text:
    A97A0848.
    JENNINGS v. SMITH.
    (487 SE2d 362)
   Blackburn, Judge.

Maneóla S. Jennings appeals the trial court’s grant of summary judgment in favor of Mark A. Smith, Jr., on her claims for negligent construction and fraudulent concealment. For the reasons discussed below, we reverse the trial court’s ruling.

In February 1991, Jennings agreed to purchase a house built by Roswell Properties, Inc. Smith was vice-president and 50 percent shareholder of Roswell Properties, and executed the purchase and sale contract on behalf of the corporation.

After closing on the sale of the house, Jennings claims she discovered several structural defects, including a cracking driveway, leaks, and soil erosion near a retaining wall. Jennings also claims that there was severe settlement of the house, cracks and shifting of the walls and floors, a defective deck, and other problems. Jennings asked Roswell Properties to repair many of these problems, and claims that the repairs were unsatisfactory. Jennings sued Roswell Properties and Smith, asserting claims of negligent construction and fraudulent concealment, and appeals the grant of summary judgment to Smith.

1. Jennings contends that material issues of fact remain as to whether Smith can be held personally liable on the basis that he took part in or supervised the corporation’s negligent acts. “[A]n officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor, and an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done or participated or cooperated therein.” (Punctuation omitted.) Cherry v. Ward, 204 Ga. App. 833, 834 (1) (a) (420 SE2d 763) (1992); see also Brown v. Rentz, 212 Ga. App. 275, 276 (441 SE2d 876) (1994).

Jennings’ claim for negligent construction is based in part upon her contention that Roswell Properties buried construction trash and debris under the property, causing damage to the house and driveway when the soil settled. John Collins, a neighbor, submitted an affidavit stating that he had seen workers, in Smith’s presence, dumping trash and construction debris from other construction sites under the area where Jennings’ driveway, garage, front porch, and foundations were built. He further stated that, after the debris was covered with dirt, he saw workers construct the driveway, garage, and front portion of the residence over the areas where the debris had been buried. He stated that it appeared Smith was directing the placement of the fill and dirt over the debris.

At his deposition, Smith’s attorney challenged many of the details of Collins’ affidavit. Collins admitted that the foundation of the house and garage had already been laid when he saw the debris being deposited. However, he reaffirmed the remainder of his affidavit. Although Smith’s attorney attempted to discredit Collins by showing that he could not have observed Smith at the property, for purposes of summary judgment all facts must be construed and all reasonable inferences drawn in favor of Jennings.

There was also evidence that Smith supervised and directed repairs to the property. Catherine Hohlstein, a real estate agent, testified that she had seen Smith personally instructing a worker in how to repair a leak in the basement and a crack in the garage floor. Jennings testified that she had seen Smith personally supervising workers repairing leaks in the garage walls, repairing cracks and correcting settlement problems in the driveway, constructing the rear deck, and filling sinkholes in the property.

Given this evidence, if a jury found the corporation negligent in constructing or repairing the house, it could also find Smith personally liable for such negligence because he specifically directed or participated in the construction and repairs. See Brown, supra, 212 Ga. App. 275 (reversing grant of summary judgment to corporate officer on claim of negligent construction); Weir v. McGill, 203 Ga. App. 431, 432-433 (3) (417 SE2d 57) (1992).

Smith’s contention that there was ho evidence of negligence is without merit. Syd Mostajabi, a project engineer and soils expert who conducted bore samples of the soils around the house, testified that the front porch had partially separated from the house due to inadequate stability of the underlying soils. He further testified that a bore sample revealed organic soils and buried trash underneath the area. He stated that he observed construction debris, uncompacted soils, and voids in the area under the driveway. He testified that backfilling of such area by the contractor would constitute a violation of the applicable building codes.

Ronald Fournier, a civil engineer and expert in home inspection, testified that cracks in the garage and driveway and a sinkhole in the driveway were caused by settlement resulting from inadequate compaction of the soil. He testified that cracks in the masonry veneer in the house were caused by differential settlement. He also testified that the rear deck was constructed with a defective support post foundation in violation of the building code. Accordingly, there was evidence from which the jury could find negligent construction, and the court erred in granting summary judgment to Smith on the negligent construction claim.

2. The trial court also erred in granting Smith’s motion for summary judgment with respect to Jennings’ claims for fraudulent concealment.

“[F]raud in the sale of real estate may be predicated upon ... a passive concealment where the seller does nothing to prevent the discovery but simply keeps quiet about a defect which though not readily discernible, is known to the seller. . . . [The seller has] a duty to disclose a defect of which he knows but is aware that the purchaser is ignorant of the condition and which probably would affect the decision of the purchaser to close the transaction.” (Punctuation omitted.) Ben Farmer Realty v. Woodard, 212 Ga. App. 74, 75 (441 SE2d 421) (1994); see also Wilhite v. Mays, 140 Ga. App. 816 (232 SE2d 141) (1976).

As discussed above, there was evidence that Smith personally supervised and directed the dumping of construction debris in the ground, and failed to reveal this fact to Jennings. The presence of buried debris in the ground is not the type of fact which would be readily discernible by a purchaser. If the jury found that the presence of the debris caused ground settlement contributing to the property damage, it would be authorized to find for Jennings on this claim. Accordingly, the court erred in granting summary judgment to Smith.

Decided April 30, 1997.

Reconsideration denied June 11, 1997

Before Judge Smith.

Charles F. Peebles, for appellant.

Mark A. Smith III, for appellee.

Judgment reversed.

Pope, P. J., and Johnson, J, concur.

       Jennings also asserted claims for breach of contract against Roswell Properties, but not against Smith personally. Roswell Properties did not file a motion for summary judgment and is not a party to this appeal.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A97A1216.
    CARR v. SEARS, ROEBUCK & COMPANY.
    (487 SE2d 415)
   Johnson, Judge.

Hazel Carr brought this negligence action against Sears, Roebuck & Company to recover damages for injuries she sustained when she tripped over a stack of boxes of merchandise located in front of a customer service island at a Sears store and fell. Without making findings of fact or conclusions of law, the trial court granted Sears’ motion for summary judgment. Carr appeals.

In reviewing the trial court’s ruling, we construe the evidence and all inferences and conclusions arising therefrom most favorably to Carr as the party opposing the motion. Carr testified at a deposition that she went to Sears to return an electric blanket which she had purchased there some months earlier. Carr placed the blanket on a chest high countertop, which extended slightly beyond a customer service island, and then stood at the end of the island while the sales associate assisted another shopper. When the salesperson finished helping the other customer, she asked Carr to come around. Carr slid the blanket down the countertop and proceeded to walk to the front of the island when her foot “hung up” on a box, causing her to fall. Boxes containing foot bath/massagers, described by Carr as being larger than shoe boxes, had been, stacked in front of the counter. Carr stated that she could not have seen the boxes from the end of the island because the countertop obscured her view, but admitted that she could have seen the boxes had she looked for them as she moved to the front of the counter. She noted that the store was well lighted and that she was not distracted by anything, including any store employee.

The issue in this case is whether a genuine issue of material fact exists regarding whether Carr exercised reasonable care for her own safety. “Although a merchant has the right to place certain articles in the aisles of his store, nevertheless, the merchant must so place such articles so as not to threaten danger to those using the aisle and so that they are in full sight and within the observation of everyone.” (Citations and punctuation omitted.) McCrary v. Bruno’s, Inc., 219 Ga. App. 206, 208-209 (464 SE2d 645) (1995). And, “one is under a duty to look where he is walking and to see large objects in plain view which are at a location where they are customarily placed and expected to be; not performing this duty may amount to a failure to exercise ordinary care for one’s safety as would bar a recovery for resulting injuries.” (Citations and punctuation omitted.) Wal-Mart Stores v. Hester, 201 Ga. App. 478, 479 (411 SE2d 507) (1991). In Hester, the plaintiff was looking for ceiling fans at eye level when he tripped over a box containing trash bags in one of the aisles. In McCrary, the plaintiff tripped over a mop or broom in the aisle of a grocery store. In these cases, this Court held as a matter of law the plaintiffs failed to exercise due care for their own safety when confronted by patent and static conditions. In Hester, the court relied on a line of cases which holds that a self-induced distraction does not excuse the failure to exercise care for one’s own safety. The presence of merchandise stacked on the floor in front of a customer service island is not an unusual obstruction in a retail store; a customer would not be relieved of the duty to maintain a lookout ahead for its presence. See generally McCrary, supra. Where, as here, “there is nothing to obstruct or interfere with one’s ability to see such a ‘static’ defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize any obvious risk involved.” (Citations and punctuation omitted.) Id. at 209. Compare Faulkner v. Home Depot, 222 Ga. App. 449 (474 SE2d 311) (1996), where the customer did not trip over the merchandise itself, but over the protruding leg of a sawhorse upon which it was stacked.

In Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) (1994), the plaintiff explained that he was not looking where he was going because he was looking at a cashier in order to tell him he was ready to check out. Our Supreme Court did not specifically state that this communication with a store employee amounted to a distraction, thereby relieving the plaintiff of his duty to exercise reasonable care for his own safety, but concluded that the attempted communication with a store employee was itself “some evidence that 'Barentine exercised reasonable care for his own safety in approaching the check-out counter.” Id. at 225. Barantine and the instant case might have been favorably distinguishable, inasmuch as the hazard in Barentine was a puddle of clear liquid on the floor, while the hazard in this case was a large object in plain view. However, the Barentine opinion did not address the nature of the hazard or limit its holding to those conditions which may not be readily observable. Even though Carr testified that she was not “distracted” by anything in response to defense counsel’s question on deposition, in fact, she was responding to the sales associate’s request that she move to the front of the counter at the time she tripped over the box. As non-movant on motion for summary judgment, she is entitled to have all inferences drawn in her favor. Until further clarification of Barentine, we are constrained to hold that any communication with a store employee under circumstances such as those presented here, whether initiated by the customer or the employee, is “some evidence” that a plaintiff was exercising reasonable care for his own safety, thus precluding summary judgment. See Sheriff’s Best Buy v. Davis, 215 Ga. App. 290 (450 SE2d 319) (1994); compare generally Hornbuckle &c. v. Castellaw, 223 Ga. App. 198 (477 SE2d 348) (1996). Because Carr was responding to the employee’s instruction to come around the counter, there was some evidence that she was exercising reasonable care for her own safety and the trial court erred in granting summary judgment to Sears.

Decided May 30, 1997

Reconsideration denied June 11, 1997

Before Judge Phillips.

Warshauer & Woodruff, Michael J. Warshauer, Lyle G. Woodruff, for appellant.

Jones, Cork & Miller, Howard J. Strickland, Jr., for appellee.

Judgment reversed.

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


author: Beasley, Judge.

text:
    A97A0174.
    RICE v. THE STATE.
    (487 SE2d 517)
   Beasley, Judge.

Rice was a volunteer and then a hired police officer with the City of Baldwin. Together with Police Chief Jarrell and fellow officers Umberhandt, Wiley, and Ivie, he was indicted for a RICO Act violation based upon over 100 instances of appropriating City property. OCGA § 16-14-4. The property taken was cash that had been paid for traffic fines and associated probation and late fees.

Rice contended the City did not provide uniforms or equipment for its officers and that Jarrell had told the officers that probation and late fees could be kept by the officers who put forth the effort to collect them in order to defray the costs of items necessary for their jobs and as an incentive to spur the collection of fines. He was convicted only of the lesser included offense of theft by taking by an officer or employee of a government institution in breach of his duties. (OCGA §§ 16-8-2; 16-8-12 (a) (2)).

1. Rice contends the court erred in excluding him from a hearing in which the court addressed issues concerning a possible conflict of interest caused by the fact that Rice and Wiley had retained the same attorney, Butterworth. Wiley’s separate trial occurred prior to Rice’s. Rice also contends that Butterworth’s dual representation produced ineffective assistance of counsel but we need not address that issue.

Immediately prior to Wiley’s trial, the State informed the court that Butterworth was representing both Wiley and Rice, that the State intended to introduce evidence of each defendant’s incriminating statements against the other, and that it perceived Butterworth had a conflict of interest. As the court would also be conducting a Jackson-Denno hearing, Butterworth invoked the rule of sequestration for all witnesses who might be called either for the motions or for trial. Although the State noted to the court that Rice was a party whose interests might be affected by the hearing on dual representation, the court sequestered him as well, stating: “We can talk to him ... if and when the time comes.”

At the hearing, the State suggested that the court follow the Supreme Court of Georgia’s direction that “where co-indictees or co-conspirators are represented by the same attorney or firm, trial judges should point out to the defendants that joint representation may create a conflict of interest and determine whether all such defendants agree to joint representation.” (Emphasis omitted.) Dean v. State, 247 Ga. 724, 725, n. 1 (279 SE2d 217) (1981). Butterworth then produced a document styled “Agreement” signed by himself, Wiley, and Rice four days before Wiley’s trial. It recited that the parties had discussed the possibility of a conflict of interest, that they “voluntarily, knowingly and intentionally agree” that no conflict existed, that they knew of none that would develop, and that if any did develop, “all parties do hereby waive, forgive and dismiss any complaint of any nature against any person(s) (their agents or assigns) now a party to this Agreement.” The agreement did not expressly anticipate the conflict which did arise when, according to the State’s attorney, each client was to testify against the other. Their counsel was so notified several weeks before the agreement was signed.

The court did not inform Wiley of the possible conflicts inherent in dual representation and did not inquire of Wiley if he understood the agreement and voluntarily signed it. The court ruled that the agreement constituted a waiver of any conflict and satisfied the court’s responsibility under Dean to determine whether the defendants agreed to the joint representation. Butterworth suggested that the court bring Rice into the courtroom and review the situation with him but the court ruled the agreement was as binding upon Rice as upon Wiley and no such action was necessary.

At Wiley’s trial, Rice was called by the State and testified that the statements he had made to the GBI investigators were not true but were the product of confusion and an overbearing interrogation. He testified that he was “probably lying” when he told the GBI investigators he had received money from Wiley. This statement, and other portions of his testimony from Wiley’s trial, were used to impeach him when he testified in his own trial.

“It is the legal right of a person accused of crime in this State to be present at all stages of his trial.” Wilson v. State, 212 Ga. 73, 74 (90 SE2d 557) (1955). Such right is derived from the provision now found at Art. I, Sec. I, Par. XII of the Georgia Constitution. Id. This right is separate from, and in addition to, the right of confrontation afforded by Art. I, Sec. I, Par. XIV, of the Georgia Constitution and the Sixth and Fourteenth Amendments to the Constitution of the United States. See Goodroe v. State, 224 Ga. App. 378, 379-381 (1) (480 SE2d 378) (1997); see also Perry v. State, 216 Ga. App. 749, 752 (456 SE2d 89) (1995) (Beasley, C. J., concurring specially).

The State contends Rice had no right to be present when the court addressed the potential conflict as it arose in a hearing in Wiley’s case, while the court was convened the day of that trial. The fact that there were separate trials and docket numbers, and that this transpired in Wiley’s case, is not dispositive of Rice’s claim. Consideration of Butterworth’s dual representation of Wiley and Rice necessarily affected both defendants. The hearing was the court’s only inquiry into the matter and the court considered its decision as binding upon Rice, who was absent, as it was upon Wiley. Under these circumstances, we cannot conclude it was merely a portion of Wiley’s trial which Rice had no right to attend. The hearing constituted a portion of the proceedings against him also.

Further, the hearing was a “critical stage of the proceedings” such that his right to be present was absolute. See Goodroe, supra at 380. It affected the fundamental right to independent counsel, and the court was obligated to assure the validity of the signed waiver. “[T]rial courts, when alerted by objection from one of the parties, have an independent duty to ensure that criminal defendants receive a trial that is fair and does not contravene the Sixth Amendment.” Wheat v. United States, 486 U. S. 153, 161 (108 SC 1692, 100 LE2d 140) (1988). See also Holloway v. Arkansas, 435 U. S. 475, 484-487 (98 SC 1173, 55 LE2d 426) (1978). As pointed out in Dean, supra at 725, “[t]he constitutional infirmities found in multiple representation of co-defendants may violate the sixth amendment or the due process clause. . . .” The same is true of Paragraph XIV of Georgia’s Bill of Rights, as multiple representation implicates the right to effective assistance of counsel. See Tarwater v. State, 259 Ga. 516, 518 (383 SE2d 883) (1989); White v. State, 216 Ga. App. 583 (1) (455 SE2d 117) (1995); Brinson v. State, 191 Ga. App. 151, 153 (5) (381 SE2d 292) (1989). The purported waiver was conclusory and the court could not fulfil its duty without inquiry. It was error to exclude Rice from the proceeding.

We need not address whether the error was harmless. Violation of the right to be present at a critical stage of the proceedings under Art. I, Sec. I, Par. XII of the Georgia Constitution is not subject to harmless error analysis and requires reversal. Goodroe, supra at 381. Although Rice does not state he is relying on this provision of the Bill of Rights, he clearly is. See Goodroe, supra at 379-380 (1). His brief to this Court asserts the principle that he has the right to be present during all stages and cites Wilson, supra, which states the right is imbedded in current Art. I, Sec. I, Par. XII. He also cites Williams v. State, 251 Ga. 749, 798 (11) (312 SE2d 40) (1983), and Gilreath v. State, 247 Ga. 814, 824 (3) (279 SE2d 650) (1981), both of which rely upon Wilson for the right to be present. His implicit stand on the state constitutional ground is solid and requires reversal. Goodroe, supra at 381 (1).

Reversal requires a unique remedy, narrowly drawn to the facts of this case. Rice argues that he would not have testified at Wiley’s trial if he had been properly advised by independent counsel, based on Fifth Amendment grounds, and that because he had already testified in Wiley’s trial he was left with no practical alternative but to testify in his own trial. Although the evidence introduced on his motion for new trial did not include testimony that independent counsel would have advised Rice not to testify at Wiley’s trial, or that Rice would have accepted such advice, it is reasonable to assume that such would have occurred because to do otherwise jeopardized Rice’s defense. As noted above, we cannot consider the failure to be present during the hearing to be harmless error. Since Rice did not have independent counsel to advise whether or not to testify at Wiley’s trial, his self-incriminating testimony at that trial cannot be introduced against him on his retrial.

2. Rice also contends, without avail, that the evidence was not sufficient to support the conviction under the standard in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), because evidence that he accepted City money that other officers had taken is not evidence of theft by taking. The evidence is viewed with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the verdict. Jackson v. Virginia, supra; Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986).

A GBI investigator testified that a receipt book showed Rice had received $200 on one occasion and $220 on another that was not turned in to the City’s treasury. Another GBI investigator testified Rice confessed to taking $2,000 that he had collected for probation payments. Umberhandt testified Rice had shared with him money Rice had taken from probation payments, as Umberhandt had done with money he had collected. Jarrell testified to the same effect. Rice himself testified he typically would keep fees charged for late payment of fines and on one occasion kept $50 of fine money. This evidence was sufficient to support a conviction of theft by taking.

3. Rice contends the court erred in sentencing him to pay restitution in the amount of $28,600 as a condition of the probated portion of his sentence. This figure reflects the total amount taken from the City of Baldwin by all police officers indicted and the court ordered that Rice was jointly and severally liable for the full amount. It is undisputed that the evidence showed Rice personally received no more than approximately $7,000.

A convicted criminal defendant may be ordered to pay restitution in an amount less than or equal to “the victim’s damages.” OCGA § 17-14-9. “ ‘Damages’ means all damages which a victim could recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced.” OCGA § 17-14-2 (2). In fulfilling its duty to ensure that the amount of restitution reflected the amount the victim could recover in a civil suit, see Garrett v. State, 175 Ga. App. 400, 404 (2) (333 SE2d 432) (1985), the court noted there was evidence Rice acted in concert with the other officers and concluded it was therefore appropriate to impose joint and several liability for the entire amount taken.

The question is not controlled by what civil verdict the evidence might have supported but by the crime for which Rice was sentenced. Morrison v. State, 181 Ga. App. 440, 441 (352 SE2d 622) (1987). The State alleged Rice was in a conspiracy with the other officers but he was acquitted of the RICO charge based upon conspiracy. He was sentenced only for theft by taking under OCGA § 16-8-12 (a) (2). Should retrial produce a restitution award it must be limited to that amount of money shown to have been taken by Rice.

4. Rice’s remaining enumerations need not be addressed as they are unlikely to recur on retrial. One involves a jury charge not given but not requested by defendant and the other attacks the form of the verdict on a basis not urged at trial.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.

Decided June 11, 1997.

Before Judge Woods.

Cook & Connelly, Bobby Lee Cook, Jake Arbes, for appellant.

Michael H. Crawford, District Attorney, for appellee.

       Rice claims Butterworth was ineffective because he allowed Rice to testify at Wiley’s trial.


text:
    A97A0270.
    YULL v. THE STATE.
    (487 SE2d 508)
   Beasley, Judge.

Yuli has filed this pro se appeal from his conviction of burglary. OCGA § 16-7-1.

1. He enumerates as error the court’s denial of his request for access to certain transcripts or tapes which would have exonerated him. As to such a ruling, appellant bears the burden of showing error affirmatively by the record. Veit v. State, 182 Ga. App. 753, 758 (6) (357 SE2d 113) (1987). Yuli does not cite to, nor have we found, this ruling in the record. It appears that the material referred to by Yuli concerns a burglar alarm call which the arresting officer received prior to apprehending Yuli. The transcript of a pretrial hearing shows that the court did grant Yuli access to a log of this call. No error is shown.

2. Yuli also contends that the transcripts are not true and correct, but this is unsupported.

3. We do reach, however, Yuli’s complaint of the denial of his right to the assistance of trial and appellate counsel.

At arraignment, the DeKalb County Public Defender’s Office was appointed to represent Yuli. One week before trial, Yuli discharged his court-appointed attorney at an unreported hearing from which counsel was absent. The parties agree that Yuli requested that another attorney be appointed because the public defender was not prepared to go to trial. The court denied the request, based on its determination that Yuli was merely trying to delay the proceedings. Yuli states that the day prior to the unreported hearing, the public defender informed him that he should either plead guilty because of the strength of the evidence against him or ask the court to appoint another defense attorney. According to Yuli, he requested that the public defender be made to appear at the hearing; that the judge denied this request, stating that he knew Yuli’s defense counsel and that he was or would be prepared to go to trial; and that Yuli then elected to proceed pro se after being informed by the court that his choices were to either represent himself or have the public defender continue to represent him.

Yuli was charged with burglary, a felony. He thus had an unconditional and absolute right to a lawyer absent a voluntary, knowing, and intelligent waiver of that right. Fernandez v. State, 171 Ga. App. 290, 292 (319 SE2d 503) (1984). Yuli’s waiver of his right to counsel was not voluntary if, as he claimed, he was forced to proceed pro se because counsel was either unprepared or unwilling to go to trial. Since no response by counsel to Yuli’s claim appears of record, the State has not carried its burden to present evidence of a valid waiver. Black v. State, 194 Ga. App. 660 (1) (391 SE2d 432) (1990). When a defendant elects to waive the right to counsel, the record should show, among other things, that this choice was exercised after defendant was made aware of the right and the dangers of proceeding without counsel. See Moss v. State, 196 Ga. App. 81, 82 (1) (395 SE2d 363) (1990). No such showing appears in this record, aside from the court’s conclusory observation at a subsequent hearing that Yuli discharged his attorney after being “told . . . what your rights were.”

Decided June 11, 1997.

Before Judge Castellani.

Benjamin Yuli, pro se.

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

The State seeks to show that Yuli was not denied his right to appellate counsel, through a letter attached as an exhibit to its brief. This document is not considered because it does not appear of record. Leatherwood v. State, 212 Ga. App. 342 (1) (a) (441 SE2d 813) (1994).

Yuli’s conviction must be vacated and the case remanded for an evidentiary hearing on the question of whether he validly waived his right to counsel. If the court determines that he did, the conviction and sentence may be reinstated, and Yuli will be free to pursue whatever appellate remedies are then available to him.

Judgment vacated and case remanded.

McMurray, P. J., concurs. Smith, J., concurs in the judgment only.


text:
    A97A0329.
    DOUBLETREE, INC. et al. v. SCHANLEY et al.
    (487 SE2d 506)
   Beasley, Judge.

Defendants Doubletree and DT Management (collectively “Doubletree”) appeal from the $45,000 judgment entered on the jury’s verdict in this premises liability case, contending the court erred in denying their motion for directed verdict.

“ A directed verdict is proper only “(i)f 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).’ [Cit.] ‘In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the “any evidence” test. (Cit.)’ [Cit.]” Grubb v. Woodglenn Properties, 220 Ga. App. 902, 903 (1) (470 SE2d 455) (1996).

Schanley, a chef, went to Doubletree’s hotel to attend a seminar on carving ice sculptures and was a registered guest of the hotel. The seminar, which began about 8:00 a.m. with demonstrations of ice cutting, was held at the hotel’s loading dock, and Schanley arrived there about 7:45. Around 11:00 the seminar participants set up individual work stations to do their own ice sculptures.

Schanley placed his work station six to eight feet away from the end of a row of stored, unused ice blocks. The blocks were four and one-half feet tall and weighed four hundred pounds each. As Schanley was working on his sculpture at about 11:30, one of the blocks three or four rows back fell, creating a domino effect that knocked over the last block, breaking Schanley’s ankle.

The loading dock was not refrigerated and the proper method of storing ice blocks would have been to place each on a wooden pallet to help prevent it from moving, but these blocks were not so stored. A safe distance to work from such a block of ice was the height of the block plus two or three feet. The hotel’s executive chef affirmed the location to a local professional organization for its seminar. The instructor was not an employee of Doubletree. The chef was not aware of any safety precautions or inspections taken by the hotel, even though he knew that ice blocks could become unstable after sitting for hours on the concrete floor. He was present when the ice delivery was made but did not supervise the unloading or instruct any hotel employees to ensure its safety. During the seminar Schanley saw some hotel employees, but none inspected the ice blocks.

Doubletree does not dispute that it had a nondelegable obligation to keep its premises safe, see OCGA § 51-3-1, but contends there was no evidence it had any knowledge of the danger superior to Schanley’s own. “ ‘ “ ‘The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner . . . and not known to the person injured that a recovery is permitted.’ (Emphasis in original.) (Cit.)” (Cit.)’ [Cit.]” Westbrook v. M & M Supermarkets, 203 Ga. App. 345 (1) (416 SE2d 857) (1992).

Without dispute Doubletree had no actual knowledge that one of the blocks had melted so as to be unstable, which created the danger of the collapse that produced Schanley’s injury. However, “ ‘ “[constructive knowledge may be inferred where there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could easily have noticed and removed the hazard. (Cit.) Liability based on constructive knowledge may also be established by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under that approach requires proof of the length of time the dangerous condition was allowed to exist. (Cits.)” (Cit.)’ [Cit.]” (Emphasis omitted.) Thompson v. Regency Mall Assoc., 209 Ga. App. 1, 3 (1) (432 SE2d 230) (1993).

Decided June 11, 1997.

Before Judge Brogdon.

Shivers & Associates, Wayne C. Wilson, for appellants.

Jonathan P. Sexton, for appellees.

Although the employees in the loading dock area did not go among the block rows where the dangerous condition might have been noticed, there was evidence the blocks were stored in an unsafe manner for several hours and Doubletree made no inspection of them during those hours. This was sufficient to allow the jury to infer that Doubletree had constructive knowledge of the dangerous condition.

Doubletree argues that even if it had constructive knowledge, Schanley had knowledge at least equal to Doubletree’s. Schanley testified he did not have the opportunity to make any inspection of the rows of blocks. Although he testified he was aware of puddles of water in the area of the loading dock including his work station, he did not go into the rows and did not inspect the blocks there, and he did not know if puddles were from melting blocks or carving debris. Doubletree contends Schanley admitted an inspection by a hotel employee would not have revealed any dangerous condition, but Schanley’s testimony actually was that an inspection of his work station would not have revealed any dangerous condition. His only testimony about the area where the first block of ice fell was that neither he nor any hotel employee inspected it. The manner of storage and condition of the ice blocks, not the water puddles, is what caused the danger.

The jury could conclude that Doubletree’s constructive knowledge resulting from the failure to inspect the premises was superior to Schanley’s knowledge. It was not error to deny the motion for directed verdict.

Judgment affirmed.

McMurray, R J, and Smith, J., concur.


author:
Andrews, Chief Judge. Beasley, Judge, Ruffin, Judge,
      Smith, Judge,

text:
    A97A0356.
    THE STATE v. VINES.
    (487 SE2d 521)
   Andrews, Chief Judge.

Donnie E. Vines was indicted for the offense of child molestation. Vines filed a general demurrer to the indictment contending the allegation that he engaged in a sexually explicit telephone conversation with a child with the intent to arouse and satisfy his sexual desires was insufficient to allege the offense of child molestation as set forth in OCGA § 16-6-4 (a). The trial court sustained the demurrer and dismissed the indictment. The State appeals pursuant to OCGA § 5-7-1 (a) (1).

The indictment charged that Vines committed the offense of child molestation by “performing] an immoral and indecent act to [L. N.], a child under the age of sixteen (16) years, with intent to arouse and satisfy the sexual desires of said accused by calling said child on the telephone and engaging in conversation about sexual acts that included fondling of private parts, intercourse and oral sodomy. . . .” The offense of child molestation is defined in OCGA § 16-6-4 (a) as follows: “A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” Vines contends that the offense of child molestation cannot be committed by means of a telephone conversation. Specifically, he contends that, under the child molestation statute, the offense must be committed in the physical presence of the child and that speech alone, unaccompanied by other action, is insufficient to satisfy the statutory requirement that the accused perform an immoral or indecent “act.”

Addressing the “act” requirement first, we find no merit in Vines’ contention that the indictment failed to allege that he committed an immoral or indecent “act” as contemplated by OCGA § 16-6-4 (a). Vines argues that, since the indictment merely alleges he spoke to the child and fails to allege other action taken by him, he committed no “act” as defined by the statute. Under OCGA § 16-2-1, “[a] ‘crime’ is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.” A statute may or may not use the word “act” in defining a particular offense. In those that do use it, the word “act” is used to refer to various types of physical movement and speech. In some statutes “act” may be limited to a particular kind of physical movement. For example, a person commits the offense of prostitution by performing “an act of sexual intercourse for money.” OCGA § 16-6-9. Other statutes use the word “act” to refer to both acts of speech and other physical movements. For example, “[a] person commits the offense of pimping when he performs any of the following acts: (1) Offers or agrees to procure a prostitute for another; ... or (4) Receives money or other thing of value from a prostitute, without lawful consideration, knowing it was earned in whole or in part from prostitution.” OCGA § 16-6-11. Thus, depending on the statute at issue, “an act sufficient for criminal liability may consist of nothing more than the movement of the tongue so as to form spoken words.” 1 LaFave & Scott, Substantive Criminal Law, § 3.2 (b) (1986).

The statute defining the offense of child molestation refers generally to the commission of an “immoral or indecent act” without reference to any particular physical movement or speech and without any other specific limitation on the type of act. It does not, for example, require that the act involve physical contact with the child which is necessary for the commission of the offense of sexual battery as set forth in OCGA § 16-6-22.1. Although the majority of child molestation convictions have involved some form of physical contact between the molester and the victim, we have affirmed convictions involving speech and other actions in which there was no physical contact. Smith v. State, 178 Ga. App. 300, 301 (342 SE2d 769) (1986) (in one count of the indictment, the accused showed and described the use of a condom to the child and the child observed him having an erection, and, in another count, the accused observed the child use a mechanical vibrator on her genital area); Thompson v. State, 187 Ga. App. 563 (370 SE2d 819) (1988) (accused required child to dance naked in front of him); Blanton v. State, 191 Ga. App. 454 (382 SE2d 133) (1989) (accused exposed himself to child and asked child to get into a car with him). In so doing, we have held that the child molestation statute “proscribes acts which offend against [the public’s] sense of propriety as well as affording protection to a child’s body in those cases where the act or acts are more suggestive of sexually oriented misconduct than simply assaultive in nature. A child’s mind may be victimized by molestation as well.” Smith, supra at 301; Thompson, supra. The child molestation statute (OCGA § 16-6-4) and the statutes prohibiting statutory rape (OCGA § 16-6-3) and enticement of children for indecent purposes (OCGA § 16-6-5) were enacted as part of a general legislative scheme to protect children under the age of 16 from physical and psychological damage resulting from sexual exploitation. Roe v. State Farm Fire &c. Co., 188 Ga. App. 368, 369 (373 SE2d 23) (1988); Coker v. State, 164 Ga. App. 493, 494 (297 SE2d 68) (1982); Barnes v. State, 244 Ga. 302, 305 (260 SE2d 40) (1979).

In construing whether the conversation alleged in the indictment is a type of “immoral or indecent act” prohibited by OCGA § 16-6-4 (a), we consider the above-stated purpose of the statute as a whole. D. G. D. v. State of Ga., 142 Ga. App. 266, 267 (235 SE2d 673) (1977). With that purpose in mind, we have no doubt the indictment alleging that Vines initiated a conversation with the child about sexual acts including fondling of private parts, intercourse and oral sodomy with the intent to arouse and satisfy his sexual desires alleges an immoral or indecent act which the child molestation statute was enacted to prohibit. The sexually exploitative nature of the alleged act is not altered by the fact that it involved speech unaccompanied by other acts. Accordingly, the allegation of the conversation alone, without any further allegation of physical contact with the child or other conduct by Vines, was sufficient to satisfy the statutory requirement in OCGA § 16-6-4 (a) that the accused committed an “immoral or indecent act.”

Likewise, we find no merit to the contention that OCGA § 16-6-4 (a) does not prohibit an immoral or indecent act committed by an accused in a telephone conversation with a child. The statute prohibits “any immoral or indecent act to or in the presence of or with any child under the age of 16 years. . . .” Although the language of the statute obviously applies to acts committed in the physical presence of the child, it does not require such physical presence, and the language is clearly broad enough to apply to an act committed by communication in a telephone conversation between the accused and the child.

The mere fact that the alleged conversation was communicated by telephone rather than in the physical presence of the child does not change the sexually exploitative and psychologically damaging nature of the act and thus does not remove it from the scope of acts prohibited by OCGA § 16-6-4 (a). See Usher v. State, 143 Ga. App. 843, 844 (240 SE2d 214) (1977) (rejected the defendant’s contention that a terroristic threat communicated by telephone was not prohibited by OCGA § 16-11-37). A similar conclusion was reached in People v. Imler, 11 Cal. Rptr. 2d 915 (Cal. App. 2 Dist. 1992), a California case involving attempted child molestation by telephone. In California, touching of the child, either by the accused or by the child himself at the instigation of the accused, is a necessary element of the offense of child molestation which is defined as committing any “lewd or lascivious act . . . upon or with the body ... of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the accused] or the child. . . .” Cal. Penal Code, § 288; id. Imler called the child on the telephone, falsely told the child he was holding his father hostage, and repeatedly told the child to disrobe and touch his penis. The child did not comply and eventually hung up. Although Imler was not charged with committing child molestation under the California statute, the court affirmed his conviction for attempting to molest the child by speaking to the child over the telephone and held that Imler’s physical presence with the child was not required. Id.

Lastly, we find no merit to Vines’ contention that the legislature did not intend to proscribe the alleged telephone conversation under the child molestation provisions of OCGA § 16-6-4 (a) because such telephone conversations are specifically prohibited by the disorderly conduct provisions of OCGA § 16-11-39 (a) (4). Under the latter statutory provision, “[a] person commits the offense of disorderly conduct when such person[,]. . . [w]ithout provocation, uses obscene and vulgar or profane language in the presence of or by telephone to a person under the age of 14 years which threatens an immediate breach of the peace.” “The proscription of [OCGA § 16-11-39 (a) (4), formerly OCGA § 16-11-39 (2)] rests upon the apparent legislative determination that, given the ‘facts and circumstances’ of an unprovoked employment of a certain type of language within the hearing of certain young listeners, there is potential for an immediate breach of the peace.” Crolley v. State, 182 Ga. App. 2, 3 (354 SE2d 864) (1987). Thus, this provision of the disorderly conduct statute was intended to protect against the anger and violent response the use of such language within the hearing of children may tend to provoke. The child molestation statute, which was enacted to protect children from physical and psychological damage resulting from sexual exploitation, has a different purpose and different elements of proof.

The trial court erred in sustaining the demurrer and dismissing the indictment.

Judgment reversed.

McMurray, P. J, and Birdsong, P. J., concur. Beasley, Ruffin and Eldridge, JJ, concur specially. Smith, J., dissents.

Beasley, Judge,

concurring specially.

In addition to the analysis conveyed in the majority opinion, there is the point that the common meaning of “molestation” clearly includes the behavior of which defendant Vines is accused in this case. According to Webster’s Third International Dictionary, “molestation” means “a cause or state of harassment: vexation; an act or instance of molesting: annoyance, obstruction; wilful injury inflicted upon another by interference with his use of rights as to person, character, social position, or property.”

Although the statutory caption-of the crime described in OCGA § 16-6-4, “Child molestation,” is not a part of the law, OCGA § 1-1-7, the offense is so named in the body of the statute itself. The meaning ascribed by the statute expressly does not require that the perpetrator and the victim be in each other’s physical presence; “in the presence of” is only one of three alternatives. On this point the statute is in accord with the dictionary meaning.

Thus the statute, as applied in this case, does not run afoul of the principle that “a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” (Citations and punctuation omitted.) Chancey v. State, 256 Ga. 415, 428 (4) (D) (349 SE2d 717) (1986). See also Johnson v. State, 264 Ga. 590, 591 (1) (449 SE2d 94) (1994); State v. Burch, 264 Ga. 231 (443 SE2d 483) (1994). Applying the test repeated and applied in Chancey, people of “common intelligence” are not left to “guess at the meaning of [the] statute” in order to know whether or not the behavior Vines allegedly engaged in constitutes a violation of it. Id. It also meets the “common understanding” test used as a measurement in Connally v. State, 265 Ga. 563, 564 (3) (458 SE2d 336) (1995), and Simmons v. State, 262 Ga. 674 (424 SE2d 274) (1993).

Ruffin, Judge,

concurring specially.

I agree with the majority that the trial court erroneously dismissed the indictment in this case. It is clear that the child molestation statute was intended to protect children against the conduct alleged in the indictment. I write separately to address the dissent’s conclusion “that the legislature intended to treat obscene telephone calls, whether to minors or others, as misdemeanor offenses separate from the felony of child molestation.”

I agree with the dissent that obscene telephone calls to minors are governed by OCGA § 46-5-21. I do not believe, however, that a proscription against “obscene telephone calls” protects minors from the same type of harm as is proscribed by the child molestation statute. I also agree with the dissent that this issue is properly resolved by application of the rules of statutory construction. I believe, however, that the dissent has overlooked a critical distinction between the child molestation statute (OCGA § 16-6-4) and the statutes merely prohibiting the use of obscene language via telephone (OCGA §§ 16-11-39; 46-5-21).

The rules of statutory construction that are applicable in this case may be stated as follows: (1) determine the legislative intent giving meaning to the old law, the evil, and the remedy; (2) apply the ordinary signification to all words; (3) give meaning to each part of a statute and avoid constructions which render any portion mere surplusage; and (4) as stated by the dissent, statutes “in pari materia” are construed together. OCGA § 1-3-1; City of Buchanan v. Pope, 222 Ga. App. 716 (1) (476 SE2d 53) (1996). Upon application of these four rules, I conclude that child molestation is an offense that can be committed via the telephone, and that such construction does not render meaningless the prohibitions against using obscene language over the telephone as that conduct is prohibited under OCGA §§ 46-5-21 (a) (1) and 16-11-39 (a) (4).

OCGA § 46-5-21 (a) (1) proscribes using a. telephone to “[m]ake any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, or indecent.” OCGA § 16-11-39 (a) (4) similarly proscribes using such language “in the presence of or by telephone to a person under the age of 14 years which threatens an immediate breach of the peace.” Importantly, both statutes define the offenses as general intent crimes which merely prohibit the use of obscene or indecent language within the ambit of the respective statute. The Supreme Court of Georgia has observed “ ‘that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ ” Breaux v. State, 230 Ga. 506, 507-508 (1) (197 SE2d 695) (1973). In another context, this Court has described such language as “personally obnoxious.” Coleman v. Housing Auth. of Americus, 191 Ga. App. 166,169 (1) (381 SE2d 303) (1989). Our legislature has therefore criminalized in certain forums the use of such language, which under the terms of both statutes governs a broad spectrum of obnoxious and socially unacceptable speech. And, in order to discourage its use and protect the public from such conduct, the legislature has provided for misdemeanor sentencing. See OCGA §§ 46-5-21 (a); 16-11-39 (b).

Child molestation, in comparison, is a specific intent crime involving conduct of a far more serious nature. OCGA § 16-6-4 (a) does not merely criminalize immoral or indecent language when addressed or directed to a child under the age of 16 years. Rather, that statute includes the requirement that the perpetrator have the specific “intent to arouse or satisfy the sexual desires of either the child or the [perpetrator].” Id. Even if we assume, as the dissent finds, that there is no difference in the speech prohibited by the three statutes, under the child molestation statute, the phrase “any immoral or indecent act” must be read in conjunction with the specific intent requirement. See McCord v. State, 248 Ga. 765 (285 SE2d 724) (1982). It is only where the two requirements are construed together that the true harm of such conduct is realized.

We have observed that a “sexual offense committed against a young child requires a special lascivious motivation or bent of mind. . . . That is, it requires a unique bent of mind for an accused to desire to satisfy the sexual desires of a young child or his own sexual desires through the medium of using a young child’s body in some form.” (Emphasis supplied.) Adams v. State, 208 Ga. App. 29, 32 (2) (b) (430 SE2d 35) (1993). “The virulent inclination is the use of a young child as a sexual object. . . .” (Emphasis in original.) Id. It is the specific intent to sexually exploit a young child’s body in “some form” that makes the immoral or indecent “act” particularly harmful.

As the majority observes, the harm from such exploitation can be psychological as well as physical. See Thompson v. State, 187 Ga. App. 563, 564 (2) (370 SE2d 819) (1988) (“[a] child’s mind may be victimized by molestation as well [as a child’s body]”). The child victini of what may crudely be described as “phone sex,” although not physically harmed by such acts, certainly may suffer psychological harm. Accordingly, it is not necessary that the perpetrator be in close physical proximity to the victim to commit the offense and cause the harm. Rather, psychological harm can result whenever an individual commits an immoral or indecent act with the specific intent to sexually exploit the child victim. That is the evil, and the legislature enacted OCGA § 16-6-4 to protect child victims from that evil. See id. Furthermore, it is this evil, the specific and intentional use of a child as a sex object, and the harm that such conduct has on a child, that justifies the felony sentence.

The critical difference between the statutes which merely prohibit the use of obscene language and the child molestation statute is that the obscene language statutes do not protect children against psychological damage resulting from sexual exploitation. Although in some cases the same language may be described as immoral, indecent, obscene, vulgar, or profane, it is the specific intent of the perpetrator to use the child as an object of sex that makes it particularly damaging to the child victim. The legislature did not intend for OCGA §§ 46-5-21 and 16-11-39 to protect against such sexual exploitation. Neither are the misdemeanor sanctions imposed under those statutes sufficient to: (1) deter individuals from such sexual exploitation, and (2) punish those guilty of such acts.

Finally, I disagree with the dissent that the majority’s construction of the child molestation statute creates a substantial risk that the perpetrator will be unable to determine when the same conduct on his part renders him liable for child molestation instead of disturbing the peace or making obscene telephone calls. Knowledge of the victim’s age is not an element of child molestation, and it is no defense that the defendant did not know the victim’s age. See Tant v. State, 158 Ga. App. 624 (281 SE2d 357) (1981). Furthermore, the perpetrator knows, better than others, what his or her intent is in using the proscribed language, and it is for the factfinder to determine whether the defendant acted with the requisite intent. See Constantino v. State, 243 Ga. 595, 598 (1) (255 SE2d 710) (1979); Blanton v. State, 191 Ga. App. 454 (1) (382 SE2d 133) (1989).

I thus conclude, as does the majority, that the trial court erroneously sustained the demurrer and dismissed the indictment.

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

Smith, Judge,

dissenting.

I respectfully dissent. In my opinion, the trial court correctly interpreted the child molestation statute as intended by the legislature. The majority, in contrast, has not only rewritten that statute but has called into question the scope and effect of the statutes dealing with obscene telephone communications, disorderly conduct, and criminal attempt. It has also rendered the child molestation statute impermissibly vague.

“A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a). No previous decision in Georgia has construed this to include an act committed via telephone, because no Georgia court has included in the definition of “any immoral or indecent act” a verbal act made outside the immediate presence of the child.

It also does not appear that the legislature intended this result. In considering legislative enactments, we must apply the principal rules of statutory construction. These rules include the requirement that we “give meaning to each part of the statute and . . . avoid constructions which render a portion of the statute mere surplusage. A statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes ‘in pari materia,’ are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto. Finally, it is a basic rule of construction that a statute or constitutional provision should be construed to make all its parts harmonize and to give a sensible and intelligent effect to each part, as it is not presumed that the legislature intended that any part would be without meaning.” (Citations and punctuation omitted.) City of Buchanan v. Pope, 222 Ga. App. 716 (476 SE2d 53) (1996).

Applying these rules, it is apparent that the legislature did not intend to include obscene telephone calls to minors within the ambit of the child molestation statute. Doing so would create conflict with two statutes proscribing the same or similar conduct: OCGA § 46-5-21 (a), obscene, threatening, or harassing telephone calls, and OCGA § 16-11-39 (a) (4), disorderly conduct by using “obscene and vulgar or profane language in the presence of or by telephone to a person under the age of 14 years which threatens an immediate breach of the peace.” Bearing in mind the requirement that we not render meaningless any provision of the legislature, and considering also that we are bound to construe criminal statutes strictly, Flanagan v. State, 212 Ga. App. 468 (442 SE2d 16) (1994), I conclude that the legislature intended to treat obscene telephone calls, whether to minors or others, as misdemeanor offenses separate from the felony of child molestation.

I do not believe that the offense defined in OCGA § 16-11-39 (a) (4) can be distinguished, as the majority contends, because it addresses a breach of the peace. “Breach of the peace” has been defined as “the breaking or disturbing of the public peace by any riotous, forcible or unlawful proceeding. [Cits.]” (Emphasis supplied.) Sanders v. City of Columbus, 140 Ga. App. 441, 443-444 (3) (231 SE2d 473) (1976) (jury question whether traffic violation for speeding constituted breach of the peace). The presence of even one other person may convert an act into a breach of the peace. See, e.g., Hopkins v. First Union Bank of Savannah, 193 Ga. App. 109, 110-111 (1) (387 SE2d 144) (1989) (attempted repossession of vehicle in presence of owner constitutes breach of the peace). Assuming, however, that an obscene telephone call made in public can be distinguished from an obscene telephone call made in private as promoting a breach of the peace, as the majority urges, a flagrant and defiant use of the telephone before many witnesses would constitute a mere misdemeanor, while a single private call would become a felony. The legislature could not have intended this anomalous result.

There is, moreover, a rational distinction to be made between obscene telephone calls and child molestation perpetrated by words or actions in the physical presence of the victim. The cases cited by the majority as showing child molestation committed by speech and other non-contact actions simply confirm this reading of the statute, because all without exception were made in the physical presence of the victim. Members of the General Assembly may well have concluded that verbal acts perpetrated from an indeterminate distance over the telephone, while offensive and disturbing, do not pose the same threat to the minor’s physical or psychological safety as verbal acts committed in the minor’s physical presence.

In citing a California decision affirming a conviction of attempted child molestation via telephone, the majority ignores the crucial distinction that the defendant here was not charged with attempt but with the completed crime. Whether this defendant’s conduct might have constituted “a substantial step toward the commission of [the] crime,” OCGA § 16-4-1, is not before us. I note, however, that the majority’s reading will convert many acts formerly considered attempted child molestation into the completed crime. See, e.g., Wittschen v. State, 189 Ga. App. 828 (377 SE2d 681) (1988), aff’d, 259 Ga. 448 (383 SE2d 885) (1989) (appellant who verbally invited a child in his physical presence to perform a lewd act was properly convicted of attempt to commit the offense of child molestation).

Finally, imposing liability under OCGA § 16-6-4 for defendants who were never in the physical presence of the victim raises substantial due process and fairness concerns. “In its classic formulation of the standard for establishing unconstitutional vagueness, the Supreme Court held that a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. If men of common intelligence must guess at the meaning of a statute, the statute violates due process of law. [Cits.]” (Punctuation omitted.) Chancey v. State, 256 Ga. 415, 428 (4) (D) (349 SE2d 717) (1986).

There is no question that an obscene telephone call is offensive, intrusive, and disgusting to the victim regardless of his or her age. It is apparent, however, that extending the scope of the child molestation statute to include telephone calls creates a substantial risk that the perpetrator will be unable to determine when the same conduct on his part renders him liable for the felony of child molestation instead of the misdemeanor of disturbing the peace or an obscene telephone call. Callers who do not know the recipient (as appears to be the case here) or who dial numbers at random would be subject to felony penalties if a person under the age of 16 happens to answer the telephone, or if the caller is unable to determine the age of the recipient from his or her voice. Although knowledge of a victim’s age is not an element of the offense, a child molester who claims not to know the age of a victim with whom he was in direct personal contact is in a significantly different position from that of a random obscene caller. The telephone caller clearly has the intent to perpetrate a disgusting and obscene intrusion into the life of his victim, but he cannot have a “specific intent to use [a] child as an object of sex,” as noted by the special concurrence, when he has no direct personal contact with an unknown victim, who could be of any age. Such a lack of knowledge completely removes the necessary element of intent or “unique bent of mind” required for the offense of child molestation.

Although we view the defendant’s conduct here with repugnance, we ought not to allow distaste for his behavior to erode the bedrock principle that all citizens must be given fair notice of the criminality of certain conduct, the scope of a statute, and the penalties imposed for its violation. “We must proceed slowly and carefully in this era of public awareness. We cannot allow our revulsion of sexual abuse or molestation to turn our courts into a forum in which the accusation becomes the conviction and affirmance.” State v. Butler, 256 Ga. 448, 454, n. 4 (349 SE2d 684) (1986) (Smith, J., dissenting).

Decided June 11, 1997

Before Judge McGarity.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellant.

William C. Drosky, for appellee.

For these reasons, I respectfully dissent.

       Appellee was charged and bound over under this statute.

       The latter statute is inapplicable here because the victim had attained the age of 14 at the time of the offense.

       It should also be noted that this defendant was not charged with committing an offense “in the presence of” the victim, but merely “to” the victim.


author: Andrews, Chief Judge.

text:
    A97A0362.
    DANIELS et al. v. JOHNSON.
    (487 SE2d 504)
   Andrews, Chief Judge.

This appeal by Daniels, Sr., plaintiff below, arises from an August 23, 1993 Georgia automobile accident involving a Dollar Rent-A-Car rented in New York, driven by New York resident Johnson, and insured for Dollar by Chrysler Insurance. Johnson was personally insured by Allstate Insurance Company when she struck the car occupied by Daniels, Sr. and his son, causing injuries. Daniels was insured by Auto-Owners Insurance Company, including uninsured/underinsured coverage, which is the coverage at issue here.

Daniels, individually and on behalf of his son, filed suit against Johnson. Dollar’s Chrysler Insurance policy provided the New York-required coverage of 10/20/10 on the Johnson car. Daniels, who maintained uninsured/underinsured coverage of 50/50/50, caused Auto-Owners to be served with a copy of this complaint. The Daniels thereafter settled their claims against Chrysler and Allstate for $10,000 payments from each, executing releases stating that the Daniels were executing them pursuant to OCGA § 33-24-41.1.

Auto-Owners’ additional investigation determined that Chrysler, the primary liability carrier, was licensed to engage in insurance business in Georgia at the time of the accident. Thereupon, Auto-Owners raised the defense of the release of tortfeasor Johnson, because of the Daniels’ failure to exhaust coverage available from Chrysler, based on Georgia’s statutorily mandated $15,000 minimum coverage under OCGA § 33-34-3 (a) (2), the “deemer statute.” That statute states that all policies of insurers authorized to do business in Georgia are “deemed to satisfy the minimum requirements of this chapter if a motorist insured under the policies or contracts of insuranee is involved in a motor vehicle accident in this state.” The minimum requirement for bodily injury coverage is $15,000. OCGA §§ 33-34-4; 40-9-37 (a).

The trial court granted summary judgment to Auto-Owners on its claim that the Daniels had not fulfilled a condition precedent to coverage under its underinsured provision, i.e., exhaustion of benefits from other available insurance.

OCGA § 33-7-11 (b) (1) (D) (ii) defines an uninsured motor vehicle as, inter alia, one “as to which there is: . . . [b]odily injury liability insurance and property damage liability insurance with available coverages which are less than the limits of the uninsured motorist coverage provided under the insured’s insurance policy, but the motor vehicle shall only be considered to be uninsured for the amount of the difference between the available coverages under the bodily injury liability insurance and property damage liability insurance coverages on such motor vehicle and the limits of the uninsured motorist coverage provided under the insured’s motor vehicle insurance policy; and for this purpose available coverages under the bodily injury liability insurance and property damage liability insurance coverages on such motor vehicle shall be the limits of coverage less any amounts by which the maximum amounts payable under such limits of coverage have, by reason of payment of other claims or otherwise, been reduced below the limits of coverage. . . .” (Emphasis supplied.)

The trial court below found, and we agree, that since, as a matter of law, Chrysler was deemed to have provided $15,000 in bodily injury coverage and the Daniels settled for $10,000, the limited release language regarding OCGA § 33-24-41.1 does not save them from the release of the tortfeasor defense of Auto-Owners. OCGA § 33-24-41.1 (a) provides that “[i]n any instance where a claim arising out of a motor vehicle accident is covered by two or more insurance carriers, • one such carrier may tender, and the claimant may accept, the limits of such policy.' . . . Such claimant. . . may execute a limited release applicable to the settling carrier and its insured based on injuries to such claimants. . . .” (Emphasis supplied.) Subsections (b) and (d) provide that such a release releases the settling carrier and the tortfeasor insured by the settling carrier from liability arising from that incident, but does not “[b]ar a claimant’s recovery against any other tort-feasor or under any other policy of insurance or release any other insurance carrier providing applicable coverage unless specifically provided for in such release.” OCGA § 33-24-41.1 (d) (1).

Decided June 11, 1997

Before Judge Gray.

Robert M. Beauchamp, for appellants.

Watson, Spence, Lowe & Chambless, John M. Stephenson, for appellee.

Here, as in Bankers Ins. Co. v. Taylor, 267 Ga. 134 (475 SE2d 619) (1996), the “deemer statute” was in effect when the liability insurer’s policy was issued, and, therefore, “the terms of the statute are read into the contract, and the statute has no retroactive application that impairs [the liability insurer’s] obligations under the policy.” (Footnote omitted.) Id. at 136 (3).

“Uninsured motorist coverage is designed to provide payment for all sums which the insured is legally entitled to recover as damages from the uninsured motorist. OCGA § 33-7-11; [cits.].” (Emphasis in original.) G & MSS Trucking v. Rich, 224 Ga. App. 130, 131 (1) (479 SE2d 761) (1996). The remedial purposes of the statute are construed broadly to provide financial protection to innocent motorists who are injured by irresponsible drivers. Hinton v. Interstate Guaranty Ins. Co., 267 Ga. 516 (480 SE2d 842) (1997).

Here, this purpose has been served because Daniels had the benefit of both the liability insurance and his uninsured motorist insurance. That he did not fulfill the condition precedent to a claim against his own policy does not diminish this fact. See Darby v. Mathis, 212 Ga. App. 444, 445 (2) (441 SE2d 905) (1994) (finding that signing a general release in favor of the tortfeasors and their liability insurer precluded a claim against the injured party’s uninsured motorist carrier).

It is not the “limited release” under OCGA § 33-24-41.1 upon which Auto-Owners relies, but the failure to obtain the maximum payment from the liability carrier before making an underinsured claim. There was no error.

Judgment affirmed.

Beasley and Smith, JJ, concur.

       The case was submitted to the trial court on stipulated facts, as set out hereinafter.

       The statute, as amended in 1994, not the pre-1994 version quoted by Daniels in his brief, is applicable to this case. Haezebrouck v. State Farm &c. Ins. Co., 216 Ga. App. 809, 810 (1) (455 SE2d 842) (1995); Evans v. Belth, 193 Ga. App. 757, 759 (2) (388 SE2d 914) (1989).


text:
    A97A0456.
    KING v. KING.
    (487 SE2d 510)
   Andrews, Chief Judge.

Victor King sued his mother, Blanche King, for injuries he sustained when he slipped and fell while visiting at Mrs. King’s residence. He claims Mrs. King knew about and failed to warn him of a hidden defect in her front yard which caused him to slip and fall. At the close of the evidence at trial, the trial court granted a directed verdict in favor of Mrs. King. Mr. King appeals.

The record shows that Mrs. King had a sloping yard comprised of dirt and some patches of grass. Because it had been raining on the day of the fall and for several days prior, the yard was wet, and water had run down the slope around the patches of grass depositing silt in some areas and causing the yard to become a soggy mixture of mud and grass. Mr. King testified that, to avoid the mud as he walked through the yard toward Mrs. King’s residence, he carefully stepped from patch of grass to patch of grass. He testified that the roots of a patch of grass he stepped on pulled loose from the ground causing the grass to move under his foot which caused him to slip and fall.

Mr. King conceded that the wet, slippery condition of the yard was obvious to him and that he voluntarily chose to walk across it. Nevertheless, he contends that it was not obvious to him that the roots of the patch of grass would pull loose from the ground when he stepped on it. He argues that this was a hidden defective condition in the yard and that Mrs. King knew about it and failed to warn him because she knew rain water had been running down the slope causing erosion around the patches of grass and she knew her grandson had slipped in the same area the day before the fall.

In visiting his mother at her residence, Mr. King occupied the status of a guest-licensee. Wren v. Harrison, 165 Ga. App. 847, 848 (303 SE2d 67) (1983); OCGA § 51-3-2. “There is a common understanding that the guest is expected to take the premises as the possessor [her] self uses them, and does not expect and is not entitled to expect that they will be prepared for his reception, or that precautions will be taken for his safety, in any manner in which the possessor does not prepare or take precautions for [her] own safety, or that of the members of [her] family.” (Citations and punctuation omitted.) Wren, supra at 848. “The owner of the premises is liable to a licensee only for willful or wanton injury.” OCGA § 51-3-2 (b); Nixon v. Edmonson, 177 Ga. App. 662 (340 SE2d 278) (1986). Nevertheless, where a licensee’s presence on the premises is known to the possessor or reasonably should be anticipated, it is usually considered to be wilful or wanton not to exercise ordinary care to prevent the licensee from being injured by a condition on the property where: “(a) the possessor knows or has reason to know of the condition[,] should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger[;] (b) [the possessor] fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved[;] and (c) the licensees do not know or have reason to know of the condition and the risk involved.” (Citation and punctuation omitted.) Patterson v. Thomas, 118 Ga. App. 326, 328 (163 SE2d 331) (1968); London Iron &c. Co. v. Abney, 245 Ga. 759, 761 (267 SE2d 214) (1980). Thus, where a licensee has equal knowledge of the dangerous condition and the risks involved, it may be said as a matter of law that the possessor did not breach any duty to the licensee. Evans v. Parker, 172 Ga. App. 416, 417 (323 SE2d 276) (1984).

Decided June 11, 1997.

Before Judge Thornton, pro hac vice.

Knight, Stemberger & Gomez, Mark A Gomez, for appellant.

Tisinger, Tisinger, Vance & Greer, Douglas C. Vassy, for appellee.

Although Mrs: King knew that heavy rain caused water to run down the slope of her yard around the patches of grass, there is no evidence that this provided her with knowledge superior to Mr. King’s as to the condition of the grass. The condition of the yard and the weather conditions were just as obvious to Mr. King as they were to Mrs. King. Although Mrs. King saw her grandson slip in the same area the day before Mr. King fell, there is no evidence that the grandson’s slip was caused by grass roots pulling loose from the ground. Moreover, that a patch of grass growing on the rain-soaked, muddy slope of the yard was less secure and might give way by the roots when stepped on was a naturally occurring condition presenting a risk obvious to anyone of ordinary intelligence exercising ordinary care for their own safety. Mrs. King “should not be held [liable] if an injury results from an ordinary or usual risk which, in . . . light of the weather conditions, could not be classed as unreasonable. To do so would make [her] an insurer of the safety of [her licensee], and that is not and should not be the law in this State.” Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 178 (2) (138 SE2d 77) (1964).

Construing the evidence and all reasonable deductions therefrom in favor of Mr. King, we find no evidence supporting Mr. King’s claim that Mrs. King breached a duty to protect him from injury by a condition on the premises presenting an unreasonable risk of harm. Accordingly, the trial court properly directed a verdict in favor of Mrs. King. OCGA § 9-11-50 (a).

Judgment affirmed. Smith, J., concurs.

McMurray, P. J., concurs in the judgment only.


text:
    A97A0503.
    WALKER et al. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (487 SE2d 498)
   Beasley, Judge.

Leroy Walker and his wife sued MARTA, a common carrier, to recover damages for injuries and loss of consortium caused by a criminal attack on Leroy Walker at the Georgia State MARTA station in Atlanta. The Walkers appeal summary judgment for MARTA. The primary issue is whether the absence of evidence in the record of prior violent activity on a common carrier entitles the common carrier to summary judgment. It does.

According to Mr. Walker’s version of the events, on November 2, 1993, he had just gone through the turnstile and arrived at the platform of the Georgia State MARTA station to await a westbound train, when suddenly and without provocation two unknown individuals grabbed him and threw him onto the track. Mr. Walker was hurt but was not in pain nor bleeding. He had no visible wounds. Ms. Walker and others quickly assisted Mr. Walker in getting back up on the platform just before the westbound train arrived. An unidentified MARTA officer came over to Mr. Walker and asked if she could help. Mr. Walker, who “didn’t want the officer’s help,” turned to his wife and insisted they get on the waiting train immediately, which they did. Mr. Walker then lost consciousness, and at the next stop Ms. Walker carried him off the train. A passer-by called for an ambulance, which took Mr. Walker to the hospital.

The Walkers claim that MARTA was negligent in three ways: failure to provide adequate security, failure to make an incident report, and failure to render aid. MARTA’s Director of Police Services testified by affidavit that MARTA employed police officers to provide law enforcement and security functions in its rail stations, on its trains, and on other MARTA property twenty-four hours a day, seven days a week. He further testified that at the time of the incident, nine officers patrolled MARTA’s East line, which included the Georgia State station. Based on his 25 years of experience in the police field, he opined that this police protection, designed to protect MARTA patrons from unreasonable risks of harm from criminal acts, was adequate and reasonable “based upon recognized transit policing practices, the history of crime on the East line and the resources available.” Based on the Walker depositions and this affidavit, MARTA moved for summary judgment, in response to which the Walkers submitted no additional evidence.

“The traditional elements of a negligence case are: (1) [a] duty, or obligation, recognized by law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks[;] (2) [a] failure on his part to conform to the standard required[;] (3) [a] reasonable close causal connection between the conduct and the resulting injury[; and] (4) [a]ctual loss or damage resulting to the interests of the other. [Cits.]” Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (405 SE2d 474) (1991). The evidence shows no issue of fact on the first two elements as a matter of law.

1. “A carrier of passengers must exercise extraordinary diligence to protect the lives and persons of his passengers but is not liable for injuries to them after having used such diligence.” OCGA § 46-9-132. Having paid his fare and gone through the turnstile to await a train, Mr. Walker was at that point a “passenger” of MARTA under the statute. Central R. &c. Co. v. Perry, 58 Ga. 461, 467 (2) (1877); Atlanta Terminal Co. v. Alexander, 38 Ga. App. 280, hn. 3 (143 SE 905) (1928); Seaboard Air-Line R. v. Brewton, 23 Ga. App. 621 (2) (99 SE 226) (1919), rev’d on other grounds, 150 Ga. 37 (102 SE 439) (1920). “It is clear that [MARTA] had a duty [of extraordinary diligence] to protect [Mr. Walker] from unreasonable risk of harm.” Robertson v. MARTA, 199 Ga. App. 681, 682 (405 SE2d 745) (1991). See Southeastern Stages v. Stringer, 263 Ga. 641 (437 SE2d 315) (1993); Sparks v. MARTA, 223 Ga. App. 768 (478 SE2d 923) (1996).

When the event causing the harm to the passenger is a criminal act by a third party, the duty of the carrier to exercise extraordinary diligence to prevent that criminal act arises only if the carrier has reason to anticipate the criminal act. “[A] common carrier is not required to take measures to protect its passengers from the intentional misconduct of third persons until something occurs to put the carrier on notice that such conduct might be reasonably anticipated. To establish reasonable foreseeability, more than the mere possibility of an occurrence must be shown, since otherwise a common carrier would be made an insurer, with absolute liability to all passengers. . . . [K]nowledge of conditions which are likely to result in an assault upon a passenger, or which constitute a source of potential danger, imposes the duty of active vigilance on the part of the carrier’s agents and the adoption of such steps as are warranted in the light of existing hazards.” (Citations and punctuation omitted.) Southeastern Stages, 263 Ga. at 643. See Paschal v. Ferguson Transport, 189 Ga. App. 447, 448 (375 SE2d 901) (1988).

To prove the foreseeability of the criminal act, a plaintiff may present evidence of “prior violent activity. ... A common carrier’s knowledge of a threatened danger is not restricted to knowledge that a particular individual possesses dangerous propensities, since there are situations where a common carrier can reasonably anticipate misconduct without knowing which individual will misbehave, as, for example, in a situation where a particular route has a history of violent and assaultive conduct by passengers, such that violent incidents occur daily or weekly. [Cit.]” (Footnote omitted; emphasis in original.) Southeastern Stages, supra at 643. Failure to present this or other evidence of foreseeability will result in summary judgment for the carrier. Id. at 644; Paschal, supra at 448; Pinnell v. Yellow Cab Co., 77 Ga. App. 73, 75 (47 SE2d 774) (1948); Powell v. Beasley, 57 Ga. App. 231, 232 (194 SE 926) (1938).

MARTA moved for summary judgment without submitting evidence as to whether substantially similar crimes had taken place on the East line or at the Georgia State station. It simply offered the affidavit of the East line police supervisor, who stated that based on “the history of crime on the East line,” MARTA’s police protection was adequate. There is no evidence in the record that the historical crime on the MARTA East line was violent or assaultive. The Walkers must show MARTA to have knowledge of conditions likely to result in an assault upon a passenger. See Southeastern Stages, supra at 643.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... If 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.” (Citations omitted; emphasis in original.) Lau’s Corp., 261 Ga. at 491. See Page v. Atlanta Center Ltd., 219 Ga. App. 422, 424-425 (465 SE2d 456) (1995); Rowe v. CSX Transp., 219 Ga. App. 380, 381 (465 SE2d 476) (1995).

In its motion for summary judgment filed two months after the six-month discovery period had run, MARTA pointed out the absence of evidence in the record of prior violent and assaultive conduct on the East line or of any other evidence of foreseeability. The Walkers, who had engaged in no meaningful discovery, did not request a continuance under OCGA § 9-11-56 (f) to obtain evidence to oppose the summary judgment motion, but instead complained that MARTA had not produced evidence affirmatively disproving prior violent activity. Under Lau’s Corp., MARTA was not required to do so, but was only required to point to the absence of evidence in the record on this issue.

The Walkers did argue that MARTA’s provision of police protection on the East line was itself evidence that MARTA anticipated criminal acts. However, “[ujndertaking measures to protect patrons does not heighten the standard of care; and taking some measures does not ordinarily constitute evidence that further measures might be required.” (Footnote omitted.) Lau’s Corp., 261 Ga. at 494-495 (3). Only if in providing such services the defendant acts “unreasonably or makes the situation worse, by increasing the danger, or by misleading the plaintiff into belief that it has been removed, or by depriving the plaintiff of the possibility of help from other sources,” can the defendant be held liable. Id. at 495, n. 2. See Doe v. Prudential-Bache/A.G. Spanos &c., 222 Ga. App. 169, 174 (3) (474 SE2d 31) (1996). There is no evidence of such in this case.

Second, the Walkers contend that the testimony of the MARTA Director of Police Services is opinion testimony and, as such, cannot serve as a basis for granting summary judgment. “Opinion testimony of the ultimate fact to be decided in a case is never sufficient to authorize a summary judgment. [Cits.]” Galloway v. Banks County, 139 Ga. App. 649, 651 (229 SE2d 127) (1976). See Harrison v. Tuggle, 225 Ga. 211, 212 (167 SE2d 395) (1969); Ginn v. Morgan, 225 Ga. 192 (167 SE2d 393) (1969). Where the expert’s opinion is merely cumulative of other evidence supporting summary judgment, the submission of such creates no harm. Shockley v. Henslee, 122 Ga. App. 163, 165 (176 SE2d 470) (1970). The MARTA Director’s opinion as to the adequacy of the security measures was merely cumulative of the evidence showing the actual security measures taken by MARTA to prevent such criminal acts.

Decided June 11, 1997.

Before Judge Wyatt Cummings Moore.

Of course, to avoid summary judgment, the Walkers were free to submit the opinion evidence of an expert to show the inadequacy of the security measures specified by MARTA. See Shoney’s, Inc. v. Hudson, 218 Ga. App. 171, 174 (460 SE2d 809) (1995) (“[ajlthough it is true that the grant of summary judgment cannot be supported by opinion evidence, ‘mere opinion evidence by the opposing party can be sufficient to preclude an award of summary judgment’ ”).

Finally, Mr. Walker points to his injury as evidence that negligence must have occurred. “It is well established that ‘the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence. (Cits.)’ [Cit.]” Robertson, 199 Ga. App. at 682.

Because the Walkers did not “point to specific evidence giving rise to a triable issue” on the matter of providing adequate security, the trial court properly granted summary judgment to MARTA. Lau’s Corp., 261 Ga. at 491.

2. The Walkers’ second claim of negligence is MARTA’s failure to make a report about this incident. “ ‘Although we render no opinion as to (defendant’s) alleged negligence in performing this duty, we nevertheless conclude that if such negligence did occur, it was not the cause of [Mr. Walker’s] injuries.’ [Cit.]” Collins v. Shepherd, 212 Ga. App. 54, 56 (2) (441 SE2d 458) (1994). In the absence of any evidence of proximate cause, summary judgment was appropriate on this theory.

3. The Walkers’ third basis of negligence is MARTA’s failure to render aid. However, the Walkers testified that Mr. Walker was not visibly wounded, and that when a MARTA officer offered him aid immediately following the injury, he refused it and instead walked onto the waiting train. Summary judgment was warranted.

4. Because Ms. Walker’s right to recover for loss of consortium is derivative of Mr. Walker’s claim, her claim also fails. Horn v. Foodmax of Ga., 210 Ga. App. 506, 508 (3) (437 SE2d 336) (1993).

Judgment affirmed.

McMurray, P. J., and Smith, J., concur in the judgment only.

Teddy G. Muntean, for appellants.

Miriam D. Lancaster, for appellee.

       In their briefs, the parties primarily cite various cases requiring the defendant to have knowledge of prior substantially similar criminal acts before it can be expected to anticipate criminal acts against its invitees. See, e.g., Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785 (482 SE2d 339) (1997); Days Inns of America v. Matt, 265 Ga. 235, 236 (454 SE2d 507) (1995); Scott v. Housing Auth. &c. Glennville, 223 Ga. App. 216 (477 SE2d 325) (1996). Because these cases address OCGA § 51-3-1 (the duty an owner or occupier of land owes to invitees), and not OCGA § 46-9-132 (the duty a carrier owes to its passengers), the Supreme Court of Georgia has disapproved relying on such cases in common carrier cases. Southeastern Stages, supra at 642.

       The Walkers did serve a short set of interrogatories on February 5, 1997, which was approximately seven months after the filing of the answer and therefore approximately one month after the six-month discovery period had run. See USCR 5.1. MARTA objected to the interrogatories as untimely. The Walkers never moved to compel a response. The interrogatories did not go to the issue of prior violent or assaultive acts or other evidence of foreseeability.

       There is a line of cases (not cited by the parties) holding that “[wjhen a passenger is injured, a legal presumption that the carrier failed to exercise extraordinary care arises in his favor. The carrier can, of course, rebut this presumption by making it appear that extraordinary care and diligence were exercised. This is a jury question.” Eason v. Crews, 88 Ga. App. 602, 613 (77 SE2d 245) (1953). See Mattox v. MARTA, 200 Ga. App. 697, 698 (2) (409 SE2d 267) (1991); Battey v. Savannah Transit Auth., 123 Ga. App. 685, 689 (2) (182 SE2d 129) (1971); Filler v. Hanger Cab Co., 115 Ga. App. 260, 263 (154 SE2d 420) (1967). However, in none of these cases does the plaintiff admit from the outset that his injury was caused by an intervening third-party criminal act, which necessarily eviscerates this presumption. Furthermore, this presumption may no longer be valid. See Millar Elevator Svc. Co. v. O’Shields, 222 Ga. App. 456, 459 (475 SE2d 188) (1996) (Beasley, C. J., dissenting); Darlington Corp. v. Finch, 113 Ga. App. 825, 828-829 (149 SE2d 861) (1966). See also Western & Atlantic R. v. Henderson, 279 U. S. 639 (49 SC 445, 73 LE 884) (1929).

       In Taylor v. Atlanta Center Ltd., 208 Ga. App. 463, 464 (430 SE2d 841) (1993), in which we affirmed summary judgment for the defendant, we considered the opinion testimony of the defendant’s security supervisor as to the adequacy of the number of security officers. As in Shockley, the opinion testimony was merely cumulative. Cf. Millar Elevator Svc. Co., 222 Ga. App. at 456-457 (1) (defendant’s expert affidavit considered on motion for summary judgment; summary judgment denied).


text:
    A97A0877, A97A1026.
    MORRIS v. MORRIS (two cases).
    (487 SE2d 528)
   Beasley, Judge.

These appeals mark the second appearance of this case; the first is reported at Morris v. Morris, 222 Ga. App. 617 (475 SE2d 676) (1996). Appellant Frieda Morris filed a complaint to domesticate a foreign judgment and for modification of child support against her former husband, James Morris. After she voluntarily dismissed the complaint, James Morris moved for attorney fees and expenses of litigation under OCGA §§ 19-6-19 (d) and 9-15-14 (b), which was granted. On appeal, this Court reversed the award under OCGA § 19-6-19 (d) and remanded the award under OCGA § 9-15-14 (b) for requisite findings. Id. at 618 (2), (3).

■ On September 13, 1996, the trial court noted this Court’s earlier opinion and entered an order that stated a basis for awarding attorney fees. Frieda Morris filed a direct appeal from that order in Case No. A97A0877. She also applied for permission to appeal under the discretionary procedures of OCGA § 5-6-35 (a) (10). We granted that application, and the appeal in Case No. A97A1026 followed pursuant to that grant.

Case No. A97A0877

1. This notice of appeal seeks to directly appeal the court’s award of attorney fees under OCGA § 9-15-14. Such an order is subject to the discretionary procedure of OCGA § 5-6-35. This appeal must be dismissed. See Bonnell v. Amtex, Inc., 217 Ga. App. 378 (457 SE2d 590) (1995).

Case No. A97A1026

2. The court below entered its order “on remand” on September 13, 1996, but this Court did not issue the remittitur until September 16,1996. Until the trial court receives and files the remittitur, it does not have jurisdiction to act. Chambers v. State, 262 Ga. 200 (415 SE2d 643) (1992). The trial court’s order of September 13 is a nullity, and the case must be reversed.

James Morris urges that we overlook the fact that the order is a nullity and address the merits of the appeal. We find no authority for such. The cases he cites do not support the proposition that this Court can ignore the nullity of a trial court’s action. See Marsh v. Way, 173 Ga. App. 399, 401-402 (2) (326 SE2d 499) (1985); Talley v. City Tank Corp., 158 Ga. App. 130, 133 (1) (279 SE2d 264) (1981). The order cannot be affirmed at this juncture even if the record supports the court’s decision.

Decided June 11, 1997.

Before Judge Etheridge.

Beltran & Associates, Frank J. Beltran, Charlotte K. Perrell, for appellant.

Rubin, Winter, Rapoport & Hall, Michelle B. Rapoport, Amanda S. Trigg, for appellee.

Appeal dismissed in Case No. A97A0877. Judgment reversed in Case No. A97A1026.

McMurray, P. J, and Smith, J., concur.