text:
    A90A1566.
    JIM ELLIS ATLANTA, INC. v. McALISTER.
    (400 SE2d 389)
   Banke, Presiding Judge.

The appellee acquired an Audi 5000S automobile from the appellant under a five-year lease agreement, and during that period the vehicle developed severe engine damage. Alleging that this damage was attributable to faulty maintenance and repair work performed by the appellant, the appellee sued the appellant for monetary relief, contending that it had breached a contractual obligation to her to perform the maintenance and repair work in a competent and proficient manner and, alternatively, that it had breached its obligations under an extended warranty and service contract it had sold to her in connection with the lease. The case was tried before a jury, which awarded the appellee actual damages in the amount of $10,703 under the faulty repair theory, plus expenses of litigation in the amount of $4,500. (The manufacturer of the vehicle, Volkswagen of America, Inc., was also named as a defendant in the action, but the jury returned a verdict in its favor.) The case is before us on appeal from the denial of the appellant’s motion for new trial.

The appellee testified that the vehicle began to manifest a coolant loss problem soon after she took delivery of it in November of 1984. She brought it back for service approximately six months and 6,400 miles later, and the invoice or work order prepared by the appellant in connection with that visit bears the notation “CK FLUID LEAK.” She again returned for routine maintenance a month later, but there is no indication that she complained about the coolant loss problem on that occasion. Her next visit to the appellant’s service department took place in February of 1986, by which time the vehicle had been driven 17,000 miles. Again, the notation “check coolant leak” appears on the invoice/work order prepared by the appellant, along with a notation that a hose clamp was tightened in response to that directive.

The appellee testified that a few weeks after the latter service visit, a red warning light came on while she was driving the vehicle, indicating that the engine was overheating. She stated that the light went off after she pulled into a gas station and added coolant, but that it would reappear every month or so thereafter, prompting her to repeat the process of adding coolant. Her next visit to the appellant’s service department occurred in June of 1986, by which time the car had been driven approximately 21,000 miles. Although she could not state positively that she had complained about the coolant loss problem during this visit, she testified: “I’m sure ... I would have complained of the coolant leak because it was a major problem and it continued to do this at all times.” She unquestionably complained about the problem during her next visit to the service department, which occurred approximately four months and 4,000 miles later, and the invoice reveals that a “valve for heat regulation” was replaced in response to that complaint. However, within a few weeks the warning light appeared again. The appellee stated that the light continued to come on every four or five weeks thereafter and that she continued to respond by adding coolant until July of 1987, when the engine died before she could get to the nearest gas station, which was only a quarter to a half mile away. The car, which had been driven approximately 35,000 miles by this time, was towed to the appellant’s service department, where certain major repairs were performed, including replacement of the cylinder head and water pump, at a cost to the appellee of $1,730.

The appellee testified that the car’s engine was sluggish and began making a clicking noise following these latter repairs and that within a few weeks the warning light began coming on again. She testified that when she called the appellant’s service department to complain about these problems she was instructed to bring the vehicle back “whenever you are in the area,” but that due to her frustration concerning the appellant’s previous inability to correct the coolant loss problem, as well as certain other problems with the vehicle, and due also to the fact that the appellant had moved to a less convenient location, she did not bring the vehicle back but simply continued to add coolant when the warning light came on. She stated that the vehicle’s sluggishness and its rate of coolant usage increased over the next ten months and 10,000 miles of driving, until she finally discontinued driving it in May of 1988 because it “would hardly go 35 miles an hour.” There was testimony that water vapor could be seen “coming out the exhaust” by this time, indicating that coolant was infiltrating the engine. Although the appellee was no longer driving the vehicle, she continued to make the payments due under the lease. Held:

1. The appellant contends that it was entitled to a directed verdict because the appellee failed to present any “direct evidence . . . that the materials used or the services performed [in repairing the vehicle] were in any way defective” and also because, “while the evidence indicated appellee’s engine was damaged at some point after July 1987, the engine failure could have been caused by innumerable other factors besides an improper repair. . . .” We are, of course, constrained to uphold the jury’s verdict if there is any evidence to support it. See generally Scott v. Scott, 243 Ga. 472, 473 (254 SE2d 852) (1979). There is no question that the appellee complained to the appellant of a coolant loss problem well before the July 1987 breakdown and that the appellant performed at least two repairs on the cooling system in response to those complaints. We believe the jury was áuthorized to conclude from the evidence that these repairs failed to correct the problem and that the engine was damaged as the result of that failure. The jury was further authorized to conclude that the appellee paid the appellant $1,700 to repair the resulting engine damage and that these repairs similarly failed to correct the coolant loss problem, resulting in further damage to the engine. Accordingly, we hold that the trial court did not err in refusing to direct a verdict in the appellant’s favor on the issue of liability.

2. The appellant alternatively contends that even if there was some evidence to support a finding of liability, there was no competent evidence to support an award of damages in the amount returned by the jury, i.e., $10,703. To establish the amount of her damages, the appellant relied on the testimony of a close friend who had performed routine maintenance on the vehicle and was personally familiar with the repairs performed by the appellant. This witness testified that he had worked as a “technical service representative” for Ford Motor Company some 25 years previously, that this job had involved advising dealers on difficult repair problems as well as teaching classes on “various components of how to repair transmissions or overhaul the engines or all of the different components of the cars,” and that he had performed numerous repairs on automobiles in a non-professional capacity since leaving Ford, including the performance of complete engine overhauls. He stated that the vapor in the exhaust coming from the appellee’s vehicle indicated that water from the cooling system was somehow getting into the engine, that this could occur only through an opening in the cylinder head or in the engine block itself, and that since the cylinder head had supposedly been replaced by the appellant in July of 1987, it followed that there must be a crack or hole in the block. Based on his own experience in rebuilding engines, combined with information supplied to him by an “Audi specialist” whom he had consulted, he opined that it would cost between $7,000 and $8,000 to repair the vehicle.

“Whether a witness is qualified to give his opinion as an expert is within the discretion of the trial court, and such discretion will not be disturbed unless manifestly abused. (Cits.)” Smith v. Hosp. Auth. of Terrell County, 161 Ga. App. 657, 659 (2) (288 SE2d 715) (1982). “Generally, nothing more is required to qualify an expert than that he has been educated in a particular trade or profession; and this special knowledge may be derived from experience as well as study and mental application. (Cits.)” Pritchett v. Anding, 168 Ga. App. 658 (5), 663 (310 SE2d 267) (1983). We hold that the trial court was authorized to allow this witness to testify as an expert and that a sufficient foundation was laid to enable him to express an opinion as to the cost of repairing the vehicle. The fact that his opinion in this regard was based in part on hearsay did not render it inadmissible. “When an expert’s testimony is based on hearsay, the lack of personal knowledge on the part of the expert does not mandate the exclusion of the opinion but, rather, presents a jury question as to the weight which should be assigned the opinion.” King v. Browning, 246 Ga. 46, 47 (268 SE2d 653) (1980). Moreover, “[a]utomobiles today are items well within the common knowledge of everyone including jurors. . . .” Gwinnett Commercial Bank v. C & S Bank, 152 Ga. App. 137, 141 (262 SE2d 453) (1979). Thus, the jurors could be expected to draw upon their own knowledge and experience in dealing with automobiles in weighing the reasonableness of the repair estimates offered by this witness. Cf. White v. Miller, 194 Ga. App. 816 (3) (392 SE2d 30) (1990).

Accepting the high end of the range of estimates offered by this witness as to the cost of repairing the vehicle and adding to that figure the $1,700 the appellee had paid the appellant for the July 1987 repair job, the jury was authorized to conclude that the appellee had sustained actual damages in the amount of $9,700 as the result of the faulty repairs performed by the appellant. While this figure is roughly $1,000 less than the amount of damages awarded by the jury, the jury was instructed that it would be authorized to add prejudgment interest from the date of the alleged breach of the repair contract, a period of approximately two years. See generally OCGA § 13-6-13. In addition, the jury would have been authorized to award damages to the appellee for the “hire on the machine while rendered incapable of being used.” Padgett v. Williams, 82 Ga. App. 509, 511 (61 SE2d 676) (1950); General GMC Trucks v. Crockett, 145 Ga. App. 503 (2) (244 SE2d 78) (1978). As these latter damages, as established by the amount of her lease payments, clearly totaled well over $1,000, we hold that the jury’s award was supported by the evidence.

Decided December 5, 1990

Rehearing denied December 17, 1990.

Christina K. Cooley, Daniel L. Dean, for appellant.

Carol D. Sweet, Neely & Player, Ronald D. Reemsnyder, for appellee.

3. The appellant contends that there was no evidentiary basis for the award of litigation expenses. The jury based its award of litigation expenses on an express finding that the appellant had acted in bad faith in connection with the transaction, and the award must be affirmed if there is any evidence to support that finding. See Harrell v. Gomez, 174 Ga. App. 8, 11 (6) (329 SE2d 302) (1985). See generally OCGA § 13-6-11. There was evidence in this case from which the jury could have determined both that the $1,700 repair job performed by the appellant was necessitated by its own prior failure to correct the coolant loss problem and these repairs also failed to correct the problem. Based on this evidence, we hold that the jury was authorized to conclude that the appellant had acted in bad faith in charging the appellant for these repairs.

4. Citing authority to the effect that the correct measure of damages for breach of a contract to repair an automobile is the cost of repairing the vehicle rather than the loss in market value caused by the breach, see Simmons v. Boros, 255 Ga. 524 (341 SE2d 2) (1986), the appellant contends that the trial court erred in giving the appellee’s requested charge that “one need not be an expert or dealer in an article of personal property such as a car but may still testify as to its value if he has had opportunity for forming a correct opinion.” As an abstract statement of law, this charge was, of course, correct. See OCGA § 24-9-66. Because the trial judge did not suggest to the jury that it would be entitled to award damages based on loss in market value rather than the cost of repairing the vehicle, and as it has not been suggested that any evidence was introduced from which the jury might have calculated an award of damages based on loss in market value, we conclude that any error the court may have committed in giving this charge was harmless.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A90A1947.
    FIRST UNION NATIONAL BANK OF GEORGIA v. FLOYD et al.
    (400 SE2d 393)
   Pope, Judge.

By mistake, the defendant in this case allowed the complaint to go into default. The initial mistake evolved into what may be considered a procedural nightmare.

Thomas Marvin Floyd, Sr., now deceased, held a joint checking account with his wife as well as a safety deposit box at the Pine Mountain branch of defendant First Union National Bank of Georgia. On June 30, 1988 plaintiff Cindy F. Smith, decedent’s granddaughter, presented the bank with what she purported to be a power of attorney in her favor signed by the decedent. Out of concern for the validity of the document, defendant bank refused to honor plaintiff’s request to liquidate the account and give her access to the lock box. Later in the day, decedent’s wife withdrew the funds in the checking account and gained access to the lock box. Plaintiffs Smith and Thomas F. Floyd, Jr., as co-executors of the deceased’s estate, filed suit against the widow for conversion. That suit was settled. A separate action, out of which this appeal arose, was filed against the bank for conversion seeking actual damages as well as punitive damages and attorney fees for the bank’s alleged wrongful refusual to honor the power of attorney.

The complaint was served on the manager of defendant bank’s Pine Mountain branch. The local officer forwarded suit papers to defendant’s legal department in Atlanta. Responsive pleadings were not timely filed and the trial court entered a default judgment against the bank as to liability, preserving the issue of damages for trial.

Since the entry of the default judgment, defendant bank has filed three separate motions to open the default. The order denying the initial motion, entered March 8, 1989, states that “the record of the case as it stands does not show a proper case in which to open a Default.” Before the initial motion was ruled upon, defendant filed another motion entitled “Motion to Open Default and Motion to Withdraw and/or Amend Statutory Admissions,” requesting the court not only to open default and permit it to file a timely answer to the complaint but also to permit it to respond to plaintiffs’ requests for admissions, which were filed with the complaint but were also untimely answered. Because the trial judge who denied the initial motion had, within the same order, recused herself from further involvement with the case, the second motion was ruled on by a second judge who, on June 20, 1990, granted a hearing on defendant’s motion to withdraw its statutory admission to plaintiffs’ requests for admissions but denied, without explanation or discussion, the renewed motion to open default. Defendant was ultimately permitted to withdraw its statutory admissions and to file a written response to plaintiffs’ requests by consent order dated June 30. Once the written responses were made part of the record, defendant moved a third time to open the default judgment and a third time it was denied. It is from this third denial, entered October 23, 1989, that the defendant filed a motion for interlocutory appeal which this court denied.

1. This appeal was initiated when the plaintiffs filed a timely notice of appeal after their motion for interloctory appeal was granted. On the same day defendant filed a notice of cross-appeal. Plaintiffs’ appeal was subsequently dismissed, not for lack of jurisdiction but by voluntary withdrawal by the plaintiffs. Because this court properly had jurisdiction of plaintiffs’ appeal it also had jurisdiction of the cross-appeal which was filed before the appeal was withdrawn. Pursuant to OCGA § 5-6-48 (e), dismissal of the appeal does not affect the validity of a cross-appeal. It is only when the appeal is dismissed for lack of jurisdiction that a cross-appeal which does not have an independent ground for jurisdiction must also be dismissed. See Jones Roofing &c. Co. v. Roberts, 179 Ga. App. 169 (345 SE2d 683) (1986). Unlike the jurisdictional posture in Jones, this court was vested with jurisdiction of the appeal and the saving provision of OCGA § 5-6-48 (e) preserves defendant’s right to proceed with the issues raised in the cross-appeal even though the plaintiffs have voluntarily withdrawn the issues they raised on appeal. The holding in Jones does not apply to this case and defendant’s cross-appeal should not be dismissed.

2. Only the third of the three orders denying the opening of default is at issue in defendant’s enumeration of error. We reject plaintiffs’ argument that defendant’s renewed motion to open default was improper pursuant to this court’s holding in Sears v. Citizens Exchange Bank of Pearson, 166 Ga. App. 840 (305 SE2d 609) (1983). In that case we recognized that a party may move for reconsideration of an order denying opening of default but that the motion should be brought before the same judge who ruled on the initial motion and the party should not be allowed to “judge shop” in an effort to find a judge who will arrive at a different discretionary ruling than the first. However, the fact that a different judge was petitioned after the initial ruling against defendant was, in this case, not due to judge shopping but to the fact that the first judge recused herself from further involvement with the case. Thus, the renewed motion was not improperly filed in this case.

Defendant argues that the second trial court judge, in ruling on the second and third motions to open default, relied upon an erroneous interpretation of the first judge’s reason for denying the motion, erroneously assumed he was bound by the first judge’s ruling as the law of the case and failed to exercise his own discretion in ruling on the third motion at issue in this appeal. It matters not what the reasons were for the denial of the first motion because, in our opinion, the defendant never set forth sufficient facts to establish any ground for opening the default.

Pursuant to OCGA § 9-11-55 (b), the trial court, in its discretion, may allow the default to be opened for providential cause, excusable neglect or, “as if reaching out to take in every conceivable case where injustice might result if the default were not opened, the section goes on to say, where the judge from all the facts shall determine that a proper case has been made. (Cits, [and punctuation] omitted.) Becker v. Fairman, 167 Ga. App. 708, 710 (2) (307 SE2d 520) (1983).” Cryomedics, Inc. v. Smith, 180 Ga. App. 336, 337 (349 SE2d 223) (1986). Here defendant’s explanation for its failure to answer the complaint within the statutory time is because the bank’s headquarters in Atlanta forwarded the complaint to an attorney by mail but the attorney never received it. Because of the many methods which now exist for communicating and transmitting documents, exclusive reliance on the postal service for communicating the existence of a legal complaint between client and attorney is insufficient to show providential cause or excusable neglect. Truck & Trailer Sales Corp. v. East Coast Transp. Co., 141 Ga. App. 85 (232 SE2d 578) (1977).

We cannot hold that as a matter of law the trial judge in this case could not have found, in his broad discretion, that the explanation offered by defendant nevertheless made a “proper case” for opening the default. However, according to the statute, the showing of a proper ground for opening default “shall be made under oath. . . .” OCGA § 9-11-55 (b). The only evidence offered by defendant to show cause for opening the default is an affidavit of the branch manager who gives hearsay testimony concerning what happened to the complaint once it was forwarded to the bank’s Atlanta headquarters. Plaintiffs raised an objection to the hearsay evidence in their timely response to defendant’s first motion. Although defendant renewed the motion twice, it never submitted additional admissible evidence to explain the delay in answering the complaint. Thus, the only admissible testimony offered in support of any of defendant’s motions is that the complaint was forwarded to the bank’s Atlanta headquarters. This is insufficient to establish any ground for opening the default. Even the broad “proper case” ground does not vest the trial court with discretion to open a default for reasons which fall short of a reasonable excuse for failure to answer. See Early Co. v. Bristol Steel &c. Works, 131 Ga. App. 775 (206 SE2d 612) (1974). The trial court did not err in denying defendant’s motion to open default.

3. The trial court erred, however, in granting plaintiffs’ motion in limine and ordering the defendant could not present evidence that plaintiffs have partially recovered their damages by settling their claim against the bank’s alleged joint tortfeasor in a separate lawsuit. Release of one joint tortfeasor no longer serves as a release of another joint tortfeasor. Posey v. Med. Center-West, 257 Ga. 55 (354 SE2d 417) (1987). Thus, evidence of the partial recovery from a joint tortfeasor would not serve to release defendant from liability for plaintiffs’ claims which defendant admitted by virtue of the default judgment. Where, as in the case at hand, the claim involves unliquidated damages, a defendant in default may nevertheless introduce evidence as to damages. See OCGA § 9-11-55 (a). The law does not permit a double recovery for an injury. Thus, defendant is entitled to credit for payment the plaintiffs have already recovered from the joint tortfeasor. See Malone v. City of Rossville, 107 Ga. App. 271 (1) (129 SE2d 563) (1963). In this case, evidence of the partial recovery from the joint tortfeasor is admissible because it relates only to the amount of damages which may be recovered from defendant and does not serve to relieve defendant of liability which it has already admitted by virtue of the default judgment. Cf. Fulton County Hosp. Auth. v. Hyman, 189 Ga. App. 613 (4) (376 SE2d 689) (1988) and Whitby v. Maloy, 150 Ga. App. 575 (1) (258 SE2d 181) (1979) (in which this court held evidence which relates to the amount of damages is inadmissible in the trial of a default judgment if at the same time it tends to suggest comparative or contributory negligence) and Flanders v. Hill Aircraft &c. Corp., 137 Ga. App. 286 (223 SE2d 482) (1976) (in which evidence in a default judgment case was held to be inadmissible because it related not only to the amount of damages to be recovered by the plaintiff but also to the issue of proximate cause of plaintiff’s injuries, an issue which was admitted by default). The defendant should be permitted to present evidence of plaintiff’s partial recovery of damages from a joint tortfeasor.

Decided December 5, 1990

Rehearing denied December 17, 1990

Wallace K. Askew, Troutman, Sanders, Lockerman & Ashmore, Herbert D. Shellhouse, for appellant.

James W. Wallis, Jr., Kenneth A. Smith, for appellees.

Judgment affirmed in part and reversed in part. Motion to dismiss cross-appeal denied.

Deen, P. J., concurs dubitante. Beasley, J., concurs in judgment only.


text:
    A90A0792.
    ALLEN v. WOMETCO CABLE TV OF CLAYTON COUNTY, INC.
    (400 SE2d 362)
   Pope, Judge.

Appellant/plaintiff Richard F. Allen appeals the entry of judgment notwithstanding the verdict in favor of appellee/defendant Wometco Cable TV of Clayton County, Inc. (Wometco) in this malicious prosecution action. The record shows that Allen rented a downstairs apartment at the Chateau Forest Apartments from April 1986 through September 1986. Allen, an executive with the Federal Aviation Administration, had transferred to Atlanta and was in the process of moving his family from Tampa to Atlanta. He stayed at the apartment as he looked for a house to purchase.

In late August 1986, Bret Bergsten, a service technician for Wometco, installed a “jump-out” cable just outside the apartment occupied by Allen. A “jump-out” cable is a temporary cable that lies above ground and replaces a defective underground cable until repairs can be made to the underground cable. On September 5, 1986, Bergsten was again at the Chateau Forest apartments; he noticed other Wometco employees in the area where he installed the “jump-out” cable earlier. Wometco employees Bob Matthews and Robert Lassiter showed him a “splitter” device made by Archer and sold by Radio Shack spliced into the “jump-out” cable. Bergsten testified he had not installed such a device on the “jump-out” cable the week before and that Wometco did not use equipment made by Archer or sold by Radio Shack.

Matthews testified he discovered the “splitter” as he investigated a poor signal complaint registered by a Wometco subscriber. He followed the wire leading from the Wometco cable and found that it entered the wall of Allen’s apartment through a hole drilled into the brick. Matthews cut the “splitter” and placed a fitting on the wire leading from the outside wall of Allen’s apartment, tested the wire and determined that the wire was receiving a Wometco signal. Matthews then checked with Wometco’s office and learned that no one at Allen’s address was a legal subscriber of Wometco’s cable service. Matthews knocked on the door of the apartment and got no answer. He then worked through the bushes next to the wall under the window and peered into Allen’s apartment and tugged on the wire leading into the hole. Inside, he could see the wire move along the wall as he pulled on the wire outside the apartment. He could see a television set about four feet from the point in the wall he estimated the wire entered the apartment.

Lassiter joined Matthews at the scene. Both men knocked on the apartment door and got no answer. They contacted the Riverdale police and Sergeant Glover responded. The three of them contacted the resident manager and determined that Allen was the lessee of the apartment. The manager denied their request to enter the apartment. On the basis of these facts, Lassiter applied on behalf of Wometco for an arrest warrant for theft of services against Allen. It was granted and Allen was arrested, taken to jail and booked. He posted bond and later a magistrate dismissed the case against Allen.

Allen testified he had tried to hook his television to one wall outlet in the apartment, but got no signal. He then hooked the television to another wall outlet and got a picture. He testified that the television was on the wall opposite the location Matthews said he saw it. Allen denied that any cable came through the wall of his apartment. However, he never looked to see if any cable led from outside into the wall of his apartment. Held:

We affirm. “As with a directed verdict, a motion for judgment notwithstanding the verdict is proper only where 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. In applying this standard, the appellate court must view the evidence in a light most favorable to the party securing the jury’s verdict.” (Punctuation and citations omitted.) Gordon v. Frost, 193 Ga. App. 517, 518 (1) (388 SE2d 362) (1989).

Lack of probable cause to prosecute is the essential element of an action for malicious prosecution. See Day Realty Assoc, v. McMillan, 247 Ga. 561 (277 SE2d 663) (1981). “Plaintiff has a particularly heavy burden in malicious prosecution cases because of the countervailing public interest in encouraging the citizen to discharge his duty to society to vindicate violations of law. The courts have always distrusted malicious prosecution actions, and have retained a strong hand over them. For this reason the existence of probable cause, which involves only the conduct of a reasonable man under the circumstances, and does not differ essentially from the determination of negligence, usually is taken out of the hands of the jury, and held to be a matter for decision by the court.” (Punctuation and citations omitted.) K Mart Corp. v. Griffin, 189 Ga. App. 225, 226 (375 SE2d 257) (1988). “What facts and circumstances amouht to probable cause is a pure question of law. Thus, although lack of probablé cause shall be a question for the jury, under the direction of the court, OCGA § 51-7-43, this is not without qualification. For if the material facts are essentially undisputed, whether or not probable cause existed is for determination by the court.” (Punctuation and citations omitted.) Id. at 226-227.

The material facts in this case are essentially undisputed. Employees of Wometco found a device attached to one of the company’s cables that intercepted its signal and diverted it through a wire into the apartment belonging to Allen. The employees followed the wire from the point of intercept into a hole through the exterior wall of Allen’s apartment. An employee observed the wire inside the apartment move when he pulled on the wire outside the apartment. An electronic test on the wire outside showed that a signal from Wometco was being received inside. Although there is some dispute about whether the drapes of the apartment were open or closed, Matthews, the service technician for Wometco, was unequivocal in stating that he looked into the apartment. Matthews, Lassiter, Bergsten and Glover all testified that the wire attached to Wometco’s cable led into the wall of Allen’s apartment. Wometco employees asked that the apartment manager allow them to go into the apartment to investigate, but the request was refused. As noted by the trial court, Allen testified he never bothered to look after his arrest to see if a cable was entering the exterior wall of his apartment. Under these facts, we hold Wometco had probable cause to believe its cable service was being wrongfully appropriated by Allen. The trial court did not err in granting judgment notwithstanding the verdict. In light of our holding, we need not reach Allen’s remaining enumeration of error regarding prejudgment interest.

Decided December 3, 1990

Rehearing denied December 18, 1990

Albert B. Wallace, Carl. A. Adcock, for appellant.

Chambers, Mabry, McClelland & Brooks, Arthur L. Myers, Jr., for appellee.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


text:
    A90A0836.
    HARVEY v. McLAUGHLIN et al.
    (400 SE2d 635)
   Pope, Judge.

Plaintiff Chmaine Harvey brought this action against her former employer, defendant/appellee Fox-Morris Associates, Inc. (Fox-Morris) and defendant Paul McLaughlin contending, inter alia, that she was sexually harassed by McLaughlin while she was employed at Fox-Morris and that both McLaughlin and Fox-Morris are liable to her for the damages she suffered as the result of this harassment. The trial court granted Fox-Morris’ motion for summary judgment and plaintiff appeals. We reverse.

The record shows that plaintiff was employed by Fox-Morris at its Atlanta office as a secretary/administrative assistant after she graduated from college in June 1987. Plaintiff was interviewed and hired by McLaughlin, who was the manager of the Atlanta office and plaintiff’s immediate supervisor.. According to plaintiff’s deposition testimony, McLaughlin repeatedly asked her to go out with him after she started working at Fox-Morris. Plaintiff stated the employees of Fox-Morris frequently socialized as a group after work but that she did not want to go out with McLaughlin alone because he was married. However, plaintiff said she eventually agreed to go out with McLaughlin “because [she] worked for him and [she] felt like [she] had to because he kept on asking [her]. ...”

Plaintiff testified she and McLaughlin went out once (for her birthday) without incident. However, when they went out a second time, McLaughlin continually talked about sex and, in graphic terms, his sexual relations with other women. Plaintiff stated she and McLaughlin left the bar together and drove back to Fox-Morris’ office parking lot where he attacked her, trying to pull up her dress and grab her underwear. Plaintiff said she had to hit McLaughlin to make him stop. McLaughlin apologized for the incident that night and again the next day, and asked plaintiff not to tell anyone. Plaintiff said she did tell a fellow employee but no one else at that time.

Plaintiff testified McLaughlin continued to ask her out after the incident, which occurred in September, but she refused to go out with him. Plaintiff testified that McLaughlin made inappropriate remarks to her, such as suggesting that she owed him a kiss in return for office furniture he purchased for her. The situation continued until late December when, according to plaintiff, McLaughlin talked to her in a very demeaning way, telling her she was very naive and not very smart. McLaughlin also criticized plaintiff for arriving at work late and receiving too many personal calls at work. Plaintiff opined at her deposition that McLaughlin’s criticisms were prompted by her refusal to go out with him, although she admitted she arrived late for work and received personal calls there. Plaintiff further testified that she was very upset after her conversation with McLaughlin and that she talked to Rebeccah Shepard, a fellow employee, about her conversation with McLaughlin and told Shepard about the earlier incident in September. Shepard, who had supervisory responsibilities over some of the employees in the Atlanta office, informed Harvey Brooks, the executive vice-president and chief operating officer of Fox-Morris, of the incident. Tom Glynn, president of the corporation, came to Atlanta to talk with plaintiff. Plaintiff repeated her story to Glynn, who also questioned McLaughlin about the incident. McLaughlin was then relieved of his managerial duties and moved to another office, where he worked alone. Plaintiff said she had no further problem with McLaughlin after that time, although she did see him on several occasions when he came into the Perimeter Center office. Plaintiff testified, however, that she eventually sought other employment because she was upset and depressed and found it difficult to continue working at Fox-Morris because of the unpleasant manner in which she was treated by some of the other employees in the office.

1. (a) Plaintiff first contends that Fox-Morris knew or reasonably should have known of McLaughlin’s reputation for sexual harassment. “ ‘A cause of action for negligence against an employer may be stated if the employer, in the exercise of reasonable care, should have known of an employee’s reputation for sexual harassment and that it was foreseeable that the employee would engage in sexual harassment of a fellow employee but he was continued in his employment. [Cit.]’ [Cits.]” Favors v. Alco Mfg. Co., 186 Ga. App. 480, 483 (3) (367 SE2d 328) (1988). In this case it is undisputed that the principals of Fox-Morris had no actual knowledge concerning inappropriate sexual conduct by McLaughlin directed towards other employees until they received notice of the incident giving rise to this lawsuit. The question then becomes whether Fox-Morris, in the exercise of reasonable care, should have known of any alleged misconduct on McLaughlin’s part of a sexually harrassing nature. “The issue in cases of this kind is knowledge or reason to know, not complaints. An employer may know, or in the exercise of due care have reason to know, of an employee’s reputation for sexual harassment in the absence of complaints.” Id. at 483.

As to this issue, the record shows Fox-Morris submitted both affidavits and deposition testimony from other employees of the Atlanta office, in which the witnesses stated they were unaware of any prior similar occurrences or instances involving McLaughlin, that such behavior was out of character for McLaughlin and that McLaughlin did not have a reputation for sexual harassment. Additionally, Fox-Morris submitted the affidavit of Harvey Brooks, who testified he had met with McLaughlin on seven or eight occasions, and that on those occasions McLaughlin always conducted himself in a competent and professional manner. Brooks further averred he had met with most of the employees of the Atlanta office and that prior to the incident involving plaintiff no one had ever made any complaint concerning McLaughlin. Tom Glynn testified by way of deposition and affidavit that he had no knowledge from any source concerning McLaughlin’s improper conduct and that he was unaware of other incidents of sexual harassment involving McLaughlin. Plaintiff, herself, testified that although McLaughlin sometimes made crude statements of a sexual nature at work, prior to the incident in September McLaughlin had never made improper insinuations or used language she found offensive, and that she knew of no prior similar incidents involving McLaughlin. Plaintiff also confirmed that the corporate officers did not know of any incidents involving McLaughlin.

In opposition to Fox-Morris’ motion for summary judgment, plaintiff submitted affidavits from former employees of Fox-Morris who averred that McLaughlin had engaged in sexually harassing and intimidating conduct towards other female employees in the office, including the use of lewd and obscene language, touching female employees in an inappropriate manner, and implying that female employees should go out with him as a part of their job. Testimony was presented by way of affidavit that McLaughlin’s conduct was known generally by the other employees of the office and that the incident involving plaintiff was not an isolated event in that McLaughlin had been involved in similar circumstances involving sexual harassment.

Although a jury may be authorized to conclude that Fox-Morris is not liable to plaintiff under the circumstances of this case, we cannot say, based on the evidence of record, that Fox-Morris was entitled to judgment as a matter of law. In so holding, we are persuaded both by the conflicting evidence and the fact that, although Fox-Morris did not know of McLaughlin’s conduct, the record shows no formal grievance procedure existed through which an employee could air complaints of sexual harassment. “In assessing an employer’s responsibility and potential liability, federal courts have considered factors such as: whether the employer had an express policy discouraging unlawful discrimination, provided a mechanism by which employees could complain, and promptly responded to the complaints. [Cit.] Similar principles should be applied in actions brought in this State.” Coleman v. Housing Auth., 191 Ga. App. 166, 170-171 (2) (381 SE2d 303) (1989). “ ‘On a motion for summary judgment the evidence must be construed most strongly against the movant, and the party opposing the motion is entitled to all inferences that may fairly and reasonably be drawn in support of his case. [Cit]’ [Cit.] Giving the plaintiff, the party opposing [Fox-Morris’] summary judgment motion, the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence, [we find that genuine issues of material fact remain concerning whether the employer should have known of McLaughlin’s alleged reputation for sexual harassment.]” Favors, supra at 483. See also Newsome v. Cooper-Wiss, Inc., 179 Ga. App. 670 (3) (347 SE2d 619) (1986).

(b) Plaintiff also contends that issues of fact remain as to whether McLaughlin was a “vice-principal” of Fox-Morris, thereby allowing his knowledge to be imputed to the corporation. We find no merit to this argument. “[T]he test as to whether a servant is a vice-principal or a fellow servant does not depend upon his title, or his grade, or the character of the work that he is engaged in, but it depends upon the act which he is doing which results in the injury.” Moore v. Dublin Cotton Mills, 127 Ga. 609, 623 (56 SE 839) (1906). As plaintiff’s own complaint states, the conduct of the employee here “was performed for purely personal reasons and did not arise as an actual incident of [plaintiff’s] employment.” Since it is clear that MeLaughlin was not “acting for” the employer in this case, summary judgment was properly granted as to this theory of recovery.

Decided October 16, 1990

Rehearing denied December 18, 1990

Henning, Aitkens & Snellings, Stanely T. Snellings, for appellant.

Paul L. Hanes, Corinne M. Milsteen, Heyman & Sizemore, William B. Brown, for appellees.

(c) Plaintiff also argues that Fox-Morris condoned or ratified McLaughlin’s conduct because it failed to remove him from a supervisory position after it learned of his alleged sexual harassment of plaintiff and others and because it reimbursed him for expenses incurred on the night the incident involving plaintiff occurred. Contrary to plaintiff’s assertions, however, the record shows McLaughlin was removed from the office where plaintiff worked after Fox-Morris learned of the incident, and that although he was not terminated as an employee, he was immediately relieved of all supervisory or managerial duties. Likewise, although Fox-Morris initially reimbursed McLaughlin for his expenses, it did so only because McLaughlin submitted a falsified expense document and the corporation demanded repayment as soon as it learned the true nature of the expenses. Thus we find no merit to this argument.

2. For the reasons stated in Division 1 (a), questions of fact also remain as to whether Fox-Morris negligently failed to keep its work place free from sexual harassment.

Judgment reversed.

Deen, P. J., and Beasley, J., concur.


text:
    A90A0999.
    HYATT et al. v. BROYLES, DUNSTAN & DUNSTAN, P.C.
    (400 SE2d 665)
   Pope, Judge.

Appellee/plaintiff Broyles, Dunstan & Dunstan, P.C. (hereinafter “Broyles”) brought this action for breach of contract and fraud against appellants/defendants Ken C. Hyatt and Imperial Chrysler-Plymouth, Inc. d/b/a Ken Hyatt Chrysler-Plymouth (hereinafter “Hyatt”). The jury returned a verdict in favor of Broyles on the breach of contract claim in the amount of $14,310.75 and $5,600 in attorney fees. On the fraud claim, the jury awarded Broyles actual damages of $10,000 plus $190,000 in punitive damages.

1. Hyatt argues the trial court erred in denying his motion for directed verdict for lack of personal jurisdiction. Specifically, Hyatt argues he did not “transact business” in Georgia so as to subject himself to Georgia’s long-arm jurisdiction. We agree and reverse.

“Georgia’s Long Arm Statute [OCGA § 9-10-91] states that the courts of this State may exercise personal jurisdiction over any nonresident as if he were a resident of this State, if in person or through an agent he [in the words of OCGA § 9-10-91 (1)] ‘transacts any business within this State.’ This has been interpreted to mean that purposeful acts must have been performed by the defendant to tie it to the State, and mere telephone or mail contact with an out-of-state defendant, or even the defendant’s visits to this state is insufficient to establish the purposeful activity with Georgia required by the Long Arm statute. The United States Supreme Court has held that an individual’s contract with an out-of-state party alone cannot automatically establish sufficient minimum contacts in the other party’s home forum, and that the contract is ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction. It is these factors — prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing — that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.” (Punctuation and citations omitted.) Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga. App. 892, 893 (1) (380 SE2d 303) (1989).

Larry Broyles, a partner in the law firm of Broyles, Dunstan & Dunstan, P.C., and who is admitted to practice in both Georgia and South Carolina, was retained by Hyatt to represent both the man and the corporation in connection with the sale of Hyatt’s car dealership in Columbia, South Carolina, including representing Hyatt before the South Carolina Department of Consumer Affairs regarding complaints against the dealership for false advertising that had to be cleared up before the sale could occur. Broyles also was retained to represent Hyatt personally in connection with a dispute regarding title to land located in South Carolina. Although initial contact with Broyles was made at his office in Augusta, Georgia, he was not formally retained until an April 19, 1988, meeting with Hyatt at his dealership in Columbia, South Carolina. Hyatt testified the reason he chose Broyles to do the work was because he did not want everybody in Columbia to know about the sale of the dealership.

Thus, in this case, a South Carolina resident and a South Carolina corporation doing business in Columbia, South Carolina retained an attorney whose office is in Augusta, Georgia to represent them in matters relating to the sale of the South Carolina business, in connection with a possible suit over title to South Carolina land and in connection with proceedings before the South Carolina Department of Consumer Affairs defending alleged violations of South Carolina law. Although initial contact with the attorney about representation was made in his office in Georgia, formal retention of the attorney did not occur until the parties met in Columbia, South Carolina. Hyatt did visit Broyles’ office once to participate in a three-and-one-half hour telephone negotiating session with an attorney in Detroit who represented the Florida buyer regarding the dealership sales agreement.

Based on these facts, we hold that Hyatt did not have minimum contacts with Georgia sufficient to allow the superior court to exercise personal jurisdiction over Hyatt in this case. We find persuasive the case of Amins v. Life Support Med. Equip. Corp., 373 FSupp. 654, 656 (4) (E.D.N.Y. 1974). In Amins, a New York patent attorney attempted to sue his Massachusetts client in New York pursuant to that state’s long-arm statute for non-payment of his fee. The court held that there was insufficient contact with New York to invoke personal jurisdiction in that state. The court in Amins found that the attorney was retained in Massachusetts, that he performed a substantial amount of the work at his office in New York and had met with the Massachusetts client in New York about the matter on several occasions, though never at the attorney’s office. However, the court found that the Massachusetts client had never acted to purposefully avail itself of the privilege of conducting business in New York, thus invoking the protection and privileges of New York law. Id. at 658. In Amins, the services performed had to do with patents, a matter of federal law, and the location of the attorney’s office in New York was not a factor in the representation.

In the present case, the location of Broyles’ office in Georgia was incidental to the representation other than for the fact that it was not in Columbia. Broyles has not shown that he was selected because he was a Georgia lawyer. The subject matters of the representation all had to do with South Carolina property, or South Carolina law. No application or interpretation of Georgia law was involved. The only activity performed by Hyatt in Georgia was the meeting in Broyles’ office. The subject of that meeting was the contract to be performed in South Carolina, negotiated by telephone with a Detroit attorney representing a Florida purchaser. Nothing in this activity caused Hyatt to purposefully avail itself of the privileges or protection of Georgia law. The fact that Broyles performed much of the legal work pursuant to the contract in Georgia does not change the result. As the court in Amins noted, a lawyer cannot rely on his own activities within the forum as a substitute for purposeful activity by his client to establish jurisdiction. Amins, supra at 658. Nor does the alleged fraud give rise to jurisdiction because the representations upon which the fraud action rests were made in South Carolina. The trial court erred in failing to grant the motion for directed verdict for lack of personal jurisdiction. See also Wise v. State Bd. &c. of Architects, 247 Ga. 206 (2) (274 SE2d 544) (1981).

2. Because of our ruling in Division 1, we need not reach appellant’s remaining enumerations of error.

Judgment reversed.

Deen, P. J., and Beasley, J., concur.

Decided December 4, 1990

Rehearing denied December 18, 1990.

Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, Debra A. LeVorse, Lance D. Lourie, for appellants.

Surrett, Walker, Creson & Colley, Carl J. Surrett, Mark L. Wilhelmi, for appellee.


author: Deen, Presiding Judge. Beasley, Judge,

text:
    A90A1124.
    A90A1382.
    PIZZA HUT OF AMERICA, INC. v. HOOD et al. CLARKE COUNTY v. HOOD et al.
    (400 SE2d 657)
   Deen, Presiding Judge.

On May 22, 1988, Pizza Hut of America, Inc., sponsored a picnic for its employees and their families at a Clarke County park. Employee Melvin Hood, Jr., drowned in a lake at the park during the picnic. Hood’s parents and the administrator of Hood’s estate sued Pizza Hut and Clarke County. Pizza Hut appeals from the trial court’s grant of partial summary judgment for the plaintiffs on Pizza Hut’s defense that the Workers’ Compensation Act provided the exclusive remedy. Clarke County appeals from the denial of its motion for summary judgment based on its defense of sovereign immunity.

Case No. A90A1124

1. Recreational or social activities are within the course of employment, and thus subject to the Workers’ Compensation Act if, (1) they occur on work premises during a lunch or recreation period as a regular incident of employment, or (2) employee participation is required, either expressly or by implication, or (3) the employer derives a substantial benefit from the event beyond the improvement in employee health and morale that is common to all kinds of recreational or social activities. Crowe v. Home Indem. Co., 145 Ga. App. 873 (245 SE2d 75) (1978). The Pizza Hut picnic did not occur on work premises, and although employee attendance was encouraged, it was not required. Accordingly, the first two possible bases for workers’ compensation coverage are absent in the instant case. Pizza Hut contends coverage applies under the third base because the picnic was more than just a morale and health booster for employees, but also had the purpose of promoting its new product of traditional hand-tossed pizza and recruiting and maintaining employees. There is no evidence in the record that Pizza Hut made any effort at the picnic to promote a new product. The only possible benefit that Pizza Hut could have hoped to derive from the function was improvement in employee health and morale. Employers generally attempt to boost employee morale not only for morale’s sake, but for the benefits to the company resulting from better employee morale. These inestimable benefits, however, are not of the kind that subjects an employer-sponsored recreational or social activity to the Workers’ Compensation Act. The trial court properly granted partial summary judgment for the appellees.

Case No. A90A1382

2. In 1986 Clarke County specifically decided against purchasing liability insurance for claims against the county and its employees, agents and officers. At the time of Hood’s drowning, Clarke County’s policy was to defend against and pay such claims from a “Self-Funded Insurance Internal Service Fund.” Apparently on the basis that this allocation of funds constituted a self-insurance plan that waived sovereign immunity, the trial court denied Clarke County’s motion for summary judgment on that defense.

The Supreme Court has recently held that “under the statutes dealing with liability insurance for government employees and officials [OCGA § 45-9-1 et seq.], only state self-insurance plans will waive sovereign immunity. There is no provision for a county to set up a self-insurance plan.” Logue v. Wright, 260 Ga. 206, 209 (392 SE2d 235) (1990). Consequently, Clarke County’s “Self-Funded Insurance Internal Service Fund” was not a self-insurance plan that could waive sovereign immunity, and Clarke County was entitled to summary judgment on that issue.

Judgment affirmed in Case No. A90A1124. Corley,

C. J., McMurray, P. J., Banke, P. J., Birdsong, Pope and Cooper, JJ., concur. Sognier and Beasley, JJ., dissent. Judgment reversed in Case No. A90A1382. Carley, C. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope, Beasley and Cooper, JJ., concur.

Beasley, Judge,

dissenting in Case No. A90A1124.

There is no genuine issue of material fact that the employee’s involvement in the company picnic “arouse out of” and was “in the scope of” his employment. Workers’ compensation should be the exclusive remedy in this case.

Why was young Hood at the park when he drowned? The following is undisputed.

Melvin Hood was a dishwasher, cleaner, odd job performer, and salad bar maintainer at the Pizza Hut restaurant. He drowned at a company picnic. Swimming had not been advertised, but it was permitted.

The idea of the picnic was conceived by the area manager. Its purposes were to emphasize to employees the importance of a new product so as to promote its sales, to provide a fringe benefit of recreation for employees and their families, and to act as a recruitment and retention incentive. The event was designated the “Athens Area 1988 Makin-It-Great picnic and softball games.” The invitation stated: “We want to kick off hand-tossed traditional pizza with a Spring blast! Come out for a great time.”

Management planned, arranged, and paid for the event and sent park tickets, maps, and an invitation to each of its area restaurants. The map indicated that Pizza Hut signs would be displayed. Management organized the food set-up and presided over softball games, which were organized at prescribed times. Management controlled the picnic and the activities.

All employees were invited. Attendance was strongly encouraged although not required. Work schedules of those desiring to attend were manipulated so they could do so. Those who did not care to attend worked instead if they agreed to, and split shifts accommodated others. Pay was not affected by attendance or non-attendance. Management made transportation arrangements in some instances.

Do these circumstances conclusively mean that Melvin Hood’s death arose out of and in the course of his employment? OCGA § 34-9-1 (4).

Melvin Hood was obviously at the picnic because he was an employee of Pizza Hut, although it was on his own time, and he was not obligated to attend. The event was fully sponsored by his employer in its capacity as employer. The rationale for the picnic was for more than employee morale; it was manifestly driven by goals of promoting a new product and thereby increasing sales as well as retaining a stable work force. These were direct benefits to the employer.

In considering the facts here over against the facts in other company-sponsored picnic cases discussed in 1A Larson, The Law of Workmen’s Compensation, 5-121, § 22.23 (a) (1990 Rev.), and cases cited by the parties, as well as the principles set forth in Larson and the two closest cases in Georgia (Crowe v. Home Indem. Co., 145 Ga. App. 873 (245 SE2d 75) (1978), and City Council of Augusta v. Nevils, 149 Ga. App. 688 (255 SE2d 140) (1979)), I conclude that the law of workers’ compensation applies so as to entitle Pizza Hut to summary judgment. OCGA § 34-9-11. The activity was sufficiently work-related, the activity was totally initiated, paid for, and controlled by employer’s agents, and the employer derived more than mere morale-engendering benefits such as would arise from any recreational activity. It appears clear that the primary moving force for the picnic was to “have achieved . . . economic [and] business benefit from the [picnic].” City Council of Augusta, supra at 689.

Decided November 27, 1990

Rehearing denied December 18, 1990

Blasingame, Burch, Garrard & Bryant, E. Davison Burch, Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., for appellant (case no. A90A1124).

Nicholson & McArthur, John R. Nicholson, Drew, Eckl & Farnham, Theodore Freeman, Phillip E. Friduss, for appellant (case no. A90A1382).

Winburn, Lewis & Barrow, Gene Mac Winburn, John J. Barrow, for appellees.

This is in keeping with Georgia’s policy of liberal construction of workers’ compensation coverage. Gulf American &c. Co. v. Taylor, 150 Ga. App. 179, 180 (257 SE2d 44) (1979).

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


text:
    A90A1168.
    GOLDEN v. GEORGIA BUREAU OF INVESTIGATION.
    (400 SE2d 668)
   Pope, Judge.

We granted this discretionary appeal to consider whether the trial court correctly denied appellant Don C. Golden’s application to present additional evidence pursuant to OCGA § 50-13-19 (f) and whether there was sufficient evidence to support Golden’s termination by appellee Georgia Bureau of Investigation (GBI). Golden was terminated by the GBI in April 1986 as a result of his conduct in connection with a traffic accident in Rockdale County on February 25, 1986. The termination was upheld in an initial decision by a hearing officer of the State Personnel Board; that decision was affirmed by the State Personnel Board on November 19, 1986. Golden filed his appeal with the superior court on December 18, 1986. The superior court affirmed the termination in an order entered December 21, 1989. We then granted this discretionary appeal.

The record shows that Golden was employed as a GBI agent. On the evening of February 25, 1986, Golden met other GBI agents at a bar in downtown Atlanta. He stayed there from 6:00 p.m. until approximately 10:00 p.m. Driving a State of Georgia vehicle, Golden left the bar to go home. As he drove on 1-20, proceeding east, Golden’s car ran into the rear of a car driven by Charles S. Dyer. Dyer testified that he was travelling about 55 miles per hour when he was hit. Dyer’s car spun around and flipped over, coming to rest on an embankment. Upon stopping, Golden did not go to Dyer’s car to check on him or to give aid. Instead, he stood behind Dyer’s car and urinated on the ground. When Officer Nally of the Rockdale Sheriff’s Department asked Golden for his license, Golden told him it was in the car and that he was a GBI agent. Nally found a license in the name of Don Canary (this was a fake license used by Golden in undercover work); Nally asked Golden if he were Canary and Golden indicated yes. Officers Nally and Claborn and State Trooper Hays all were at the scene and observed Golden. All testified that he had a strong odor of alcohol about him and that he appeared intoxicated. Emergency Medical Technician Diane Irvin tried to treat Golden at the scene and on the way to the hospital. She testified that his actions were consistent with someone who had a head injury or who was drunk. State Trooper Hays and GBI agents House and Ingram each saw a glass and melting ice cubes and spilled liquid that smelled of alcohol in Golden’s car. At the hospital, House and Ingram observed Golden. Each said he had a strong odor of alcohol about him and each testified that he was very intoxicated. At the hospital, Golden told House that he did not have the whole picture, that there were other cars involved in the accident. The booking officer at the Rockdale County Jail described Golden as still smelling of alcohol and appearing intoxicated at 2:05 a.m. Golden refused to take any blood test or to take any intoximeter test. He posted bond of $1,200 with State of Georgia funds in his possession for use in connection with undercover work. These funds are called PEPI funds in the record. Later, Golden lied to his superior about using these funds to post bond.

The hearing officer found that in 1983 Golden was issued a written reprimand by then Director, Investigative Division, Robbie Ham-rick (now Director of the GBI) for conduct involving drinking and the use of a state vehicle. In the reprimand, Hamrick informed Golden, “if I receive any other complaints concerning your drinking and operating a State vehicle, while drinking and identifying yourself as a GBI Agent or generally harassing other police officers, I will do everything possible to see that you are terminated from this Bureau.” In a detailed 21-page order including findings of fact and conclusions of law, the hearing officer found that the evidence supported Golden’s termination for driving a state vehicle while he was intoxicated, urinating in public, falsely identifying himself to law enforcement officers at the scene of the accident, using state funds to post bail and lying to superiors about the accident and about using state funds for posting bail. The hearing officer specifically considered and rejected Golden’s argument that his actions after the accident were caused by a head injury and not by intoxication. The hearing officer also considered Golden’s argument that the GBI improperly disposed of the vehicle Golden was driving, preventing him from examining it to determine if the accident was caused by an electrical malfunction with the car’s lights. The hearing officer found the issue of the car inspection irrelevant because even if events happened as Golden said, his actions were negligent and exhibited poor judgment and caused the accident. Golden testified that the lights went out on his vehicle and as he bent down to see if the wiring was loose, he struck Dyer’s car.

1. Golden argues that the superior court erred in denying his application for leave to present additional evidence pursuant to OCGA § 50-13-19 (f). Golden argues that he should be allowed to introduce the following additional evidence discovered in the course of subsequent litigation involving the GBI: (1) Statements by GBI agents Maryman and Neely and FBI agents Kennedy and Burke taken by GBI agent Hallman in connection with the GBI’s internal investigation. The statements are to the effect that Golden was seen by these men at the bar as late as 9:00 p.m. and that Golden was not intoxicated then; (2) a statement from Dyer, the driver of the vehicle struck by Golden’s vehicle that it appeared as if the lights on Golden’s vehicle came on suddenly; (3) a repair report for the vehicle driven by Golden indicating that the dash lights had been repaired shortly before the accident; (4) a statement from Emergency Medical Technician Irvin that Golden’s behavior in the ambulance was consistent with either a head injury or a drunk; (5) a medical record from the emergency room containing follow-up instructions for Golden with the instructions for head injuries circled. Golden also argues that the entire termination proceeding should be overturned and he should be reinstated because the GBI disposed of the vehicle involved.

OCGA § 50-13-19 (f) establishes a two-prong test that must be met before a superior court can grant an application for leave to present additional evidence. The evidence sought to be introduced must be material, and good reason for failure to present such evidence at the hearing must be shown. The superior court did not err in this case because in each instance the evidence either is not material, or was or could have been introduced at the hearing. The statements of the other agents at the bar the night of the accident to the effect that Golden was sober as late as 9:00 p.m. are clearly cumulative of testimony produced by Golden through other witnesses who saw him at the bar; those witnesses also could have been subpoenaed to testify at the hearing. The statement of EMT Irvin regarding a possible head injury adds nothing to her testimony at the hearing. Golden had ample opportunity to cross-examine her, and did, on her opinion of his condition the night of the accident. Similarly, Dyer testified at the hearing and was subject to cross-examination by Golden. Regarding the instruction sheet from the hospital, Golden could have subpoenaed the medical staff from the emergency room in which he was treated to testify about any head injury he may have suffered; however, he did not. He offers no excuse for this failure. Finally, we are not persuaded that the record regarding the repair of the vehicle is material. The hearing officer made a finding that even if Golden’s story of failure of the lights on the vehicle is taken as truth, it does not absolve Golden of responsibility for the accident or for his actions after the accident. Implicit in Golden’s argument seems to be the belief that if the initial accident is found to result from electrical problems on his car, the remaining testimony of no less than six law enforcement officers that he was intoxicated will disappear. At the hearing, Golden made a motion to the hearing officer that the proceeding be dropped because the GBI had disposed of the vehicle and deprived him of his rights. The hearing officer ruled that the vehicle did not appear relevant, but if at the conclusion of the hearing Golden felt the vehicle was relevant, he could renew his motion. Golden did not. Testimony was presented that the car had been relinquished by the GBI to the Department of Administrative Services as surplus property and that it was sold to a church group. In spite of evidence of the location of the car, Golden did not request time to inspect the car or ask the hearing officer to take any other action with regard to the car.

There is sufficient evidence in the record to support each of the findings of the hearing officer and his conclusion that the GBI was justified in terminating Golden. The superior court did not err in denying the application for leave to produce additional evidence.

2. Golden argues that the superior court erred in refusing to apply the principle of Wills v. Composite State Bd. of Medical Examiners, 259 Ga. 549 (3) (384 SE2d 636) (1989). In Wills, the Supreme Court held that a licensee facing revocation of his license had the right to ask the Board to provide him with any exculpatory material in its files relative to the formal complaint and the Board must furnish such material in the same manner as prescribed in Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). Assuming, without deciding, that Wills applies in the present case, Golden is not entitled to a reversal because he has not shown any prejudice in the failure of the State Personnel Board to provide him with the evidence he says was withheld. “To be subject to production under Brady, the evidence sought must be material and favorable. . . .” West v. State, 251 Ga. 458, 460 (306 SE2d 909) (1983). Brady applies to information known to the state but unknown to the defense. White v. State, 255 Ga. 210 (4) (336 SE2d 777) (1985). As discussed in Division 1, we find that the evidence sought was either immaterial, cumulative of other evidence, or known to or within Golden’s power to produce. Therefore, we find no error.

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.

Decided December 4, 1990

Rehearing denied December 18, 1990

Jones, Morrison & Womack, William A. Morrison, for appellant.

Michael J. Bowers, Attorney Genera), William B. Hill, Jr., Deputy Attorney General, Mark H. Cohen, Senior Assistant Attorney General, for appellee.


author: Deen, Presiding Judge.

text:
    A90A1914, A90A1915.
    PROVEAUX v. THE STATE (two cases).
    (401 SE2d 12)
   Deen, Presiding Judge.

Winston F. Proveaux appeals from his conviction of D.U.I. The evidence showed that Proveaux was driving his pick-up truck when he was stopped at a roadblock operated by the Georgia State Patrol. A trooper approached appellant’s vehicle, smelled alcohol on his breath, and noticed his bloodshot eyes and slurred speech. Proveaux took and failed an alcosensor test administered by the trooper, and admitted to the officer that he had consumed three beers. An Intoximeter-3000 test was administered at the Spalding County Sheriff’s Department and registered .16 grams percent.

1. Appellant first contends that the trial court improperly overruled his plea in bar. He filed a demand for a speedy trial on March 21, 1989, and was tried on July 17-18, 1989.

OCGA § 17-7-170, which implements the speedy trial provisions of the Georgia Constitution (Art. I, Sec. I, Par. XI), requires that the State try the accused at the term of court at which the demand is filed or the next regular term thereafter. If the State fails to try the defendant within these two terms of court, the accused “shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.” The practice and procedure rules for the state courts as set forth in OCGA § 15-7-43 (b) incorporate by reference the speedy trial provisions of OCGA § 17-7-170. Majia v. State, 174 Ga. App. 432, 433 (330 SE2d 171) (1985), aff’d 254 Ga. 660 (333 SE2d 834) (1975).

The State Court of Spalding County has four terms of court each year, which begin the first and second Mondays in March, the third and fourth Mondays in May, the first and second Mondays in August, and the first and second Mondays in November. Ga. L. 1980, pp. 3048, 3049. “The regular terms of the superior and state courts shall continue until the commencement of the next regular term, at which time they shall stand adjourned.” OCGA § 15-6-19. An extra trial week scheduled during a term of court does not create a new term of court because terms of court are created by statute. A special term is one that is called after the adjournment of a regular term and before the time for the next regular term. McGinnis v. Ragsdale, 116 Ga. 245 (42 SE 492) (1902). The state courts are required to conduct all trials on the merits at “trial terms regularly prescribed by local laws . . . creating the individual courts.”

Appellant filed his demand for speedy trial on March 21, 1989. He was not tried during the March term, and claims that he was tried at a special term of the court because his case was not called to trial until June 17, 1989. We disagree. The May term of court did not end until the first Monday in August (August 7, 1989). The trial court’s order indicates that appellant was tried prior to the second term of court, as required under Wilson v. State, 181 Ga. App. 337, 338 (352 SE2d 189) (1986). We find no error.

2. There is no requirement that the trial court allow a direct appeal from a frivolous and dilatory plea in bar. Rielli v. Oliver, 170 Ga. App. 699, 700 (318 SE2d 173) (1984). Here, as in Rielli, the trial court’s order contained a specific determination that the plea was frivolous and dilatory. We find no fault with the trial court’s ruling.

3. In his third enumeration of error, appellant contends that the trial court erred in overruling his plea in bar, which was based on the provisions of OCGA § 40-6-391 (b). He argues that OCGA § 40-6-391 (h) repeals OCGA § 40-6-391 (a) (1), (3) and (4) and challenges the constitutionality of OCGA § 40-6-391, alleging that it is void for vagueness.

Appellant’s repeal argument has been decided adversely to his position in Proo v. State, 192 Ga. App. 169 (384 SE2d 197) (1989). The court in Proo found that the intent of the legislature in amending OCGA § 40-6-391 was not to repeal the criminal sanctions for driving under the influence of alcohol.

As for appellant’s constitutional challenge to the statute in question, it will not be considered. An enumeration of error may not be enlarged by brief on appeal to cover a ground not contained in the enumeration. Scott v. State, 193 Ga. App. 577, 579 (388 SE2d 416) (1989).

4. Appellant also asserts as error the trial court’s admission into evidence of his statement to the arresting officer that he had consumed three beers. This statement was elicited when the officer first approached appellant’s vehicle and smelled alcohol on Proveaux’s breath. The question as to whether appellant had been drinking was posed by the trooper prior to asking him to get out of his truck, and there was no objection to it at trial. Objections to evidence which are not raised at trial will not be considered on appellate review. Tyner v. State, 193 Ga. App. 126 (387 SE2d 50) (1989).

Judgments affirmed.

Pope and Beasley, JJ., concur.

Decided October 30, 1990

Rehearings denied November 14, 1990 and December 18, 1990

Virgil L. Brown & Associates, Virgil L. Brown, for appellant.

John T. Newton, Jr., Solicitor, Griffin E. Howell III, Assistant Solicitor, for appellee.


text:
    A90A2204.
    SIMMONS v. THE STATE.
    (400 SE2d 679)
   Deen, Presiding Judge.

Appellant Simmons was convicted by a Catoosa County jury of selling marijuana. The sale, at which an undercover agent purchased six grams of the drug, was arranged through a confidential informant, who accompanied the agent to appellant’s residence for the “buy” and witnessed it first-hand. The substance purchased was turned over to the Georgia Crime Laboratory, where it was positively identified as marijuana.

Both appellant and his co-defendant (not a party to this appeal) testified that no sale had taken place and that the co-defendant had not come to appellant’s house (the site of the transaction) at the time when the violation was supposed to have taken place. Several of co-defendant’s relatives and friends testified that he had not left his own home during that time. At the close of the State’s case the defense moved for a directed verdict on the grounds of (1) improperly admitted evidence and (2) failure to disclose the identity of the confidential informant so that compulsory process might issue and the informant be cross-examined by the defense. Appellant enumerates as error the trial court’s denial of the motion and failure to disclose the informant’s identity. Held:

According to the trial transcript, four persons were present during the undercover agent’s purchase of marijuana: the agent, appellant and his co-defendant, and the confidential informer. Waiting in the car outside appellant’s house was another law enforcement officer, who recorded the license numbers of vehicles parked in or entering the driveway while the “buy” was in progress. The sole parked vehicle was determined to be registered in co-defendant’s name. During the transaction a second vehicle entered the driveway and the driver entered appellant’s house. The license number of this automobile, when traced by the second officer, indicated that the vehicle belonged to a woman friend of appellant’s wife who subsequently testified that neither she nor her car had been at appellant’s residence during the significant time. In contending that the identity of the confidential informant should have been revealed so that he might be summoned as a witness, appellant relies on Moore v. State, 187 Ga. App. 387 (370 SE2d 511) (1988), which in turn rests upon Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1957). In Roviaro, the Court had concluded, at 60-61, that “[w]here the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege [of withholding his identity] must give way.” After applying a balancing test which weighed “the public interest in protecting the flow of information against the individual’s right to prepare his defense[,]” id. at 62, Roviaro went on to find error in the failure to reveal the informant’s identity in that particular fact situation, where the informant and the accused were the sole participants in the transaction and the informant was therefore “the only witness in a position to amplify or contradict the testimony of government witnesses.” (Emphasis supplied.) Id. at 64. In a similar fact situation this court held in Moore at 391: “[U]nder the currently existing facts . . . the identity of the informer should have been disclosed.”

Although the instant case differs in several particulars from Roviaro and Moore, the fact situations are essentially similar. We therefore find that it was error not to reveal the identity of the confidential informant. Jones v. State, 192 Ga. App. 186 (384 SE2d 273) (1989).

In order to warrant reversal, however, the error must be prejudicial. In Moore v. State, supra at 392, this court went on to prescribe procedures for determining whether, when non-disclosure is held to be error, it must be considered prejudicial. Among the procedures is that the judge hold a post-trial in camera proceeding at which the informant testifies under oath, the testimony being reported, transcribed, and sealed; and that the trial judge then determine whether failure to reveal the informant’s identity has been prejudicial to the defendant. In the case at bar the trial judge conducted such a hearing, the entire proceeding was recorded, and the transcript was sealed and transmitted to this court as a part of the record. We have unsealed and examined this transcript and find that it meets the criteria of both Roviaro and Moore, supra, and therefore supports the denial of disclosure. We find no merit in appellant’s enumeration.

Judgment affirmed.

Pope and Beasley, JJ., concur specially.

Beasley, Judge,

concurring specially.

I concur in the judgment but not in the ruling that the nondisclosure of the identity of .the confidential informant was error.

Defendant moved to compel disclosure of the confidential informant, citing Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1957); Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963); and Moore v. State, 187 Ga. App. 387 (370 SE2d 511) (1988). After the jury was selected, and during the noon recess before trial commenced, the court examined the confidential informant under oath in camera. The trial court thereafter ruled that the evidence which would be given by the confidential informant would not be exculpatory of defendant nor supportive of any of his proposed possible defenses.

The transcript of that interview was sealed and included in the record. It substantiates the trial court’s conclusion regarding the informer-witness in this case, so that Brady was not violated and it thus became unnecessary to apply the balancing test of Roviaro. As instructed in Thornton v. State, 238 Ga. 160, 165 (2) (231 SE2d 729) (1977): “The trial judge must. . . conduct a hearing on the merits of the Brady motion and if he finds the evidence material under Brady weigh it against the state’s privilege under Roviaro.” Since the disclosure of the informant was not “material to the defense on the issue of guilt or punishment,” the court did not have to “go further and weigh the materiality of the informer’s identity to the defense against the state’s privilege not to disclose his name under Roviaro.” Id. at 165.

This is not a case where the court refused to conduct a hearing in this regard, as in Thornton, which omission was adjudicated error on appeal. The cure was remand for a post-trial hearing, not initially to determine whether failure to order disclosure was harmless but rather to determine whether disclosure should have been required in the first place. Ibid. Where it is not error to refuse disclosure because of what is brought out at an in camera hearing, a consideration of the harmless error rule is not reached.

The disclosure of an informer-witness is not automatically mandated just because he is the only person who observed the alleged transaction between defendant and the officer. If his or her testimony would not exculpate defendant, or provide evidence material to the defense, then his or her identity need not be ordered revealed. The test is stated in Roviaro, supra at 60-61: “Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” The record demonstrates that such is not the case here.

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

Decided December 5, 1990

Rehearing denied December 18, 1990.

Jahn, Jahn & Cavett, Jerry W. Weeks, for appellant.

Ralph Van Pelt, Jr., District Attorney, John L. O’Dell, Assistant District Attorney, for appellee.


author: Beasley, Judge.

text:
    A90A1081.
    HAMRICK v. THE STATE.
    (401 SE2d 25)
   Beasley, Judge.

Defendant appeals his convictions of habitual violator, OCGA § 40-5-58 (c), driving under the influence of alcohol, OCGA § 40-6-391, and fleeing and attempting to elude the police, OCGA § 40-6-395. He contends the evidence was insufficient to sustain his convictions, his motion to suppress should have been granted, and his sentence was illegal because it was vindictive.

1. Prior to trial, defendant moved to suppress items of personal property seized within the curtilage of his home plus testimony as to the results of a chemical test to determine the amount of alcohol in his blood. At trial defendant also sought to exclude testimony about items found in or near his house as well as the results of an intoximeter test. Because a motion to suppress under OCGA § 17-5-30 contemplates the suppression only of tangible physical evidence, defendant in effect proceeded under both a motion to suppress and a motion in limine. See Roberts v. State, 175 Ga. App. 326, 328 (1) (333 SE2d 189) (1985), and State v. Johnston, 249 Ga. 413, 415 (3) (291 SE2d 543) (1982).

He urges that because he was illegally arrested in his home without a warrant any evidence resulting from that arrest was tainted and inadmissible. The circumstances of that arrest follow.

Nor cross Police Officer Stidd spotted a yellow motorcycle driving with no headlights in excess of the speed limit in a residential area. It was nighttime. He notified his station and proceeded to the street where he last observed the motorcycle, parked there and waited. The motorcyle appeared again and approached him, passing within a few feet of where he was stopped. He turned his emergency equipment on in an effort to halt the motorcyle which then speeded up and drove away. The officer pursued, as the motorcycle ran through two red lights.

Stidd lost sight of the motorcycle but was able to continue the chase with the aid of directions from the operator of a vehicle which swerved off the road to avoid a collision with the motorcycle. Again losing sight of it, Stidd was informed by the occupants of a vehicle at the fork of a road that the motorcycle had left the road at Nesbitt Island, a street nearby. Because it had been raining, Stidd saw motorcycle tracks on the soft ground going down a dirt drive. He followed the tracks on foot to the back of a house where he found a yellow motorcycle leaning against the house. The motor was very hot and the motorcycle was dripping mud and water.

Two fellow officers joined Stidd and they approached the front of the house, where they knocked on the door. A woman appeared whom Stidd informed that they wanted to see the operator of the motorcycle. She stated that her husband was asleep and was told to wake him up. The police entered the house when defendant appeared in his underwear in the living room. He was told to put his trousers on and was advised he was under arrest for reckless driving, no headgear, operating without headlights, no eye protection, and attempting to elude the police. Asked for his driver’s license, defendant responded that he was a habitual violator. During this time, Stidd noticed that there was a pair of wet boots with fresh mud on them in the living room area.

Defendant was transported to the police station and, because of the smell of alcohol on his breath and his “combative actions,” he was given an intoximeter test. The results were .12 grams percent. The officer who administered the test testified that in his opinion defendant was under the influence of alcohol to the extent that it was less safe for him to drive.

“Payton v. New York, 445 U. S. 573 [(100 SC 1371, 63 LE2d 639)] (1980), held that, absent probable cause and exigent circumstances, warrantless arrests in the home are prohibited by the Fourth Amendment.” Welsh v. Wisconsin, 466 U. S. 740, 741 (104 SC 2091, 80 LE2d 732) (1984). See Steagald v. United States, 451 U. S. 204 (101 SC 1642, 68 LE2d 38) (1981); Thompson v. State, 248 Ga. 343 (285 SE2d 685) (1981). In Brown v. State, 163 Ga. App. 209, 210 (1) (294 SE2d 305) (1982), this court held that an arrest in a private dwelling was a lawful activity when based upon the theory of “hot pursuit.”

The “hot pursuit” doctrine has been applied in consideration of an officer’s power to effectuate an arrest outside of his geographical limits. Posa v. State, 167 Ga. App. 86, 87 (305 SE2d 884) (1983). Besides its utilization in conjunction with territorial barriers, it also has been applied to arrests in private dwellings. See Warden v. Hayden, 387 U. S. 294 (87 SC 1642, 18 LE2d 782) (1967); United States v. Santana, 427 U. S. 38 (96 SC 2406, 49 LE2d 300) (1976). In Santana, the court held that “a suspect may not defeat an arrest which has been set in motion in a public place, ... , by the expedient of escaping to a private place.” Id. at 43.

In Welsh v. Wisconsin, 466 U. S. 740, supra, the Supreme Court found that the arrest of defendant in the privacy of his own home for a noncriminal traffic offense could not be justified on the basis of the “hot pursuit” doctrine because there was no immediate or continuous pursuit from the scene of the crime. The court reiterated there must be exigent circumstances.

Decided November 14, 1990

Rehearing denied December 19, 1990.

Phillip N. Lavender, for appellant.

Thomas C. Lawler III, District Attorney, R. Keith Miles, Debra K. Turner, Assistant District Attorneys, for appellee.

Poss, supra at 87, pointed out the critical elements of “hot pursuit” are continuity and immediacy of the pursuit. Here, although there were undoubtedly slight breaks in the action, the pursuit of defendant was maintained in a continuous manner at least up until the yellow motorcycle was discovered leaning against the side of defendant’s house. At this point its investigation was permissible. Griffith v. State, 172 Ga. App. 255, 256 (1) (322 SE2d 921) (1984) (physical precedent).

As to entering the house, the circumstances were not such as made it necessary to effect an immediate arrest. The crimes were misdemeanors. The unlawful operation of the motorcycle and the threat to public safety had come to a stop. There was no evidence that the person would escape. Three officers were present, and one could have gone to seek an arrest warrant. The police did not fear the destruction of evidence, as in Santana, supra. The officers did not at this time suspect defendant’s intoxication, evidence of which would have dissipated over time. There was no need to enter the house, as defendant was coming out as requested. “Exigency” faded from the picture, and left defendant’s right to prevent an unwarranted invasion of his home superior. See Thompson, supra; Welsh, supra.

The trial court should have granted the motion to suppress/in limine insofar as it covered the exclusion of evidence gathered after the officers entered defendant’s house without a warrant. Insofar as defendant specifies what should be suppressed, this would include the muddy boots and the results of the chemical test of defendant’s blood alcohol levels.

2. Because a reversal must result which will affect the fundamental elements of any further trial, the remaining enumerations of error predicated upon the findings of the jury and the judgment entered thereupon need not be considered.

Judgment reversed.

Deen, P. J., and Pope, J., concur.


text:
    A90A1219, A90A1220.
    JASPER CONSTRUCTION COMPANY v. ECHOLS et al. (two cases).
    (400 SE2d 660)
   Pope, Judge.

We granted this interlocutory appeal to consider whether the trial court properly denied summary judgment to appellant/defendant Jasper Construction Company (hereinafter “Jasper”). Appellees/ plaintiffs (hereinafter “plaintiffs”) Deborah Ann Echols, widow of Anthony L. Echols, and Doug Echols, Administrator of the estate of Anthony L. Echols, brought separate actions for wrongful death and gross negligence against Jasper alleging that Jasper’s negligence in highway construction along Interstate 75 (1-75) caused the death of Anthony L. Echols. Jasper was hired by the Georgia Department of Transportation (DOT) to construct new inside lanes for 1-75 in Henry, Butts and Spalding counties. On May 16, 1985, at approximately 5:30 p.m. while the construction project was in progress, but after work in the area had ceased for the day, the car driven by Echols left the paved portion of 1-75, entered the temporary dirt shoulder of the road and then flipped as Echols tried to get back onto the pavement. Echols was ejected from the car and died of his injuries.

Jasper moved for summary judgment on the basis that the construction was performed in all respects in compliance with the plans, specifications and direction of the DOT. Jasper relied on the affidavit of its Grading Foreman on the job at the site of the accident, George McCleery, who stated that on the day of the accident his crew had been removing asphalt immediately adjacent to the inside southbound lane of 1-75. Before work stopped that afternoon the area immediately adjacent to the traveled portion of the road was “safed up,” or made safe pursuant to the plans and specifications of the DOT. This was done through the placement of dirt and asphalt immediately adjacent to the traveled portion of the roadway, placement of temporary barriers, and the placement of warning signs and traffic control devices as specified by the plans of the DOT. Deposition testimony by Leah Caces Hardy, Project Engineer for Jasper at the site on the day of the accident, corroborated that the area was “safed up” in compliance with DOT plans at the conclusion of the day’s work.

Plaintiffs opposed Jasper’s motion, relying upon the affidavit of Lewis Hurd. Jasper objected to Hurd’s affidavit on the basis that it was conclusory and based on hearsay and moved that it be stricken. In denying the motion for summary judgment, the trial court specifically stated that it did not rely on the Hurd affidavit. Held:

We reverse. “It is well established that in determining whether an independent contractor is to be held liable for damages resulting from the work in connection with which he has been employed, it is usually necessary to look for guidance to the question whether the injury resulted from the improper plans or directions by which his employment was defined, or from the improper execution of work properly planned. In such cases, if it appears that the contractor has followed the plans and directions of his employer and injury has resulted, the employer, and not the contractor, is to be held liable. For unskilful or negligent execution of the work the contractor (and usually not the employer) is liable. A contractor for the State engaged in work on a public project is not liable for injury or damage to private property resulting from the work performed unless that damage or injury results from the contractor’s negligence or wilful tort.” (Punctuation and citations omitted.) C. W. Matthews Contracting Co. v. Marasco, 184 Ga. App. 150, 151 (361 SE2d 34) (1987). “When a motion for summary judgment is submitted and supported by evidence, the adverse party may not rest his case as made but must set forth specific facts and present his case in full in order to show that there is a genuine issue for trial.” (Punctuation and citation omitted.) Buffington v. Gold Kist, Inc., 179 Ga. App. 393, 394 (346 SE2d 577) (1986).

In the present case, on motion for summary judgment, Jasper presented evidence that it complied with the plans and specifications of its employer, the DOT, in constructing the temporary shoulder at the close of the workday and in placing barricades and warning signs as specified by the DOT. In opposition, plaintiffs argue that Jasper was negligent in the execution of the contract and specify four areas: (1) Jasper removed barricades from the pavement in the same direction as traffic was travelling; (2) Jasper back-filled the temporary shoulder with loose dirt rather than with rock or another hard substance; (3) Jasper removed the barricades completely from the pavement and instead placed them on the temporary shoulder immediately adjacent to the pavement; (4) Jasper failed to repair sections of pavement in the driving lanes. However, plaintiffs have not demonstrated by the record how any of these four alleged negligent acts violated Jasper’s duty under the contract. Regarding the first three allegations, the testimony of Johnny Matthews, the DOT Project Engineer, shows that Jasper complied with DOT plans and specifications regarding each of those areas, removal of barricades at the close of the workday to open traffic on the lane, constructing a temporary shoulder by back-filling with dirt, and placement of barricades on the dirt shoulder and not partly on the pavement. Regarding the fourth area, Matthews testified that he personally inspected the pavement shortly after the accident and saw nothing unusual and nothing that required repair with asphalt as contemplated by the contract specifications.

We hold that the trial court erred in denying Jasper’s motion for summary judgment. Jasper produced evidence that it complied with DOT plans and specifications at the site of the accident in constructing the temporary shoulder and in placing warning signs and barriers. Plaintiffs did not rebut that evidence with any facts, and relied instead on the general rule that questions of negligence are for the jury. We hold that no question of material fact exists and Jasper is entitled to summary judgment as a matter of law.

Decided November 27, 1990

Rehearing denied December 19, 1990

Long, Weinberg, Ansley & Wheeler, Palmor H. Ansley, C. Bradford Marsh, for appellant.

Smith & Welch, Ben W. Studdard, A. J. Welch, Jr., for appellee.

Judgments reversed.

Deen, P. J., and Beasley, J.', concur.