author: Johnson, Presiding Judge.

text:
    A01A2458.
    GREEN v. THE STATE.
    (564 SE2d 731)
   Johnson, Presiding Judge.

A Houston County jury found Irvin Green guilty of armed robbery. Following the denial of his motion for new trial, Green appeals from the judgment of conviction entered on the verdict. He claims that the trial court erred in refusing to allow him to question his two co-defendants about the maximum sentence they faced had they not agreed to testify against him. Green also challenges the admission of a prior consistent statement by one of the witnesses before the witness’ veracity had been challenged, the introduction of his character into evidence, the denial of his motion for a new trial based on newly discovered evidence and the sufficiency of the evidence to support his conviction. In keeping with our recent decisions in Hernandez v. State and Vogleson v. State regarding the cross-examination of accomplices, we reverse Green’s conviction.

Viewed in a light most favorable to the verdict, the evidence shows the following. At approximately 10:50 p.m. on January 9, 1998, the two co-defendants, Melvin James and Ricardo Allen, robbed at gunpoint the Little Caesar’s Pizza store where Green was employed as a delivery driver. James and Allen both testified that Green masterminded the robbery. They testified that he provided them with the gun, drove them to the restaurant and then waited for them at a nearby building. They also testified that Green received approximately one-third of the robbery proceeds. Before trial, James and Allen pled guilty to armed robbery and received the minimum sentence for armed robbery of ten years.

1. Green claims that the trial court erred in denying him the right to question his co-defendants about the maximum sentence they could have received for armed robbery. He argues that by restricting this line of questioning, the trial court denied the jury the opportunity to hear essential evidence of his co-defendants’ motive, bias and interest in cooperating with the state.

During the cross-examination of James, the trial court admonished Green’s attorney when he questioned James about the maximum sentence James could have received had he not cooperated with the state. The following exchange took place:

[Green’s Attorney]: You pled guilty to armed robbery; is that correct?
[James]: Yes.
[Green’s Attorney]: And the State recommended that you got 10 years; is that correct?
[James]: Yes.
[Green’s Attorney]: All right. Are you aware that that’s the least amount of time that you can serve for armed robbery?
[James]: Yes.

At this point the trial court interrupted Green’s attorney and asked that he approach the bench. During the subsequent bench conference Green’s attorney was told that he could not ask James about the maximum sentence he could have received. The court instructed trial counsel that “[y]ou can ask him if he knows that’s the minimum and leave it at that. Don’t start talking about what the máximums are and all this, because that’s what he got, and he knows that’s the minimum, and then you leave it alone.”

Later, during Allen’s cross-examination, Green’s attorney once again approached the bench and asked for permission to question Allen about the maximum sentence he could have received had he not cooperated with the state. He was again instructed that while he could question Allen about the details and terms of the deal with the state, he could not question Allen about the maximum sentence.

Because we have found that it is “reversible error to preclude cross-examination of an accomplice regarding the deal he has reached with the State, including the disparity between the sentence the State will recommend in exchange for the accomplice’s cooperation and the sentence he would have received without that cooperation,” 5we reverse the conviction and remand the case for a new trial.

In Vogleson the co-defendant testified against the defendant in exchange for the state’s agreement to reduce the charges against him and recommend a reduced sentence. The trial court did not allow defense counsel to cross-examine this witness about the fact that his deal with the state allowed him to avoid a mandatory minimum sentence for trafficking cocaine. We held that this ruling violated the defendant’s rights under the Confrontation Clause and constituted reversible error.

Although the state argues that the trial court’s ruling was proper under Whitlock v. State and Shaw v. State, this Court must apply the law as it exists at the time of the appellate court’s judgment, even though it may change the judgment of the trial court which was correct at the time it was rendered. Further,

[We] disapprove of Whitlock and Ross [v. State] only to the extent they suggest that it is not reversible error to preclude cross-examination of an accomplice regarding the deal he has reached with the State, including the disparity between the sentence the State will recommend in exchange for the accomplice’s cooperation and the sentence he would have received without that cooperation.

As Judge Ruffin concurring specially in Vogleson eloquently explains: “The importance of the Sixth Amendment right to confront witnesses cannot be overstated. The clarity and undeniability of that amendment are firm, and today we reaffirm our commitment to it. Embodied in this constitutional right is the ability to cross-examine one’s accusers.” Accordingly, as the restriction of the cross-examination of Green’s co-defendants was improper and violated his constitutional right of confrontation, we reverse the conviction and remand the case for a new trial.

Decided March 27, 2002.

Rodney E. Davis, for appellant.

Kelly R. Burke, District Attorney, Amy E. Smith, Assistant District Attorney, for appellee.

2. Because of our holding in Division 1, we need not address Green’s remaining enumerations.

Judgment reversed and case remanded for a new trial.

Ruffin and Ellington, JJ, concur.

       244 Ga. App. 874, 877-878 (1) (c) (537 SE2d 149) (2000).

       250 Ga. App. 555, 557-560 (1) (552 SE2d 513) (2001).

       See Morton v. State, 241 Ga. App. 330 (526 SE2d 862) (1999); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Vogleson, supra at 560 (1); Perez v. State, 254 Ga. App. 872 (564 SE2d 208) (2002).

        Vogleson, supra at 558-559 (1).

       239 Ga. App. 763 (521 SE2d 901) (1999).

       201 Ga. App. 456 (411 SE2d 537) (1991).

        Clary v. State, 151 Ga. App. 301, 302 (2) (259 SE2d 697) (1979).

       231 Ga. App. 506 (499 SE2d 351) (1998).

        Vogleson, supra at 559-560 (1).

       Id. at 561 (Ruffin, J., concurring and concurring specially).


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A01A2030.
    DEPARTMENT OF PUBLIC SAFETY et al. v. ROBINETTE.
    (564 SE2d 726)
   Pope, Presiding Judge.

Following his DUI arrest, Mark Robinette requested a hearing on the administrative suspension of his driver’s license. An administrative law judge (“ALJ”) held an evidentiary hearing and then sustained the license suspension. Robinette filed a petition for judicial review with the superior court. The superior court reversed the ALJ’s ruling because the test result slip from the breath-testing device was not introduced into evidence at the administrative hearing. Pursuant to our grant of their application for a discretionary appeal, the Georgia Department of Public Safety (the “Department”) and its Commissioner, Colonel Sid Miles, appeal the judgment of the superior court. We affirm because the evidence did not show that Robinette’s breath test was properly administered.

The superior court sits as an appellate court when reviewing an ALJ’s ruling upholding a license suspension. See Miles v. Smith, 239 Ga. App. 641 (1) (521 SE2d 687) (1999). “In turn, in reviewing a superior court’s order in a case under the Administrative Procedure Act, our function is to determine whether the superior court has in its own final ruling committed an error of law. [Cit.]” (Punctuation omitted.) Miles v. Carr, 224 Ga. App. 247 (480 SE2d 282) (1997). The ALJ’s ruling will be upheld if there was any evidence to support it. Miles v. Smith, 239 Ga. App. at 641.

Robinette’s driver’s license was suspended pursuant to OCGA § 40-5-67.1 (c), which provides for the suspension of the driver’s license of those persons whom an arresting officer reasonably believes to be driving under the influence in violation of OCGA § 40-6-391. The scope of an administrative license suspension hearing is limited to the specific issues listed in OCGA § 40-5-67.1 (g) (2). The relevant issues here included: (1) whether the arresting officer had reasonable grounds to believe Robinette was driving under the influence of alcohol and was lawfully placed under arrest for violating OCGA § 40-6-391 (see OCGA § 40-5-67.1 (g) (2) (A)); (2) whether, at the time of the request for a blood alcohol test, the arresting officer informed Robinette of his implied consent rights and the consequence of submitting or refusing to submit to the test (see OCGA § 40-5-67.1 (g) (2) (Q); and (3) whether the test results indicated an alcohol concentration of 0.10 grams or more (see OCGA § 40-5-67.1 (g) (2) (E)). OCGA § 40-5-67.1 (g) (2) (F) requires the consideration at the administrative hearing of

Whether the test or tests were properly administered by an individual possessing a valid permit issued by the Division of Forensic Sciences of the Georgia Bureau of Investigation on an instrument approved by the Division of Forensic Sciences or a test conducted by the Division of Forensic Sciences, including whether the machine at the time of the. test was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order, which shall be required. A copy of the operator’s permit showing that the operator has been trained on the particular type of instrument used and one of the original copies of the test results or, where the test is performed by the Division of Forensic Sciences, a copy of the crime lab report shall satisfy the requirements of this sub-paragraph.

The only witness at the administrative hearing was the Cobb County policeman who was the arresting officer. The transcript shows that on October 1, 1999, at 1:45 in the morning, the officer stopped Robinette for failing to maintain a lane while driving his car. The officer could smell alcohol on Robinette’s breath, and he admitted to recently drinking an alcoholic beverage. Robinette performed poorly on a number of field sobriety tests. Based on the foregoing, the officer placed Robinette under arrest for driving under the influence of alcohol and read to him the appropriate implied consent warning. The officer took Robinette to the Cobb County jail, where he submitted to a breath test on the “Intoxilyzer 5000.” According to the oral testimony of the arresting officer, the testing device showed 0.131 grams percent alcohol. The arresting officer served Robinette with a notice of intent to suspend his driver’s license. Although neither the officer’s operating permit for the testing device nor the test result slip was admitted into evidence, the ALJ found that all the requirements for the suspension of Robinette’s driver’s license had been shown by the Department.

The superior court reversed the ruling of the ALJ because the evidence failed to satisfy the requirements of OCGA § 40-5-67.1 (g) (2) (F), noting that the arresting officer did not introduce a copy of the original test result slip. The Department argues that OCGA § 40-5-67.1 (g) (2) (F) does not establish an absolute requirement that the original test result slip be admitted into evidence. We agree. OCGA § 40-5-67.1 (g) (2) (F) is constructed of two sentences. The first sentence addresses what is required, which is to show that the chemical test was properly administered by a permitted individual on a machine in good working order. The second sentence provides that a copy of the operator’s permit and the copy of the original test results “shall satisfy” these requirements. But what is required is not the documents; it is the showing that the test was properly administered.

In the context of showing compliance with the chemical testing requirements of the DUI law, certain certificates may operate as evi-dentiary shorthand for what could be shown by more cumbersome means. The breath-testing instrument inspection certificate provided by OCGA § 40-6-392 (f), for instance, which is self-authenticating evidence that a testing machine is under good working order, “is an administrative and evidentiary procedure designed to relieve the State from the time-consuming and costly burden of having to produce live witnesses and numerous authenticated business records merely to establish that there has. been compliance with all the foundation requirements. . . .” State v. Kampplain, 223 Ga. App. 16, 19 (477 SE2d 143) (1996). We have allowed oral testimony of a trained operator who performed the chemical test to satisfy the evidentiary requirements which could otherwise have been satisfied by the submission of such an inspection certificate. See Banks v. State, 235 Ga. App. 701, 702 (1) (509 SE2d 63) (1998); see also Evans v. State, 230 Ga. App. 728, 730 (2) (497 SE2d 248) (1998) (physical precedent only). Consistent with the foregoing, we conclude that the failure of the Department to introduce the copy of the operator’s permit and a copy of the original test results is not per se insufficient to satisfy the requirements of OCGA § 40-5-67.1 (g) (2) (F). But, without these documents, the Department is required to show by other evidence that Robinette’s chemical test was properly administered within the meaning of the statute, and this it did not do.

OCGA § 40-6-392 (a) (1) (B) provides that proper testing methodology requires two samples:

In all cases where the arrest is made on or after January 1, 1995, and the state selects breath testing, two sequential breath samples shall be requested for the testing of alcohol concentration. For either or both of these sequential samples to be admissible in the state’s or plaintiff’s case-in-chief, the readings shall not differ from each other by an alcohol concentration of greater than 0.020 grams and the lower of the two results shall be determinative for accusation and indictment purposes and administrative license suspension purposes.

(Emphasis supplied.) In view of this requirement, the Department did not show the breath test was properly conducted from the testimony given at the hearing. OCGA §§ 40-6-392, 40-5-67.1, and 40-5-55 must be read in pari materia to give proper effect to their purpose. See State v. Leviner, 213 Ga. App. 99, 100 (2) (443 SE2d 688) (1994).

The arresting officer testified that “I conducted a State administered chemical test of [Robinette’s] breath which was positive with a result of .131 grams.” The officer also testified that:

I . . . showed him my certificate from the State of Georgia saying I’m certified to operate the machine. I advised him that this particular machine requires two samples for a State administered chemical test of his breath, provided him with the certificate, I set up the machine and the Intox-alyzer [sic] and then we conducted the test at that point in time.

Although the testimony shows the officer was certified to operate the testing machine and that he knew that two samples were required for a proper test, only one test result is given. We cannot presume from this evidence that Robinette completed the test as requested, giving two samples that did not differ by more than 0.020 grams of alcohol concentration, the lowest of which was 0.131 grams. The actual test results might answer that question, but the results were not in evidence — the absence of which was strongly noted by Robi-nette in his argument before the ALJ. We find the Department did not present the documentary evidence which “shall satisfy” the requirements of OCGA § 40-6-392 (a) (1) and did not otherwise show that the tests were properly administered. We must affirm the judgment of the superior court reversing Robinette’s license suspension.

Decided March 13, 2002

Reconsideration denied April 12, 2002

Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Christopher S. Brasher, Senior Assistant Attorney General, James J. Phillips, Assistant Attorney General, for appellants.

Monte K. Davis, for appellee.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.


text:
    A01A2264.
    VOLKSWAGEN OF AMERICA, INC. et al. v. GENTRY et al.
    (564 SE2d 733)
   Pope, Presiding Judge.

On February 18, 1989, Lori Gentry, the 16-year-old daughter of Ralph and Sandra Gentry, was riding in the right front passenger seat of a 1981 Volkswagen Rabbit when it was struck by another car. The Rabbit was equipped with a fully passive restraint system consisting of a diagonal two-point shoulder belt, a ramped seat and a knee bolster (the ‘VWRA system”). The VWRA system had no lap belt; rather the ramped seat and the knee bolster were intended to restrain the lower body. This kind of system is known as a two-point passive restraint system.

Lori Gentry was using the VWRA system at the time of the collision and suffered serious liver injuries. She died approximately six hours after the collision. Her parents, individually and as administrators of their daughter’s estate, filed a wrongful death action against Volkswagen of America, Inc. and Volkswagen AG.

This is the second appearance of this case before this Court. In Gentry v. Volkswagen of America, 238 Ga. App. 785 (521 SE2d 13) (1999) (“Gentry I”), the Gentrys appealed the trial court’s grant of summary judgment to Volkswagen on the ground that their state law claims were preempted by the National Traffic & Motor Vehicle Safety Act (“Federal Safety Act”). In Gentry I, this Court drew a distinction between a claim that the 1981 Rabbit was defective simply because it did not include a lap belt and claims that the specific design selected by Volkswagen for its passive restraint system was defective and held that the former claim was preempted by the Federal Safety Act because the use of a passive restraint system without a lap belt was one of three options expressly permitted under the Safety Act, and specifically under Federal Motor Vehicle Safety Standard 208 (“FMVSS 208”). 49 CFR § 571.208 S4.1.2.2. Thus, this Court held that “to the extent that the Gentrys allege as a design defect a failure to include a lap belt, that claim is preempted by federal law. [Cits.]” Id. at 788 (2) (a). We therefore affirmed the grant of summary judgment as to the Gentrys’ claim that the 1981 Rabbit was defective “because it did not include a lap belt.” Id. at 789 (2) (b).

Volkswagen argued that all of the Gentrys’ claims were merely based upon the absence of a lap belt and thus that all their claims were preempted. But this Court found Volkswagen’s characterization of the Gentrys’ claim “overly simplistic” and noted that “[t]he Gen-trys’ claims assert more than a defect based solely on the [absence] of a lap belt.” Gentry I, 238 Ga. App. at 788 (2) (a). We held in Gentry I then that the Gentrys had asserted claims for defects in the specific design selected by Volkswagen for its passive restraint system and that those claims were not precluded. This Court stated that “it would not conflict with congressional intent if Volkswagen were found liable in tort for failing to design a passive restraint system that exceeded federal standards.” Id.

After Gentry I, the case proceeded to trial and the Gentrys were awarded $20,445.25 for reasonable medical and funeral expenses, $1 million for Lori Gentry’s pain and suffering and $10 million for wrongful death. Volkswagen appeals.

1. Volkswagen first asserts that the trial court misapplied Gentry I by allowing the Gentrys’ witnesses to argue that the design flaws in the Volkswagen restraint system could have been remedied by the addition of a lap belt. Volkswagen moved in limine prior to trial to restrict the Gentrys’ ability to discuss the issue of pelvic restraint, and specifically the VWRA system’s absence of a lap belt. The trial court denied that motion stating that Gentry I did not foreclose all discussion of lap belts or pelvic restraint. Rather, the trial court interpreted Gentry I as preempting only a claim that the VWRA system was defective solely because it did not have a lap belt. After reviewing the record and the presentation of evidence, we find no basis for reversal on this ground.

We find as an initial matter that the Gentrys did not pursue a preempted claim at trial. In other words, they did not argue that the VWRA system was defective because it was a passive two-point system. Rather, their theory was that the particular design of the VWRA system was defective, particularly for someone of Lori Gentry’s size, for a number of reasons including the placement and angle of the shoulder strap and the placement of the knee bolster relative to various positions of the car seat. This claim fell within the guidelines of Gentry I and the federal law of preemption.

While the Gentrys’ experts did opine that the addition of a lap belt would have improved the VWRA system’s performance, they also pointed to other factors which would have corrected the alleged design flaws. And although the Gentrys’ witnesses compared the performance of the VWRA system with that of other systems that include lap belts we find that Volkswagen invited such a comparison.

Volkswagen stated in the pre-trial order, for example, that its own testing confirmed that “the VWRA performed as well as manual three-point belts — if the manual three-point belt systems were used.” Manual three-point systems include lap belts. And in his opening statement, Volkswagen’s counsel stated that the National Highway Traffic Safety Administration (“NHTSA”) had found that “overall, the VWRA performed equally to the three-point system.” In fact, Volkswagen argued that the VWRA system was more effective in reducing fatalities than manual three-point systems because the VWRA system did not require that a rider buckle himself up, but rather the system engaged automatically. Volkswagen’s argument in this regard opened the door for a comparison of the VWRA system to other systems. Volkswagen could not be heard to argue that its system was as safe as a three-point lap belt system without affording the Gentrys the opportunity to argue that it was not.

In addition, we note that at least some of the evidence to which Volkswagen now objects was elicited by its own counsel on cross-examination. For example, William Muzzy, the Gentrys’ engineering expert, testified during direct examination that a number of design changes in the VWRA system might have saved Lori Gentry’s life. Included among these suggestions was the addition of a “lap strap.” The Gentrys’ counsel then addressed .the other factors, but did not elicit further testimony regarding a lap belt. On cross-examination, however, Volkswagen’s counsel elicited an opinion from Muzzy that all two-point passive restraint systems were defective and worked to elicit an opinion that the only way to make them nondefective was to add a lap belt. This cross-examination went beyond the Gentrys’ position, venturing into the area prohibited by Gentry I. Volkswagen cannot claim error from evidence it elicited during its own cross-examination. See generally Moody v. Dykes, 269 Ga. 217, 220 (3) (496 SE2d 907) (1998) (a party cannot induce error and then benefit from it).

2. Volkswagen asserts that it was nevertheless entitled to a judgment notwithstanding the verdict (“j.n.o.v”) because the Gentrys’ experts could not testify that defects, other than the absence of the lap belt, proximately caused Lori Gentry’s death. Based upon our review of the arguments and the record, we find that the evidence when viewed as a whole presented a jury question of the issue of causation, and the trial court properly denied Volkswagen’s motion for j.n.o.v.

3. Volkswagen further asserts that it was error for the trial court to allow plaintiffs’ experts to testify as to their interpretation of FMVSS 208 and to allow the jury to determine what FMVSS 208 means. Volkswagen asserts that issue was a question of law for the court, and that the court was bound by NHTSA’s interpretations of its own rules.

The jury is entitled to consider the issue of a manufacturer’s compliance with federal standards or regulations in determining whether the product design was a reasonable one. Doyle v. Volkswagenwerk Aktiengesellschaft, 267 Ga. 574, 577 (481 SE2d 518) (1997). Volkswagen asserts that its VWRA system complied with FMVSS 208 because a two-point passive restraint system was one option sanctioned by the rule. It also asserts that NHTSA encouraged the use of the VWRA system due to the passive component, which reduced a passenger’s ability to travel without restraint. Under Gentry I, the Gentrys could not contest Volkswagen’s compliance with FMVSS 208 in that regard, nor could the trial judge allow the jury to place a different interpretation on that aspect of the rule.

But we must separate out-Volkswagen’s sanctioned choice of a two-point passive restraint system from the Gentrys’ claims that the VWRA system, in particular, was defective because it did not provide protection to someone of Lori Gentry’s size. That claim was allowed under Gentry I and placed at issue the reasonableness of Volkswagen’s particular passive restraint system design. The jury, therefore, was allowed to consider whether Volkswagen complied with federal safety standards in that design. The testimony which Volkswagen cites in support of this argument addressed the permitted issues of the VWRA system’s particular design, including the seat adjustment and the fit as it applied to Lori Gentry, and not the decision to pursue a passive two-point system. And, in fact, Volkswagen’s counsel stated that he did not object to one of the expert’s testifying to his understanding of federal safety requirements. Nor do we find that the testimony of Jack Martens regarding a conversation with one of Volkswagen’s design engineers raised a question of law for the jury to determine.

Volkswagen has not asserted that any of the Gentrys’ experts misstated or misunderstood the standards about which they testified. Compare Bammerlin v. Navistar Intl. Transp. Corp., 30 F3d 898, 900 (7th Cir. 1994) (where plaintiffs’ experts misstated safety standards, judge had the obligation to define for the jury what the safety standards said). Nor has Volkswagen pointed to any specific NHTSA determination stating that the particular aspects of the VWRA system about which the experts testified were in compliance with the FMVSS 208, and which may have bound the jury. Further, Volkswagen has not asserted that it requested jury instructions on the particular safety standards at issue or that such instructions were refused. In fact, the trial judge specifically charged the jurors that they could not find the VWRA system defective because it did not include a lap belt. Thus, the judge did not cede authority to the jurors for determining the meaning of FMVSS 208 with regard to the lap belt issue, but rather interpreted it for them.

Accordingly, we do not find that the jury was improperly allowed to determine the meaning of FMVSS 208 or other federal regulations, but rather was properly allowed to assess the reasonableness of Volkswagen’s design in the context of those regulations.

4. Volkswagen next asserts that the trial court erroneously instructed the jury and allowed argument to the effect that it could find liability for a violation of the Federal Safety Act. In particular, Volkswagen asserts that the Gentrys’ counsel was allowed “to persuade the jury to award enough damages to make VW recall and repair all VWRA-equipped vehicles.”

In support of this argument, Volkswagen cites to testimony the Gentrys elicited on cross-examination that cars with the VWRA system were sold primarily in the United States and to testimony elicited on cross-examination regarding the cost and installation time needed to equip a VWRA system car with a lap belt or a thigh belt. Volkswagen objected to the admission of evidence regarding the cost of adding a manual lap belt at trial, and the parties fully briefed the issue for the trial court. The Gentrys proffered this evidence to show the alternatives available to Volkswagen at the time they chose to pursue a two-point passive restraint system, as a factor for the jury to consider in determining the reasonableness of the VWRA system design. See Banks v. ICI Americas, 264 Ga. 732, 736 (1) (450 SE2d 671) (1994). They also proffered this evidence in support of their claim for punitive damages. They argued that this evidence would be relevant to show modifications that the company could have made to the VWRA system if the jury found that Volkswagen was put on notice of potential problems with the VWRA system.

The admission of evidence is “committed to the sound discretion of the trial court, whose determination shall not be disturbed on appeal unless it amounts to an abuse of discretion.” (Punctuation omitted.) Cooper Tire &c. Co. v. Crosby, 273 Ga. 454, 457 (2) (543 SE2d 21) (2001). Having reviewed the arguments, we find no abuse of discretion in the trial court’s admission of this evidence. In addition, we do not find that this evidence injected a claim for a violation of federal regulations into the trial.

Volkswagen also points to the Gentrys’ counsel’s closing argument that the jury could help get the VWRA system off the road through its verdict. Pretermitting the propriety of this portion of the closing argument, Volkswagen waived its right to contest the argument on appeal because it failed to pose a contemporaneous objection. Whitley v. Gwinnett County, 221 Ga. App. 18, 24 (10) (470 SE2d 724) (1996).

Volkswagen further takes issue with the trial court’s charge to the jury that the Gentrys were contending that Volkswagen violated the FMVSS 208 and the recall provisions of the Federal Safety Act. They assert that this instruction improperly allowed the jury to find liability based upon a violation of federal regulations. We disagree. The jury charge, when viewed as a whole, properly instructed the jury regarding the elements of the Gentrys’ claims. See Kodadek v. Lieberman, 247 Ga. App. 606, 609 (1) (545 SE2d 25) (2001). We also note that the trial court did not give the portion of the Gentrys’ requested charge stating that a violation of these rules and regulations amounted to negligence per se.

5. Volkswagen also argues that it was error for the trial court to allow the testimony of Lennart Fremling of the Swedish Road Safety Office. They assert that the Gentrys failed to give them adequate notice that they intended to call Fremling as an expert or that they intended to inject an issue of Swedish law into the trial. Volkswagen further asserts that Fremling’s testimony was irrelevant and inconsistent with U. S. law.

We find no abuse of discretion in the trial court’s admission and management of this testimony. Before allowing Fremling to testify, the trial judge heard his testimony outside the presence of the jury, with cross-examination by Volkswagen’s counsel. The trial judge also posed his own questions to Fremling and then ruled that Fremling could testify as a lay person regarding his prior dealings with Volkswagen. Throughout the course of Fremling’s direct testimony, Volkswagen posed a number of objections as to foundation and on the ground the Gentrys’ questions strayed into the realm of expert testimony. The trial court sustained the majority of these objections and cautioned the Gentrys’ attorney from “getting much too close to what an opinion of an expert would render.” We find that the trial court successfully limited Fremling’s testimony to matters appropriate for a lay witness. And we do not agree with Volkswagen that his testimony improperly injected Swedish law into the trial.

In addition, we find no abuse of discretion in allowing Fremling’s testimony for purposes of rebutting Volkswagen’s argument that the VWRA system was not defective because it was approved and encouraged by NHTSA. In Georgia, a plaintiff may pursue a claim against an automobile manufacturer even if the automobile is in compliance with U. S. safety standards. Doyle v. Volkswagenwerk Aktiengesellschaft, 267 Ga. at 577. Fremling’s testimony was relevant to show that another agency that was the functional equivalent of NHTSA had concerns regarding the safety of the VWRA system. The evidence was also relevant as to whether Volkswagen was placed on notice of safety concerns with the VWRA system prior to 1980.

6. Volkswagen next contends that the trial court erred in excluding nine exhibits that it contends proved the reasonableness of its design. We note at the outset Volkswagen has failed to identify where it even offered five of these exhibits (Exhibits 98, 99, 100, 666 and 667) into evidence or where the trial court ruled upon such an offer. Where there is no ruling from the trial court regarding the admission of evidence, there is nothing for us to review. Garrett v. McDowell, 242 Ga. App. 78 (527 SE2d 918) (2000).

The trial court excluded Volkswagen’s Exhibit 48, a letter written by NHTSA’s director, Joan Claybrook, on the ground of hearsay. Volkswagen asserts, however, that this letter falls into a hearsay rule exception covering documents from a legal investigation admitted to explain conduct and ascertain motives. OCGA § 24-3-2. But Volkswagen fails to explain how or why the letter falls into that exception. Accordingly, we find no abuse of discretion by the trial court in excluding that exhibit.

The record is ambiguous as to whether the remaining three exhibits — all NHTSA studies — were admitted at trial. The trial court initially ruled that the studies were admitted, but heard further argument on the issue without making any subsequent ruling. It appears, however, that the exhibits may not have been sent out with the jury at the close of trial. Even if these exhibits were not formally admitted, we find no reversible error because Volkswagen was given the opportunity to elicit testimony regarding the findings from these studies.

7. Volkswagen also asserts error in the trial court’s decision to exclude two studies conducted by its witness Ulrich Seiffert. Again, Volkswagen has failed to demonstrate where it offered one of these studies (Exhibit 104) into evidence, and therefore we cannot address Volkswagen’s argument as it pertains to that document. The Gentrys objected to the other study on the ground of hearsay noting that Seif-fert was not the only author, and the trial court sustained the objection. We find no abuse of discretion in this ruling. Nor do we find any harm as Volkswagen had the opportunity to question Seiffert directly on the studies.

8. Volkswagen also takes issue with the trial court’s decision to allow evidence of other similar transactions.

In product liability actions, evidence of other incidents involving the product is admissible, and relevant to the issues of notice of a defect and punitive damages, provided there is a showing of substantial similarity. Without a showing of substantial similarity, the evidence is irrelevant as a matter of law.

(Citations omitted.) Ray v. Ford Motor Co., 237 Ga. App. 316, 317 (1) (514 SE2d 227) (1999). And we review the trial court’s admission of such evidence under an abuse of discretion standard. Cooper Tire &c. Co. v. Crosby, 273 Ga. at 457 (2).

Here, the trial court reserved one day of trial to hear argument and testimony on the issue of other prior similar incidents. The Gen-trys offered this evidence to show that Volkswagen was on notice of potential defects prior to Lori Gentry’s accident. The judge subsequently ruled that only certain of the proffered incidents were sufficiently similar to the accident in this case and then allowed the use of such evidence on cross-examination only under very limited circumstances. In addition, he gave a limiting instruction to the jury on the use of this evidence. Volkswagen has not indicated where it took exception to this instruction or requested any additional instruction. Having reviewed the argument and the testimony, we cannot state that the trial court abused its discretion in admitting the evidence of these similar incidents. See Mack Trucks v. Conkle, 263 Ga. 539, 544 (3) (436 SE2d 635) (1993).

With regard to the separate Stow incident, which occurred after the Gentry accident, the trial court heard the pertinent testimony of Stephen Stow outside the presence of the jury and heard argument on the issue before allowing him to testify before the jury. The trial judge found substantial similarity in that the Stow incident involved the same restraint system, a frontal collision as did the Gentry accident, and the same “mechanism of death” (although the part of the body injured was different). In each accident, the victim loaded, or hit, the shoulder strap, resulting in injuries to the torso. The evidence also showed that Stow’s wife was somewhat close to Lori Gentry in size and also ended up on the floor of the car following the collision. This evidence was proffered, in part, to rebut Volkswagen’s defense of misuse of the system because the evidence showed that the Stow victim was using the system correctly and nevertheless ended on the floor, with injuries to the torso. Based upon our review of the record we find no abuse of discretion in the admission of this testimony on this ground.

9. Volkswagen next assert a series of errors in the trial court’s charge to the jury.

(a) Volkswagen asserts that the trial court failed to charge that Volkswagen could not be held liable for failing to equip the 1981 Rabbit with a three-point belt and cites two of its proposed charges. The trial court did in fact give one of the requested charges by instructing the jury that it could not find the VWRA system defective solely because it did not include a lap belt. The only portion of the charge omitted was a parenthetical “(three-point manual belt)” following the term lap belt. The second requested charge merely restated the same principle in a different manner. We find no error.

We also find no error in the trial court’s failure to charge that the Gentrys had to offer proof of an alternative, safer design, practicable under the circumstances, as that charge was an incomplete statement of the law, addressing only one of the factors to be considered under the balancing test adopted by our Supreme Court in defective design cases. Banks v. ICI Americas, 264 Ga. at 734-735, 736, n. 6.

(b) Volkswagen next asserts that the trial court improperly charged the jury that the Gentrys were entitled to recover if it found the vehicle defective. It asserts ’that this charge improperly excluded the requirement that the jury must find proximate cause.

But “[i]t is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Punctuation and footnote omitted.) Kodadek v. Lieberman, 247 Ga. App. at 609 (1). The trial judge charged the jury that the Gentrys were required to prove three elements, including proximate cause and gave a thorough charge on what was required to find proximate cause. Accordingly, we find no error.

(c) Nor do we find erroneous the trial court’s charge regarding Volkswagen’s duty to warn because, when considered as a whole, the charge limits that duty to reasonably foreseeable dangers and to reasonably foreseeable users. See, e.g., Farmer v. Brannan Auto Parts, 231 Ga. App. 353, 355 (1) (498 SE2d 583) (1998).

Decided March 28, 2002

Reconsideration denied April 12, 2002

Welch, Spell, Reemsnyder, Pless & Davis, Ronald D. Reemsnyder, Laura M. Tate, King & Spalding, Byron Attridge, Chilton D. Varner, Amy M. Power, for appellants.

Pope, McGlamry, Kilpatrick & Morrison, Charles N. Pope, R. Timothy Morrison, Wade H. Tomlinson III, Cochran, Cherry, Givens, Smith & Sistrunk, Hezekiah Sistrunk, Jr., Carter & Tate, James E. Carter, Mark A. Tate, for appellees.

(d) Volkswagen asserts further error in the trial court’s refusal to give its proposed charge on the issue of product alteration. We find no error because the trial court charged on misuse of the product and the consumer’s “conscious decision not to use the product as it was originally manufactured and designed,” which covered the substance of Volkswagen’s proposed charge.

(e) Volkswagen has failed to demonstrate that it objected on the record to the trial court’s pattern jury charge regarding the effect of a party’s nonproduction of evidence. By failing to object to this charge, Volkswagen failed to preserve the issue for appellate review. Smith v. Curtis, 226 Ga. App. 470, 471 (1) (486 SE2d 699) (1997).

(f) We find no merit in Volkswagen’s remaining objection to the jury charge on the ground that it improperly injected the issue of insurance into the trial. The charge as given accurately reflects the factors which the Supreme Court of Georgia listed for proper consideration in a product liability case. Banks v. ICI Americas, 264 Ga. at 734-735, 736, n. 6.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.

       Volkswagen of America and Volkswagen AG will be referred to collectively as “Volkswagen.”

       See, e.g., King v. Ford Motor Co., 209 F3d 886 (6th Cir. 2000) (holding similar claims not preempted); Moser v. Ford Motor Co., 2001 U. S. App. LEXIS 24171 (4th Cir.) (noting that similar claims would not be preempted, but holding that plaintiff had failed to produce sufficient evidence of such claims). Compare Geier v. American Honda Motor Co., 529 U. S. 861 (120 SC 1913, 146 LE2d 914) (2000) (claim that airbags required in cars conflicted with purpose of FMVSS 208 and thus was preempted).

       Moreover, the evidence at trial showed that Volkswagen’s own promotional literature equated the knee bar component of the VWRA system to a lap belt. A pre-1974 press release stated that the knee bar “functions as a lap belt is intended to function.”

       Our court rules require that briefs be supported by specific reference to the record or transcript, including record volume cites. Court of Appeals Rule 27 (c) (3) (i), (iii). The record in this case consists of 50 volumes and is in excess of 10,000 pages. It is not the function of this Court to cuR that record on behalf of a party. Bergmann v. McCullough, 218 Ga. App. 353, 355-356 (3) (461 SE2d 544) (1995). “Our requirements as to the form of appellate briefs were created not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court;... a party will not be granted relief should we err in deciphering a brief which fails to adhere to the required form.” Campbell v. Breedlove, 244 Ga. App. 819, 821 (535 SE2d 308) (2000).


author: Barnes, Judge. Smith, Presiding Judge,

text:
    A01A2315.
    KULL v. SIX FLAGS OVER GEORGIA II, L.P.
    (564 SE2d 747)
   Barnes, Judge.

Joseph Kull appeals the grant of summary judgment to Six Flags Over Georgia II, L.P. He contends that the trial court erred by granting judgment to Six Flags because Six Flags knew that it had an uninspected, deteriorating electrical component in its scoreboard and exercised no care for it; that he exercised care for the safety of his workplace and himself; and that the statute of repose does not bar his claim.

Six Flags, however, denies that it knew of any problems with the scoreboard’s wiring. It also contends that Kull was an independent contractor responsible for ensuring the safety of his workplace, who stood on a metal ladder and inserted metal pliers into a light socket without ensuring that electricity was not flowing to the scoreboard. Therefore, Six Flags contends that Kull’s own actions caused his own injuries.

After Kull sued Six Flags, the company moved for summary judgment, contending that it had no notice of the defective wiring in the electrical box that serviced the scoreboard, that Kull failed to ensure the safety of his workplace and failed to exercise ordinary care for his own safety, and that the statute of repose barred his claim. The trial court granted the motion without stating its reasons, and this appeal followed.

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). A defendant moving for summary judgment based on an affirmative defense, however, may not rely upon an absence of evidence in the record disproving the affirmative defense; in such cases the defendant has the burden of proving its affirmative defenses. Hess v. Textron Automotive Exteriors, 245 Ga. App. 264, 266 (536 SE2d 291) (2000). Further, when ruling on a motion for summary judgment, a court must give the opposing party the benefit of all reasonable doubt, and the evidence and all inferences and conclusions therefrom must be construed most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988). On motions for summary judgment, however, courts cannot resolve the facts or reconcile the issues. Fletcher v. Amax, Inc., 160 Ga. App. 692, 695 (288 SE2d 49) (1981). When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

2. If the facts were as simple as Six Flags portrays them, we would have reached a different result. Instead, as discussed more fully below, Kull attempted to remove the broken bulb with insulated pliers while standing on a ladder with rubber feet, while under the impression that a blown, fuse had interrupted power to the scoreboard, as fuses are intended to do.

Viewed in favor of Kull, the evidence shows that when he was injured, Kull was an employee of Mahalo Advertising, a company employed by Coca Cola to maintain scoreboards that Coca Cola had donated for use at softball fields. On the day of the incident, Mahalo assigned Kull to change light bulbs on the scoreboard at the Six Flags employees’ softball field because Six Flags had reported that some of the lights were out. Kull was escorted to the sign by a Six Flags employee who turned the power on and told Kull that a lot of bulbs were out.

Kull checked the scoreboard visually for obvious dangers and made sure everything functioned properly. He saw no obvious problems, and things appeared to be functioning properly. His expert testified that nothing would indicate to Kull that the scoreboard was not wired properly. Kull saw that a lot of the lights were out.

To change the light bulbs, Kull climbed an aluminum ladder with rubber feet and, without turning off the electricity to the scoreboard, began changing the burned-out bulbs. After Kull changed a few bulbs, one glass bulb broke from its metal base, which apparently caused a fuse to blow. Because a fuse blowing should interrupt the flow of electricity, Kull assumed the power was off and that he could remove the broken bulb by inserting his metal pliers, with insulated handles, into the metal bulb base and unscrewing the bulb. Unfortunately, however, in this case electricity still flowed to the bulb, and Kull was thrown backward off the ladder. As a result, the fall cracked several vertebrae in his back and one vertebra was partially crushed.

Investigation later revealed that the electric control box to the scoreboard was wired improperly when it was installed years earlier. Thus, a ground lead had 330 volts flowing through it, when it should not have carried any electricity at all.

Kull contends that the trial court erred by granting summary judgment to Six Flags because the company failed to keep the scoreboard safe or warn him of the dangers. Indeed, under our law,

“[t]he owner or occupier of land is under a duty to invitees to discover and either keep the premises safe from or warn of hidden dangers or defects not observable to such invitees in the exercise of ordinary care.” (Citation and punctuation omitted.) N. L. Indus. v. Madison, 176 Ga. App. 451, 454 (1) (336 SE2d 574) (1985). An invitee is not obligated to inspect the premises to discover latent defects. Id. at 455 (1).

Newell v. Great A & P Tea Co., 222 Ga. App. 884 (1) (476 SE2d 631) (1996).

Further, merely showing that an injury occurred, without more, does not create a presumption of negligence. Instead, “the true ground of liability is the owner’s superior knowledge of the peril and the danger therefrom. As a general rule, a [landowner] has a duty to warn an invitee, such as [Kull], of dangers or defects of which the owner knew or in the exercise of ordinary care it was the owner’s duty to know.” (Citations omitted.) Clemmons v. Griffin, 230 Ga. App. 721, 722 (498 SE2d 99) (1998).

Kull alleges that any electrician inspecting the box would have noticed that it was improperly wired. Further, it was obvious to Kull’s expert when he inspected the scoreboard after Kull’s injury that the scoreboard had not been maintained for a long time. Based on this evidence, Kull contends that Six Flags had at least constructive notice of the defective wiring, and since he was an invitee on Six Flags’ property, Six Flags was liable for his damages. See Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997).

The principle of equal or superior knowledge is not limited to slip and fall cases, but applies to “static” defective or dangerous conditions on property. While there is no evidence that [Six Flags] here had actual knowledge of the defect in the [wiring], liability may also be based upon constructive knowledge. Constructive knowledge may be established by showing either that: (1) an employee of the proprietor was in the immediate area of the hazard and had the means and opportunity to easily see and remove it; or (2) the proprietor failed to exercise reasonable care in inspecting the premises.

(Citations and punctuation omitted.) Newell, supra, 222 Ga. App. at 885-886 (2). As no evidence shows that Six Flags ever inspected the scoreboard or the control box, a question of fact exists whether Six Flags had constructive knowledge of the dangerous condition.

Kull further contends that he was well experienced in replacing light bulbs and that he made sure his workplace was safe. He asserts that his assumption that the blown fuse was sufficient to turn the power off was reasonable. This assertion is supported by Kull’s expert who testified that it was reasonable to assume that once the lights on the scoreboard went out, the power was off and that it was “prudent” for Kull to attempt to remove the bulb with the insulated pliers because “he had turned off the power by blowing the fuse in a manner in which I described before where electricians sometimes short things out intentionally to trip the breaker. In this case, the fuse is analogous to the breaker.” Also, Mr. Johnson, Kull’s co-worker, testified that he would have done the same thing if the fuse had blown while he was changing light bulbs. According to Kull’s expert, it is not unusual for experienced electricians to intentionally short out a circuit so that they can work on it. Apparently, in the view of these witnesses, causing a circuit breaker to trip or a fuse to blow in this manner is the same as a homeowner who makes repairs on a circuit by tripping the circuit breaker that controls the flow of electricity to that circuit rather than cutting off the electricity to the entire home.

Johnson also testified that he used the same procedures to change lights on this type of scoreboard that Kull did because it was quicker to do so. According to Johnson, more that 50 percent of scoreboards do not have a switch on the scoreboard to turn off the power, and turning off the power just to change bulbs would double the job time. Further, Johnson also used an aluminum ladder because the scoreboard was already grounded through its support poles. It was only after Kull’s accident that Mahalo started recommending that its personnel use fiberglass ladders.

Johnson also testified that turning off the power to the board would not have necessarily prevented this incident because turning off a switch typically “kills the power to the hot lead” only. Thus, turning off the switch would not have killed the neutral lead, which in this case had 330 volts on it, and in Johnson’s opinion that power would have been there whether the fuse was blown or the switch was turned off. Based on all the scoreboards he has worked on, the “switch normally does not disconnect the neutral lead.” Johnson also expressed some uncertainty whether the switch on this scoreboard would have turned off the neutral lead and testified that he turned off the power at a breaker box about 50 feet away from the scoreboard after Kull was injured. He further testified that on that visit he replaced a blown fuse.

Based on the testimony of Kull, his expert, and Johnson, we cannot say as a matter of law that Kull either assumed the risk or failed to exercise due care for his own safety. There is no evidence that Kull had any reason to believe that electricity would be flowing to the scoreboard after the fuse blew, and certainly no evidence that anyone had any reason to believe that the scoreboard had been wired so that 330 volts would be flowing through to the scoreboard through a ground lead that should not have carried any current.

3. Six Flags further contends that Kull’s actions violated Occupational Safety and Health Act regulations designed to protect him from just such an event. Consequently, Six Flags asserts that Kull was guilty of negligence per se.

Although Six Flags argues that Kull’s actions constituted negligence per se because they violated standards established in OSHA and other regulations designed for his protection, Six Flags did not give the written notice required by OCGA § 9-11-43 (c) that it intended to rely on these regulations (Samay v. Som, 213 Ga. App. 812, 814 (2) (a) (446 SE2d 230) (1994)) and did not tender copies of the OSHA regulations into the record or ask the trial court to take judicial notice of them. See Donaldson v. Dept. of Transp., 236 Ga. App. 411, 414 (1) (511 SE2d 210) (1999). Although the affidavits and deposition testimony by Six Flags’ witnesses relying on and referring to the OSHA and other regulations might be sufficient to establish a standard of care for ordinary negligence, these references were not sufficient to determine whether a violation of them constituted negligence per se. Id. at 416.

Further, as no evidence exists that Six Flags surrendered its premises to Kull or his employer, we cannot accept Six Flags’ argument that Kull was solely responsible for determining whether the scoreboard was safe. Torrington Co. v. Hill, 219 Ga. App. 453, 455 (1) (465 SE2d 447) (1995). The fact that Kull was an employee of a contractor retained to change the light bulbs on the scoreboard does not eliminate Six Flags’ obligations to him as an invitee on its land where the scoreboard was located. See Barksdale v. Nuwar, 203 Ga. App. 184, 185 (416 SE2d 546) (1992).

Kull, as a contractor employee, however, was expected “to determine for himself whether his place of employment is safe or unsafe, and ordinarily may not recover against the owner for injuries sustained in the performance of the contract.” Amear v. Hall, 164 Ga. App. 163, 167 (2) (296 SE2d 611) (1982). He had a greater duty of care to ensure that his method and means of performing his work were safe because he had discretion over how he did the work. Whirlpool Corp. v. Hurlhut, 166 Ga. App. 95, 100 (4) (303 SE2d 284) (1983). Nevertheless, given the latent nature of the defect, and the testimony that nothing would indicate to Kull that the box was wired improperly, we find that a question of fact remains on whether Six Flags had a duty to warn Kull because it had superior constructive knowledge of this defect. West v. Briggs & Stratton Corp., 244 Ga. App. 840, 844 (536 SE2d 828) (2000); Amear, supra, 164 Ga. App. at 167.

In any event, these arguments disregard our Supreme Court’s admonition that the “ ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Robinson v. Kroger Co., supra, 268 Ga. at 748 (2) (b). In this case, we cannot agree that the evidence is so clear that the issues should not be submitted to a jury.

4. Kull asserts that the statute of repose, OCGA § 9-3-51 (a), does not apply because the scoreboard was not an improvement to real property. See Turner v. Marable-Pirkle, Inc., 238 Ga. 517, 518 (233 SE2d 773) (1977) (power pole not improvement to real property); Atlanta Gas Light Co. v. City of Atlanta, 160 Ga. App. 396 (287 SE2d 229) (1981) (gas line not improvement to real property).

Six Flags, however, contends that, using a common sense analysis, the scoreboard is obviously an improvement to real property. See Mullis v. Southern Co. Svcs., 250 Ga. 90, 94 (296 SE2d 579) (1982). Questions remain, however, as to whether the improvement was permanent in nature; whether it added to the value of the realty; and whether the parties intended the “improvement” to be an improvement to real property or personalty. Id. Although Six Flags contends that this action is barred by OCGA § 9-3-51 (a) because it was filed more than eight years after the scoreboard was built, we find that the evidence is not so conclusive on whether the scoreboard was an improvement to real property under OCGA § 9-3-51 (a) that the issue can be decided as a matter of law. Therefore, the issue should be submitted to a jury. Barksdale, supra, 203 Ga. App. at 185 (“Normally it is for a jury to determine whether an owner has exercised ordinary care in keeping the premises safe for those invited thereon.”).

Accordingly, the grant of summary judgment must be reversed and the case remanded to the trial court for further proceedings.

Judgment reversed.

Blackburn, C. J., Pope, P. J., and Mikell, J., concur. Smith, P. J., Miller and Phipps, JJ, dissent.

Smith, Presiding Judge,

dissenting.

I respectfully dissent. It is certainly regrettable that Kull was injured, but his injury was not attributable to Six Flags. As Kull was changing a light bulb without turning off the power and without using a circuit tester or voltmeter, he used a pair of metal pliers to remove the base of a broken light bulb, inserting the pliers into an electrical socket to grasp the base while standing on a metal ladder. Kull’s actions not only violated Occupational Safety and Health Act regulations and general safety practices for electrical work, they violated basic safety rules that every adult is presumed to know. Kull’s conduct was contributorily negligent as a matter of law and amounted to a voluntary assumption of a known risk. Moreover, his knowledge of the hazard was equal or superior to that of Six Flags. Accordingly, the trial court did not err in granting summary judgment.

The contract between the Atlanta Coca-Cola Bottling Company and Kull’s employer, Mahalo Advertising, declares that Mahalo is an independent contractor and gives Mahalo sole control over the time, manner, and methods used in maintenance and repair of the scoreboard. As the majority recognizes, under Georgia law “[a]n [independent] contractor is expected to determine for himself whether his place of employment is safe or unsafe, and ordinarily may not recover against the owner for injuries sustained in the performance of the contract.” (Citations and punctuation omitted.) Torrington Co. v. Hill, 219 Ga. App. 453, 455 (1) (465 SE2d 447) (1995). And, again as the majority recognizes, Kull had a higher duty of care as an independent contractor to ensure his own safety, since he had discretion as to the method and means of performing the work. Whirlpool Corp. v. Hurlbut, 166 Ga. App. 95, 100 (4) (303 SE2d 284) (1983) (full concurrence in Division 4).

Kull’s brief characterizes him as “an unskilled maintenance worker” with a tenth grade education, but his resume shows substantial technical experience as well as courses at DeKalb Community College. Kull himself testified that he was an ASE certified automotive master technician, had over 20 years experience in electrical work, and considered himself an expert in automotive electronics, scoreboard electronics, and electrical theory. While he was not a licensed electrician, “[t]o qualify as an expert, generally all that is required is that a person be knowledgeable in a particular matter; his special knowledge may be derived from experience as well as study, and formal education in the subject is not a requisite for expert status.” (Citations omitted.) Vasquez v. State, 241 Ga. App. 512, 513 (2) (527 SE2d 235) (1999).

Kull had received as part of his training with his employer a complete set of manuals for the scoreboards he was servicing. The manual cautioned him to turn off the power to the scoreboard when replacing lamps, fuses, or modules. A manager and engineer for the scoreboard manufacturer testified that “basic safety procedures” forbid any work on a scoreboard while the power is on and that it would be “extraordinarily foolish” to attempt to remove the base of a broken light bulb without first turning the power off, even if a fuse appeared to be blown. The manager further testified that insulated pliers are inadequate to protect from shock. Kull acknowledged that he did not know the rating of the pliers other than that they were not high voltage rated.

This court has recognized, in a product liability context, “the inherent and obvious danger” of electrical shock with “all electronic appliances.” Moore v. ECI Mgmt., 246 Ga. App. 601, 605 (1) (542 SE2d 115) (2000). Most importantly, common sense dictates that a metal object should not be inserted into an electrical socket without a positive indication that the wiring is not energized. By choosing to assume that a fuse had blown, choosing not to turn off the power even after breaking the bulb, choosing not to use a circuit tester or voltmeter, and choosing to insert an inadequately insulated metal tool into an electrical socket, Kull made a series of independent decisions that cumulatively placed him in great danger of electrical shock, even though other means existed for replacing the bulb without exposing himself to danger. “A person cannot undertake to do what is obviously a dangerous thing and at the same time avoid the responsibility for the self-assumed risk.” (Citation and punctuation omitted.) Brown v. Southern Bell Tel. &c. Co., 209 Ga. App. 99, 101 (2) (432 SE2d 675) (1993) (truck driver climbing near electrical wires). Kull “tested a known danger,” id., which he could have avoided by switching off the power and using a circuit tester before inserting a metal tool into the socket. As a matter of law, “he could have avoided the consequences to himself of any negligence” on the part of Six Flags. Id. “It is likewise apparent that he was fully aware of the danger involved. He nevertheless proceeded, and was injured. Because he assumed the risk, the trial court properly entered summary judgment for defendants.” (Citations omitted.) Id.

Kull’s claim also fails because he has not demonstrated superior knowledge of the risk of electrical shock on the part of Six Flags. It is undisputed that Six Flags had no actual knowledge of the miswired transformer box. Kull argues that the existence of the defect from the time of installation, approximately 20 years before, in itself provides constructive notice to the landowner. He cites cases holding that constructive knowledge may arise if a dangerous condition has lasted so long that the landowner should have discovered it. Armenise v. Adventist Health System/Sunbelt, 219 Ga. App. 591, 593 (466 SE2d 58) (1995); Collins v. East R. S., Inc., 228 Ga. App. 627 (1) (492 SE2d 351) (1997). But these cases, and others like them, require a second level of analysis: “whether in the exercise of ordinary care the defendants should have discovered the hidden defect.” Armenise, supra at 593. The landowner need not discover a defect that is concealed and not revealed by the exercise of ordinary care. Id.

Kull, his co-worker, and his expert all agreed that the scoreboard functioned and appeared to be operating properly. Kull’s co-worker testified that the only way to discover the miswiring was “to get up with a voltmeter” and test the circuit. And Kull’s expert witness acknowledged that a layman would not be able to detect the miswir-ing. While Kull claims in his brief that rust on the transformer box should have put Six Flags on notice of a defect (although rust on the box has no relation to miswiring), Kull also saw the rusty transformer box and did not believe that it put him on notice of any potential problems. He agreed that he “didn’t see anything based on his visual inspection that would cause any concern.”

While Kull was not a licensed electrician, the record reflects his extensive experience and training and the fact that he considered himself an expert in electronics in general and scoreboards in particular. Kull has failed to show superior knowledge of the condition of the scoreboard on the part of Six Flags, particularly in view of his acknowledged expertise and 20 years experience.

Decided March 29, 2002

Reconsideration denied April 12, 2002

Northcutt, Edwards, Gordon, Perrotta & Feingold, Joseph D. Per-mita, Louis R. Feingold, Joseph H. King, Jr., for appellant.

Saveli & Williams, Robert E. Mulholland, Alston & Bird, Andrew M. Gibson, Heather R. Peoples, for appellee.

For these reasons, I respectfully dissent.

I am authorized to state that Judge Miller and Judge Phipps join in this dissent.

       Some question exists whether another switch was on the scoreboard when Kull was injured. Kull’s expert testified that he could not tell when a switch that appeared to have been installed on the pole at the sign was installed or removed. The switch was not available for his examination.

       No action for damages for construction of an improvement to real property shall be brought more than eight years after substantial completion of such an improvement.


author: POPE, Presiding Judge.

text:
    A01A2441.
    UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY v. WATSON.
    (564 SE2d 453)
   POPE, Presiding Judge.

In 2000, the Unified Government of Athens-Clarke County instituted special master condemnation proceedings to acquire approximately 50 acres of land owned by Billy L. Watson. The special master awarded Watson $479,940 as the actual market value of the property, with no consequential damages or consequential benefits. Both parties appealed the award to the superior court. Following trial, a jury found $2,775,000 to be just and adequate compensation for the taking of the property. The Unified Government appeals the judgment entered on the jury’s verdict.

The Unified Government claims that the trial court erred (1) by admitting evidence of a possible change in zoning, (2) in allowing hearsay evidence, and (3) in allowing expert witnesses to opine on the value of the property as if it had been actually rezoned. Watson and the Unified Government agree that the judgment should be corrected to reflect amounts previously disbursed to Watson from the special master’s award. For reasons set forth below, we find no reversible error.

The record shows that the Watson property is located in an area known as “East Athens,” approximately a mile from downtown Athens and within walking distance of the campus of the University of Georgia. The Unified Government condemned the land for use as a public park. The property was zoned RS-10 at the time of taking, which restricts development to single-family residences. The area immediately surrounding the property is zoned single-family residential, although the surrounding homes were described as deteriorated. The general area is mixed use, including a multi-family, a commercial, and a governmental tract. Before Watson purchased it in 1987, the property was zoned for multi-family housing development.

1. The Unified Government claims that the trial court erred in admitting remote and speculative evidence of a possible change in property zoning.

[W]here there is a possibility or probability that the zoning restrictions may in the near future be repealed or amended so as to permit the use in question, such likelihood may be considered if the prospect of such repeal or amendment is sufficiently likely as to have an appreciable influence upon present market value [provided] such possible change in zoning regulations must not be remote or speculative.

(Punctuation omitted.) Civils v. Fulton County, 108 Ga. App. 793, 797 (2) (b) (134 SE2d 453) (1963). A trial court’s ruling in admitting evidence with respect to the likelihood of a change in zoning restrictions will not be reversed absent a manifest abuse of discretion. Hall County v. Merritt, 233 Ga. App. 526, 527-528 (1) (504 SE2d 754) (1998). We find no such abuse here.

The Watson property was at one time zoned as a multi-family property and was rezoned as part of a general rezoning of the area, but there is no indication that the property was rezoned because it was unsuitable for multi-family use. Several experts opined, based on viewing the property, and with full knowledge of its current zoning status and the zoning classifications within Athens-Clarke County, that the highest and best use of the property was as a multifamily development. One of the Unified Government’s own witnesses testified that the highest and best use of the property was as multifamily development. There is also evidence that the property was suitable for multi-family use in its size, its proximity to the University of Georgia and downtown Athens, the mixed use of property in the general area, and the deteriorating nature of the single-family housing in the immediate area.

The Unified Government presented the testimony of the planning director of the Unified Government’s Planning Department and a local developer to show that a rezoning of the property to multifamily was unlikely, but it was inherent in their testimony that a rezoning of the property to multi-family was possible. Specific evidence of the suitability of the property for multi-family use, as well as the location of the property and the nature of the neighborhood, indicates that a valuation taking into account a possible change in zoning was not mere speculation. As there is evidence that a rezoning of the property to multi-family in the near future was sufficiently likely to affect its market value, the trial court did not demonstrate manifest abuse of discretion in allowing the jury to consider such evidence.

Relying on DeKalb County v. Dobson, 267 Ga. 624 (482 SE2d 239) (1997), and Gwinnett County v. Davis, 268 Ga. 653 (492 SE2d 523) (1997), the Unified Government questions whether evidence that the property’s highest and best use as a multi-family development was relevant to the question of whether the property could be rezoned to allow for such a use. Dobson and Davis are distinguishable because they involved constitutional challenges to a property’s zoning. In a condemnation case, we have allowed consideration of the suitability of property for a different use from that allowed by current zoning in expert testimony regarding market value. See Hall County v. Merritt, 233 Ga. App. at 527-528 (1) (jury not restricted solely to present zoning).

2. The Unified Government claims that the trial court erred in admitting an out-of-court statement of John Davis, who was a former planning director for the Unified Government. Watson testified that, in 1990, Davis asked Watson not to sue the Unified Government over the single-family zoning of the property, but that “when the time came that [Watson] wanted to develop the property, they would work with [him].” The Unified Government further objects to the trial court’s admission of (a) a second reference by Watson to Davis’s representation, and (b) two references by Watson’s agent Queen to Davis’s out-of-court statement. The Unified Government also claims the trial court erred in allowing reference to Davis’s hearsay statement, and in allowing its use in forming an opinion, in the expert testimony of urban planner Robert Steubing and real estate appraiser Bill Stripling. “The admission of evidence lies in the sound discretion of the trial court.” (Citation omitted.) Dept. of Transp. v. Mendel, 237 Ga. App. 900, 902 (2) (517 SE2d 365) (1999).

The trial court allowed Watson and Queen to testify to the out-of-court statements made by Davis for the purpose of explaining Watson’s course of conduct in not earlier challenging the zoning of the property. The Unified Government argues that the hearsay could not be used to explain Watson’s conduct because Davis could not bind the Unified Government in rezoning decisions, and because Davis’s statements were not relevant. “When . . . the conduct and motives of the actor are matters concerning which the truth must be found (i.e., are relevant to the issues on trial), then information, conversations, letters and replies, and similar evidence known to the actor are admissible to explain the actor’s conduct.” (Citations omitted.) Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982).

The Unified Government’s first witness, William Gottschalk, questioned Watson’s decision not to challenge the rezoning of the property. Gottschalk testified that, if the property were worth more if it were zoned for multi-family use, then “what owner would not race to the zoning commission and have it zoned multi-family? If it could have been zoned multi-family, it would have been zoned multifamily.” We are satisfied that the statements by Davis' were properly admissible to explain Watson’s conduct in not challenging the zoning of the property.

Phillips v. Aetna Cas. &c. Div., 148 Ga. App. 351 (251 SE2d 180) (1978), upon which the Unified Government relies, is distinguishable. The Unified Government maintains that Davis’s hearsay testimony was irrelevant because he did not have ultimate authority over rezoning. In Phillips, we found that hearsay testimony could not be introduced to explain the conduct of a witness in not dispatching a truck where it could not be shown the witness had the authority to dispatch the truck. Id. at 353. In other words, hearsay cannot be introduced to show why a person did not engage in conduct which the person did not have the independent power to engage in. In contrast, Davis’s hearsay statement was introduced to explain why Watson decided to not challenge the zoning, which Watson was capable of doing.

With respect to the expert testimony of Steubing and Stripling, the Unified Government argues that they impermissibly relied upon the hearsay statement of Davis in concluding that the property could be rezoned. “A witness’ opinion must be his own and he cannot act as a mere conduit for the opinions of others.” (Citations and punctuation omitted.) Hall County v. Merritt, 233 Ga. App. at 528 (2). Nevertheless, even if an expert’s opinion of market value relies partly on hearsay, it is not invalid so long as they had a valid basis for forming their opinion. “Market value is exclusively a matter of opinion even though expressed as a fact. It may rest wholly or in part upon hearsay, provided the witness has had an opportunity of forming a correct opinion.” (Citations and punctuation omitted.) Id.; OCGA § 24-9-66. “If it is based on hearsay this would go merely to its weight and would not be a ground for valid objections.” (Citations omitted.) Schoolcraft v. DeKalb County, 126 Ga. App. 101, 103 (2) (189 SE2d 915) (1972). See Clayton County Water Auth. v. Harbin, 192 Ga. App. 257, 258 (3) (384 SE2d 453) (1989).

The witnesses conducted their own independent investigations in forming their opinions. In determining the highest and best use of the property, Steubing considered the property, the surrounding area, the type of development and zoning on the property and surrounding community, and its distance from downtown Athens. In determining valuation, Stripling, among other things, studied the property, the tax plats, and the zoning history of the property. Although Steubing and Stripling were aware of Davis’s hearsay statements regarding a rezoning, the witnesses did not act as “mere conduits” for the opinion of others. The trial court did not err in allowing reference to hearsay in the testimony of Steubing or Stripling.

3. The Unified Government claims the trial court erred by allowing Watson’s expert witnesses to opine on the value of the property as if it had been actually rezoned from its single-family classification to a multi-family classification. “Even where a different use is probable, the jury cannot evaluate the property as though the new use were an accomplished fact; the jury can only consider the new use to the extent that it affects the market value on the date of taking.” (Citation, punctuation and emphasis omitted.) Colonial Pipeline Co. v. Williams, 206 Ga. App. 303, 304 (425 SE2d 380) (1992).

But Colonial is not directly applicable here. The expert testimony in Colonial concerned the diminished retail value of a specific hypothetical lot subdivided on the property. We noted that the con-demnee’s expert “could have testified to his opinion of the value of the remaining land as of the date of taking based upon its enhanced value because of its adaptability as a residential subdivision [;] he could not testify as to the value before and after the taking based upon his assumption of the value as if the property had already been subdivided.” Colonial, 206 Ga. App. at 305. Here, at least one expert witness valued the property accounting for its suitability for multifamily development, but not as if it had been actually zoned as a multi-family development. Appraiser Stripling, whose valuation of the property was the same as reflected in the jury verdict, testified that he did not take into account a multi-family zoning as an accomplished fact:

Q: So you made no adjustment whatsoever from the current RS-10 zoning to a multi-family zoning.
A: No, I recognized that in the adjustments that I applied, that we’re not zoned that, so it’s going to take something to get there. If it had already been zoned RM-1, of course, we wouldn’t be here, but I would have put a higher price on it.

The Unified Government notes that Stripling never explains how he factors in the cost and risk of rezoning in reaching his opinion valuation. Nevertheless, he was not required to state all the facts on which his opinion was based. See Hollywood Baptist Church &c. v. State Hwy. Dept., 114 Ga. App. 98, 100 (4) (150 SE2d 271) (1966). As Stripling’s testimony is consistent with the requirements for the introduction of opinion evidence with regard to the value of the property on the date of taking, the trial court did not err in allowing it.

Decided March 13, 2002

Reconsideration denied April 12,2002

McLeod, Benton, Begnaud & Marshall, William C. Berryman, Jr., Pursley, Howell, Lowery & Meeks, Charles N. Pursley, Jr., for appellant.

Fortson, Bentley & Griffin, J. Edward Allen, Jr., Richard L. Ford, for appellee.

Furthermore, the trial court instructed the jury that they should not consider any likelihood of change in zoning “as an accomplished fact, but only the effect that the probability would have on the value of the property as of the date of taking.” See Dept. of Transp. v. Pilgrim, 175 Ga. App. 576, 579 (3) (333 SE2d 866) (1985). Even if we assume, without deciding, that the trial court erred in allowing the valuation testimony of Watson’s other expert witnesses because they valued the property as if it were currently zoned for multi-family use, the Unified Government was not harmed because the jury was properly instructed as to value, the opinion of expert Stripling was admissible, and the jury found the valuation of the property to be the same as the valuation reached by Stripling. As any error was harmless, no reversal is required. Id.

4. The Unified Government claims the trial court erred in entering judgment in the full amount of the verdict together with accrued pre-judgment interest without properly crediting the Unified Government with Watson’s receipt of the special master’s award. Watson agrees. Accordingly, the judgment entered must be corrected so that the Unified Government is properly credited for amounts previously received by Watson.

Judgment affirmed and case remanded with direction.

Blackburn, C. J., and Mikell, J., concur.


text:
    A01A2541.
    GEORGIA 20 PROPERTIES, LLC v. TANNER.
    (564 SE2d 459)
   Johnson, Presiding Judge.

This appeal involves a contract for the sale of real property owned by an estate. The property was originally owned by Fannie Pharr, who executed a will in 1944 providing for the disposition of the property. Pharr died in 1958. Her will directed that all of her property be given to her five nephews and nieces and that certain property, the real property at issue in this case, be held intact until all of the nephews and nieces had died. Upon the death of the last of Pharr’s nephews and nieces, the property was “to be sold and divided equalljr” among the nephews’ and nieces’ children. The last of the nephews and nieces died in May 1997.

In 1996, William Tanner, one of the heirs, was granted letters of administration over Pharr’s estate. In January 1997, Tanner signed a contract to sell the property to CH Development, LLC. The contract provided that “approval of the purchase and sale hereunder by thé Gwinnett County Probate Court (or such other court having jurisdiction over the Estate of Fannie Pharr, collectively, the ‘Court’) shall be obtained prior to closing.” In the contract, Tanner stated that he had the authority to sell the land on the estate’s behalf and that he would obtain any required third party consent to the sale prior to closing. The contract was amended on May 12, 1997, substituting Georgia 20 Properties as the purchaser and extending the closing date to 135 days after the original date of the agreement, which moved the closing to June 1997.

On January 29, 1997, several days after Tanner signed the contract and the same day CH Development signed the contract, Tanner filed a petition with the Gwinnett County Probate Court seeking permission to sell timber rights to the property. The probate court ultimately denied the petition, explaining that the essence of the devi-sees’ interest in the property had already passed to the devisees, that the administrator should have already conveyed the property to the devisees, and that the administrator must convey the property as soon as practicable and close the estate. In its order, the probate court gave no indication that it was informed about the outstanding land sale contract.

In May 1998, after Tanner refused to close the land sale as agreed in the contract, Georgia 20 Properties filed an action in superior court for specific performance against Tanner individually and as administrator of the estate. Tanner moved for summary judgment, arguing that he was without authority to sell the property since, in the timber case, the probate court had ordered him to distribute the property to the heirs, that he was unable to get the required probate court approval of the sale prior to closing, and that he was not liable in his individual capacity. Georgia 20 Properties filed a cross-motion for summary judgment, seeking an order holding that the property is part of the estate, that the estate has the legal authority to sell the property, that the estate is bound by the agreement, and that the administrator has a duty to petition the probate court for leave to sell the property. Georgia 20 Properties also moved for judgment regarding Tanner’s argument that he cannot be held liable in his individual capacity and as to Tanner’s fraud counterclaim.

The trial court held that the sales contract was conditioned upon the approval of the probate court, that Tanner had not sought that approval, that Tanner’s failure to seek that approval was justified based on the probate court’s decision in the timber case, and that the judgment in the timber case had a res judicata effect upon this case. The trial court granted Tanner’s motion for summary judgment as to the land sale contract, granted Georgia 20 Properties’ motion for summary judgment as to Tanner’s fraud counterclaim, denied Georgia 20 Properties’ motion for summary judgment on the contract claim, and held that all other issues raised by Georgia 20 Properties were rendered moot. Georgia 20 Properties appeals.

Georgia 20 Properties argues that the trial court erred in denying its motion for summary judgment when the meaning of the will is clear: the property was a deferred gift that would be sold and the proceeds divided when the last of the nephews and nieces died. Georgia 20 Properties contends that Tanner was therefore authorized by the will to enter into a sales contract on the estate’s behalf and that the heirs should not be permitted to profit from Tanner’s bad faith effort to frustrate the sale by failing to seek the required probate court approval. Georgia 20 Properties also claims that the trial court erred by granting summary judgment in favor of Tanner, both by misapplying the doctrine of res judicata and by abrogating its own duty to make an independent judgment in the case.

For the reasons set out below, we hold that the trial court erred in granting Tanner’s motion for summary judgment and erred in denying Georgia 20 Properties’ motion as to whether the property is part of the estate, whether the estate’s administrator is authorized to enter into a sales contract, and whether Tanner has a duty to petition the probate court for approval. There was no error in the trial court’s refusal to hold that the estate is bound to sell the property as agreed, inasmuch as probate court approval is still required for the sale to close.

1. The principle of res judicata does not operate as a bar in this case. Res judicata requires identity of the cause of action, identity of parties or their privies, and an adjudication on the merits by a court of competent jurisdiction. And, the party against whom the doctrine is raised must have had a full and fair opportunity to litigate the issues. These prerequisites have not been met.

Tanner filed the petition for leave to sell timber off the property on January 29, 1997, five days after he executed the contract to sell the property. Neither CH Development nor its successor, Georgia 20 Properties, was a party to that petition, and nothing in the record suggests that the land purchasers had an opportunity to be heard in the timber case. In its June 1997 order denying the petition, the probate court did not make any reference to the outstanding land sale contract. Although the contract had been executed in January and was amended in May, and though Tanner had an express responsibility under the sales contract to seek approval of the contract in probate court prior to the June closing date, Tanner did not seek the probate court’s approval of the pending land sale. In fact, there is no indication in the record that Tanner even notified the probate court that there was an outstanding land sale contract. Interestingly, shortly after Tanner executed the agreement, his sister, also an heir, and her husband complained that the agreed-upon price was too low, so they should seek to get out of the contract. In any event, with the information it had before it, the probate court ordered Tanner to distribute the property to the heirs and close the estate.

In May 1998, after Tanner and the heirs refused to sell the property, Georgia 20 Properties sued Tanner in superior court for specific performance. This action was still pending when, in 1999, Tanner filed an action for declaratory judgment in probate court seeking a holding regarding whether he was authorized to sell the land to Georgia 20 Properties as contracted — given the 1997 probate court order. Georgia 20 Properties moved to dismiss the action and filed a cross-motion for an order permitting Tanner to sell the property. The probate court held that Georgia 20 Properties was without standing to request a construction of Pharr’s will. At the same time, the probate court expressly recognized that it lacked jurisdiction concerning the land sale contract entered into between Georgia 20 Properties and Tanner and lacked jurisdiction to determine interests regarding title to land.

It is clear that the causes of action were not identical, the parties were not identical, there has been no decision on the merits by a court of competent jurisdiction, and Georgia 20 Properties did not have a full and fair opportunity to litigate in the timber case the issues raised in the instant case. Tanner failed to meet his burden of proving that the principle of res judicata applied. Therefore, the trial court erred in ruling that Georgia 20 Properties’ action for specific performance was barred by the principle of res judicata.

2. Although it declined to independently examine the issue, the superior court should have found that the property was still part of the estate at the time the contract was executed. Such a finding is demanded because the estate was still open, the will had directed that the property be sold and the proceeds distributed upon the death of the last of the nephews and nieces, and the property had not yet been either sold or distributed. Of course, the sale could not close before Tanner obtained the probate court’s approval; but it was incumbent upon him to make a good faith effort to get that approval. A party cannot avoid the obligations of a contract by frustrating the performance of a condition precedent.

We point out that once the contract was executed, the remedy of the heirs was not to breach what they saw as an unfair contract, but to present their objections when the petition for leave to sell the land was filed in the probate court. Indeed, the heirs will have the opportunity to object to the sale on the basis that the price is below fair market value when the petition is filed in probate court. We note, however, as explained below, the property’s fair market value must be determined as of the time of the contract, not as of the present time.

3. Accordingly, we reverse the judgment of the trial court and remand the case for the court to find, as a matter of law, that at the time the contract was executed the property was part of the estate and that the estate’s administrator was authorized to enter into the conditional sales contract on the estate’s behalf. The trial court is also directed to order Tanner, as administrator, to immediately petition the probate court for approval of the contract. In deciding whether to approve the contract, the probate court shall consider whether the transaction is fair and in the best interests of the estate in light of the circumstances and conditions which existed at the time the contract was entered into. The court shall consider the fair market value of the property at the time the contract was executed, not the value of the property today, because the law cannot allow events which occurred subsequent to the time the contract was executed to deprive the purchaser of the benefit of his bargain, particularly when it was the seller’s duty to seek the probate court’s approval soon after the parties entered into the contract.

The grant of summary judgment to Tanner is reversed. The denial of summary judgment to Georgia 20 Properties is reversed as to whether the property is part of the estate, whether the administrator was authorized to enter into a conditional sales contract, and whether the administrator is required to petition the probate court for leave to sell the property. On the issue of whether the estate must close the sale, the denial of Georgia 20 Properties’ motion for summary judgment is affirmed.

Decided March 27, 2002

Reconsideration denied April 12, 2002

Sutherland, Asbill & Brennan, William D. Barwick, Cecil F. Whitaker III, Alana B. Zielinski, for appellant.

Webb, Tanner & Powell, Anthony O. Powell, for appellee.

Judgment affirmed in part and reversed in part and case remanded with direction.

Ruffin and Ellington, JJ, concur.

       We note that Tanner’s contention that the sale was not authorized because one of the heirs was still alive at the time the contract was executed is without merit. Inasmuch as the last heir died before the June closing would have occurred, a sale of the property would have indeed been authorized.

        Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865-866 (1) (463 SE2d 5) (1995).

        In re Estate of Bagley, 239 Ga. App. 877, 878 (1) (522 SE2d 281) (1999).

       See Chrison v. H & H Interiors, 232 Ga. App. 45, 47 (1) (500 SE2d41) (1998).

        Mayer v. Wylie, 229 Ga. App. 282, 283 (2) (494 SE2d 60) (1997).

       See generally Whisenant v. Fulton Fed. Sav. &c., 200 Ga. App. 31, 33 (1) (406 SE2d 793) (1991).

       See Hammond v. Bank of Newnan, 217 Ga. App. 49, 50 (1) (456 SE2d 678) (1995).

       OCGA § 53-8-34.