text:
    A96A1516.
    BEASLEY et al. v. PAUL.
    (478 SE2d 899)
   Blackburn, Judge.

Maggie Lay Beasley, by her guardians Leon Beasley and Mary Ann King, appeals the grant of Steve Paul’s motion for new trial after she received a jury verdict in her suit to enforce a promissory note and cancel a quitclaim deed. In the second trial, the court granted Paul’s motion for directed verdict, finding that the promissory note was unenforceable because it lacked consideration, and that the quitclaim deed was invalid because it was premised upon the promissory note. Beasley also appeals the directed verdict.

1. Beasley enumerates as error the trial court’s grant of Paul’s motion for new trial after the jury returned a verdict in her favor at the first trial of the case. According to Beasley, because the trial court denied Paul’s motions for directed verdict and j.n.o.v., it was error for the court to then grant his motion for new trial. Beasley cites no authority for her position.

The standard of review for the first grant of a new trial is clear: “[t]he first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.” OCGA § 5-5-50. Additionally, the standards for granting motions for directed verdict and j.n.o.v. are different from the standard for granting a new trial. A trial judge cannot grant motions for directed verdict or j.n.o.v. on any issue if “any evidence” exists to support that issue. See Grubb v. Woodglenn Properties, 220 Ga. App. 902, 903 (470 SE2d 455) (1996). By contrast, a trial judge can grant a motion for new trial if the verdict is contrary to the evidence or strongly against the weight of the evidence. See OCGA §§ 5-5-20; 5-5-21. By virtue of the difference in these standards, it is not inconceivable that in some casesj evidence would support a particular position, thereby precluding the grant of a directed verdict or j.n.o.v., yet a new trial would still be permitted because the verdict ultimately returned is contrary to or against the weight of the evidence when viewed as a whole. Therefore, Beasley’s argument is without merit, and the trial judge did not abuse his discretion in granting Paul’s motion for new trial notwithstanding the earlier denial of his motions for directed verdict and j.n.o.v.

2. Beasley contends that the trial court erred in directing a verdict for Paul in the second trial. “A directed verdict is authorized only when there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a). A grant of directed verdict is a ruling that the evidence and all reasonable deductions therefrom demand a particular verdict. ... A grant of directed verdict can be upheld only where we determine that all the evidence demands that verdict.” (Punctuation omitted.) Carden v. Burckhalter, 214 Ga. App. 487, 488 (448 SE2d 251) (1994). “In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict.” (Punctuation omitted.) Food Lion v. Williams, 219 Ga. App. 352, 353 (464 SE2d 913) (1995).

Applying this standard to the facts before us, the promissory note which Beasley seeks to enforce and the quitclaim deed which she seeks to cancel were both executed in the course of an agreement Beasley reached with Paul to save her house from foreclosure. Paul was in the business of buying financially distressed properties, and he contacted Beasley in late August 1990 after discovering her home in a foreclosure publication. Beasley, her daughter Grace Hogan, and Paul subsequently met, and the parties established an arrangement whereby Paul would both prevent the foreclosure and afterwards permit Beasley to continue living in the house.

Although the parties dispute the exact terms of their agreement, Paul did pay Beasley’s arrearage, thus preventing the foreclosure. Beasley’s house was then appraised and sold to Paul, but because two separate purchase agreements were executed, the parties contest which agreement applied to the sale of the house. One purchase agreement, dated August 27, 1990, listed the purchase price as $64,500, the appraised fair market value of the house. The other purchase agreement, dated August 28, 1990, listed the purchase price as not to exceed $34,000. At the time of the sale, $32,000 was the approximate amount of Beasley’s debt on the house.

After buying the house from Beasley, Paul refinanced it for 70 percent of its fair market value, paid off the first and second mortgages, and realized the leftover sum as profit. Beasley remained in the house, made monthly payments to Paul, and eventually moved out to live with her grown children. Upon realizing that no quitclaim deed had been recorded when he closed on the house in 1990, Paul requested that Beasley execute a quitclaim deed. Beasley did so, and it is this quitclaim deed that she now seeks to cancel.

We examine first the trial court’s determination on directed verdict that the promissory note lacked consideration. The note’s validity depends directly upon which of the two purchase agreements executed by the parties governed the sale of the house. The existence of the note is only consistent with the first purchase agreement for $64,500 dated August 27, 1990. Beasley therefore argues that this agreement controlled the sale of the house.

Paul contends that he paid no more than $34,000 for the house, approximately the amount of Beasley’s two mortgages, pursuant to the second purchase agreement, dated August 28, 1990. He argues that the promissory note was not part of that agreement. According to Paul, the first agreement for $64,500 was executed solely to establish the fair market value of the house for purposes of refinancing. Paul testified that he executed the note only tó secure Beasley’s interest in the house until he could refinance the house. By subsequently satisfying Beasley’s mortgages, Paul claims he canceled the note and a corresponding deed to secure debt supporting the note. Other than his payment of Beasley’s mortgage, it is undisputed that Paul made no payments on the promissory note.

We agree with the trial court that the promissory note lacked consideration. At trial, Beasley testified not only that Paul did not owe her any money, but that he never had a reason to owe her any money. Paul testified that he bought the house for $34,000 under the August 28, 1990, purchase agreement, which contains no provision for a promissory note. With regard to the note, Paul’s testimony reflects more of a gratuitous action than a bargained-for exchange, as he testified that he gave the note to Beasley only to protect her interest in the house until he could refinance it. Paul contends that he satisfied the note upon refinancing the house by paying off Beasley’s two mortgages. The plain testimony of both parties indicates that the note is unenforceable because it lacked consideration.

Her admissions notwithstanding, Beasley makes a variety of arguments as to why the promissory note should be considered valid. First, she contends that the parol evidence rule should have blocked all testimony by Paul as to the various documents executed between the parties. “Parol contemporaneous evidence is generally inadmissible to contradict or vary the terms of a valid written instrument.” OCGA § 24-6-1. However, when the consideration underlying the note is at issue, as in the instant case, “the maker of a note, when sued, has the right to show by parol, if he can, a want or failure of consideration.” (Punctuation omitted.) Craig v. C & S Nat. Bank, 142 Ga. App. 474, 475 (236 SE2d 166) (1977); see also Weintraub v. Cobb Bank &c. Co., 249 Ga. 148, 149 (288 SE2d 553) (1982) (“[p]arol evidence is admissible ... to show want or failure of consideration”). Therefore, under the rule of Craig, Paul was entitled to show by parol evidence that the note was unsupported by consideration, and his testimony to this effect was properly admitted.

Parol evidence is additionally admissible “to prove the existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transactions between them.” (Punctuhtion omitted.) Thomas v. Clark, 178 Ga. App. 823, 825 (344 SE2d 754) (1986), Although numerous documents were executed by these parties concerning this transaction, the trial judge found, and we agree, that because none of these documents embodied the parties’ entire agreement, parol evidence was properly admitted to explain these additional agreements.

The record shows that the trial judge admitted parol evidence, solicited by Beasley’s counsel, primarily to explain the following: (1) why Beasley signed over to Paul a check for $10,035.38 she received at the closing on her house, and (2) why Beasley paid over to Paul the $1,043.96 refund she received on her mortgage insurance after Paul paid off her mortgages. Only Paul testified as to these events, and according to him, the checks were signed over to him because the parties agreed that after Paul refinanced the house for 70 percent of its fair market value and paid off the two mortgages, any leftover sums were to be his profit. Because the documents executed by the parties did not embody their entire agreement, parol evidence was properly admitted to explain these particular actions.

In directing the verdict for Paul, the trial court placed special emphasis on one further action of the parties. The facts show that although Paul was allegedly obligated to pay Beasley $333.98 per month under the promissory note, Beasley never demanded these payments, and in fact made rental payments to Paul of approximately $600 per month for three to four years pursuant to a lease. “The construction placed upon a contract by the parties thereto, as shown by their acts and conduct, is entitled to much weight and may be conclusive upon them.” (Punctuation omitted.) Eickhoff v. Eickhoff, 263 Ga. 498, 505 (6) (435 SE2d 914) (1993). The testimony of these parties and their actions plainly show that they did not intend the promissory note to be enforced.

Beasley’s next argument in support of the promissory note contends that if the note fails for lack of consideration, the parties’ agreements violate the Georgia Fair Business Practices Act because Paul failed to provide her with a complete written contract summarizing and incorporating the entire agreement between the parties as required by OCGA § 10-1-393 (b) (20) (C) (i). However, this argument only addresses the August 27, 1990, purchase agreement, not the August 28, 1990, purchase agreement. By all accounts, it was the latter agreement that governed the sale of her house. Because Beasley does not argue or cite authority for the proposition that the August 28, 1990, purchase agreement violates OCGA § 10-1-393, this issue is deemed abandoned on appeal. See New York Ins. Co. v. Willett, 183 Ga. App. 767, 771 (4) (360 SE2d 37) (1987); Court of Appeals Rule 27 (c) (2).

Decided December 2, 1996.

Michael P. Froman, for appellants.

Donald J. Sharp, for appellee.

Finally, Beasley argues that if the promissory note lacks consideration, the parties’ agreement “has a badge of fraud.” However, Beasley expressly elected to sue on the promissory note itself, not on the theory of fraud. This election was clearly communicated to the trial court. Accordingly, Beasley is precluded from arguing her fraud theory on appeal. “[W]e are limited on appeal to those grounds presented to and ruled upon by the trial court.” (Punctuation omitted.) Dietz v. Becker, 209 Ga. App. 678, 679 (434 SE2d 103) (1993). “Only those grounds urged below will be considered on appeal.” (Punctuation omitted.) Id. at 679-680.

With respect to Beasley’s arguments for cancellation of the quitclaim deed, the quitclaim deed was executed to release the security deed underlying the promissory note. However, because we determined that the promissory note was unenforceable due to a lack of consideration, the corresponding security deed was also unenforceable. Beasley’s attempts to cancel the quitclaim deed are therefore rendered moot, and we now hold that the promissory note, security deed, and quitclaim deed are void as a matter of law.

Judgment affirmed.

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

       As to Beasley’s unsupported contention that it is error to deny motions for directed verdict and j.n.o.v. and then grant a new trial motion, we have located but one sentence from one case addressing this situation: “[i]f neither a directed verdict nor a judgment n.oV is warranted, surely a defendant is not entitled to a new trial.” Associated Software &c. Organization v. Wysocki, 177 Ga. App. 135, 137 (338 SE2d 679) (1985).
      Despite this language, a complete reading of Associated Software reveals' that it provides no support for Beasley’s position, because it strongly supports the trial judge’s discretion to grant or deny a new trial. Additionally, because the lower court in Associated Software denied the motions for directed verdict and j.n.o.v. as well as the motion for new trial, the quoted language addressing the grant of a new trial in such a situation is dicta. See Associated Software, supra.

       Beasley acknowledges through counsel that the August 27,1990, purchase agreement is the only one which references a promissory note.

       There is some dispute in the evidence as to which agreement was actually executed first. Although both contracts deal with the same subject matter, neither party raised the issue of novation. See OCGA § 13-4-5. A proper novation results in the second contract superseding and replacing the first contract. See Derosa v. Shiah, 205 Ga. App. 106, 109 (2) (421 SE2d 718) (1992). Resolving all doubts in favor of Beasley, who argues for the earlier contract, we will presume that the August 28,1990, purchase agreement was not a novation of the August 27, 1990, purchase agreement.

         The parties executed the following documents on the following dates: a purchase agreement in the amount of $64,500 on August 27, 1990; a purchase agreement in the amount of approximately $32,000 on August 28, 1990; a warranty deed dated September 3, 1990, from Beasley to Paul; a promissory note in the amount of $32,468.83 from Paul to Beasley dated September 3, 1990; a deed to secure debt on the property for the promissory note from Paul to Beasley dated September 3,1990; a HUD settlement statement dated September 3, 1990, listing the sale price of the property as $64,500; a loan closing statement dated September 21, 1990, which refinances the property for $45,150, 70 percent of its fair market value of $64,500; a lease between Beasley as tenant and Paul as landlord dated September 25, 1992; and a quitclaim deed dated January 24, 1995, releasing the September 3, 1990, deed to secure debt.

       OCGA § 10-1-393 (b) (20) (C) (i) declares: “By way of illustration only and without limiting the scope of subsection (a) of this Code section, the following practices are declared unlawful: . . . (C) [flailing to comply with the following provisions in connection with the purchase of property used as a dwelling place by a debtor whose loan for said property is in default and who remains in possession of this property after said purchase: (i) [a] written contract shall be employed by the buyer which shall summarize and incorporate the entire agreement between the parties, a fully completed copy of which shall be furnished to the debtor at the time of its execution. Said contract shall show the date of the transaction and the name and address of the parties; shall state, in plain and bold language, that the subject transaction is a sale; and shall indicate the amount of cash proceeds and the amount of any other financial benefits that the debtor will receive.”


source: Caselaw Access Project

author: Smith, Judge. Andrews, Judge,

license: Public Domain

text:
    A96A0756.
    S K HAND TOOL CORPORATION v. LOWMAN.
    (479 SE2d 103)
   Smith, Judge.

Pursuant to our grant of an interlocutory appeal to S K Hand Tool Corporation, we consider whether a professional malpractice affidavit under OCGA § 9-11-9.1 is required for a claim of strict liability under OCGA § 51-1-11.

Viewing the evidence on S K’s motion to dismiss or for summary judgment in favor of Lowman under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the evidence was that Lowman worked for a landscaper as a mechanic in charge of servicing equipment. While attempting to reattach a sharpened lawnmower blade to a mower, he was using a ratchet designed and manufactured by S K. As he was pressing on the ratchet to tighten a nut, it slipped, causing him to cut his hand on the blade.

In his complaint, Lowman alleged that “[t]he ratchet was defective within the meaning of OCGA § 51-1-11. It was not reasonably suited for the purpose for which it was manufactured. . . . The ratchet was defective in that it did not remain secure when pressure was applied to tighten the nut. Either the teeth or gears slipped, or broke off when pressure was applied to the handle of the ratchet.” He also alleged that S K “expressly or impliedly warranted the ratchet as being fit for the ordinary and particular purpose for which it was to be used”; that the ratchet “was not merchantable for the purpose for which it was sold”; and that S K “failed to exercise even ordinary care and diligence in what they knew, or should have known, to be a defective product.”

S K answered the complaint and subsequently filed a motion to dismiss or for summary judgment based on failure to file an expert affidavit under OCGÁ § 9-11-9.1 (e). The trial court reviewed the depositions, including that of James Hills, a professional engineer retained by Lowman, and denied summary judgment. The trial court concluded that “because it is unclear to Mr. Hills, an engineer stipulated as an expert by [S K], whether improper engineering or improper installation of the shift pin or improper manufacturing caused thé ratchet to malfunction, it cannot be said as a matter of law that this is a case of negligent design which would require the filing of an affidavit in accordance with OCGA § 9-11-9.1.” We affirm.

S K maintains that the primary issue in this case is the design of the ratchet, relying in large part on Lowman’s discovery request for a copy of the ratchet’s design and interrogatories concerning the ratchet’s design. Also in this regard, S K references the deposition testimony of Lowman’s expert engineer that the ratchet malfunctioned due to improper design of an internal pin. S K specifically notes the engineer’s testimony that, “[a]ll I got to say is S K Hand Tool engineered it wrong.” Based on the authority of Kneip v. Southern Engineering Co., 260 Ga. 409 (395 SE2d 809) (1990); Jackson v. Dept. of Transp., 201 Ga. App. 863 (412 SE2d 847) (1991); and Adams v. Coweta County, 208 Ga. App. 334 (430 SE2d 599) (1993), S K argues that because the affidavit requirement applies to a complaint alleging damages as a result of engineering services, and because engineering services were involved in the design and manufacture of the ratchet, Lowman was required to file an expert affidavit in support of his strict liability claim.

In Kneip, our Supreme Court held that the expert affidavit requirement of OCGA § 9-11-9.1 (a) applies to the engineering profession. There, plaintiff sued defendant, who was under contract to perform engineering services that included inspection of utility poles, alleging that defendant negligently inspected a pole, causing it to deteriorate and fall. Id. at 410 (3). Based on these allegations and discovery revealing that plaintiff intended to call expert witnesses to testify at trial, the Supreme Court held that plaintiff was required to attach to its complaint an expert affidavit pursuant to OCGA § 9-11-9.1 (a). Citing Kneip, this Court in Jackson and Adams, supra, concluded that designing roads, bridges, and guardrails requires engineering services and that such services are professional ones “ ‘within the purview of OCGA § 9-11-9.1.’ ” Adams at 335-336; Jackson at 865.

S K argues that just as the design of a road requires engineering services, the design of a ratchet or any other hand tool necessarily requires engineering services, and an expert affidavit is thus required. But Lowman’s complaint did not actually allege defective design of the ratchet. Even assuming that Lowman’s discovery revealed that the central issue here concerns the design of the ratchet, we are not persuaded by S K’s argument that Kneip, Jackson, and Adams mandate the filing of an expert affidavit here. Those cases are factually distinguishable; the claims did not sound in strict liability against the manufacturer of a product, as does the claim at issue here.

More importantly, the conclusion urged by S K is inconsistent with fundamental differences between claims alleging professional negligence and those alleging strict liability. A professional negligence claim depends upon “the existence or absence of allegations that the defendant-professional has rendered negligent professional services.” Jordan, Jones & Goulding, Inc. v. Wilson, 197 Ga. App. 354, 355 (1) (398 SE2d 385) (1990). The plaintiff must prove that a professional breached the duty “to exercise a reasonable degree of skill and care, as determined by the degree of skill and care ordinarily employed [by other professionals] under similar conditions and like surrounding circumstances. [Cits.]” (Emphasis omitted.) Allen v. Lefkoff &c. P. C., 265 Ga. 374, 375 (2) (a) (453 SE2d 719) (1995). OCGA § 9-11-9.1 imposes on such claims a threshold pleading requirement that the plaintiff “show at the outset” that his or her suit is not frivolous. “This serves to prevent putting a professional to great expense and adversely affecting his or her professional reputation unjustifiably. ... It simply contemplates that parties allegedly damaged by malpractice show up front, by expert’s affidavit, that they have some evidence of malpractice, which by its nature can be established only by professional or expert testimony.” (Citations and punctuation omitted.) Johnson v. Brueckner, 216 Ga. App. 52, 53 (453 SE2d 76) (1995).

Strict liability, on the other hand, places “a burden on the manufacturer who markets a new product to take responsibility for injury to membérs of the consuming public for whose use and/or consumption the product is made.” Robert F. Bullock, Inc. v. Thorpe, 256 Ga. 744, 745 (353 SE2d 340) (1987). See also Alexander v. General Motors Corp., 219 Ga. App. 660, 662 (466 SE2d 607) (1995), rev’d on other grounds, 267 Ga. 339 (478 SE2d 123) (1996). A claim of strict liability is not proved by reference to “a reasonable degree of skill and care” as measured against a certain community; the nature of a strict liability claim is not that services were negligently provided. The basis of such a claim is that a product when sold was defective; it “was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.” OCGA § 51-1-11 (b) (1); Center Chemical Co. v. Parzini, 234 Ga. 868, 869 (2) (218 SE2d 580) (1975). In a case alleging strict liability, the questions for jury resolution therefore are whether a product was defective, and if so, whether the defect was the proximate cause of a plaintiff’s injury. See Firestone Tire &c. Co. v. Pinyan, 155 Ga. App. 343, 350 (5) (270 SE2d 883) (1980).

In this case, Lowman’s strict liability claim contains no allegation that professional services were negligently provided. Instead, the claim is a classic one of strict liability against the manufacturer of a product -— that Lowman suffered injury proximately resulting from the manufacture of a defective product. S K nevertheless seeks to engraft an expert affidavit pleading requirement on Lowman’s strict liability claim, relying on Banks v. ICI Americas, 264 Ga. 732 (450 SE2d 671) (1994).

The Supreme Court in Banks formulated a standard for the trier of fact to use in determining defectiveness in design defect cases under a strict liability cause of action. The court identified three types of product defects — manufacturing, design, and marketing/ packaging defects, id. at 733 — and defined a test for use in determining whether a product is defectively designed. It adopted a “risk-utility” test, setting out a non-exhaustive list of factors for a jury to consider in a balancing analysis of whether a product is defective. The Court stated that this is “consistent with Georgia law, which has long applied negligence principles in making the determination whether a product was defectively designed.” Id. at 735. Similarly, the Court “recognize[d] that the determination of whether a product was defective (involving the reasonableness of a manufacturer’s design decisions), which is a basic inquiry for strict liability purposes, generally will overlap the determination of whether the manufac^ turer’s conduct was reasonable, which is a basic inquiry for negligence purposes.” Id. at 735, n. 3. Banks does seem to blur the distinction Georgia cases have historically made between negligence arid strict liability claims. See, e.g., Firestone Tire v. Pinyan, supra, at 350 (“[W]hether or not the factors proximately resulting in the injuries were or were not acts of negligence is of no bearing or consequence in a strict liability case.” (Emphasis supplied.)).

The Supreme Court, however, in fashioning its risk-utility analysis cannot have intended the result urged by S K. Blurred distinctions and overlapping principles notwithstanding, the Supreme Court in Banks recognized — and upheld — a distinction between strict liability and negligence theories: “[W]e cannot agree that the use of negligence principles to determine whether the design of a product was ‘defective’ necessarily obliterates under every conceivable factual scenario the distinction Georgia law has long recognized between negligence and strict liability theories of liability.” Banks, supra at 735, n. 3. Since Banks, this Court has continued to honor that distinction. See, e.g., Alexander, supra at 662 (public policy in Georgia of shifting burden caused by defective product to manufacturer “by focusing not on whether the manufacturer negligently failed to use due care but on whether the marketed product was defective. [Cits.]”). Furthermore, Banks does not state that the standard to be applied in a risk-utility analysis somehow relates to whether a “reasonable degree of skill and care” was employed in a product’s design, nor does it recite that the risk-utility analysis concerns the breach of a minimum standard of care such that expert testimony is required. Instead, Banks simply requires the balancing of several factors which relate to the risks and benefits of products, and no one factor alone is a prerequisite for bringing a claim.

Simply put, a claim for professional malpractice depends upon negligence principles — standards of reasonableness as related to professional services. A claim for strict product liability — whether the problem is manufacture or design — depends, however, upon whether a product was defective. While negligence principles may now be utilized in the determination of whether a product was defectively designed, a viable distinction nonetheless remains between claims alleging strict liability and those alleging provision of negligent professional services. Because the purposes of and inquiries inherent in claims alleging professional negligence and those alleging strict liability differ substantially, the extra pleading requirement imposed on professional malpractice claims is not equally applicable to claims of strict liability.

Judgment affirmed.

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

Andrews, Judge,

dissenting.

While I concur with the majority to the extent it can be read to allow the assertion of a strict liability claim premised on simple negligence, because I believe that the affidavit requirement applies to strict liability cases when they are premised upon a defect in a product which is the result of the exercise of professional judgment in the initial design of the product or in the design of the manufacturing process for the product, I respectfully dissent as to that portion of the majority.

1. OCGA § 9-11-9.1 requires that “[i]n any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which . . . shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” (Enacted by Ga. L. 1987, p. 887, § 3.)

(a) OCGA § 9-11-9.1 is an initial pleading requirement, Hewett v. Kalish, 264 Ga. 183, 184 (1) (442 SE2d 233) (1994), which “ ‘applies to any action for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.’ [Cit.]” Housing Auth. of Savannah v. Greene, 259 Ga. 435, 436 (1) (383 SE2d 867) (1989). See also Whitley v. Gwinnett County, 221 Ga. App. 18, 19 (1) (470 SE2d 724) (1996); Adams v. Coweta County, 208 Ga. App. 334, 335 (2) (430 SE2d 599) (1993). This requirement is an exception to the general liberality of the Civil Practice Act, Redmond v. Shook, 218 Ga. App. 477, 478 (2) (462 SE2d 172) (1995), even though any affidavit filed is to be construed most favorably to the plaintiff. Gadd v. Wilson & Co., 262 Ga. 234, 235 (416 SE2d 285) (1992).

An affidavit is required when the allegations of liability are against a person or entity which is not a “professional,” but the allegations are “grounded upon the averment of acts or omissions requiring the exercise of professional skill and judgment by agents or employees who themselves are recognized as ‘professionals’ . . .” Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 65 (3) (424 SE2d 632) (1992). See also Ga. Physical Therapy v. McCullough, 219 Ga. App. 744, 746 (466 SE2d 635) (1996); Howard v. City of Columbus, 219 Ga. App. 569, 572 (2) (466 SE2d 51) (1995); Robinson v. Medical Center &c., 217 Ga. App. 8, 10 (456 SE2d 254) (1995).

Engineering is one of the professions to which the section applies if the claim made is one arising from the performing of engineering services. Kneip v. Southern Engineering Co., 260 Ga. 409 (2) (395 SE2d 809) (1990) (involving a claim of negligent inspection of a utility pole by an engineering firm).

(b) The applicability of the affidavit requirement is determined by considering the allegations of the complaint as the primary touchstone, cf. McGarr v. Gilmore, 220 Ga. App. 286, 287 (469 SE2d 720) (1996), but matters developed by a plaintiff’s discovery may also be considered. Adams, supra at 336 (2).

Since the motion here was styled as one to dismiss or for summary judgment, all discovery of record is considered in evaluating the trial court’s determination.

(c) In analyzing the complaint, OCGA § 9-11-8 (e) (2) is also relevant. It allows a party to “set forth two or more statements of a claim . . . alternatively or hypothetically, either in one count. . . or in separate counts. ... A party may also state as many separate claims . . . as he has, regardless of consistency and whether based on legal or on equitable grounds or on both.”

2. OCGA § 51-1-11 (b) (1) imposes liability in tort upon “[t]he manufacturer of any personal property sold as new property ... to any natural person . . . injur[ed] . . . because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury. . . .” (This language originated in Ga. L. 1968, pp. 1166, 1167. See Stiltjes v. Ridco Exterminating Co., 256 Ga. 255, 256 (347 SE2d 568) (1986); Ford Motor Co. v. Carter, 239 Ga. 657, 659 (238 SE2d 361) (1977); Ellis v. Rich’s, Inc., 233 Ga. 573 (212 SE2d 373) (1975), for a history of the development of this concept in this state.)

“There are three general categories of product defects: manufacturing defects, design defects, and marketing/packaging defects. [Cit.] . . . [Center Chemical Co. v.] Parzini[, 234 Ga. 868 (218 SE2d 580) (1975)] addressed manufacturing and packaging defects and did not recognize the existence of design defects, i.e., those cases where it is not possible to ascertain whether a product is ‘defective’ by simply comparing it to a properly manufactured item from the same product, line. [Cit.] . . . Unlike a manufacturing defect case, wherein it is assumed that the design of the product is safe and had the product been manufactured in accordance with the design it would have been safe for consumer use, in a design defect case the entire product line may be called into question and there is typically no readily ascertainable external measure of defectiveness. It is only in design defect cases that the court is called upon to supply the standard for defectiveness: the term ‘defect’ in design defect cases is an expression of the legal conclusion to be reached, rather than a test for reaching that conclusion. [Cit.]” Banks v. ICI Americas, 264 Ga. 732, 733-734 (1) (450 SE2d 671) (1994) (adopting the “risk-utility” analysis as the appropriate test for legally concluding a product’s design specifications were partly or totally defective).

The risk-utility analysis “incorporates the concept of ‘reasonableness,’ i.e., whether the manufacturer acted reasonably in choosing a particular product design, given the probability and seriousness of the risk posed by the design, the usefulness of the product in-that condition, and the burden on the manufacturer to take the necessary steps to eliminate the risk. . . . Conceptually and analytically, this approach bespeaks negligence. [Cit.] The balancing test that forms the risk-utility analysis is thus consistent with Georgia law, which has long applied negligence principles in making the determination whether a product was defectively designed. [Cit.]” Banks, supra at 734-735.

While the Supreme Court, in Banks, saw no reason to conclude “definitively that the two theories [strict liability and negligence] merge in design defect cases[,] [cits.],” that court did recognize that “the determination of whether a product was defective (involving the reasonableness of a manufacturer’s design decisions), which is a basic inquiry for strict liability purposes, generally will overlap the determination of whether the manufacturer’s conduct was reasonable, which is a basic inquiry for negligence purposes.” Banks, supra at 735, fn. 3. See also Wilson Foods v. Turner, 218 Ga. App. 74, 75 (1) (460 SE2d 532) (1995); Ream Tool Co. v. Newton, 209 Ga. App. 226, 228 (4) (433 SE2d 67) (1993).

3. As stated in his Statement of Material Facts for Trial, Low-man’s contention is that the ratchet “. . . either [was not] manufactured properly [wrong dimensions used in manufacturing] or [the pin] wasn’t pushed into the hole properly, or, the design of it was such that even if it was manufactured properly that the pin’s dimensions were such that it would come out.”

To the extent that Lowman’s complaint can be construed as alleging strict liability for the production of the ratchet based on professional malpractice by S K’s engineers because of the design of the ratchet, I believe it was subject to OCGA § 9-11-9.1. Lutz v. Foran, 262 Ga. 819, 820 (2) (427 SE2d 248) (1993); Seely v. Loyd H. Johnson Constr. Co., 220 Ga. App. 719, 723 (3) (470 SE2d 283) (1996); Whitley, supra. Similarly, to the extent that the complaint alleges strict liability based on the ratchet being improperly manufactured, i.e., that the method of manufacturing the ratchet did not comply with the standards of professional engineering, I believe an affidavit was required. See Raley v. Terminix Intl., 215 Ga. App. 324, 325 (450 SE2d 343) (1994).

This conclusion is supported by the depositions of Hills, Low-man’s expert, and Paeth, S K’s Manager of Product Engineering. Attached to their depositions are copies of the engineering drawings of the subject ratchet. The ratchet consists of a handle, an innerbody assembly, a cap screw, a reversing cap, a heart shaped spring, a grooved shift pin located in the recessed area inside the spring, a standard ball bearing, and a pawl. Paeth, a member of the Hand Tool Institute Committee of the American Society of Mechanical Engineers, identified the ANSI Standards applicable to this ratchet.

S K had two engineering divisions. Product engineering was responsible for development of a product new to S K as well as creation of a new product which might be new to the industry. The manufacturing engineering division was responsible for “the processes to make the part” that Paeth designed.

The ratchet was first introduced by S K in 1988 and, since that time, changes in the design have been noted in the “Engineering Change Notices” on the drawings. S K designed the cap and used the pawl and spring design of its parent company, a foreign tool manufacturer.

As component parts not manufactured by S K were received, they were checked against the drawings by lot sample. A torque test was performed “to failure” on the inner body, also by lot sample, after the parts were heat treated.

Both Hills and Paeth agreed that the shift pin should not come out of the hole in which it is installed. The shift pin served to shift the pawl device and put pressure on it, causing it to engage the inside of the teeth in the socket head, allowing the ratchet to be used. Paeth opined that the ratchet' had been disassembled by someone and improperly reassembled, causing the pin to loosen. He further opined that, if the hole into which thé pin was inserted was too large, causing the pin to dislodge, that was due to wear, not improper design or mismanufacture.

Hills opined that “it was either not manufactured properly, that is, it was either to .the wrong dimensions or it wasn’t pushed in the hole properly or wasn’t seated properly, or the design of it was such that even if it was manufactured right the dimensions were such that it would come out. And that’s the reason I put both design and manufacture. . . .” Hills noted that a change was made in Drawing A 45175-PB after the subject ratchet was manufactured. This caused him “to think there must have been a problem with this diameter and this length that caused them to change it.” The drawings indicated to him that “they changed the length of the pin and the depth of the hole that the pin goes in.”

These observations were obviously made by Hills and Paeth based on their expertise as professional engineers and dealt with the presence or absence of professional malpractice in either the design or manufacture of the ratchet. While Lowman is correct that the cause of the ratchet’s failure was the looseness of the pin in its hole, which was obvious once the ratchet was disassembled, the reason the pin was loose required the exercise of professional judgment, based on engineering standards.

4. I note that the affidavit required “has ‘a lesser evidentiary standard to meet when used to fulfill the requirement of OCGA § 9-11-9.1 (a),’ than when also 'relied upon as expert testimony to create genuine issues of material fact in the disposition of a motion for summary judgment. [Cit.]” Dozier, supra at 66 (4). All that is required is a synopsis of the salient facts upon which the expert bases his opinion and may contain conclusions and hypotheticals based on assumed facts. See Hewett v. Kalish, 264 Ga. 183, 184 (442 SE2d 233) (1994); Howard, supra at 573 (3). It is sufficient if “ ‘construing it most favorably for (plaintiff) and resolving all doubts in [his] favor, it constitutes'an affirmation that (plaintiff’s) complaint is not frivolous and that, if true, the allegations therein would authorize a recovery for an injury resulting from [defendants] malpractice.’ [Cit.]” Fidelity Enterprises v. Beltran, 214 Ga. App. 205, 206 (447 SE2d 150) (1994).

An opinion that “another specified design ‘might’ have been used and that the failure to use such a design or another appropriate alternative constituted malpractice is sufficient to set forth a negligent act or omission as required by the affidavit statute.” Samuelson v. Lord, Aeck & Sergeant, 205 Ga. App. 568, 570 (1) (423 SE2d 268) (1992) (site design for a post office).

Therefore, I believe that S K was entitled to summary judgment on the strict liability claim so far as that claim was premised on a design defect or a defect in the engineering of the manufacturing process because of failure to comply with OCGA § 9-11-9.1.

Decided December 3, 1996

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Robin F. Clark, for appellant.

The Groover Firm, David C. Cole, James L. Ford, for appellee.

Brown & Shamp, Robert H. Brown III, Craig T. Jones, David W. Boone, amici curiae.

       The Supreme Court announced that a central factor to be considered in a risk-utility analysis is the availability of an alternative safer design. Banks at 733. It is important to note, however, that despite the court’s recitation that the reasonableness of choosing the safest design from alternative designs is the “heart” of design defect cases, id. at 736, the court did not hold that a jury must consider this factor. The Supreme Court instead held that the jury “may consider evidence establishing that at the time the product was manufactured, an alternative design would have made the product safer than the original design and was a marketable reality and technologically feasible.” Id.

       A hinged or pivoted device adapted to fit into a notch of a ratchet wheel to impart forward motion or prevent backward motion. American Heritage Dictionary 911 (2nd College ed. 1985).

       ANSI is the American National Standards Institute which is chartered by ASME. Cobb County School Dist. v. MAT Factory, 215 Ga. App. 697, 698, fn. 1 (452 SE2d 140) (1994).


author: Pope, Presiding Judge.

text:
    A96A1202.
    SUTTON v. THE STATE.
    (478 SE2d 910)
   Pope, Presiding Judge.

Robert Wayne Sutton was convicted for trafficking in methamphetamine. He appeals and we affirm.

Evidence at the hearing on the motion to suppress and at the bench trial was that at 1:25 a.m. on October 13, 1994, Officer Long and Corporal Pearson of the Gwinnett County Police Department were patrolling when they noticed a vehicle with the tag light out. Pearson activated his emergency equipment to stop the vehicle. The driver of the vehicle, later determined to be Sutton, continued to drive slowly, and eventually stopped at a convenience store.

Long approached the car and obtained Sutton’s insurance card, which had expired, and a uniform citation which Sutton was using in lieu of a driver’s license. Long took the documents to the patrol car to run a computer check on the license, while Pearson questioned Sutton about additional matters. Pearson recalled that Sutton was wearing a uniform and, in response to questioning, Sutton said that he had just left work. The computer check revealed that Sutton was on probation for a felony, and Long related this information to Pearson. Pearson questioned Sutton regarding the probation and Sutton stated that he was on probation for a violation of the Georgia Controlled Substances Act.

Pearson then asked Sutton for consent to search his vehicle. Pearson testified that Sutton consented, saying “sure, no problem. I have nothing to hide.” Pearson could not recall whether he advised Sutton of his right to refuse the search. Pearson testified that Sutton was not under arrest when his consent to search was requested and that he was free to leave. Long corroborated this testimony.

Sutton stepped out of the car and Long stood next to him. Pearson recalled that Sutton was allowed to stand by his . own car with “the opportunity to stop the consent search at any time he [chose] to do so.” Pearson stated that no threats or promises were made to Sutton and that Sutton’s consent to the search was absolute. Long stated that during the stop either he or Pearson retained Sutton’s license and insurance documents. Long testified that he would have returned these materials to Sutton if he had wanted to leave.

Pearson looked under the edge of Sutton’s driver’s seat and found a zipped plastic bag containing a white powdery substance, later confirmed to be more than 44 grams of methamphetamine. Pearson also found a set of scales, a plastic bottle of white powder and numerous empty plastic bags. Pearson asked what the white powdery substance in the bag was and Sutton stated that it was speed that belonged to a friend of his. Sutton was arrested and taken to jail where a bodily search revealed another bag of methamphetamine in his sock and $2,131 in his jacket pocket.

1. In his first enumeration of error, Sutton claims that the court improperly denied his motion to suppress. Sutton contends that given the circumstances of the stop, he had no choice but to consent to the search and that his consent was coerced. Citing Rogers v. State, 206 Ga. App. 654 (426 SE2d 209) (1992), he argues that the officers obtained his consent while detaining him beyond the detention authprized by the traffic stop and that the officers lacked probable cause to search. At the suppression hearing, Sutton testified that Pearson, stated that he normally searched the cars of people on probation, that Sutton did not have time to respond to Pearson’s request to search his car, that he did not recall consenting to the search, and that he did not have the choice to refuse the search.

“When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) Allenbrand v. State, 217 Ga. App. 609 (1) (458 SE2d 382) (1995).

We reject Sutton’s argument that he was illegally detained. Although Sutton concedes that the initial stop was valid, he argues that the initial stop became an impermissible detention because he was not free to leave after the officers became aware of the tag light violation and expired insurance.

In Berkemer v. McCarty, 468 U. S. 420 (104 SC 3138, 82 LE2d 317) (1984), the United States Supreme Court formulated an objective test to determine whether a detainee is “in custody.” That test is whether a reasonable person in the detainee’s position would have thought the detention would not be temporary. The Supreme Court also held that the safeguards prescribed by Miranda become applicable only after a detainee’s freedom of action is curtailed to the degree associated with formal arrest. The rationale behind the Berkemer holding is that although an ordinary traffic stop curtails the freedom of action of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee’s exercise of his privilege against self-incriprination so as to require that he be advised of his constitutional rights.

In applying the above-mentioned test and rationale, we have specifically held that roadside questioning during the investigation of a routine traffic incident generally does not constitute a custodial situation. Crum v. State, 194 Ga. App. 271, 272 (390 SE2d 295) (1990). “A law enforcement officer coming upon the scene of suspected criminal activity [or a traffic incident] will conduct a general on-the-scene investigation and may detain temporarily anyone at the scene who tries to leave. . . .” Lankford v. State, 204 Ga. App. 405, 406-407 (2) (419 SE2d 498) (1992). Moreover, “an officer conducting a routine traffic stop may request and examine a driver’s license and vehicle registration and run a computer check on the documents. [Cits.]” Rogers v. State, 206 Ga. App. at 657 (2). The fact that an officer retains a detainee’s license for a short period during the course of an investigation does not necessarily mean that the detainee is in custody, even if at that point, by leaving, the detainee could be arrested for violating State law. See Crum v. State, 194 Ga. App. at 272, where we found that a driver who could not show proof of insurance during a routine traffic stop, and thus could have been arrested if he attempted to leave, was not “‘in custody’ until after he had been given field sobriety tests and formally arrested.”

In cases like this, it is “ ‘crucial to focus on what the [detainee’s] immediate “business” is, in order to decide if police retention of his papers would likely impede his freedom to proceed with it’ [cit.]” Rogers v. State, 206 Ga. App. at 658 (2), and thus, reach a determination as to whether or not a reasonable person in the detainee’s position would believe that the detention was temporary. Here, Sutton’s immediate business was heading home from work. Corporal Pearson posed questions to Sutton that were relevant to the traffic stop for the tag light and, later, to the status of his insurance, driver’s license and felony probation. Although Pearson testified that he asked Sutton, who had on “some type of a workmen uniform,” what he was doing out at that time of night, we find that Pearson’s limited questioning was reasonably related to the circumstances that justified the initiation of the momentary stop. See Pitts v. State, 221 Ga. App. 309 (2) (471 SE2d 270) (1996); compare Smith v. State, 216 Ga. App. 453 (2) (454 SE2d 635) (1995). Given these circumstances, we hold that when Sutton consented to the search, a reasonable person in his position would not have concluded that his freedom of action had been more than temporarily curtailed, but rather, that he was only “being briefly detained while the officer determined the nature of the situation.” Daugherty v. State, 182 Ga. App. 730, 731 (356 SE2d 902) (1987); Lankford v. State, 204 Ga. App. at 407. Our inquiry now becomes whether Sutton’s consent to the search was voluntary. “Where the State seeks to justify a warrantless search on grounds of consent, it has the burden of proving that the consent was, in fact, freely and voluntarily given. A valid consent eliminates the need for either probable cause or a search warrant. The voluntariness of a consent to search is determined by looking at the totality of the circumstances. . . .” (Citations and punctuation omitted.) Hunter v. State, 190 Ga. App. 52, 53 (1) (378 SE2d 338) (1989).

“Assuming the existence of an otherwise valid non-pretextual initial investigatory stop of appellant’s vehicle, the determination of the validity of the subsequent consensual search is not dependent upon the existence of probable cause or suspicion to support the officer’s request to conduct the search, but upon the voluntariness of appellant’s waiver of his expectation of privacy in the vehicle in response to that request.” Id. at 54.

In the instant case, the trial court’s conclusion that Sutton’s consent was freely and voluntarily given was authorized, and the motion to suppress was properly denied. See generally Allen v. State, 191 Ga. App. 623, 624 (1) (382 SE2d 690) (1989).

2. Sutton’s vehicle and $2,130 were seized at the time of his arrest. On December 9, 1994, a complaint against this property was filed pursuant to OCGA § 16-13-49. Sutton filed responsive pleadings, and the parties entered into a compromise agreement regarding the property.

Here, Sutton argues that his plea of former jeopardy based on the previous forfeiture action was improperly denied. Further, he argues that because the State claimed that the forfeiture was reimbursement for the cost of arresting him, the State should have been required to present evidence of the relationship between the amount seized and the expenses it had incurred.

Sutton’s double jeopardy argument was rejected in Murphy v. State, 219 Ga. App. 474 (465 SE2d 497) (1995), aff’d 267 Ga. 120 (475 SE2d 907) (1996). Similarly, we find no merit to Sutton’s argument that the State was required to present evidence of the costs and expenses of the forfeiture action to prove that such civil action was not penal in nature. Our Supreme Court has held unequivocally that “the forfeiture proceeding under the statute is legitimately a civil sanction and does not constitute punishment for purposes of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.” Murphy v. State, 267 Ga. at 121.

3. Sutton argues that the court erred in admitting into evidence the 44.4 grams of methamphetamine because the State failed to prove chain of custody. Specifically, Sutton claims that the seal on the evidence bag was broken by a crime lab chemist who was not available to testify; that it is unclear when the bag was opened; and that the seal was broken under circumstances in which there was an actual risk of contaminating the evidence with other evidence.

We disagree. There was evidence that the unavailable crime lab chemist, Dana Macey, received the bag of methamphetamine on October 17, 1994 from an officer. Another chemist at the crime lab, Steve Ellis, testified that before trial, he retrieved this evidence, which was sealed with red evidence tape as laboratory procedure dictated, from the storage area and conducted an analysis. Ellis stated that the evidence tape bore Macey’s initials and was dated November 30, 1994. Ellis testified that based on office procedure, he could ascertain that Macey originally cut the bag open. He also stated that based upon office procedure, he believed that the evidence was the same as that which Macey received on October 17, 1994.

“Where the State seeks to introduce evidence of a fungible nature, it need only show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The fact that one of the persons in control of a fungible substance does not testify at trial does not, without more, make the substance or testimony relating to it inadmissible. The trial court was authorized to conclude that the State had met its burden with respect to the establishment of the chain of custody in the present case. There being, at most, bare speculation of tampering or substitution, the trial court correctly admitted the . . . evidence.” (Citations and punctuation omitted.) Williams v. State, 199 Ga. App. 122, 123 (2) (404 SE2d 296) (1991); see also Baker v. State, 202 Ga. App. 73, 75 (2) (413 SE2d 251) (1991).

4. Sutton claims that the,evidence was .insufficient to convict because his possession of the 44.4 grams of methamphetamine was not proven beyond a reasonable doubt. We disagree.

Decided December 3, 1996

Sidney L. Moore, Jr., for appellant.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

“When there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to its weight.” (Citations and punctuation omitted.) Oglesby v. State, 194 Ga. App. 383 (3) (390 SE2d 630) (1990). Contrary to Sutton’s argument that it is a reasonable hypothesis that the substance tested by Ellis was not the substance taken from Sutton’s vehicle, we find that the circumstantial evidence was sufficient to exclude any reasonable hypothesis other than Sutton’s guilt of trafficking in methamphetamine. A rational trier of fact could find from the evidence adduced at trial proof of his guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Andrews and Smith, JJ, concur.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       Contrary to Sutton’s argument, Pearson’s belief, which was never communicated to Sutton, that a person could be arrested for the traffic violations at issue is not dispositive, given Pearson’s testimony that Sutton was free to leave before the search. “A policeman’s unarticulated plan has no bearing on the question whether a suspect was ‘in custody at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U. S. 420, 442.


author: Blackburn, Judge.

text:
    A96A1450.
    LEIGH v. THE STATE.
    (478 SE2d 905)
   Blackburn, Judge.

Joshua Timothy Leigh appeals his convictions for party to the offenses of armed robbery, possession of a firearm during the commission of a felony, and theft by taking. He contests the sufficiency of the evidence, contends that his custodial statement should not have been admitted into evidence, and asserts the trial court erred in charging the jury.

On December 15, 1994, Leigh and his co-indictees, Anthony Charles Gilleland and Scott Christopher Payne, rode past the Quillian’s Corner branch of the First National Bank of Gainesville and made plans to rob it. The next day, the following items were obtained: a getaway motorcycle; two handguns, taken without permission from Gilleland’s parents’ home; pillowcases to hold the money; and pantyhose for use as a disguise. While Leigh waited in a nearby field with Gilleland’s car, Gilleland and Payne rode the motorcycle to the bank to rob it. This robbery was never completed, as Gilleland crashed the motorcycle on the way to the bank, injuring Payne’s ankle. After stopping outside the bank, the two returned to the field where Leigh was waiting.

After the failed first attempt, the three men proceeded to a spot near another bank. Leigh and Payne waited with the car in a designated area while Gilleland took the motorcycle and a gun and robbed the bank. Following the robbery, Leigh and Payne picked Gilleland up in Gilleland’s car, and the three split the proceeds of the robbery. All three men were subsequently arrested, and Gilleland pled guilty and was sentenced in federal court. As part of his plea-bargain agreement on his state charges, Gilleland testified against Leigh at trial. Payne also testified against Leigh at trial.

1. Leigh argues that his custodial statement was erroneously admitted because it was not knowing and voluntary. First, Leigh argues that his statement was improperly induced by the interrogating officer, who inferred that Leigh might receive more favorable treatment from the prosecutor and the trial court if he cooperated by making a statement. Second, Leigh argues that, at the time of the confession, he was mentally incapable of making a knowing and voluntary statement.

With respect to Leigh’s first argument, as he was interviewed by Investigator John Sisk, Leigh was told, “if you want to tell us what happened, tell us your side and cooperate, it can’t do anything but help you.” When Leigh asked how his cooperation would help, Sisk told him, “on down the road, the court proceedings and all that. The judge and D. A. . . . always ask, you know, did you cooperate with us, did you not cooperate with us.” Leigh contends his subsequent confession was invalid because Investigator Sisk’s statements created the hope of benefit in violation of OCGA § 24-3-50.

When a trial judge holds a suppression hearing and determines the voluntariness of a confession, that determination will be upheld on appeal unless clearly erroneous. Burton v. State, 212 Ga. App. 100, 102 (441 SE2d 470) (1994). In support of his argument, Leigh cites Askea v. State, 153 Ga. App. 849 (267 SE2d 279) (1980). In Askea, the defendant’s custodial statement was rendered inadmissible after the interrogating police officer informed the defendant that if he told the truth, it would probably help him in court. Askea, supra at 851.

This case is factually distinguishable. Unlike the officer in Askea, Investigator Sisk did not limit his comments to merely telling Leigh that talking “would probably” help Leigh in court. See Askea, supra at 851. Instead, Investigator Sisk immediately and specifically explained his comment, telling Leigh that should they ask, Investigator Sisk would inform the judge and the district attorney of Leigh’s cooperation in the investigation. “We have construed the ‘slightest hope of benefit’ as meaning the hope of a lighter sentence. Merely telling a defendant that his or her cooperation will be made known to the prosecution does not constitute the ‘hope of benefit’ sufficient to render a statement inadmissible under OCGA § 24-3-50.” (Citations and punctuation omitted.) Arline v. State, 264 Ga. 843, 844 (2) (452 SE2d 115) (1995). See also Autry v. State, 210 Ga. App. 150 (435 SE2d 512) (1993).

Lyles v. State, 221 Ga. App. 560, 561 (472 SE2d 132) (1996) is similar to this case, and in Lyles, the confession was upheld although the interrogating officer told the defendant that if he cooperated, the officer would mention the defendant’s cooperation to the district attorney, and that it might help the defendant. Furthermore, like the defendant in Lyles, Leigh signed a form which acknowledged that he had not been promised anything. Investigator Sisk testified that neither he nor any other officer made Leigh any promise, benefit, or hope of reward if Leigh agreed to talk. In light of the above, the trial court’s denial of Leigh’s motion to suppress the statement was not clearly erroneous.

Aside from the hope of benefit, Leigh also contends that his waiver of rights was not knowing and voluntary. He argues that when he made his statement, he was 17 years old, had a ninth-grade education, and had smoked excessive amounts of crack cocaine hours before making the statement.

“The question of whether a waiver of rights and a subsequent statement have been voluntary and knowing depends on the totality of the circumstances.” Reinhardt v. State, 263 Ga. 113, 115 (428 SE2d 333) (1993). Our review of Leigh’s videotaped statement confirms the trial court’s ruling that Leigh freely and voluntarily waived his rights. Officer Sisk testified that he advised Leigh of his rights, and that Leigh acknowledged that he understood those rights, both verbally and in writing. Sisk further testified that Leigh’s responses were appropriate to the questions asked, and that Leigh did not appear to be under the influence of drugs, alcohol, or intoxicants. The trial court’s finding that Leigh freely and voluntarily waived his rights was therefore not clearly erroneous.

2. Leigh argues that the evidence is insufficient as a matter of law to prove beyond a reasonable doubt that he was a party to the offenses of armed robbery, possession of a firearm during the commission of a felony, and theft by' taking. He also contests the sufficiency of the evidence corroborating, the testimony of the accomplice, Anthony Gilleland. “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence, or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. ... As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Punctuation omitted.) Ferguson v. State, 221 Ga. App. 415, 419 (471 SE2d 528) (1996).

Leigh argues that he did not aid, abet, or encourage the commission of any of the crimes for which he was convicted, and that his involvement in the crimes did not rise to a level sufficient to sustain his conviction as a party to those crimes. OCGA § 16-2-20 provides in pertinent part: “Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. ... A person is concerned in the commission of a crime only if he . . . [ijntentionally aids or abets in the commission of the crime; or . . . [ijntentionally advises, encourages, hires, counsels, or procures another to commit the crime.”

With respect to the offenses of armed robbery and possession of a firearm during the commission of a felony, the evidence allowed the jury to find that Leigh initiated the robbery idea and agreed with the suggestion to rob a bank. He obtained pillowcases and hosiery disguises for use in the robbery, and helped locate a bank to rob and a hiding place near that bank. He waited in a hiding place for Gilleland to rob the bank at gunpoint, and then picked Gilleland up after the robbery took place. Upon completion of the crime, Leigh accepted approximately $700 worth of stolen money from Gilleland.

“[Cjriminal intent may be found by the jury upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. . . . [Pjresence, companionship and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Punctuation omitted.) Norris v. State, 220 Ga. App. 87, 89 (469 SE2d 214) (1996). Additionally, “[cjonspiracy may be proven by direct or circumstantial evidence.” (Punctuation omitted.) Okongwu v. State, 220 Ga. App. 59, 61 (467 SE2d 368) (1996). Applying these standards to the facts of this case, the evidence is sufficient to sustain the convictions for armed robbery and possession of a firearm during the commission of a felony under Jackson v. Virginia, supra.

Leigh also argues that the evidence presented was insufficient to corroborate the testimony of the accomplice, Gilleland. Although OCGA § 24-4-8 prevents the conviction of a defendant in felony cases where the only witness testimony is the uncorroborated testimony of an accomplice, “slight evidence of a defendant’s identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony, and thus, support the verdict. . . . The necessary corroboration may be by circumstantial evidence.” (Punctuation omitted.) Stephenson v. State, 220 Ga. App. 95, 96-97 (469 SE2d 266) (1996). Moreover, “an accomplice’s testimony may be corroborated by the testimony of another accomplice.” Id. at 97. As the testimony regarding armed robbery and possession of a firearm was corroborated by Gilleland, Payne, and even Leigh’s own statement, this contention is without merit. The evidence was sufficient to authorize the jury’s finding of Leigh’s guilt beyond a reasonable doubt. Jackson v. Virginia, supra.

Leigh contests the sufficiency of the evidence as to his conviction for party to theft by taking. This conviction is based on Gilleland’s theft of two guns from his parents’ home. Leigh seeks reversal of this conviction because the state failed to prove that Leigh knew Gilleland had stolen the guns.

The íaw in Georgia governing the liability of conspirators for the acts of co-conspirators is well-settled. “The elements of proof that one is a party to a crime . . . [require] proof of a common criminal intent. . . . When individuals associate themselves in an unlawful enterprise, any act done in pursuance of the conspiracy by one of the conspirators is in legal contemplation the act of all, subject to the qualification that each is responsible for the acts of the others only so far as such acts are naturally or necessarily done pursuant to or in furtherance of the conspiracy.” (Punctuation omitted.) Crawford v. State, 210 Ga. App. 36, 37 (435 SE2d 64) (1993).

The case of Walker v. State, 213 Ga. App. 407 (444 SE2d 824) (1994) addresses the issue of a conspirator’s liability for a crime committed by a co-conspirator outside of the original conspiracy plan. Walker hired Mercer to kill Walker’s wife, but instead of murdering the victim as planned, Mercer sodomized her and her daughter. Walker’s convictions on two counts of sodomy were affirmed, and this Court held that “[c]onspirators are responsible for the acts of each other in carrying out the common purpose or design, although such acts may constitute another criminal offense.” (Punctuation omitted.) Walker, supra at 411. Although “the acts of sodomy were not an automatic outgrowth of the crime plotted, . . . [they] nevertheless grew out of the acts committed while one conspirator was engaged in furthering the criminal enterprise.” Id.

In this case, the parties entered into an agreement to commit an armed robbery, and as part of that agreement, determined that a gun would be needed. It was decided between the three, without addressing the issue of permission, that the gun would come from Gilleland’s parents’ house. Gilleland then stole the guns and used them in the robbery.

Applying the analysis of Walker, the jury was entitled to find that Gilleland’s theft of the guns was naturally, necessarily done pursuant to the parties’ conspiracy. “[E]verything said, written, or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them. . . . [T]his joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose.” (Emphasis supplied; punctuation omitted.) Crawford, supra at 38. Leigh’s conviction-for party to theft by taking is accordingly affirmed.

Decided December 3, 1996

'William M. Brownell, Jr., for appellant.

Lydia J. Sartain, District Attorney, Leonard C. Parks, Jr., Assistant District Attorney, for appellee.

Having already addressed the sufficiency of the evidence in this division, it is unnecessary to address Leigh’s arguments regarding the trial court’s failure to grant his motions for directed verdict of acquittal and new trial.

3. Leigh enumerates as error the trial court’s charge on knowledge, which stated: “[Sjhould you find beyond a reasonable doubt. . . that the defendant had knowledge that the crimes of armed robbery or burglary or theft by taking or possession of a firearm in the commission of a felony were being committed . . . and that the defendant knowingly and intentionally participated, or helped in the commission of any one of these crimes, then you would be authorized to convict the defendant of any of the crimes of which you would find the defendant had knowledge as I have just defined knowledge to you.” Leigh reserved his right to object to the charge, and now argues that the disjunctive use of the word “or” allowed the jury to find him guilty of any crime named so long as it found he had knowledge of any other crime named.

Leigh requested the pattern charge on knowledge, which is substantially the charge the court gave. See Council of Superior Court Judges; Suggested Pattern Jury Instructions, p. 21. Although Leigh now argues he was prejudiced because the charge was misleading and confusing, “[t]he charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same.” (Punctuation omitted.) Garren v. State, 220 Ga. App. 66, 68 (467 SE2d 365) (1996). “[W]e do not believe that the charge as a whole would mislead a jury of average intelligence.” Dooley v. State, 221 Ga. App. 245, 246 (470 SE2d 803) (1996). This enumeration is therefore without merit.

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A96A1618.
    PLANE v. UNIFORCE MIS SERVICES OF GEORGIA, INC. et al.
    (479 SE2d 18)
   Ruffin, Judge.

Glenn Plane brought this case alleging fraud and breach of contract arising out of an employment agreement. Appellees filed a motion for summary judgment on both counts, which the trial court granted. Plane appeals, and for reasons which follow, we affirm in part and reverse in part.

Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. [Cit.]” Id.

The record reveals the following. In February or early March 1994, Plane entered into employment discussions with representatives from Brannon & Tully, Inc. (“Brannon & Tully”), a firm that provided temporary technical consultants to corporate clients such as BellSouth. Although employed by Brannon & Tully, these technical consultants worked at the corporate client’s offices on specific projects for and at the direction of the client. Before Brannon & Tully hired a consultant, that individual interviewed with the prospective client, which made final decisions regarding the consultants they wished to use and how long those consultants would remain on a project.

Plane’s employment discussions with Brannon & Tully concerned a possible consulting position at BellSouth Mobility (“Bell-South”). During these discussions, Plane interviewed at BellSouth’s offices with Tom Weincko, who, although not employed by BellSouth, was interviewing consultants for the position. Weincko told Plane that, contingent on clearing up any conflict with his then-current employer and discussing compensation with Brannon & Tully, Plane “had the job” with BellSouth. According to Plane, Brannon & Tully representatives subsequently contacted him and stated that Bran-non & Tully had “come to an agreement with BellSouth Mobility; the contracts were signed, and if [he] wanted the job, at [his] leisure [he should] come and sign [an employment] contract with [Brannon & Tully].”

On March 29, 1994, Plane entered into an at will employment contract with Brannon & Tully. Pursuant to this contract, Brannon & Tully initially assigned Plane to work with BellSouth. The contract further provided that Brannon & Tully would pay Plane $37 per hour based upon the number of hours Plane worked for clients. Plane gave his notice of resignation to his then-current employer on March 30, 1994 and planned to begin work with Brannon & Tully on April 18, 1994.

According to appellees, Brannon & Tully believed that a consulting position existed at BellSouth for Plane. Several days prior to his start date, however, Plane learned from Weincko that no consulting job was available at BellSouth and that Brannon & Tully did not have an agreement with BellSouth to provide a consultant for such a position. The record reveals some dispute over the extent of Brannon & Tully’s subsequent efforts to place Plane in another consulting job, with either BellSouth or another client. It is clear, however, that Plane never worked any billable hours for BellSouth or Brannon & Tully’s other clients.

Claiming fraud and breach of contract, Plane initially sued Brannon & Tully and Christine Scheurer, who executed Plane’s employment contract on behalf of Brannon & Tully. The complaint alleged that Brannon & Tully falsely represented the existence of a position at BellSouth to induce Plane to leave his then-current employer and sign an employment agreement with Brannon & Tully. In an effort to bring the proper corporate parties into the suit, Plane subsequently amended his complaint to add as defendants Uniforce MIS Services of Georgia, Inc., d/b/a Brannon & Tully, Inc., and Kalik Enterprises, Inc., formerly known as Brannon & Tully, Inc. The amended complaint also added Vinson A. Brannon, an officer and agent of Brannon & Tully, as a defendant.

1. Plane first argues that the trial court improperly granted summary judgment on his breach of contract claim by finding that the claim was based on future events.

According to Plane, Brannon & Tully representatives promised that he could expect a full-time position at BellSouth with the opportunity for overtime. The trial court was correct in holding that oral promises as to future events are not enforceable by at will employees such as Plane, and cannot provide grounds for a breach of contract claim. Alston v. Brown Transport Corp., 182 Ga. App. 632, 633 (2) (356 SE2d 517) (1987) (oral promises could not be enforced because the underlying employment contract, being terminable at will, was unenforceable). Plane argues, however, that his breach of contract claim stems not from these Oral promises, but from Brannon & Tully’s failure to have a contract with BellSouth in place when he signed his employment agreement. At the time the employment agreement was executed, the parties clearly expected that Plane would have a consulting position with BellSouth. Nothing in the employment contract, however, required Brannon & Tully to execute an agreement with BellSouth or to provide any particular consulting positions for Plane. Plane has pointed to no breach of the employment contract, and the trial court properly granted summary judgment on this claim.

2. Plane also argues that the trial court erred by granting summary judgment on his fraud claim. We agree.

Under Georgia law, “[w]illful misrepresentation of a material fact, made to induce another to act, upon which such person acts to his injury, will give him a right of action.” OCGA § 51-6-2 (a). Although knowledge is an essential element of this tort, recklessness can rise to the level of knowledge. “A fraudulent or reckless representation of facts as true when they are not, if intended to deceive, is equivalent to a knowledge of their falsehood even if the party making the representation does not know that such facts are false.” OCGA § 51-6-2 (b); see also Lister v. Scriver, 216 Ga. App. 741, 745 (1) (a) (456 SE2d 83) (1995) (knowledge, or “what the law regards as the equivalent of knowledge,” is an essential element of fraud). A misrepresentation is intended to deceive where there is “intent that the representation be acted upon by the other party.” Bill Spreen Toyota v. Jenquin, 163 Ga. App. 855, 859 (3) (294 SE2d 533) (1982).

In their motion for summary judgment, appellees argued that they made no knowing misrepresentation to Plane about the Bell-South assignment. They claimed that Brannon & Tully and its representatives honestly believed that a position for Plane existed at Bell-South. The trial court agreed, finding “no evidence of fraudulent misrepresentations made to [Plane] regarding the assignment at BellSouth or any intent on the part of [appellees] to deceive or defraud.” Even assuming that Brannon & Tully believed such a position existed, however, the record presents sufficient evidence to create a question of fact as to fraud.

According to Plane, Brannon & Tully representatives informed him before he executed his employment contract that Brannon & Tully had come to an agreement with BellSouth and “the contracts were signed.” Yet, the record reveals that Brannon & Tully and Bell-South never signed a written contract regarding the anticipated position. In fact, appellee Brannon testified that Brannon & Tully typically relied upon verbal confirmation from, a client regarding the availability of a consulting position. From this evidence, a jury could find that Brannon & Tully representatives misrepresented, either intentionally or recklessly, the existence of a signed contract between Brannon & Tully and BellSouth.

We further conclude that a jury could find intent to deceive. Plane testified that these same Brannon & Tully representatives “badgered” him with numerous telephone calls about interviewing for the BellSouth position and told him that he should not turn down such an opportunity. Even if the representatives believed that Plane had the position at BellSouth, a jury could determine that they intentionally or recklessly misrepresented the existence of an executed agreement with BellSouth to help convince Plane to sign a contract with Brannon & Tully.

Decided December 3, 1996.

Clifford H. Hardwick, for appellant.

Silfen, Segal, Mills & Fryer, Keith E. Fryer, for appellees.

As this Court has noted, fraud “may be proved by slight circumstances.” Bill Spreen Toyota, supra at 860; see also Plough Broadcasting Co. v. Dobbs, 163 Ga. App. 264, 265 (1) (293 SE2d 526) (1982). Whether a misrepresentation is fraudulent and intended to deceive is generally a jury question. Bill Spreen Toyota, supra at 859. The record presents sufficient evidence from which a jury could find a knowing misrepresentation intended to deceive. The trial court improperly granted the defendants’ motion for summary judgment on this ground.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Johnson, J., concur. McMurray, P. J., disqualified.

       In addition, the amended complaint named Steven J. Tully and George Brannon as defendants. Plane, however, later voluntarily dismissed these individual defendants from the suit.


author: Ruffin, Judge. McMurray, Presiding Judge,

text:
    A96A1681.
    JENKINS v. BI-LO, INC.
    (479 SE2d 14)
   Ruffin, Judge.

Dorothy Jenkins slipped and fell on string beans on the floor of Bi-Lo, Inc.’s grocery store. Jenkins appeals the trial court’s order granting summary judgment to Bi-Lo, and we affirm.

Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record shows the following. Jenkins was pushing a shopping cart in Bi-Lo’s produce section when she slipped and fell on string beans. Jenkins was looking straight ahead as she was pushing her shopping cart toward the back of the store. According to Jenkins, the string beans looked old. Jenkins had been shopping at Bi-Lo for approximately 20 years. She admitted the lighting was adequate and that she was not distracted by anything or any person in the store. In addition, she acknowledged that no Bi-Lo employees were in the area before she fell, that she did not know how long the string beans had been on the floor, and that she did not know how long it had been since a Bi-Lo employee had been in the area where she fell.

Richard Woodard, Bi-Lo’s produce clerk, testified that he inspected the floor where Jenkins fell approximately ten minutes prior to the incident. He admitted in his deposition that string beans on the floor of the produce section was a regular problem because customers drop them on the floor. However, he testified that either no string beans were on the floor during his inspection ten minutes earlier or that he picked up all the string beans he found on the floor during his inspection. In either event, it is clear that Woodard’s testimony shows that no string beans were on the floor after his inspection ten minutes earlier.

“[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant [she] slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). “[I]f [Jenkins] is unable to prove either element of the Alterman test, a failure of proof results. [Cit.]” Winn Dixie Stores v. Carroll, 212 Ga. App. 234 (441 SE2d 432) (1994). Jenkins has presented no evidence contradicting Bi-Lo’s evidence that it had no actual knowledge that string beans were on its floor. Thus, the issue presented in this case is whether Bi-Lo had constructive knowledge of the allegedly hazardous condition.

Constructive knowledge can be established with evidence that either Bi-Lo failed to exercise reasonable care in inspecting its premises or an employee was in the immediate vicinity of the hazardous condition and could easily have noticed and corrected it. Ballard v. Southern Regional Med. Center, 216 Ga. App. 96 (1) (453 SE2d 123) (1995); Drake v. Kroger Co., 213 Ga. App. 72, 73 (1) (443 SE2d 698) (1994). “To sustain [a] cause of action under this first kind of case it is necessary that [Jenkins] prove a period of time the dangerous condition has been allowed to exist. Without such proof it would not be possible to determine whether [Bi-Lo] had been afforded a reasonable time within which to inspect and remove the hazard.” (Citation and punctuation omitted.) Drake, supra at 73. In this case, Jenkins cannot establish that Bi-Lo failed to exercise reasonable care in inspecting the area because the undisputed evidence showed that Woodard inspected the floor approximately ten minutes before Jenkins’ fall. See id. See also Butler v. Lanier Park Regional Hosp., 220 Ga. App. 386 (469 SE2d 475) (1996); Mazur v. Food Giant, 183 Ga. App. 453 (1) (359 SE2d 178) (1987). In addition, Jenkins failed to show constructive knowledge based on a negligent inspection of the premises because there was no evidence presented regarding the length of time the string beans were permitted to remain on the floor. See Ballard, supra.

Although we construe the evidence and all reasonable inferences in Jenkins’ favor, the fact that Bi-Lo’s produce manager admitted there were regular problems with string beans on the floor and that he might have picked up string beans ten minutes earlier during his inspection does not create a jury issue for reasons which follow. Woodard unequivocally and indisputably testified that he either picked up all the string beans during his inspection or there were no string beans on the floor during his inspection. Jenkins presented no evidence showing the period of time the string beans she slipped on had been allowed to exist. See Drake, supra. Neither is a jury issue created simply because old string beans caused Jenkins’ fall. Again, Woodard’s undisputed testimony shows there were no string beans on the floor ten minutes prior to Jenkins’ fall.

In addition, Jenkins has failed to present any evidence showing that a Bi-Lo employee was in the immediate vicinity of the fall and could easily have noticed the string beans and removed them. In fact, she testified that she did not know how long the string beans had been on the floor and that she did not know when a Bi-Lo employee was last in the area. “There is nothing to show [Bi-Lo’s] employees had the opportunity to see the [string beans] and remove [them] before [Jenkins] fell. Under the evidence in the case, the [string beans] could as easily have fallen to the floor mere seconds before [Jenkins] fell.” Mitchell v. Food Giant, 176 Ga. App. 705, 709 (337 SE2d 353) (1985).

Since Jenkins failed to present evidence of the first prong of the Alterman test, showing Bi-Lo had actual or constructive knowledge of the allegedly hazardous condition, the trial court did not err in granting summary judgment to Bi-Lo.

Judgment affirmed.

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

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the affirmance of summary judgment in plaintiff Dorothy Jenkins’ tort action against defendant Bi-Lo, Inc. In my view, a jury — and not this Court — should determine whether it is clear from the testimony of Richard Woodard, Bi-Lo’s produce clerk, that in fact no string beans were on the floor where plaintiff fell when he inspected that area ten minutes before the mishap.

1. On this particular occasion, plaintiff had been in defendant’s market “about one minute [as she] picked [her] cart up and went around the corner.” She “was going to the back of [defendant’s] store to the meat counter. But [she] didn’t get [any] further than around the corner from where the baskets were. And when [she] turned the corner with the basket, [she] was sliding down on [her] ankle.” In its answer, defendant admitted the allegations that “photographs of the plaintiff’s lower leg and foot and of beans on the floor were taken by store personnel, and that plaintiff reported she slipped and fell on beans. . . .” When the store manager, Bennie Purvis, investigated the accident, he saw a snap bean on the floor, “12 to 14 feet” from where the snap beans were displayed. “It had been stepped on or it had been disfigured.” To Bennie Purvis, it looked “[n]ew.” But according to plaintiff, “They looked like they [were] old. I mean, they didn’t look like new, like fresh string beans. ... It was just messy around the area.” Since the evidence on this point is in conflict it must be viewed in the light most favorable to the plaintiff as non-movant. Thus, there is evidence'that the beans looked old, not fresh, and were messy. In my view, this authorizes the favorable inference that the beans had been there for some time, i.e., long enough to have been traipsed through by other patrons. “The mere fact of the presence of a banana peel on a floor may not be sufficient to show that it has been there long enough for reasonable care to require the defendant to discover and remove it, but if it is ‘black, flattened out and gritty,’ the conclusion may reasonably be drawn. It is for the court to determine, in the first instance, whether reasonable persons on the jury may draw it.” Prosser & Keeton, The Law of Torts (5th ed. 1984), § 39, p. 243 and footnote 14, citing Anjou v. Boston Elevated R. Co., 94 NE 386 (Mass. 1911).

2. Plaintiff affirmed that she “was looking where [she] was going.” “From a standing-up position looking down [she] could [not] have seen the beans . . . [b]ecause [she] was pushing the cart around the corner, and the cart was in front of [her]. And [she] didn’t see them [the beans] until [she] went down. . . .” Consequently, there is no admission by plaintiff that she failed to exercise ordinary care for her own behalf. Compare Baker v. Winn Dixie Stores, 219 Ga. App. 513 (465 SE2d 710).

3. The complaint further alleged that the dangerous condition “was known to the defendant or it had existed for a sufficient length of time so that defendant should have known of it.” Defendant attempted to pierce this allegation of knowledge with the testimony of Richard Woodard, who has since been transferred to another location because of “productivity problems.” According to Bennie Purvis, Richard Woodard did not know “how to train or control the other associates in his department.” Richard Woodard also had “[p]roblems with such as freshness checks. Ensuring that the associates were doing freshness checks, having only quality produce on the rack.” Richard Woodard affirmed that he “used to be a manager and [is] now a clerk[.]” He accepted a pay differential of approximately $130 per week because he “decided to step out of the [managerial] position.” “[I]t was time for [Richard Woodard] to take some of the stress out of [his] life at that time.”

As recounted by the majority, Richard Woodard testified that “about ten minutes” before the incident, he inspected the area. He knew that loose beans on the floor were a recurring safety hazard. In his experience, “when people pick the green beans up, as they pick them up, they’re just dropping — one single bean individual bean is dropping out of their hands, and, of course, they’re not going to pick them up. They’ll just walk away from them.” Richard Woodard affirmed that he had “pick[ed] up . . . other green beans off the floor that day[.]” “During a day’s time, he might pick up 20, 30, but not in the area where she fell at.” (Emphasis supplied.) Rather, he picked them up “[r]ight where the green beans are stored.” This was, in Richard Woodard’s estimation, “about 20 feet. . .” from where plaintiff fell. Richard Woodard could not recall that photographs were taken of the scene.

“The credibility of a witness is a matter to be determined by the jury under proper instructions from the court!’ (Emphasis supplied.) OCGA § 24-9-80. In my view, the jury could disbelieve the testimony of Richard Woodard, who voluntarily took a pay cut of $6,500 in order to return to a clerk’s position after being a less than successful produce manager for defendant. If he failed to manage his subordinates to assure freshness, it is possible he was less than diligent about safety matters. Moreover, the jury could believe that he was not accustomed to looking for beans at a distance of 20 feet from the produce section where they are stored, but relied on previous experience in finding them only in front of that section. Thus, the jury could conclude that Richard Woodard did not look, or if he looked, that he yet missed the beans that were indisputably there when plaintiff slipped. In my judgment, the trial court erred in granting defendant’s motion for summary judgment because genuine issues of material fact, including the credibility of defendant’s main witness, Richard Woodard, remain for jury determination. See Mitchell v. Rainey, 187 Ga. App. 510 (370 SE2d 673). As my colleagues in the majority would nevertheless affirm that unwarranted grant of summary judgment, I respectfully dissent.

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

Decided December 3, 1996.

Jeffrey S. Bowman, for appellant.

Fulcher, FLagler, Reed, Hanks & Harper, Neil S. Bitting, Jr., Barry A. Fleming, for appellee.