
   Blackburn, Judge.

Marie Ochs Neese appeals the summary judgment entered on her claim for personal injuries against Britt Home Furnishings (Britt).

On July 27, 1992, Marie Ochs Neese was injured in an automobile collision allegedly caused by Thomas Hollifield. Hollifield, a floor covering installer, worked various jobs for Britt who sold the covering. He was traveling to a Britt job site when the accident occurred. Neese sued Britt on a theory of respondeat superior, alleging that Hollifield was Britt’s employee and was acting within the scope of his employment at the time of the accident. After conducting discovery, Britt filed a motion for summary judgment claiming that Hollifield served Britt as an independent contractor and not as an employee. Supporting the motion were the affidavit and deposition testimony of a Britt representative. The trial court granted Britt’s motion giving rise to this appeal.

1. Neese first asserts that the trial court erred in relying on the affidavit of Jamie Britt which stated that Hollifield supplied services to Britt only as a independent contractor. Neese asserts that the affidavit contained impermissible hearsay in that it referred to business records that were not attached to the affidavit. Pretermitting the issue of whether the failure to attach the records constituted a fatal flaw in the affidavit, we determine that Neese failed to lodge a timely objection to the affidavit. The facts in Chapman v. McClelland, 248 Ga. 725 (286 SE2d 290) (1982) presented a similar situation. In Chapman, the appellant objected to an affidavit presented to the trial court in support of a summary judgment motion, asserting that the affidavit contained inadmissible hearsay and self-serving declarations not based on personal knowledge. The Georgia Supreme Court found this argument to be meritless as the objections were never raised before the lower court. Id. at 726; see also Vaughn & Co. v. Saul, 143 Ga. App. 74 (237 SE2d 622) (1977). In the present matter, the objections raised by appellate counsel were not raised by trial counsel below and we are precluded from consideration of this issue on appeal.

2. Neese asserts that the trial court erred in granting summary judgment as genuine issues of material fact exist as to Hollifield’s employment status. “The true test of whether the relationship is one of employer-employee or employer-independent contractor is whether the employer, under the contract either oral or written, assumes the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract.” (Punctuation omitted.) Gray v. Vaughn, P.C., 217 Ga. App. 872, 874 (460 SE2d 86) (1995).

“The right to control the time of doing the job means the' right to control the hours of work.” (Punctuation omitted.) RBF Holding Co. v. Williamson, 260 Ga. 526 (397 SE2d 440) (1990). No such control is evidenced here. The record reflects that Hollifield had the authority to accept or reject various jobs from Britt and to choose the days on which he worked for Britt. While Britt would initially schedule the jobs with its customers, Hollifield had the authority to reschedule any job that proved inconvenient or posed a conflict with his other work. “The right to control the manner and method [of work] means the right to tell the employee how he shall go about doing the job in every detail, including what tools he shall use and what procedures he shall follow.” (Punctuation omitted.) RBF Holding, supra. Once again, no such control is evidenced here. Britt made no effort to oversee the method or manner in which Hollifield performed his work! Hollifield selected and paid the members for his crew. He installed flooring using his own tools and without a supervisory representative from Britt. Britt does not dispute that it might sometimes require Hollifield to return to a job site and fix problems with his work. However, this does not evidence Britt’s control over Hollifield. Rather, it merely evidences that Britt would exercise its right to require Hollifield’s work to meet certain professional standards which is in keeping with and not contrary to an employer-independent contractor relationship. See Gray, supra.

3. Evidence in the record at the time the motion for summary judgment was decided revealed that Britt had never prepared a 1099 tax form for Hollifield even though it was required to do so by federal law. Neese asserts that the trial court erred in determining that Britt’s failure to file a 1099 tax form on behalf of Hollifield did not create a genuine issue of fact as to Hollifield’s employment status. In support of her proposition, Neese cites only to N. S. Co. v. Cincinnati Ins. Co., 203 Ga. App. 347, 349 (416 SE2d 859) (1992) in which we found that the employer’s issuance of 1099 tax forms is one of many factors supporting a worker’s position as an independent contractor. We do not find the converse — an employer’s failure to prepare a 1099 tax form — when considered by itself, creates a genuine issue of fact as to a worker’s employment status. As outlined above, the key issue in determining whether one is an employee or an independent contractor is the degree of control that an employer exercises over the time, manner, and method in which the work is executed. Gray, supra. Britt has provided ample, undisputed evidence that it did not exercise such control. Britt’s failure to comply with the tax code alone does not create a factual issue on the pivotal question of whether Britt exercised such control over Hollifield that he should be considered Britt’s employee. See Brewer v. Southeastern Fidelity Ins. Co., 147 Ga. App. 562, 564 (249 SE2d 668) (1978) (“a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists”).

Decided June 21, 1996

Reconsideration denied July 12, 1996

Margrett A. Skinner, Bernard Knight, for appellant.

Arrington & Hollowell, Gary W. Diamond, Sharon W. Ware & Associates, Stuart Theodore, for appellees.

Thomas Hollifield, pro se.

Judgment affirmed.

Beasley, C. J., and Birdsong, P. J., concur.

       We note that hearsay has no probative value and cannot be considered in a summary judgment proceeding. Hassell v. First Nat. Bank of Newton County, 218 Ga. App. 231, 234 (461 SE2d 245) (1995). Thus, assuming without deciding, that the affidavit was based completely on hearsay, the unrefuted deposition testimony proffered by Britt, which provided that Britt did not control the time or method in which Hollifield performed his work, supports the trial court’s entry of summary judgment.


text:
    A96A0276.
    GUARANTY NATIONAL INSURANCE COMPANY v. BROCK et al.
    (474 SE2d 46)
   Blackburn, Judge.

Guaranty National Insurance Company (GNIC) appeals the trial court’s grant of summary judgment to Jack W. Brock, Jr., and denial of summary judgment to GNIC on the coverage issue in its underlying declaratory action.

On December 8, 1992, a Baldwin County school district bus was involved in a collision. Three minors, alleged to have been injured in the collision, filed separate lawsuits naming the bus driver, the school district, and Brock as defendants: Trawick v. Baldwin County School Dist., Civil Action No. 93CV30388C, filed September 15, 1993; Farley v. Selective Ins. Co., Civil Action No. 93CV30626B, filed December 7, 1993; and Brantley v. Baldwin County School Dist., Civil Action No. 94CV31495B, filed December 5, 1994. Brock was the transportation supervisor of the school district, and the plaintiffs claimed that Brock, acting in his professional capacity, negligently hired and retained the driver of the bus.

The following facts are undisputed. Brock is a member of the Professional Association of Georgia Educators (PAGE), and was insured under a policy GNIC issued to PAGE. On November 2, 1993, Brock first notified PAGE of the Trawick lawsuit. On December 15, 1993, Brock sent written notice to PAGE of the Farley lawsuit, which included a copy of the complaint. On February 2, 1994, PAGE provided Myron F. Stevens & Company, the insurance agency who issued the GNIC policy to PAGE, notice of the Trawick and Farley lawsuits, as well as a copy of the Farley complaint. Copies of these documents were then forwarded to GNIC on February 10, 1994. On or about February 21, 1994, GNIC received a copy of the Trawick lawsuit. GNIC received a copy of the Brantley lawsuit on or about December 21, 1994.

GNIC filed the underlying declaratory judgment action to determine its liability to provide coverage to Brock in the above-mentioned lawsuits. The parties' filed cross-motions for summary judgment. In its summary judgment motion, GNIC asserted that Brock is not entitled to coverage due to the untimely notice of the three claims and because the claims fall within the policy’s exclusionary provisions. The trial court found that coverage existed, granting summary judgment to Brock and denying it to GNIC.

1. In its first enumeration of error, GNIC alleges that the trial court erred in ruling, as a matter of law, that Brock provided proper and timely notice to GNIC. We agree.

The insurance policy provides in pertinent part: ‘When an occurrence takes place, written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable.” (Emphasis supplied.) An occurrence is defined as an event which results in damages to someone other than the insured.

Despite a clause that requires an insured to notify the insurer as soon as practicable of any occurrence, if an ordinarily prudent person acting reasonably would not conclude that an incident would give rise to a possible claim, a court can determine as a matter of law that the insured was justified in not notifying the insurer of the incident. Southern Guaranty Ins. Co. v. Miller, 183 Ga. App. 261, 263 (358 SE2d 611) (1987).

Under Miller, Brock was not required to foresee every possible claim, no matter how remote, that could have arisen from the accident. Rather, Brock was only required to act reasonably under the circumstances. Because Brock was not directly involved in the bus accident, we find that the trial court did not err in holding as a matter of law that it was not unreasonable for Brock to fail to foresee that he might be named in lawsuits arising from the accident under a theory of negligent hiring. Therefore, under these facts, he provided proper and timely notice of the accident to GNIC.

However, the policy also provides: “If claim is made or suit is brought against the Insured, the Insured shall immediately forward to the Company every demand, notice, summons, or other process received by him or his representative.” (Emphasis supplied.) Thus, as a condition to coverage, Brock had a duty to immediately forward to GNIC copies of the three complaints filed against him.

Brock waited over a month to inform PAGE of the Trawick lawsuit, and approximately one week before informing PAGE of the Farley lawsuit. Moreover, and perhaps more importantly, Brock waited approximately five months before he forwarded a copy of the Trawick lawsuit to GNIC, approximately two months before he forwarded a copy of the Farley lawsuit to GNIC, and approximately two weeks before he forwarded a copy of the Brantley lawsuit to GNIC. It cannot be said that this delay was justifiable and reasonable as a matter of law. Timeliness of the notification in this context presents an issue of material fact for jury determination. See Norfolk &c. Ins. Co. v. Cumbaa, 128 Ga. App. 196, 198 (196 SE2d 167) (1973) (setting forth the general rule that limitations in policies of insurance requiring a report of incident “as soon as practicable” are subject to a factual determination). Thus, the trial court erred in granting summary judgment to Brock on this issue.

2. In its second enumeration of error, GNIC alleges that the trial court erred in ruling, as a matter of law, that Brock did not fall within the exclusionary provisions of the policy. We disagree.

Under the policy, GNIC agreed to pay the damages for which the insured was held liable based on “any claim made against the insured arising out of an occurrence in the course of the insured’s activities in his/her professional capacity . . . and caused by any acts or omissions of the insured.” The policy further defines “activities of an Insured in his/her professional capacity” to mean “activities of an Insured in the course of his/her duties as an employee of any school system.” In addition, an occurrence is defined as “an event which results in damages to someone [sic] other than the insured.”

Brock is covered for the subject incident under these general provisions. GNIC, however, argues that Brock also falls within a policy exclusion. The exclusion provides: “This policy does not apply . . . [t]o the ownership, maintenance, operation, use, loading or unloading of. . . vehicles of any kind . . . except, however, coverage would apply to . . .an insured while supervising students entering or exiting a school bus.” Specifically, GNIC argues that Brock falls within this exclusion because the matters for which Brock seeks coverage involve the operation of a school bus, but not the supervision of students exiting or entering the subject bus.

“Three well known rules used in the construction of insurance contracts apply. Any ambiguities in the contract are strictly construed against the insurer as drafter of the document, any exclusion from coverage sought to be invoked by the insurer is likewise strictly construed, and insurance contracts are to be read in accordance with the reasonable expectations of the insured where possible.” (Citations omitted; emphasis supplied.) Richards v. Hanover Ins. Co., 250 Ga. 613, 615 (299 SE2d 561) (1983).

Decided June 21, 1996

Reconsideration denied July 12, 1996.

Webb, Carlock, Copeland, Semler & Stair, Frederick M. Valz III, Scott D. Huray, for appellant.

Harris & James, William C. Harris, Chambers, Mabry, McClelland & Brooks, Lawrence J. Hogan, Charles G. Ragsdale, Sell & Melton, Jeffrey B. Hanson, Philip B. Spivey, for appellees.

Brock was not the operator of the bus; rather he was sued on a theory of negligent hiring. Negligent hiring is not one of the circumstances specified under the exclusion. Furthermore, under Richards, Brock is entitled to have the policy exclusions strictly construed against GNIC. Therefore, the trial court did not err in holding, as a matter of law, that Brock did not fall within the policy’s exclusionary provision.

Judgment affirmed in part and reversed in part.

Beasley, C. J., and Birdsong, R J., concur.


author: Judge Hilton Fuller.

text:
    A96A0302.
    GLOVER et al. v. WARE et al.
    (474 SE2d 1)
   Judge Hilton Fuller.

In this legal malpractice case, the plaintiffs/appellees sought recovery against the defendants/appellants for failure to timely file an amended estate tax return seeking a refund for taxes paid under protest. The jury found for the plaintiffs and awarded compensatory damages.

Appellants assert that the trial court erred in denying their motions for directed verdict and judgment notwithstanding the verdict. We disagree and affirm.

The verdict was not authorized, say the appellants, because the “case within the case” legally could not have been successful as the original disclaimers, for several reasons, were void ab initio and could not be resurrected. Therefore, the failure to file for a refund caused no damages, or so the appellants assert.

The parties raise many issues; it is not necessary or appropriate to address many of them. The Court declines the appellants’ invitation for a “strong” opinion resolving said-to-be unsettled questions of Georgia law. Similarly, a detailed factual statement is unnecessary. This case is resolved by basic procedural law.

Decided May 30, 1996

Reconsideration denied July 12, 1996

Goodman, McGuffey, Aust & Lindsey, William S. Goodman, Kathryn A. Cater, for appellants.

Kidd & Vaughan, David N. Schaeffer, for appellees.

“A directed verdict (and judgment n.o.v.) is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict. OCGA § 9-11-50 (a) (b).” (Emphasis in original.) Union Camp v. Daley, 188 Ga. App. 756 (374 SE2d 329) (1988).

The evidence does not demand a finding that the disclaimers would have foreclosed the possibility of a tax refund in some amount, either through litigation or negotiation. There was ample expert evidence to support the jury’s finding that some refund would have been obtained. The amount of the verdict was within that authorized by the evidence.

Therefore, the denials of the directed verdict and the motion for j.n.o.v. were proper.

Judgment affirmed.

Presiding Judge Walter C. McMillan, Jr. and Judge Arthur W. Fudger concur. All Court of Appeals’ Judges are disqualified.


text:
    A96A0401.
    LIVINGSTON v. THE STATE.
    (474 SE2d 1)
   Blackburn, Judge.

Rupert Godfry Livingston appeals from the trial court’s ruling allowing the admission of his oral custodial confession over his objection based on the State’s violation of OCGA § 17-7-210. Livingston’s objection sought to exclude his oral custodial confession, a summary of which the State failed to timely provide pursuant to his request under former OCGA § 17-7-210.

Livingston was arrested at the Hartsfield International Airport for possession of marijuana on March 24, 1994. He was indicted on December 7, 1994, and arraigned on March 24, 1995. Counsel was appointed to represent Livingston on March 27, 1995. On April 5, 1995, Livingston timely filed a discovery request under former OCGA § 17-7-210 seeking any material statements given by him while in police custody. On April 21, 1995, three days before the trial, the State supplied Livingston with a written summary of a confession allegedly made by Livingston to a DEA agent while in custody. At trial, Livingston made an objection, seeking to exclude his confession because it was supplied by the State less than ten days prior to the trial in violation of OCGA § 17-7-210. The court overruled the objection, and the jury convicted Livingston.

The State contends that Livingston’s OCGA § 17-7-210 request is controlled by Rule 31.1 of the Uniform Superior Court Rules (USCR) and was untimely because Livingston failed to obtain a written extension from the judge allowing him to make his request after arraignment. USCR 31.1 provides in pertinent part: “All motions . . . shall be made and filed at or before the time of arraignment, unless time therefor is extended by the judge in writing prior to trial.”

The State’s contentions are without merit as an OCGA § 17-7-210 request is not a motion within the meaning of Rule 31.1. The timing of the filing of an OCGA § 17-7-210 request is controlled by the statute itself. See Pealor v. State, 165 Ga. App. 387 (1) (299 SE2d 904) (1983).

Former OCGA § 17-7-210 (a) provided: “At least ten days prior to trial of the case, the defendant shall be entitled to have a copy of any statement given by him while in police custody. The defendant may make his request for a copy of any such statement, in writing, within any reasonable period of time prior to trial!’ (Emphasis supplied.) We have previously held that an OCGA § 17-7-210 request will be deemed “timely” if “compliance by the state could have been made at least 10 days prior to the trial of the case.” (Punctuation omitted.) Walls v. State, 169 Ga. App. 80 (311 SE2d 243) (1983). The State does not contend that it could not have complied with Livingston’s OCGA § 17-7-210 request ten days prior to trial, thus Livingston’s request was timely under OCGA § 17-7-210.

Once a timely OCGA § 17-7-210 request is made, the burden shifts to the State to furnish the defendant with a written copy of any in-custody statements at least ten days before trial. Walls, supra at 81. At trial, the State contended that defendant had been timely advised orally of the existence of the confession, and thus they had complied with OCGA § 17-7-210. We held in Walls, supra at 82, absent some written communication, oral compliance is not sufficient. Because the State failed to supply Livingston with a written copy of his in-custody confession at least ten days prior to trial, Livingston’s motion in limine seeking to exclude the confession should have been granted. As a result, unless we are able to say with reasonable certainty that no harm resulted, we must reverse. Ludy v. State, 177 Ga. App. 767, 768 (341 SE2d 224) (1986).

Where the challenged statement directly contradicts appellant’s trial testimony on a material issue, we cannot say with reasonable certainty that no harm resulted from the State’s failure to obey the statutory requirement of OCGA § 17-7-210. Davis v. State, 198 Ga. App. 375, 377 (401 SE2d 581) (1991). At trial, Livingston admitted he owned and was in possession of the locked suitcase containing 14.6 pounds of marijuana, as well as the key to the lock. He testified, however, that he had loaned the suitcase to his traveling companion, and disavowed any knowledge of its contents. While the written summary of defendant’s statements which the State untimely provided to defendant is not a part of the record, Officer Stubbs, Clayton County Police, testified that following the arrest, Livingston had told him that the marijuana was his (Livingston’s). For the reasons previously stated, and because the admission of Livingston’s confession negatively impacted his sole defense, we cannot say with reasonable certainty that no harm resulted. See Davis v. State, supra. Accordingly, the judgment of the trial court is reversed and the case is remanded to the trial court for disposition consistent with this opinion.

Judgment reversed and case remanded.

Beasley, C. J, and Birdsong, P. J, concur.

On Motion for Reconsideration.

In the State’s motion for reconsideration, the State contends that Livingston failed to renew his OCGA § 17-7-210 objection at the time the testimony was offered into evidence, and therefore, his objection was waived. The State relies on Ahmed Al-Beti v. State, 210 Ga. App. 312, 313 (436 SE2d 50) (1993) and Wadsworth v. State, 209 Ga. App. 333 (433 SE2d 419) (1993) to support its position. Both Ahmed and Wadsworth involved the failure of the defendant to make an OCGA § 17-7-210 objection during trial.

In the present case, after the jury was sworn, the State requested to take up a matter outside the jury’s presence, at which time the State informed the Court that it intended to use Livingston’s confession. Immediately thereafter, Livingston objected to the use of the confession stating that, it had not been provided ten days prior to trial, as required by OCGA § 17-7-210, albeit it was immediately following the swearing in of the jury. Therefore, Livingston made his OCGA § 17-7-210 objection at the first possible opportunity. This situation is distinguishable from the cases cited by the State. Here, the trial court ruled on his objection and he was entitled to rely on the trial court’s ruling.

Decided June 17, 1996

Reconsideration denied July 12,1996

Richard H. Johnston & Associates, Gregory M. Brown, for appellant.

Robert E. Keller, District Attorney, David B. Hornsby, Assistant District Attorney, for appellee.

“ Tf counsel desires to preserve an objection upon a specific point for appeal, the objection must be made at trial upon that specific ground.’ ” (Emphasis supplied.) Norman v. State, 197 Ga. App. 333 (398 SE2d 395) (1990). Livingston is not required to renew an objection originally made during trial in order to preserve that same objection for the appellate record. On the basis of our review of the transcript, we find that the objection was sufficient to preserve the issue for appeal.

       OCGA § 17-7-210 was superseded by OCGA § 17-16-1 et seq., but is applicable here because the underlying criminal case was docketed before January 1, 1995. See Ga. L. 1994, p. 1915, § 13.


text:
    A96A0410.
    In the Interest of R. R., a child.
    (474 SE2d 12)
   Birdsong, Presiding Judge.

This is a discretionary appeal from a final judgment on modification of child custody and child support.

Appellee Valerie Lynn Vann Rountree brought this modification action against appellant William D. Rountree. Appellee and appellant were divorced in December 1993; the settlement agreement incorporated into the divorce decree provided appellant would have sole custody over the couple’s three-year-old son, R. R., until the child attained age eighteen. Appellee, a school teacher, was awarded visitation rights subject to certain conditions. R. R. had been in the care of appellant since October 1992 while appellee mother had been in various inpatient and outpatient treatment facilities for alcohol abuse. At the time of the divorce, appellant worked for an Atlanta-based software company performing specialized computer programming services involving the use of the computer language COBOL.

In November 1994, appellant accepted employment with United Parcel Service in Louisville, Kentucky; he testified this job offered long-range employment opportunity, would not require him to travel, provided an opportunity to gain increased work experience, and resulted in an increase in his salary. He further testified that he did not attempt to find a job in the Atlanta area immediately before accepting the out-of-state job, and that he had a restrictive covenant in his employment contract with the Atlanta firm. There exists uncontroverted testimony of record regarding R. R.’s secure and loving relationship with his father. Appellant testified that following the move he was willing to work out a new visitation schedule. Appellee testified and admitted her prior history of alcoholism, the course of her treatment, and that she is in recovery; she has remained sober and without any alcohol since March 1993. At the time of her divorce appellee, who was then in the early stages of recovery, recognizing her situation and, in part, being influenced by her addictionologist, agreed to let appellant have sole custody of R. R. in exchange for frequent visiting privileges. Under the terms of the agreement, appellee was granted liberal visitation with R. R. every second and fourth and every other fifth weekend; overnight visitation every Wednesday; and every Friday afternoon from 4:00 p.m. to 6:00 p.m., and specified holidays and summer visits. Appellee further testified that because of the distance involved in appellant’s move, R. R. is now being denied the same degree of access to his mother and to his maternal and paternal grandparents that he previously experienced. As a result of R. R.’s sudden relocation, he informed appellee that he did not believe she loved him anymore and had abandoned him; appellee discussed this matter at length with R. R. and assured him this was not so. She calls R. R. nightly but frequently only gets the answering machine. Appellee acknowledged there has been no decline in appellant’s ability to take care of R. R. or to be a good parent to him due to the relocation.

Appellant abruptly moved R. R. during the December holiday season, after securing out-of-state employment, without giving any prior notice either to appellee or R. R. Appellant contends this was due to his concern about appellee’s adverse reaction to the move and his belief that prior knowledge of the move would cause R. R. to be upset.

The trial court orally stated on the record: “I’m going to consider there has been a change of condition. It would be ridiculous for me to say that taking a child who . . . grew up here with the family and then to go from coming home from visiting with mom to moving out-of-state overnight, to say, Well, there’s not been any change of condition. He’s still with the dad who’s raised him and loved him.’ Which he is, but there’s a change. . . . It’s a significant change in that child’s life. . . . [T]hat move has for all practical purposes, put a huge roadblock in the continued relationship with the child and his mother, which both of those people have a right to. As well as the relationship with [appellant’s] parents and [appellee’s] parents, which [is] a very important thing to a child — their relationship -with their grandparents. So, yes, there’s a significant change in conditions. And, based on that change in conditions I’m going to change the custodial arrangement between these two parents to one of joint legal custody. . . . And what I’m going to say is, joint legal custody . . . with the father being the primary physical custodian so long as he lives within Gwinnett County or within ten miles of the borders of Gwinnett County. . . . Now, in the event. . . the father is not living in Gwinnett County or within ten miles of its border, or if at some point in the future he were to move out then the mother would become the primary physical custodian.” The court explained its ruling as follows: “My concern is to give [R. R.] some stability and to allow him to have a relationship with both of his parents. . . . For your nearly 39 years of life [appellant has] primarily lived in Atlanta, worked here, [he is] in an industry that has a lot of opportunities everywhere and it’s not the case you [the appellant] set out. . . . There’s not been a history of peripatetic action in this family. . . . Furthermore, I think [OCGA] § 19-9-1 clearly makes it the obligation of the person who’s going to move to let the other person know and why. . . . Now we’re in a position of the mother coming in and saying . . . ‘they’re in Louisville and I’m having to drive half way around the country to see my [child] every two weeks.’ And dad’s saying, ‘But he’s doing fine here.’ . . . Not that I’m not saying that [R. R.’s] not doing fine. . . . But the relationship that he should have with both parents is what’s important here and I’m giving you a chance to reestablish here so he can have that relationship.” The juvenile court concluded there has been an adverse effect or change of condition which is the destruction of the relationship between the child and one parent, or conduct that was “tantamount to the destruction of it,” by appellant having moved so that the child “was not able” to see his mother and visit with her with the same frequency as before the move. Subsequently, the juvenile court issued its written final judgment, and made the following written findings of fact: (a) both parents are fit and proper persons to have custody of the minor child; (b) appellee is a recovering alcoholic and is currently sober; (c) there has been a substantial change of condition “due to the father’s removal of his residence and the residence of the minor child . . . from Georgia to Kentucky”; and (d) there has been a change of conditions which is the “destruction of the relationship between the child and one parent.” The court awarded joint legal custody of the child to both appellant and appellee. As to physical custody the court ruled that if appellant resides in Gwinnett County or within ten miles thereof by July 6, 1995, he shall be the primary physical custodian of the child and that the mother would have visitation rights as stated in the final judgment; but if appellant was not living in Gwinnett County or within ten miles thereof, appellee shall be the primary physical custodian and the father would have visitation rights as stated in the final judgment. Held:

1. (a) Once a permanent child custody award has been entered, the test for the trial court to use in change of child custody suits is whether there has been a change of conditions affecting the welfare of the child. The primary consideration to be given, as the trial court views the evidence, is the welfare of the child. Arp v. Hammonds, 200 Ga. App. 715, 716-717 (409 SE2d 275). A showing of changed conditions of an out-of-custody parent, without a showing of its material effect on the child is insufficient to warrant a change in custody. Id.; but compare In the Interest of S. D. J., 215 Ga. App. 779, 780 (452 SE2d 155) (evidence of change of condition affecting child’s welfare need not show the adverse condition had a measurable effect on the child).

(b) Though vested with discretion, the trial judge is restricted to the evidence and is unauthorized to change the custody where there is no evidence to show a new and material condition that affects the welfare of the child. Arp, supra. The discretion in such matters lies exclusively with the trial court, and if there exists any reasonable evidence to support the court’s decision concerning change of custody as between parents, such decision will be affirmed on appeal. Arp, supra at 717. “ ‘What the court must affirmatively find is either that the original custodian is no longer able or suited to retain custody or that conditions surrounding the child have so changed that modification of the original judgment would have the effect of promoting his welfare. [Cit.]”’ Ormandy v. Odom, 217 Ga. App. 780, 781 (1) (459 SE2d 439). Generally, “ ‘[i]t is a change for the worse in the conditions of the child’s present home environment rather than any purported change for the better in the environment of the non-custodial parent that the law contemplates under this theory. [Cit.]’ ” Id., but compare In the Interest of S. D. J., supra (change of custody may be based on evidence of a positive or adverse change in the circumstances of either of the joint custodial parents, or any changes in the circumstances of the child substantially affecting the welfare and best interests of the child). Nevertheless, OCGA § 19-9-1 (a) (1) (formerly OCGA § 19-9-1 (a)) expressly provides that “in all cases in which a divorce is granted, an application for divorce is pending, or a change in custody of a minor child is sought, the court, in the exercise of a sound discretion, may look into all the circumstances of the parties, including improvement of the health of a party seeking a change in custody provisions, and, after hearing both parties, may make a different disposition of the children.” (Emphasis supplied.) Contrary to appellant’s contention, continued progress by an alcoholic parent in a 12-step program and continued sobriety over a substantial period of time constitutes a factual predicate from which a trial court may infer that the parent’s health has improved, and this will constitute one factor which can be considered by a court in determining whether the requisite standard of change of condition has been met.

2. The trial court did not expressly rely in its modification of custody order on the lack of notice to appellee of appellant’s relocation of the child. We find that lack of notice, standing alone, does not constitute a material change affecting the welfare of the child, within the meaning of Arp v. Hammonds, supra. (We need not here determine whether breach of the statutory duty to give notice could give rise to a viable action in tort on behalf of an unnotified parent or party having visitation rights. See generally OCGA §§ 9-2-3, 51-1-1; compare OCGA § 19-9-1 (c) (3) notice provisions with OCGA § 19-9-1 (c) (2).) However, any adverse emotional impact caused a child by its sudden, unannounced relocation, while not a change of condition standing alone, constitutes a factor which can be considered in the totality of the circumstances (OCGA § 19-9-1 (a) (1) (formerly OCGA § 19-9-1 (a))) and balanced in determining whether a change of condition occurred.

3. While a trial court’s oral pronouncements on the record may provide appellate insight as to the intent of its subsequent written judgment, “ ‘[w]hat the judge orally declares is no judgment until it has been put in writing and entered as such.’” Williams v. City of LaGrange, 213 Ga. 241, 242 (98 SE2d 617). Accordingly, any discrepancy between the two pronouncements must be resolved in favor of the written judgment.

The judgment in this case included findings by the trial court that there existed two changes of condition. One finding on its face was that a substantial change occurred that was caused by appellant’s and his child’s out-of-state relocation. The other change was caused by a destruction of the relationship between the child and one parent (appellee). Contrary to appellant’s contentions, this latter contention is not predicated on a finding in the final judgment that the destruction was solely due to the relocation of appellant and the child. Moreover, examination of the record reveals some evidence, albeit slight, to support this finding. Further, the juvenile court found that appellee was a recovering alcoholic and that she currently is sober; an inference can be drawn from this finding that appellee’s health has improved. See Division 1 (b).

Although two separate changes of condition were found to have occurred, a fair risk exists that the juvenile court in view of its finding of change of condition due solely to relocation, may have awarded joint custody and conditional physical custody in whole or significant part based on that erroneous finding. “Relocating and remarrying are not in and of themselves sufficient changes in condition to authorize a change in custody.” Ormandy, supra at 781 (1). While adverse emotional problems caused a child by a sudden, unannounced move is a factor for consideration, relocation standing alone cannot support a finding of change of condition and a resulting change of custody. We cannot conclude that had the trial court not entered the one erroneous finding of change of condition, it still would have awarded joint legal custody and conditional physical custody in this case. The judgment must be vacated and the case remanded to the juvenile court with direction that it enter a new judgment consistent with this opinion. In doing so, the juvenile court is authorized to conduct such further hearing as deemed necessary in the interests of the child’s welfare.

4. Because appellant raises constitutional issues concerning his right to travel for the first time on appeal, these issues are not subject to appellate review. Stephens v. State, 201 Ga. App. 744, 745 (4) (412 SE2d 571).

Judgment vacated and case remanded with direction.

Blackburn, J., concurs. Beasley, C. J, concurs specially.

Beasley, Chief Judge,

concurring specially.

I agree that the judgment must be vacated and the case remanded for further proceeding. However, I do not concur in the court’s analysis of the trial court’s judgment. The trial court found that there was a substantial change of condition, “due to” the move from the Gwinnett County area to Louisville, Kentucky, and that as a result, the relationship between the boy and his mother was destroyed. That is, the trial court found the change in condition “is” the destruction. It made no other finding that the change of residence adversely affected the child. In contemplating a custodial change, a trial court must exercise its discretion to determine whether a change of custody is in the best interests of the child, OCGA § 19-9-3, but it must be guided by the established legal principles.

Before a change can be made in custody which has already been determined and established, the court “ ‘must affirmatively find . . . that the original custodian is no longer able or suited to retain custody or that conditions surrounding the child have so changed that modification of the original judgment would have the effect of promoting his welfare. [Cit.]’ ” Ormandy v. Odom, 217 Ga. App. 780, 781 (1) (459 SE2d 439) (1995). That is because the award of custody “vests the custodial parent with a prima facie right” to maintain it. (Punctuation omitted; emphasis in original.) Id. To change custody, there must be evidence and a finding that new and material conditions affect the welfare of the child. Arp v. Hammonds, 200 Ga. App. 715, 716 (409 SE2d 275) (1991).

The court made no finding that the father is no longer able or suited to retain custody. In fact, it found that both parents are fit and proper, and it retained the father as the primary physical custodian, but it was conditioned on the residence being within a ten-mile radius of the county where the mother lived. So there is no negative reflection in the court’s findings or solution with respect to the father’s ability or suitability for custody.

The court’s finding that the mother is a recovering alcoholic and currently sober implies, because of the evidence supporting that finding, that the mother has made progress since the divorce and is thus stronger healthwise, a factor which the legislature expressly intends to be considered in custody disputes. OCGA §§ 19-9-1 (a) and 19-9-3 (a) (which are applicable in this case because it was filed before July 1, 1995). Ga. L. 1995, p. 863, §§ 5 and 6. Thus it appears that the court considered this fact as one of the bases for its finding that she is fit and proper to have custody. But that does not displace the favor which the court should show to the parent with the prima facie right of continued custody. Ormandy, supra, citing Triplett v. Elder, 234 Ga. 243 (215 SE2d 247) (1975). There is good reason for it here, as the father has been the child’s custodian since at least October 1992, when he was two and one-half years old, and apparently his primary caretaker even before that time due to the mother’s disease of alcoholism.

The improvement in the mother’s health was not found to be the, or a, substantial change of condition affecting the father’s right to maintain custody. What the court did find, insofar as the move affected the child, was that the boy’s relationship with his mother was compromised because he was so far away. With respect to the agreed-upon custody order which was in place, the relocation interfered only with her visitation with him. No other negative impact on the child’s welfare was found which would support removing the child from the father’s custody. The court did not find that the move constituted a change for the worse in the child’s environment or upbringing, except for its impact on the exercise of the mother’s visitation. By itself, a move to another state is not a change of condition which would authorize modification. Mercer v. Foster, 210 Ga. 546, 548 (3) (81 SE2d 458) (1954); Ormandy, supra, and the cases cited therein. The parties were not awarded joint custody in the original decree, so the father was not prohibited from moving with the child to Kentucky. See the cases cited in Carr v. Carr, 207 Ga. App. 611, 612 (429 SE2d 95) (1993), cert. vacated, 263 Ga. 451 (435 SE2d 44) (1993). See also Moore v. Wiggins, 230 Ga. 51, 55 (1) (195 SE2d 404) (1973); Hirsh v. Dobb, 224 Ga. 130, 134 (3) (b) (160 SE2d 386) (1968).

Although the father offered to revise visitation to accommodate the change in place of residence, the court apparently did not regard that as an adequate solution. Nor is there any indication that it considered imposing on the father any or all of the expense of the mother’s visitation, as a solution to the problem of distance, with an alternative to the midweek visit. The change affected visitation; based on the findings of the court, the new location did not affect the child’s welfare, except with respect to the access of the child and the mother to each other. Conditioning continued custody on a return of residence of the father and child to the locale of the mother’s residence contravenes the principles upon which change of custody must be based. That is not to say the change of residence, which affected visitation, does not warrant a change in visitation or the arrangements therefor so as to serve the welfare and best interests of the child, who otherwise would be deprived of continuing frequent time with his mother. The move to Kentucky affected visitation; it did not adversely affect the child’s best interests and welfare with respect to his father’s custody.

Decided June 18, 1996

Reconsideration denied July 12, 1996.

Jeffrey B. Bogart, Glenda L. Sullivan, Susan A. Hurst, for appellant.

Mary B. James, for appellee.