author: Ruffin, Judge.

text:
    A97A1985.
    CHOO CHOO TIRE SERVICE, INC. v. UNION PLANTERS NATIONAL BANK.
    (498 SE2d 799)
   Ruffin, Judge.

Union Planters National Bank (“Union Planters Bank”) sued Choo Choo Tire Service, Inc. (“Choo Choo”) to collect payment due on two checks in the aggregate amount of $30,000 and made payable to Southway Equipment Sales (“Southway”). Union Planters Bank was prevented from collecting on these checks due to Choo Choo’s stop payment order. The trial court granted summary judgment to Union Planters Bank, and Choo Choo appeals. For the following reasons, we reverse.

“The standard of review of the trial court’s [grant] of the bank’s motion for summary judgment is a de novo review of the evidence to determine whether there is any genuine issue of material fact as to the elements required to establish the causes of action stated in the complaint. [Cit.] To obtain summary judgment, the bank as the moving party must demonstrate that there is no genuine issue of material fact, and that the material evidence, viewed in the light most favorable to the nonmoving party, warrants judgment as a matter of law. OCGA § 9-11-56. See generally Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).” Tucker Fed. Sav. &c. Assn. v. Balogh, 228 Ga. App. 482 (491 SE2d 915) (1997).

Viewed in the light most favorable to Choo Choo, the nonmovant, the record shows that Southway requested Choo Choo make a short-term loan to Southway in the amount of $30,000. In December 1993, Choo Choo agreed and drew two checks payable to Southway in the aggregate amount of $30,000. In exchange, Southway gave Choo Choo three checks in the aggregate amount of $30,025, with the additional amount of $25 being for preparation of the checks. Choo Choo requested that the checks it gave Southway not be deposited until the next day. However, Southway, a customer of Union Planters Bank, deposited the checks that it received from Choo Choo into its account with Union Planters Bank. Union Planters Bank’s daily overdraft reports showed that Southway had been overdrawn for six months prior to this transaction. At the time the checks were deposited, Union Planters Bank’s records showed that Southway’s account was overdrawn $29,505.91. Notwithstanding Southway’s overdrawn status, the fact that Union Planters Bank had no knowledge of who issued the check, or the fact that Union Planters Bank had the option of placing a hold on the account, Union Planters Bank allowed Southway to immediately draw on the deposited funds.

Choo Choo became aware of Southway’s potential to declare bankruptcy prior to Union Planters Bank’s demand for payment. Choo Choo executed a stop payment order on the checks. Following Choo Choo’s stop payment order, Union Planters Bank sued Choo Choo for breach of contract and breach of warranty and sought monetary damages. Subsequently, Union Planters Bank moved for summary judgment. In this appeal, Choo Choo contends the trial court erroneously granted Union Planters Bank’s motion for summary judgment because Union Planters Bank acted in bad faith in this transaction. Choo Choo further contends that because Union Planters Bank acted in bad faith, it is not a “holder in due course,” and consequently took the checks subject to the defenses enumerated in OCGA § 11-3-306.

1. The issues in this case are governed by Articles 3 and 4 of the Uniform Commercial Code (“UCC”). Because there have been substantial revisions in the UCC which could affect the disposition of these issues, we must determine first whether the amendments OCGA §§ 11-3-103 and 11-3-302 or the prior Code provisions apply. OCGA §§ 11-1-201 (19) (former version) and 11-3-302 (former version). The revisions became effective July 1, 1996.

“Laws prescribe only for the future; they can not impair the obligation of contracts, nor, usually, have a retrospective operation, and the settled rule for the construction of statutes is not to give them a retrospective operation, unless their language imperatively requires it.” (Citations and punctuation omitted.) Hart v. Owens-Illinois, Inc., 250 Ga. 397, 398 (297 SE2d 462) (1982). Furthermore, when a statute is a substantive change, rather than procedural change, it should not be applied retroactively. Dan River, Inc. v. Carroll, 192 Ga. App. 537, 538 (2) (385 SE2d 686) (1989). “ ‘Substantive law is that law which creates rights, duties, and obligations. Procedural law is that law which prescribes the methods of enforcement of rights, duties, and obligations. (Cits.)’ ” Weyant v. MacIntyre, 211 Ga. App. 281, 283 (2) (438 SE2d 640) (1993).

The UCC provisions at issue here concern the definitions of the terms “good faith” and “holder in. due course.” We conclude the amended statutes do not expressly require retrospective application. Furthermore, these statutes address the substantive rights of the parties, in that they create rights, duties, and obligations, rather than the enforcement thereof. Weyant, supra. Accordingly, the UCC provisions in existence at the time the checks were deposited and the stop payment was issued will control. Thus, in the instant case, the applicable definitions are OCGA §§ 11-1-201 (19) and 11-3-302 (former version).

2. We note initially that although Choo Choo contends the applicable definition of “good faith” is derived from OCGA § 11-2-103 (1) (b), this definition is not applicable under UCC Article 3, but applies only to merchants engaged in the sale of goods. Dal-Tile Corp. v. Cash N’ Go, 226 Ga. App. 808, 810 (487 SE2d 529) (1997) (physical precedent only).

The issue before this Court is whether Union Planters Bank met the statutory requirements of a “holder in due course,” and consequently, if Union Planters Bank is a “holder in due course,” then it took the checks free from the defenses enumerated in OCGA § 11-3-306, and subject only to the defenses in OCGA § 11-3-305 (2). Dempsey v. Etowah Bank, 204 Ga. App. 49 (418 SE2d 418) (1992).

It is undisputed that Union Planters Bank is a holder of the checks and that it took the checks for value and without notice of defects, defenses or claims to it. OCGA § 11-3-302 (former version). Accordingly, the only remaining issue is whether Union Planters Bank met the good faith requirement of a “holder in due course.” More specifically, the issue is whether Union Planters Bank “acted honestly, in good faith, and not arbitrarily or capriciously,” in accepting the checks for deposit and allowing immediate draw on the account. See Ginn v. C & S Nat. Bank, 145 Ga. App. 175, 177 (243 SE2d 528) (1978).

In support of its motion for summary judgment, Union Planters Bank relied on the affidavit of Roger Tudor, executive vice president and cashier of Union Planters Bank. According to Tudor’s affidavit, Union Planters Bank demanded payment on the checks deposited by Southway, but was prevented from collecting because Choo Choo issued a stop payment order prior to the demand for payment. Union Planters Bank contends that it was a holder in due course because it received the checks in good faith and without knowledge that a stop payment order had been issued or that any defects or defenses existed against the checks that would be effective against a holder in due course.

In opposition to the motion for summary judgment, Choo Choo disputes that Union Planters Bank is a holder in due course. More specifically, Choo Choo contends that Union Planters Bank failed to act in good faith. In his deposition, Tudor testified that if an account is in overdraft status and monies are deposited that allow it to come out of overdraft status, then a teller may place a hold on the account. Union Planters Bank’s policy required notification to bank officers of excessive overdrafts and collection of these overdrafts. Upon notice of overdrafts, the bank’s officers would place a hold on the overdrawn account. However, in this instance, Union Planters Bank did not place a hold on the account.

In addition, there is some evidence to support Choo Choo’s contention that Union Planters Bank showed bad faith when it failed to place a hold on Southway’s account, and despite Southway’s status as an overdrawn depositor, Union Planters Bank allowed immediate credit to Southway in order to shift the risk of loss from Union Planters Bank to Choo Choo. Tudor’s deposition shows a close relationship between Union Planters Bank and Southway. For instance, Southway had a line of credit with Union Planters Bank; Southway made loan payments to Union Planters Bank; and Southway’s assets were held by Union Planters Bank as collateral under liens on both its inventory and real estate. Further, Tudor stated that Southway declared bankruptcy the week of December 13, 1993. Prior to the bankruptcy, Union Planters Bank made a separate agreement with a third party to sell Southway’s assets and assign any notes or inventory to that third party. Subsequently, Union Planters Bank received approximately $700,000 from the sale of these assets.

Choo Choo relies upon the affidavit of banking expert Ronald E. McKelvy. McKelvy reviewed Union Planters Bank’s records and concluded that Southway was overdrawn eighteen days in July 1993; twenty days in August 1993; fourteen days in September 1993; fifteen days in October 1993; fourteen days in November 1993; and six days between December 1 and December 9, 1993, which was during the six-month period before the deposit and immediate draw on the checks at issue. Choo Choo also relies upon McKelvy’s deposition. In his deposition, McKelvy testified that Union Planters Bank’s action of allowing Southway to immediately draw upon the funds was very risky where Southway’s account had been overdrawn for over half the banking days during the prior six-month period. McKelvy argued Union Planters Bank would have acted prudently if it had placed a hold on the checks until they cleared.

We acknowledge persuasive authority from other jurisdictions, where similar conduct was ruled evidence of bad faith. See Seinfeld v. Commercial Bank cfee. Co., 405 S2d 1039 (Fla. App. 1981). Furthermore, we have determined that evidence suggesting that a bank acted without checking the facts placed the bank’s good faith in issue. See Fulton v. Anchor Savings Bank, 215 Ga. App. 456, 468 (452 SE2d 208) (1994).

Decided March 19, 1998.

Renzo S. Wiggins, for appellant.

Watson, Dana & Gottlieb, David D. Gottlieb, for appellee.

In this instance, Choo Choo presented some evidence that calls into question Union Planters Bank’s good faith. The deposition testimony of Roger Tudor, a bank officer, places Union Planters Bank’s good faith in issue by suggesting that the bank acted without reviewing the status of Southway’s account. In addition, McKelvy’s affidavit was some evidence that Union Planters Bank acted inconsistent with its own normal business practices.

“Even though the [bank] may swear [it] acted in good faith, the jury may decide [it] acted in bad faith from consideration of facts and circumstances in the case.” (Citations and punctuation omitted.) Crosson v. Lancaster, 207 Ga. App. 404, 407 (427 SE2d 864) (1993). “Because [a] material issue of fact [concerning Union Planters Bank’s good faith] exists, the trial court erroneously granted summary judgment to the bank. . . .” Id.

Judgment reversed.

Eldridge, J., concurs. Birdsong, P. J., concurs in the judgment only.

       Defenses of OCGA § 11-3-306 are lack of consideration and fraud.

       The defenses in OCGA § 11-3-305 (2) include: infancy, other incapacity, duress, or illegality of the transaction that renders the obligation of the party a nullity and misrepresentation as has induced the party to sign the instrument without knowledge or opportunity to obtain knowledge of its character or essential terms; and discharge in insolvency proceedings; and any other discharge of which the holder has notice when he takes the instrument.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A97A2093.
    GUTHERIE et al. v. FORD EQUIPMENT LEASING COMPANY.
    (498 SE2d 797)
   McMurray, Presiding Judge.

Thomas Addison Gutherie, Sr. and Linda L. Gutherie filed this wrongful foreclosure action against Ford Equipment Leasing Company (“FELC”) after FELC aborted its action to confirm a foreclosure sale of Thomas Gutherie’s farm. Confirmation of this nonjudicial foreclosure sale became unnecessary when Thomas Gutherie discharged his obligation to FELC by entering a consent judgment in a personal property foreclosure action which FELC filed against Thomas Gutherie and his family-owned business, Greensboro Lumber Company (“Greensboro”). We affirm summary judgment in favor of FELC because the doctrine of estoppel by judgment precludes the Gutheries’ claims.

In 1989, FELC loaned Thomas Gutherie a million dollars to update and expand Greensboro’s operations. Gutherie, acting as Greensboro’s president, secured this loan with Greensboro’s equipment, his personal guaranty and a security deed encumbering his farm (“the collateral”). After the loan went into default in 1990, Thomas Gutherie and Greensboro filed for relief in the United States Bankruptcy Court for the Middle District of Georgia, and entered consent orders (the “drop dead” orders) agreeing to pay FELC installments to avoid the bankruptcy court’s restoration of FELC’s right to sell the collateral upon foreclosure.

When Thomas Gutherie and Greensboro failed to comply with the “drop dead” orders, FELC sold the Gutherie farm at a nonjudicial foreclosure sale in December 1991. Although this sale was confirmed in the Greene County Superior Court, the Court of Appeals of Georgia reversed this judgment in Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 259 (1), 261 (424 SE2d 889) (Gutherie I) because FELC offered no proof that Thomas Gutherie’s farm sold for its true market value.

Before this Court remanded Gutherie I to the trial court, Thomas Gutherie, acting pro se, entered into a consent judgment (“the consent judgment”) resolving a personal property foreclosure action which FELC filed against Greensboro and Thomas Gutherie in the Greene County Superior Court. The consent judgment stipulates the remaining balance of Greensboro’s and Gutherie’s debt to FELC and forecloses Greensboro’s interest in the collateral personal property. Because this collateral’s foreclosure sale satisfied Greensboro’s and Gutherie’s debt, FELC filed a motion to dismiss its pending real property confirmation action. A Greene County Superior Court judge granted this motion and denied Greensboro’s OCGA § 44-14-161 (c) motion to order a resale of Gutherie’s farm. Gutherie and Greensboro appealed this judgment, but the Court of Appeals of Georgia affirmed in Gutherie v. Ford Equip. Leasing Co., 210 Ga. App. 763, 764 (437 SE2d 482), holding that satisfaction of the underlying debt authorized the trial court’s judgment not to order a resale of the Gutherie farm. Compare Gutherie I at 261 (2), supra.

Thomas Gutherie and his wife, Linda L. Gutherie, filed this action in the State Court of Fulton County, Georgia, alleging that Greensboro’s debt was rendered void because the note was altered by an FELC employee; that FELC improperly compounded interest on this debt; that FELC waived its right to declare Greensboro’s promissory note in default by accepting late payments without giving notice of its intention to strictly enforce the loan’s provisions; that FELC breached its duty to conduct the Gutherie farm’s foreclosure sale fairly and that FELC’s wrongful action during this foreclosure sale constituted intentional interference with Greensboro’s business operations.

The Gutheries filed this appeal after the trial court granted FELC’s motion for summary judgment. Held:

The doctrine of estoppel by judgment “has reference to previous litigation between the same parties, based upon a different cause of action. In [such cases, there] is an estoppel by judgment only as to such matters within the scope of the previous pleadings as necessarily had to be adjudicated in order for the previous judgment to be rendered, or as to such matters within the scope of the pleadings as might or might not have been adjudicated, but which are shown by aliunde proof to have been actually litigated and determined. [Cits.]” Sumner v. Sumner, 186 Ga. 390 (2) (197 SE 833). Applying these principles in the case sub judice, we observe that Thomas Gutherie was a party to the personal property foreclosure action which FELC filed against Greensboro and Gutherie after the collateral realty’s foreclosure sale; that Thomas Gutherie’s liability under his personal guaranty was dependent upon the validity of Greensboro’s debt to FELC; that Thomas Gutherie thus had standing in FELC’s personal property foreclosure action to contest the validity of his guaranty agreement liability, FELC’s personal property foreclosure as well as FELC’s actions at the Gutherie farm’s foreclosure sale, but that Gutherie instead entered into a consent judgment stipulating the balance of his debt, crediting Greensboro and Gutherie with proceeds from his farm’s foreclosure sale, and completely discharging his liability to FELC. These circumstances demonstrate that all issues regarding the validity of Greensboro’s debt to FELC (and thus Thomas Gutherie’s liability), and all issues regarding the validity of the collateral realty’s foreclosure sale, are matters which would have necessarily had to have been adjudicated in order for the parties’ (Thomas Gutherie, Greensboro and FELC) previous consent judgment to be validly rendered. Consequently, since it is undisputed that Linda L. Gutherie was in privity with her spouse, Thomas Gutherie, during the two foreclosure proceedings at issue (Olson v. Harveston, 158 Ga. App. 65, 68 (4) (276 SE2d 54)), we are compelled to hold that the doctrine of estoppel by judgment precludes the Gutheries’ claims.

Decided March 19, 1998.

Macey, Wilensky, Cohen, Wittner & Kessler, Susan L. Howick, David G. Kopp, for appellants.

Sutherland, Asbill & Brennan, Thomas M. Byrne, Amelia T. Rudolph, Harmon, Smith, Bridges & Wilbanks, Tyrone M. Bridges, Marian B. Wilbanks, for appellee.

The trial court did not err in granting FELC’s motion for summary judgment.

Judgment affirmed.

Beasley and Smith, JJ, concur.

       FELC’s real property confirmation, action is the subject of appeals in Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258 (424 SE2d 889) (Gutherie I), and Gutherie v. Ford Equip. Leasing Co., 210 Ga. App. 763 (437 SE2d 482) (Gutherie II).

       Thomas Gutherie appeared in this proceeding pro se because (according to him) he could not afford another attorney after a bankruptcy court judge required his attorney, Frank A. Lightmas, Jr., to choose between representing Greensboro and Gutherie. While attorney Lightmas chose to represent Greensboro, he later executed the consent judgment on Thomas Gutherie’s behalf. Gutherie now contests this authority, but we nonetheless rely on the consent judgment because nothing in the record in the case sub judice indicates that it has been set aside. See OCGA § 9-11-60.


author: Pope, Presiding Judge. Blackburn, Judge,

text:
    A97A2113.
    FARMER et al. v. BRANNAN AUTO PARTS, INC.
    (498 SE2d 583)
   Pope, Presiding Judge.

In this products liability case, plaintiffs Gerald and Paige Farmer sued defendant Brannan Auto Parts, Inc. d/b/a Lawrenceville Auto Parts to recover for injuries Gerald Farmer received in an explosion. The explosion occurred when Farmer attempted to repair a flat tire on his truck by welding a crack in the wheel’s metal rim with an acetylene blowtorch. The flat tire was still attached to the rim, and several months before this incident Farmer had inflated that tire with a can of “Snap Fix-a-Flat,” which injects a flammable pressurized gas and sealant. According to the complaint, the heat from the torch caused Fix-a-Flat remaining in the tire to explode. The Farmers alleged that Lawrenceville Auto Parts distributed this “dangerous” product to the retail store from which Gerald purchased the sealant without giving him adequate warning of its explosive properties. The trial court granted summary judgment to Lawrenceville Auto Parts. We affirm the trial court’s grant of summary judgment in favor of Lawrenceville Auto Parts, as well as the trial court’s decision not to strike three affidavits filed by the defendant.

1. Whether termed “negligent distribution” or “negligent failure to warn,” Farmer’s claim charges that Lawrenceville Auto Parts distributed a product without telling consumers the dangers of that product. Although a distributor has a duty to communicate to customers and users the dangers of a product, we hold that duty did not arise here because the manufacturer of Fix-a-Flat had already warned consumers of the particular danger at issue.

In December 1991, one of the tires on Farmer’s pickup truck went flat. When inflating the tire with air did not solve the problem, Farmer purchased a can of Fix-a-Flat tire inflator from the “Highway 20 Store.” The evidence is undisputed that Farmer received a can of Fix-a-Flat and read a warning on the can, which informed him the substance was flammable; that it should not be used near heat or flame; and that it would remain flammable when transferred from the can into a tire. After reading the directions, Farmer sprayed the entire contents of the can into the flat tire on the date of purchase.

The tire continued to have a slow leak over the next few months, and Farmer added air to the tire four or five times. He believed that in doing so, he had replaced the inflator in the tire with air, as specified in the directions on the can. On March 23, 1992, after the tire had gone completely flat, Farmer inspected the tire and discovered a three-quarter-inch crack in the rim of the wheel. Farmer decided to repair the rim by welding it, without removing the wheel from the truck or separating the flattened tire from the rim. Shortly after Farmer touched the welding iron to the rim, the tire exploded, seriously injuring Farmer.

Farmer claims he did not understand that the substance would remain flammable “three and a half months” after he placed it in the tire and believed the Fix-a-Flat had dissipated by that time. The plaintiffs claim Lawrenceville Auto Parts had a duty to warn him of that danger. They point to the fact that, during 1991, a Lawrenceville Auto Parts vice-president learned that there had been “problems” with tire inflators such as Fix-a-Flat, including the fact that the propellant in some tire inflators mixed with air to form an explosive gas.

We agree with Farmer’s contention that the distributor “of a product which, to [its] actual or constructive knowledge, involves danger to users [has] a duty to give warning of such danger ... at the time of sale and delivery.” Beam v. Omark Indus., 143 Ga. App. 142, 145 (1) (b) (237 SE2d 607) (1977). See also Bishop v. Farhat, 227 Ga. App. 201, 206 (6) (489 SE2d 323) (1997). But Beam involved a situation in which the seller had separated from the product the manufacturer’s warnings and had given the buyer incorrect information about the safe use of the product. Beam, 143 Ga. App. at 145. Bishop, likewise, involved a situation in which the distributor knew of a potential allergic reaction to the product but failed to communicate any warning to consumers. Bishop, 227 Ga. App. at 206. These cases do not address the situation at hand, in which the distributor had knowledge of a danger but the manufacturer had already warned of such a danger.

Webster’s Ninth New Collegiate Dictionary defines “flammable” to mean “capable of. being easily ignited and burned quickly.” Such a definition is consistent with the defendant’s officer’s understanding of the dangers of Fix-a-Flat. In fact, Farmer himself knew from reading the label that the substance could explode if exposed to heat or flame. There is no evidence that Lawrenceville Auto Parts knew of a situation like Farmer’s, in which a consumer had used the product, refilled his tire with air numerous times over several months, and then suffered an explosive injury when he used an acetylene torch on the rim of a flattened tire. Additionally, no evidence in the record shows Lawrenceville Auto Parts knew or should have known the length of time the substance remained flammable or that the distributor knew or should have known consumers would misunderstand the manufacturer’s warning, which stated that the substance would remain flammable after users placed it in the tire.

“[W]hether a duty to warn exists depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. [Cit.]” (Emphasis supplied.) Wilson Foods Corp. v. Turner, 218 Ga. App. 74, 75 (1) (460 SE2d 532) (1995). While this question is often for the jury, this Court has held on numerous occasions that where a product is sold to a particular group or profession, there is no duty to warn of risks generally known to that group or profession. See, e.g., Exxon Corp. v. Jones, 209 Ga. App. 373, 375 (433 SE2d 350) (1993). Similarly, in this case we find that Lawrenceville Auto Parts had no duty to communicate to users a danger already clearly listed on the product itself. Given the circumstances, we may hold as a matter of law that a reasonable distributor, given the same knowledge of danger and the same manufacturer’s warning, would not foresee that a user would not understand that danger.

The principle stated in Beam and Bishop must be confined to those situations in which evidence shows a distributor or seller is aware of a danger either not communicated by the manufacturer’s warning or substantively different from the dangers the manufacturer has included in a warning label. To hold otherwise would create a jury question in any case where the manufacturer has included a warning label on the product and the seller has read that warning and is aware of that danger.

While the dissent speaks of a distributor’s duty to inspect for defects, there is no evidence that Fix-a-Flat is otherwise “defective” as that term is used in the case on which the dissent relies, Sirmons v. Derst Baking Co., 221 Ga. App. 127, 128 (470 SE2d 515) (1996). There is certainly no precedent for holding Lawrenceville Auto Parts responsible under any theory of defective design. Compare Banks v. ICI Americas, 264 Ga. 732, 733 (1) (450 SE2d 671) (1994), holding manufacturers strictly liable for safe design of products under a risk-utility balancing test. As the Supreme Court noted in Banks, 264 Ga. at 733, except for design defects, even under a strict liability analysis, products which “[are] properly prepared, manufactured, packaged and accompanied with adequate warnings and instructions can not be said to be defective.” (Citation and punctuation omitted.) See Center Chem. Co. v. Parzini, 234 Ga. 868, 870 (4) (218 SE2d 580) (1975). Sirmons itself involved a manufacturing defect, as a dime had apparently fallen into a honeybun during the baking process. Here, other than the issue of the warning’s adequacy, no evidence shows Fix-a-Flat was otherwise defective. As the trial court properly granted summary judgment to Lawrenceville Auto Parts on the failure to warn claim, no other issue remains for trial.

Furthermore, it appears that the failure of Lawrenceville Auto Parts to provide Farmer with its knowledge of the danger did not proximately cause Farmer’s injuries because Farmer already knew the substance was flammable and remained flammable when placed in a tire. See Exxon Corp. v. Jones, 209 Ga. App. at 375-376 (plaintiff’s injuries from LP gas explosion were not caused by defendant’s negligent failure to warn of dangerous propensities of LP gas, as plaintiff was already aware of those dangers).

Under the principles set forth by the Supreme Court in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), summary judgment for Lawrenceville Auto Parts is proper because no evidence shows the defendant failed to warn Farmer of any danger of Fix-a-Flat other than the danger already communicated by the warning label, and about which Farmer was aware. The dissent’s citation to Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997) does not persuade us to reach a contrary conclusion. In Robinson, the Supreme Court carved a narrow exception to Lau’s Corp. That exception, however, applies only to situations where the question is not whether the defendant was negligent, but rather is whether, despite the defendant’s negligence, the plaintiff failed to exercise due care to avoid the injury. Here, the evidence shows Lawrenceville Auto Parts breached no duty to Farmer. Therefore, summary judgment is proper. And our resolution of this issue renders it unnecessary to address whether Lawrenceville Auto Parts did, in fact, distribute the can of Fix-a-Flat that Farmer bought.

2. The Farmers enumerate as error the trial court’s failure to grant their motion to strike the affidavits of Jeffrey Mize, Coy Baker, and Hazel Weathers. Their motion was based upon the affidavits’ failure to state that they are based upon the personal knowledge of the affiants. See OCGA § 9-11-56 (e).

With respect to the affidavit of Jeffrey Mize, this affidavit states that Mize is the vice-president of Lawrenceville Auto Parts, and that he “personally directfs] and oversee[s] the operation of Lawrenceville Auto Parts Store.” “Although the affidavit of [Jeffrey Mize] . . . did not specifically state that it was made of his own personal knowledge, it is presumed that the facts are within the personal knowledge of the affiant by reason of his position as [vice-president of the auto parts store].” McGregor v. First Nat. Bank of Brunswick, 156 Ga. App. 521, 522 (2) (275 SE2d 107) (1980).

Coy Baker’s and Hazel Weathers’ affidavits also do not state that they were made on personal knowledge. “However, the affidavits] also [include] statements which clearly are based on personal knowledge.” Moon v. Yancy, 186 Ga. App. 19, 20 (1) (366 SE2d 357) (1988). Coy Baker’s affidavit lists his responsibilities for selling, as a traveling salesman, parts and supplies for Lawrenceville Auto Parts. This is clearly within his personal knowledge. The statements made in Hazel Weathers’ affidavit are also within her personal knowledge, as they detail what steps she took, as Lawrenceville Auto Parts’ inventory control manager, to determine whether or not Lawrenceville Auto Parts had ever purchased or distributed any Snap products. Furthermore, all three affidavits are largely cumulative of deposition testimony given by the respective affiants. Accordingly, the trial court did not err in failing to strike these affidavits.

Judgment affirmed.

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

Blackburn, Judge,

dissenting.

Because I believe that the questions presented here must be determined by a jury, I respectfully dissent from the opinion of the majority.

1. A genuine issue of material fact exists as to whether Lawrenceville Auto Parts was negligent in distributing Fix-a-Flat. Because Lawrenceville Auto Parts is a distributor and not a manufacturer, the strict liability provision of OCGA § 51-1-11 is inapplicable. Instead, “[i]t is the general rule that a vendor or dealer who is not the manufacturer is under no obligation to test an article purchased and sold by him for the purpose of discovering latent or concealed defects, but that when he purchases and sells an article in common and general use, in the ukual course of trade, without knowledge of its dangerous quality, and with nothing tending reasonably to call his attention thereto, he is not negligent in failing to exercise care to determine whether it is dangerous or not. In such a case he may assume that the manufacturer has done his duty in properly constructing the article and in not placing upon the market a commodity which is defective and likely to inflict injury.” (Punctuation omitted.) Sirmons v. Derst Baking Co., 221 Ga. App. 127, 128 (470 SE2d 515) (1996).

This language makes it clear that a distributor could be negligent in distributing a product if the distributor has knowledge of its dangerous quality, or if something calls its attention to the possibility of danger inherent in the product. See, e.g., Beam v. Omark Indus., 143 Ga. App. 142, 145 (1) (b) (237 SE2d 607) (1977).

The evidence shows that prior to Farmer’s accident, Jeffrey Mize, the vice-president of Lawrenceville Auto Parts, read an article in a trade magazine stating that there had been problems with tire inflators. Mize deposed that the article detailed how an explosive mixture was formed when tire inflator propellants mixed with air in a tire. In response to this information, Mize spoke with some tire inflator sales representatives. He was told, as the article had also stated, that a new chemical mixture was being investigated for future use and that future shipments of the old chemical mixture would include warning labels which could be attached directly to the tire in order to notify anyone who came in contact with it that a sealant had been used. He was also told that any tire inflators which were made with the old chemical mixture already had warning labels attached to the can.

Mize then checked to see if Lawrenceville Auto Parts had any of the “old cans” on the shelf and found that, although it did have some of the cans, the cans did have warning labels on them. Mize shared what he had learned with all of his employees, “just so that they knew as a consumer there was potential if a safety precaution weren’t [sic] taken, there could be the problem.”

Because Mize had knowledge that tire inflators could be dangerous, under Sirmons, supra, he had a duty to exercise reasonable care to determine whether the tire inflators Lawrenceville Auto Parts was selling were dangerous. Mize ultimately made the determination that although Lawrenceville Auto Parts’ tire inflators were of the “old” variety and were dangerous, the warning labels on the cans were adequate to warn consumers of their dangerous nature. The reasonableness of this determination should be left to a jury.

The directions on the Fix-a-Flat can stated that the tire inflator was flammable, that it should not be used near heat or flame, an'd that the propellant would remain flammable when transferred from the can into a tire. The directions also stated that the tire inflator should he replaced with air at the earliest opportunity, and, when making such replacement, the tire inflator should be kept away from flame or sparks. After adding air to the tire four or five times over the space of several months, Farmer believed that he had replaced the inflator in the tire with air, as specified in the directions on the can. The reasonableness of defendant’s conduct in this regard is also a jury question. Dorsey Trailers Southeast v. Brackett, 185 Ga. App. 172, 175 (3) (363 SE2d 779) (1987).

While the trial court found as a matter of law that Mize’s actions were reasonable, it based its finding upon the fact that the trade magazine read by Mize did not refer to Fix-a-Flat by name as being a dangerous tire inflator. This fact, however, would not be dispositive, as Mize testified that the article did not refer to any product by name, and that he nonetheless checked all the products that he had. “[I]f a dealer does inspect or test its merchandise, it must do so non-negligently. Thus, having made inspections, [Lawrenceville Auto Parts] would be liable for any patent defect which the inspections might reveal and could be negligent for not discovering such defects as might reasonably have been unearthed.” (Citations and punctuation omitted.) Holman Motor Co. v. Evans, 169 Ga. App. 610, 614 (2) (c) (314 SE2d 453) (1984). Therefore, under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), a genuine issue of material fact remains as to whether or not Lawrenceville Auto Parts negligently distributed Fix-a-Flat with knowledge of its dangerous propensities.

2. Plaintiffs also claim that Lawrenceville Auto Parts negligently failed to warn Farmer of the dangerousness of Fix-a-Flat. Although intertwined with the count regarding negligent distribution, slightly different law applies to this issue.

“In a products liability case, the existence of a duty to warn depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger.” (Punctuation omitted.) Dorsey, supra at 175 (2). In Beam, supra at 145 (1) (b), we held that “[a] manufacturer and retailer of a product which, to their actual or constructive knowledge, involves danger to users have a duty to give warning of such danger to the purchaser at the time of sale and delivery.” (Punctuation omitted.)

In this case, Lawrenceville Auto Parts had actual or constructive knowledge of the danger inherent in tire inflators. Under Beam it therefore had a duty to give warning of such danger. Because Lawrenceville Auto Parts’ immediate purchaser in this case was the Highway 20 Store, not Farmer, we must determine whether Farmer can bring an action against Lawrenceville Auto Parts for failure to warn or is limited to bringing such action against the Highway 20 Store from which he purchased the product.

A distributor’s duty to warn does not run solely to its immediate purchaser, the retailer, but rather to anyone who might reasonably come into contact with the product. Therefore, Farmer’s claim against Lawrenceville Auto Parts was viable as the retailer’s customer is one who might reasonably come into contact with the product. See generally Bishop v. Farhat, 227 Ga. App. 201, 206 (6) (489 SE2d 323) (1997) (summary judgment in favor of distributor of medical gloves used by non-purchasing nurse held improper). A distributor, who has knowledge of a dangerous quality associated with a product, is not relieved of its duty to give warning of such danger merely because it sells the product to a retailer. A jury issue remains as to the distributor’s knowledge of the dangerousness of the product it distributed to the retailer, with knowledge that the product would ultimately be passed on to the buying public. A jury’s determination that the defendant had such knowledge gives rise to a duty to warn Farmer thereof.

Although the duty to warn might be satisfied under some circumstances by giving an appropriate warning to the retailer to which the product is initially sold, it is uncontroverted that Lawrenceville Auto Parts did not warn either Farmer or the Highway 20 Store in the present case. The instructions on the can of Fix-a-Flat direct the user to replace the sealant with air at the earliest opportunity. In this case, Farmer added air to his tire, not just once, but several times, believing that in doing so he had replaced the explosive sealant with air as directed. Indeed, at the point that Farmer welded the tire, he had added air on several occasions and such air had since escaped. Certainly, then, it was reasonable for Farmer to think that the sealant had been replaced with air in accordance with the directions on the can. Lawrenceville, on the other hand, knew that future shipments of tire sealants would include warnings to be adhered to the tire, itself, showing that a sealant had been used. Of course, the need for such an additional warning clearly implies that the dangerous propensities of the sealant may remain in the tire even after it has been inflated. Clearly, a question of fact remains as to whether the manufacturer’s warning on the can of Fix-a-Flat was sufficient to satisfy Lawrenceville Auto Parts’ duty to warn of the dangerousness of the product. This is a question for the jury, Beam, supra, and, accordingly, the trial court’s grant of summary judgment with regard to the duty of Lawrenceville Auto Parts to warn Farmer was error.

3. Contrary to the position taken by the majority, this is not, and should not be, a case subject to summary adjudication with regard to either the plaintiff’s claim concerning the negligent distribution of the tire inflator or the claim concerning the failure to warn of dangers associated with such tire inflator.

The majority contends that Beam, supra, and Bishop, supra, “must be confined to those situations in which evidence shows a distributor or seller is aware of a danger either not communicated by the manufacturer’s warning or substantively different from the dangers the manufacturer has included in a warning label.” As the latter circumstance necessarily includes the former, the majority’s standard must be construed to mean that a distributor has a duty to warn only when it is aware of a danger that is substantively different from those dangers communicated on a product warning. Therefore, based on its undefined, court-decided distinction regarding substantive differences between dangers, the majority would immunize a distributor from liability even when such distributor knows of a danger associated with a product, it knows that the danger has not been communicated to the purchaser in the product’s warning, and it nevertheless distributes the product for sale to the consumer. Even accepting the majority’s announced standard, it is a question of fact whether the chemical explosion which caused Farmer’s injuries is substantially different from the dangers covered in the instructions on the Fix-a-Flat can. In any event, semantics should not be used by the court to usurp the role of the jury in cases such as this.

In support of its conclusion that Lawrenceville had no duty to warn Farmer in this case, the majority cites Exxon Corp. v. Jones, 209 Ga. App. 373 (433 SE2d 350) (1993). That case, authored by the undersigned, is distinguishable from the matter now before us. In Jones this Court reversed the denial of defendant Exxon’s motion for summary judgment on plaintiff’s claim against it for injuries resulting from an explosion of leaked LP gas purchased from and provided by Túgalo Gas Company, the distributor, based on the learned intermediary doctrine. Exxon had provided training and warnings to Túgalo in connection with the sale and distribution of the LP gas which Exxon had sold in bulk to Túgalo, its distributor. This Court held that “[a]ny duty owed to Jones in the handling of the gas after its delivery, was owed by Túgalo, not Exxon.” Id. at 376. The appeal did not involve Túgalo, the entity which had a duty to warn Jones.

The present case does not involve the learned intermediary doctrine, and Jones did not involve the grant of summary judgment to the defendant whose duty it was to warn the plaintiff. In addition, Jones does not support the majority’s contention that Lawrenceville could not have foreseen, as a matter of law, the way in which Farmer used the tire inflator. Indeed, the facts of this case, even as described by the majority, show otherwise. The vice-president of Lawrenceville read an article admonishing that tire inflators could cause explosions, and it is just such an explosion which occurred in this case.

Whether the manufacturer’s warning on the can of Fix-a-Flat was adequate to immunize Lawrenceville Auto Parts from its duty to warn of this foreseeable explosion is a question for the jury. In so holding, we take direction from Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997), in which our Supreme Court recently emphasized that questions of negligence of the parties should generally be left for jury determination. Georgia courts should not generally remove such issues from the jury. While this case involves negligence in a products liability setting, not negligence in a premises liability setting, the focus of the Robinson decision is allowing questions of negligence to be decided by a jury. Here, the majority would substitute its judgment on the factual issue of the sufficiency of the defendant’s actions and the adequacy of the warning for that of a jury, contrary to the direction of Robinson. This is clearly a question for the jury. While most people would not have acted as plaintiff did in this matter, this does not remove the matter from jury determination.

Decided March 19, 1998

Llewellyn & Swanson, David J. Llewellyn, Serio & Swilley, Salvatore J. Serio, for appellants.

Jeffrey R. Sliz, for appellee.

The majority suggests that while such issues are not subject to summary adjudication in a premises liability case, they somehow would be in a products liability case. Fact issues are for juries, not judges, and this is so without regard to the type of tort involved.

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

       The Farmers also sued the manufacturer of the tire inflator and the retailer, but neither of those defendants is a party to this appeal.


author: Smith, Judge. Beasley, Judge,

text:
    A97A2152.
    McGOWAN v. McGOWAN.
    (498 SE2d 574)
   Smith, Judge.

Norman and Sherry Jean McGowan were divorced in Texas in 1992. Under the Texas divorce decree, Ms. McGowan was awarded custody of the couple’s minor child. Mr. McGowan filed a petition for change of custody in Polk County Superior Court in May 1996 and also sought domestication of the Texas final judgment and divorce decree. Ms. McGowan answered and counterclaimed, seeking modification of visitation and child support. Following a hearing, the trial court denied Mr. McGowan’s petition to modify custody and modified his child support obligations. The court also modified certain aspects of the Texas decree concerning visitation. Mr. McGowan’s motion for new trial was denied, and we granted his application for discretionary appeal. We cannot reach the merits of his contentions, however. Although an order of domestication as such is not necessarily required, the record does not show domestication of the Texas judgment and decree by any method, whether pursuant to Pearson v. Pearson, 263 Ga. 400 (435 SE2d 40) (1993), OCGA § 19-9-55, or any other legal procedure. The trial court consequently was not authorized to modify that decree. We must therefore vacate the trial court’s judgment and remand for consideration of Mr. McGowan’s request for domestication of the Texas decree.

In Pearson, the parties were divorced in Texas. Both then moved to Georgia, and Ms. Pearson filed a petition seeking to modify child support in Cobb County. She also amended her complaint to seek domestication of the Texas decree. The trial court never entered an order domesticating the foreign judgment but did modify the child support obligations set out by the decree. Id. The Supreme Court found that the final decree remained a Texas judgment because no prior order was entered domesticating that judgment in Georgia. Id. at 400-401. Distinguishing between enforcing judgments and domesticating judgments, the Court stated that “Georgia permits modification of a foreign divorce decree only after domestication of that judgment. [Cits.]” Id. at 401. Although neither party objected to the trial court’s entry of a modification order before it ruled on the request for domestication and neither raised .the issue on appeal, the Supreme Court vacated the appeal because “an order of domestication was a necessary prerequisite to the trial court’s authority to modify. [Cit.]” Id. We find no such order filed in this case, and, under Pearson, the trial court therefore did not have authority to modify the Texas decree.

We note that the law seems to be somewhat in conflict with regard to the procedure for domesticating a foreign divorce decree. In Pearson, supra, the Court relied on Blue v. Blue, 243 Ga. 22 (252 SE2d 452) (1979), for the proposition that “Georgia permits modification of a foreign divorce decree only after domestication of that judgment.” Pearson, supra at 401. This is indeed a correct statement of the holding in Blue in which the Court allowed modification of a domesticated sister state decree. Blue, supra at 23. Blue did not address, however, the issue of how a foreign custody decree can be domesticated. Such a decision would have been futile in any event, because Blue was decided prior to our legislature’s adoption of the Uniform Child Custody Jurisdiction Act (“the Act”), OCGA § 19-9-40 et seq., effective January 1, 1979. See Ga. L. 1978, p. 258. The Act includes its own provisions for domesticating and modifying foreign custody decrees. See OCGA §§ 19-9-54 and 19-9-55.

OCGA § 19-9-55 sets forth the requirements for domesticating a custody order of another state. Specifically, that section provides that “[a] certified and exemplified copy of a custody decree of another state may be filed in the office of the clerk of any superior court of this state. The clerk shall treat the decree in the same manner as a custody decree of the superior court of this state. A custody decree so filed has the same effect and shall be enforced in like manner as a custody decree rendered by a court of this state.” (Emphasis supplied.) OCGA § 19-9-55 (a). This subsection clearly authorizes domestication by simply filing a certified and exemplified copy of the foreign decree and states that such a decree will have the “same effect” as a custody decree rendered by a court of this state. No other domestication provisions appear within the Act.

The prerequisites for modifying a foreign state custody decree are stated in OCGA § 19-9-54 (a): “If a court of another state has made a custody decree, a court of this state shall not modify that decree unless: (1) It appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this article or has declined to assume jurisdiction to modify the decree; and (2) The court of this state has jurisdiction.”

Shortly after the Act was adopted, the Supreme Court decided Roehl v. O’Keefe, 243 Ga. 696 (256 SE2d 375) (1979). In Roehl, the appellant asserted that “since [a] North Carolina divorce was never domesticated, the Superior Court of Pike County had no jurisdiction to modify the visitation conditions set out in [the] divorce decree and consequently had no authority to hold her in contempt.” Id. at 696. In addressing the domestication issue, the Court found as a matter of fact that “[a]n authenticated copy of the foreign decree appears in the record of this case, Code Ann. § 38-627 (b) [now codified as OCGA § 24-7-24], but no order ha[d] been entered making it a Georgia judgment.” Id. The appellant contended that without a court order domesticating the judgment, “the Pike Superior Court had no subject matter jurisdiction to modify [the appellee’s] visitation rights.” Id. at 696-697. The Court disagreed. It found that under former Code Ann. § 74-515 (a) (2), (now codified as OCGA § 19-9-54 (a) (2)), a Georgia court can modify a custody decree of another state, if the Georgia court has jurisdiction. Id. at 697. The Court further found that under former Code Ann. § 74-516 (now codified as OCGA § 19-9-55) a foreign custody decree was enforceable “merely by filing a certified copy [of the decree] with the clerk of the superior court.” Id. at 697. Keeping in mind that the specific issue was whether the decree was properly domesticated for modification purposes, the Court held that “[s]ince a certified copy of the North Carolina decree appears in the record, it was properly ‘domesticated’ pursuant to [the] Act.” Id.

Although the Supreme Court’s opinion in Pearson does not appear to be based on the Act, the Court again addressed the domestication issue. In Pearson, the appellant sought both to modify appellee’s child support obligations and to domesticate the Texas divorce decree. The trial court modified the child support obligations provided in the Texas decree, but it never entered an order in response to the petition to domesticate the Texas judgment. The Supreme Court reversed the trial court’s modification order because “[o]n the record . . . [the] final divorce decree remains a Texas judgment, since there was no prior order domesticating that judgment in this state.” (Emphasis supplied.) Pearson, supra at 400-401.

Three things are clear from the Supreme Court’s opinion in Pearson. First, the appellant did not attempt to domesticate the Texas decree pursuant to the Act by filing a certified and exemplified copy of the judgment. Rather, the appellant petitioned the trial court to issue an order domesticating the judgment. Second, the trial court never entered a domestication order in response to the petition. Finally, because the appellant only attempted to domesticate by petitioning the trial court for a domestication order, the Supreme Court did not address the issue of whether the Texas decree could have been domesticated and modified under OCGA §§ 19-9-54 and 19-9-55 of the Act. See Henderson v. Justice, 223 Ga. App. 591 (478 SE2d 434) (1996).

Accordingly, we must vacate the trial court’s judgment and remand for consideration of Mr. McGowan’s request for domestication of the Texas decree.

Judgment vacated and case remanded.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the judgment that the trial court order must be vacated and the case remanded for domestication, but the law does not require the court to enter an order domesticating the foreign judgment. It will be accomplished if Mr. McGowan files it with the clerk of court, as a foreign judgment, pursuant to either OCGA § 19-9-55 or § 9-12-132. No court order is necessary to domesticate the Texas decree.

In Mr. McGowan’s petition for change of custody, he asserted that the Texas decree “should be domesticated by [the trial court] pursuant to OCGA § 9-12-130 et seq., and thereby made the judgment of [that] court,” and in his prayer for relief he demanded that this be done.

OCGA § 9-12-130 et seq. constitutes the Uniform Enforcement of Foreign Judgments Law and simply requires, for domestication, that an authenticated copy of the foreign judgment be “filed in the office of the clerk of any court of competent jurisdiction of this state.” OCGA § 9-12-132. Thereafter, according to that statute, it is to have the same effect as would a Georgia judgment. The problem here is that Mr. McGowan did not file it; he merely attached it as an evidentiary exhibit to his petition to change custody. It was thus, at best, in the case under the evidentiary rule contained in OCGA § 24-7-24. The clerk did not have it recorded as a separate judgment, as would be done for a fee had it been filed as a foreign judgment under the Uniform Act. OCGA § 9-12-135.

OCGA § 19-9-55 allows domestication of foreign custody decrees specifically, within the law governing child custody proceedings generally. It provides the exact same procedure, i.e., a simple filing with the clerk. There is a slight difference in what must be filed, in that OCGA § 9-12-132 calls for a copy “authenticated in accordance with an act of Congress or statutes of this state,” whereas OCGA § 19-9-55 calls for “[a] certified and exemplified copy.” But in both instances the domestication is achieved by a proper filing. And in both instances the effect is the same; both are treated as judgments or decrees of Georgia, for purposes of enforcement.

As stated by the Supreme Court soon after enactment of OCGA § 19-9-55 in 1978, “foreign custody decrees are enforceable merely by filing a certified copy with the clerk of the superior court. Since a certified copy of the [foreign] decree appears in the record, it was properly ‘domesticated’ pursuant to this Act.” Roehl v. O’Keefe, 243 Ga. 696, 697 (1) (256 SE2d 375) (1979).

The rub comes when a parent or other person in the court-decreed custody arrangement desires to modify it. In such instances, as in this case, the Georgia court cannot change the now-domesticated foreign judgment until it first makes two rulings: (1) the foreign court either no longer has jurisdiction or declines jurisdiction to modify its decree; and (2) the Georgia court does have jurisdiction.* That is required by OCGA § 19-9-54, which has nothing to do with domestication but rather with changing an enforceable domesticated foreign custody decree. It is in keeping with the requirements of the federal Parental Kidnapping Prevention Act (PKPA), 28 USC § 1738A (a), (f). See Garrett v. Garrett, 220 Ga. App. 172, 174 (469 SE2d 330) (1996), aff’d, 267 Ga. 356 (477 SE2d 804) (1996). The Supreme Court in Garrett refers to the PKPA/OCGA § 19-9-54 requirement as a two-prong test. 267 Ga. at 357.

Unfortunately, the Supreme Court in Pearson v. Pearson, 263 Ga. 400 (435 SE2d 40) (1993), referred to the order making these rulings as being an order “domesticating” the foreign judgment. A “domesticated” judgment is one which is “[m]ade domestic or converted to domestic use.” Black’s Law Dictionary, p. 434 (4th ed.). See NationsBank v. Gibbons, 226 Ga. App. 610, 612 (487 SE2d 417) (1997) (a filed foreign judgment thereby becomes a domesticated Georgia judgment and has the same effect as a Georgia judgment). The requisite order only sets the stage for authority to change the domesticated order. So, for example, a party could enforce the provisions of that foreign custody order once it is properly filed with the clerk, without an order ruling on the two issues set out in OCGA § 19-9-54. They only establish the threshold for a Georgia court’s consideration of revision. The Supreme Court’s ruling in Pearson, supra at 401, that “an order of domestication was a necessary prerequisite to the trial court’s authority to modify,” confuses domestication, which is done by filing with the clerk, with authority to modify.

Of course, as recognized in Blue v. Blue, 243 Ga. 22 (252 SE2d 452) (1979), the decree must be domesticated before it can be modified. But domestication is only one step, and an easy non-judicial one at that. The second step is the trial court’s rulings on the two issues created by OCGA § 19-9-54. When a foreign decree is domesticated and thereafter the trial court rules favorably on the two statutory prerequisites, then it may move to the subject of modification on its merits.

In Pearson the Supreme Court cited Sovern v. Sovern, 156 Ga. App. 752, 753 (3) (275 SE2d 791) (1980), for the proposition that the petitioner could amend her petition to seek domestication in the same action in which she sought modification. While that would be true for the OCGA § 19-9-54 issues, it would not be necessary for domestication under either OCGA § 19-9-55 or § 9-12-132; proper filing with the clerk under either one of those two statutes would be sufficient.

On the other hand, if petitioner were following the old, more cumbersome procedure for domesticating foreign judgments, then a prayer for a court order would be appropriate. Okekpe v. Commerce Funding Corp., 218 Ga. App. 705, 707-714 (463 SE2d 23) (1995) (Beasley, C. J., concurring specially). An example is Crosby v. Wenzoski, 164 Ga. App. 266 (296 SE2d 162) (1982). That action to domesticate a foreign judgment shows its treatment as a separate litigated case, complete with motion for summary judgment, motion for judgment on the pleadings, counterclaim, and appeal.

That procedure seems to be the one which the petitioner was following in Sovern, although the opinion in that case does not identify it. OCGA § 9-12-132 was not yet enacted, and OCGA § 19-9-55 had just been enacted two years before Sovern; the action would have been filed much before that decision was published. Even under the Uniform Act which was made Georgia law in 1986, the old procedure remains available, albeit only for use by judgment creditors. OCGA § 9-12-136.

Parker v. Parker, 233 Ga. 434 (211 SE2d 729) (1975), and White v. White, 233 Ga. 289 (210 SE2d 817) (1974), both involved the old separate procedure for domestication, i.e., the filing of a complaint for domestication, which would indeed lead to a court order of domestication. At the time both of these cases were decided, neither the Uniform Act (specifically OCGA § 9-12-132) nor the similarly streamlined domestication procedure for foreign custody decrees contained in OCGA § 19-9-55 had yet been made law in Georgia. In Blue, supra, the Supreme Court referred to both of these cases as authority for domestication for foreign alimony and child support decrees. The action in Blue probably arose before the effective date of OCGA § 19-9-55 and certainly before the adoption of the Uniform Act, so the old method was likely the only one available.

Decided March 19, 1998.

York, McRae & York, Robert T Monroe, for appellant.

Ana M. Rountree, Julie W. Cain, for appellee.

In sum, a court order finding jurisdiction upon a consideration of the two prerequisites set out in OCGA § 19-9-54 does not constitute an order of domestication. Instead, properly filing the foreign custody decree as instructed in OCGA § 19-9-55 fully accomplishes domestication.

        Mulle v. Yount, 211 Ga. App. 584 (1) (440 SE2d 210) (1993) (non-precedential), is an example of a case in which the issue was whether the two-prong jurisdictional test of OCGA § 19-9-54 was met. The same issue, but under the Parental Kidnapping Prevention Act, was the subject of the first division of the opinion in Henderson v. Justice, 223 Ga. App. 591, 592 (1) (478 SE2d 434) (1996).


author: Birdsong, Presiding Judge.

text:
    A98A0661.
    ROBINSON v. THE STATE.
    (498 SE2d 579)
   Birdsong, Presiding Judge.

Gregory Robinson appeals his conviction of two counts of trafficking in cocaine in violation of the Georgia Controlled Substances Act. He enumerates six errors. Held:

1. Appellant contends the trial court erred in denying his motion for directed verdict as no evidence was presented by the State identifying him as the person who committed the crimes charged in the indictment. We disagree.

“[T]he proper test when sufficiency of the evidence is challenged by a motion for directed verdict of acquittal is the ‘reasonable doubt’ test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).” Wilburn v. State, 199 Ga. App. 667 (1) (405 SE2d 889). In resolving this issue an appellate court can consider all the evidence in the case. See, e.g., Bethay v. State, 235 Ga. 371, 373 (1) (219 SE2d 743).

The indictment establishes that Gregory Robinson was charged and accused with the counts therein. The trial record reveals a State’s witness verified in the jury’s presence that he had occasion to set up a controlled buy from the defendant, Gregory Robinson. Also, appellant was introduced both by his counsel and by the trial judge to the jury as Gregory Robinson, the defendant, and appellant did not repudiate either of these statements of fact. See generally Bonilla v. State, 204 Ga. App. 424 (1) (419 SE2d 495) (admission in judicio in closing argument); Tolbert v. State, 12 Ga. App. 685, 686 (9) (78 SE 131). Also, there was concordance between appellant’s name and that of the person charged in the indictment. “ ‘Concordance of name alone is some evidence of identity.’ ” Mincey v. State, 186 Ga. App. 839, 841 (4) (368 SE2d 796). “ ‘Identity of name presumptively imports identity of person, in the absence of any evidence to the contrary.’ ” Hunt v. State, 219 Ga. App. 741, 744 (3) (466 SE2d 894). In the absence of evidence to the contrary, this presumption remains unchallenged. Thus, there existed ample evidence from which the jury could conclude, under a Jackson v. Virginia standard, that appellant was the same person as named in the indictment.

Further, one of the purposes of arraignment is to identify the person on trial and raise an issue by plea. Wells v. Terrell, 121 Ga. 368 (2) (49 SE2d 319). When the person accused of committing the crimes, upon being arraigned, causes a not guilty plea to be entered on the minutes of the court, the arraignment and plea shall constitute the issue between the accused and the state. OCGA § 17-7-94. It would appear, based on a presumption of regularity of court proceedings, that a defendant who has been duly arraigned and who has entered a not guilty plea to the charge(s) has been adequately identified as the person named in the indictment in the absence of a timely objection as to the accuracy of his identification as the person named in the indictment. Appellant did not raise any issue during arraignment that he was not the person named in the indictment. However, in view of our holding above, we need not consider whether the proper recourse of a defendant who asserts he is not the person named in the indictment is to raise timely, by motion of misnomer (see OCGA § 17-7-112) or motion to quash, the issue of his identity.

2. Appellant contends the trial court erred in admitting in evidence the cocaine seized at Forest Path House and at the Hardin Court address; however, appellant does not make any specific allegation that the evidence was tampered with, or that the evidence seized was not, in fact, that analyzed and subsequently admitted in evidence. Compare Williams v. State, 199 Ga. App. 122, 123 (2) (404 SE2d 296). The trial court did not abuse its discretion in admitting the cocaine in evidence. Contrary to appellant’s contentions, examination of the trial transcript reveals that an adequate foundation was laid for the admissibility of this seized contraband. “To show a chain of custody adequate to preserve the identity of fungible evidence, the State has the burden of proving with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The State need not foreclose every possibility of tampering, however, and need only show ‘reasonable assurance’ of the identity of the evidence.” Stone v. State, 229 Ga. App. 367, 369 (1) (494 SE2d 48). The testimony of the officers who seized the evidence regarding the manner in which it was safeguarded and kept in the evidence safe until it was transported to the crime laboratory, coupled with the testimony of the crime laboratory expert who analyzed the evidence and delivered it to the district attorney’s office, was sufficient to establish the requisite chain of custody.

Assuming arguendo that the officers did not, as to every fact to which they testified, have an independent recollection of the procedure used and that they relied on the chain of custody documents, which either were completed by themselves or by others either in or out of their presence, to refresh their memories does not demand a different result. Compare Byrd v. State, 182 Ga. App. 284, 287 (6) (355 SE2d 666); Woodward v. City Council &c., 117 Ga. App. 857 (162 SE2d 304); Bridges v. Mut. Benefit &c. Assn., 49 Ga. App. 552, 553 (2) (176 SE2d 543); Smith v. The Morning News, 99 Ga. App. 547, 549 (1) (109 SE2d 639).

Moreover, in viewing the totality of the testimony of Sergeant Miller, Sergeant Dillon and Ms. Ali, we find that the chain of custody standard as to each item at issue has been met with reasonable certainty. Compare Anderson v. State, 247 Ga. 397, 399 (2) (276 SE2d 603).

3. Appellant’s contention that the crime laboratory expert’s testimony was based on hearsay, because she did not personally test the cocaine control sample that she used during ultraviolet spectroscope and gas chromatograph and mass spectrometry testing, is without merit. The control sample had been tested by others in the crime laboratory and determined to be cocaine; although she did not test the sample herself, the expert had personally observed the results of the analytical tests of the control sample which she thereafter employed. “[W]here an expert personally observes data collected by another, his opinion is not objectionable merely because it is based in part on the other’s findings.” Walker v. State, 228 Ga. App. 509, 511 (2) (493 SE2d 193). Moreover, “mere contradiction of a recognized expert’s method of conducting a scientifically acceptable test is not fatal to admissibility”; an expert “does not have to testify to the validity of every step that went into the formulation of her results as a foundation for their admissibility.” Orr v. State of Indiana, 472 NE2d 627, 633-634 (2) (Ind. App.). Where, as here, the expert is available for full and searching cross-examination, the failure of the expert to test independently the control sample, after observing its analytical test results, goes only to the weight of the evidence and not to its admissibility. See Walker, supra; Orr, supra.

4. Appellant’s contention that his conviction should be vacated because the trial court allowed Sergeant Dillon to introduce improper character evidence and hearsay against him, by allowing the officer to read his police report in evidence, is without merit. We find that the holding in Gadson v. State, 264 Ga. 280, 281 (3) (444 SE2d 305) resolves this issue adversely to the appellant.

Additionally, assuming error had occurred as enumerated, we find such error would have been harmless as it is highly probable, in view of the overwhelming evidence of appellant’s guilt (including his pretrial incriminating statements), that any such error would not have contributed to the verdict. See generally Ragan v. State, 264 Ga. 190, 192-193 (3) (442 SE2d 750).

5. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the two offenses of trafficking in cocaine of which he was found guilty. Jackson v. Virginia, supra.

6. Pretermitting whether appellant’s trial counsel was ineffective for failing to advise him to testify in a Jackson-Denno hearing regarding the circumstances surrounding the pretrial statements appellant made to a law enforcement officer is the question whether such conduct if it had occurred would, in this instance, establish the required second prong of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674). We conclude that it would not. The trial court in denying appellant’s motion for new trial expressly determined that the testimony of Sergeant Dillon, at both the trial and during the Jackson-Denno hearing regarding the circumstances surrounding the incriminating pretrial statements of appellant, was more credible than the testimony of appellant at the motion for new trial hearing. The trial court expressly found that Sergeant Dillon did not tell the defendant that if he cooperated with the police, he would not be prosecuted. Assuming arguendo, appellant had testified at the JacksonDenno hearing, his incriminating pretrial statements to Sergeant Dillon still would have been admitted, and there exists no reasonable probability that the result of his trial would have been different. Thus, even assuming trial counsel’s performance was deficient (which we do not find), appellant has failed to show that a reasonable probability exists that such a deficient performance would have prejudiced his defense, as required by the second prong of Strickland, supra.

Additionally, the trial court found that “the defendant failed to carry his burden of proving that [his trial counsel] was ineffective and but for [counsel’s] alleged deficiencies the defendant would have been acquitted.” These findings must be upheld unless erroneous (Harris v. State, 268 Ga. 412, 413 (490 SE2d 96)), which we find they are not. This enumeration is without merit.

Judgment affirmed.

Johnson and Smith, JJ., concur.

Decided March 19, 1998

Kendal D. Silas, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Lawrence Delan, Assistant District Attorneys, for appellee.


author: Andrews, Chief Judge.

text:
    A97A2452.
    LOWE v. JONES COUNTY et al.
    (499 SE2d 348)
   Andrews, Chief Judge.

Lillie Lowe, individually and as administratrix of the estate of her son, Leon Lowe, appeals from the grant of summary judgment to Jones County and Sheriff Reece in her wrongful death and 42 USC § 1983 action.

1. In reviewing the grant or denial of summary judgment, this Court conducts a de novo review of the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996); Gaskins v. Hand, 219 Ga. App. 823 (466 SE2d 688) (1996). Viewed under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the evidence was that around midnight on March 4, 1992, Jones County Sheriff’s Deputy Darley was parked by the Gray Highway when a motorist pulled up and told him he had just passed a Thunderbird which he believed was being driven by a drunk driver because it was weaving and going under the speed limit. Gray Highway is a four lane highway with a dividing median. Darley saw the car coming toward him, pulled out behind it, and observed it “weave all over the road” while going about 30 mph, well under the speed limit. Darley activated his blue lights and pulled the car over, although Lowe, the driver, did not respond immediately.

Darley parked behind the Thunderbird with his blue lights on, investigated, and determined that Lowe had no driver’s license and had been drinking. Darley asked Lowe to get out of the car and administered an alcosensor test which was positive. He advised Lowe he was under arrest and had him place his hands on top of the Thunderbird so he could do a pat down search. Lowe complied until Darley was patting down his ankles. Lowe then came off the car in an aggressive manner, slapped Darley in the face, said he was not going to jail, and ran across the highway.

Darley pursued Lowe on foot. Macon Officer Draper, who had witnessed the stop and the following altercation, blocked Lowe’s route into surrounding woods with his car and joined in the foot pursuit. As the two officers had Lowe on the pavement in a traffic lane and were attempting to handcuff him, a car struck all three, killing Lowe and injuring Darley and Draper.

2. Lowe’s complaint against Jones County is premised on vicarious liability for Darley’s allegedly negligent actions in pursuing Lowe into traffic lanes. As found by the trial court, however, Brown v. Jackson, 221 Ga. App. 200, 201 (2) (470 SE2d 786) (1996) precludes such a claim because deputy sheriffs are employees of the sheriff, not the county, and the county cannot be held vicariously liable as their principal.

3. Lowe also alleged a state law claim against Jones County and Sheriff Reece in his official capacity for failure to properly train Darley in foot pursuit procedures, OCGA § 33-36-4, regarding which the trial court found Jones County and the sheriff entitled to official immunity.

“The operation of a police department, including the degree of training and supervision to be provided its officers, is a discretionary governmental function of the municipality as opposed to a ministerial, proprietary, or administratively routine function. [Cits.]” McDay v. City of Atlanta, 204 Ga. App. 621 (1) (420 SE2d 75) (1992). Liability may be imposed as a result of the exercise of such a discretionary function only when the acts complained of are done within the scope of the officer’s authority and with wilfulness, malice or corruption. Id. There has been no showing of any conduct by Sheriff Reece or Jones County which would amount to wilfulness, malice or corruption. Both were entitled to official immunity as a matter of law. Woodard, v. Laurens County, 265 Ga. 404, 405 (1) (456 SE2d 581) (1995); Gilbert v. Richardson, 264 Ga. 744, 752 (6) (452 SE2d 476) (1994); see Dyches v. McCorkle, 212 Ga. App. 209, 216 (2) (441 SE2d 518) (1994).

4. Finally, with regard to the 42 USC § 1983 claim, we find the trial court properly granted summary judgment to the county and Sheriff Reece.

While local governments may be liable for employing individuals who deprive citizens of their constitutional rights by acting under color of state law and, while inadequacy of police training may serve as a basis for § 1983 liability, such inadequacy must amount to “deliberate indifference to the . . . rights of persons with whom the police come into contact.” City of Canton, Ohio v. Harris, 489 U. S. 378, 379 (109 SC 1197, 103 LE2d 412) (1989). See Monell v. Dept. of Social Svcs. &c., 436 U. S. 658 (98 SC 2018, 56 LE2d 611) (1978).

“ ‘[F]or liability to attach in this circumstance the identified deficiency in a [county’s] training program must be closely related to the ultimate injury. City of Canton, Ohio, 489 U. S. [at 391]. ‘In virtually every instance where a person has had his or her constitutional rights violated by a [county] employee, a § 1983 plaintiff will be able to point to something the [county] “could have done” to prevent the unfortunate incident.’ Id. at 392. Section 1983 claims will result only in liability against the [county] only when that [county’s] failure to train reflects deliberate indifference to the rights of the inhabitants. Id.” Watson v. Mayor &c. of Savannah, 223 Ga. App. 399, 401-402 (1) (477 SE2d 667) (1996). See also Bell v. City of Albany, 210 Ga. App. 371, 373 (436 SE2d 87) (1993).

As thoroughly discussed by the trial court in her order, the facts here do not rise to this level. While Jones County does not have written policies specifically concerning foot pursuit, other regulations in the Sheriff’s Department Policies & Procedures Manual caution officers to “protect life and property” and that, “[w]hile the use of reasonable physical force may be necessary in situations which cannot be otherwise controlled, force may not be resorted to until all other reasonable alternatives have been exhausted or clearly [would] be ineffective under the particular circumstances. Officers are permitted to use whatever force is reasonable and necessary to protect others or themselves from bodily harm.”

Jones County officers receive the state mandated training through the Regional Police Academy, as well as additional training provided by the sheriff and supervising officers during their recruit training, in service training, and advanced training. Twenty hours of training a year are required to keep their state certification. Even assuming some inadequacy in training, there certainly has been no showing of deliberate indifference. Bontwell, supra; see Anderson v. City of Glenwood, 893 FSupp. 1086, 1089 (S.D. Ga. 1995) (persuasive authority).

Deputy Darley arrested Lowe for DUI and engaged in the foot pursuit after Lowe bolted because he believed Lowe was endangering himself as well as others by running across the four lane road.

This incident was the only incident since Sheriff Reece had been sheriff in which a DUI suspect had been struck by a vehicle. Further, there was no pattern of incidents of other police misconduct during arrests of suspects.

Therefore, no evidence has been shown of any official county policy or custom of improperly engaging in foot pursuit which would endanger a citizen, nor was there evidence that the county or the sheriff endorsed an informal policy or custom of improperly arresting citizens. Jones County and Sheriff Reece were entitled to summary judgment on this basis. Watson, supra; Bell, supra; compare Mayor &c. of Savannah v. Wilson, 214 Ga. App. 170, 171 (1) (447 SE2d 124) (1994).

Decided March 9, 1998

Reconsideration denied March 20, 1998

Buzzell, Graham & Welsh, Neal B. Graham, Stephen M. Welsh, for appellant.

Groover & Childs, Duke R. Groover, Frank H. Childs, Jr., for appellees.

Finally, because Lowe ran and the evidence does not show that the officers ever had Lowe handcuffed or fully under control, no causal nexus has been shown between any alleged lack of training and the death of Lowe. See Thompson v. Chapel, 229 Ga. App. 537, 538 (1) (494 SE2d 216) (1997).

Judgment affirmed.

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

       A showing of negligence, even gross negligence, will not suffice. Bontwell v. Dept. of Corrections, 226 Ga. App. 524, 528 (4) (a) (486 SE2d 917) (1997).

       Lowe’s blood alcohol registered .30.


author: Beasley, Judge.

text:
    A97A2504.
    BAEZ v. THE STATE.
    (500 SE2d 339)
   Beasley, Judge.

Baez’s conviction for trafficking in cocaine in 1994 was affirmed by this Court. Denial of his earlier habeas corpus petition was affirmed. He now appeals the denial of his post-conviction motion for the return of certain property confiscated by the police during the investigation that led to his arrest.

Baez sought return of the contents of a satchel-type suitcase (State’s Exhibit 1) which allegedly included “private documents, papers, receipts, checks, music tape cassettes, and other things or items”; a book (State’s Exhibit 27); a camera (State’s Exhibit 11); a digital scale in a box (State’s Exhibits 2A and 2B); and guns (State’s Exhibits 3, 4 and 7). On appeal he also claims ownership of food stamps (State’s Exhibit 13) and a picture of himself found in an album (State’s Exhibit 12). The trial court ordered the return of only the camera and the book.

The food stamps and the picture were not included in Baez’s motion to the trial court, and thus there was no ruling on them which would be subject to appellate review. “It is well established law that enumerations of error which raise questions for the first time on appeal present nothing for decision. [Cit.]”

With regard to the guns and the scale, the trial court identified in the trial transcript where Baez testified during trial that he had never seen the guns before, that they were not in his truck, and that he did not know what the object (the scale) was. Baez argues that because we affirmed his conviction on the basis that this and other evidence was found in a residence he occupied and controlled, thereby connecting him with the cocaine found there and showing that he trafficked in cocaine, the State has admitted that he owned these items so he is entitled to their return. True, the jury found these were at least under his control, but that was over Baez’s sworn denial. It is he who cannot change horses in midstream. The law will not allow a defendant to deny ownership in a criminal proceeding where it is proof of guilt, in order to avoid conviction, and then prove ownership so as to regain it. The inconsistent positions taken are resolved against defendant when the issue is disposition of personal property in accordance with OCGA § 17-5-54. Compare LoGiudice v. State, 164 Ga. App. 709, 711 (4) (297 SE2d 499) (1982) (no inconsistent testimony by claimant).

Contrary to assertions by Baez, this Court never found he owned any of the subject property. Instead, the Court stated: “There was ample evidence authorizing a conclusion that Baez occupied and controlled the apartment and its contents.” Proof of ownership of the personal property is the issue here and that is different from who was in control of the apartment and its contents. We find no error in the trial court’s ruling regarding the weapons and scale.

With regard to any documents, papers, receipts, checks, music tape cassettes, and other items contained in the suitcase, it does appear that the trial court did not separately consider whether these items may belong to Baez. The investigating officer testified he did not inventory the items that were in the suitcase. Although Baez denied ever seeing the suitcase, he was asked about “information in here[, i.e., the bag], papers and so forth of yours.” Baez responded that he had certain papers, receipts and documents in his truck prior to his arrest and that if these were items found in the suitcase, he does not know how they got there from the truck, as he lost control of the truck when he was arrested and the police searched the truck.

If Baez had personal items in the bag marked as Exhibit 1 at trial, and they are not contraband or subject to forfeiture, he is entitled to their return. OCGA § 17-5-54; Gunter v. State, 182 Ga. App. 548 (356 SE2d 276) (1987). These items are not in the record. The case is remanded for a determination of whether Baez has a proper claim of ownership of these items.

Decided March 5, 1998

Reconsideration denied March 20, 1998

Robert Baez, pro se.

Robert E. Keller, District Attorney, Nancy T. Bircher, Assistant District Attorney, for appellee.

Baez’s, arguments that the items were obtained in an illegal search and seizure were rejected in his earlier appeal. The decision in that case controls.

Judgment affirmed in part, reversed in part and remanded.

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

       See Baez v. State, 217 Ga. App. 511, 515 (3) (458 SE2d 658) (1995).

        Baez v. Lemacks, 264 Ga. 808 (452 SE2d 491) (1994).

       (Punctuation omitted.) Moreno v. State, 204 Ga. App. 463, 464 (419 SE2d 735) (1992).

        Baez v. State, supra, 217 Ga. App. at 515.

       See generally OCGA § 17-5-54.


author: Eldridge, Judge. BIRDSONG, Presiding Judge,

text:
    A97A1703.
    GODINHO v. CITY OF TYBEE ISLAND.
    (499 SE2d 389)
   Eldridge, Judge.

Jairza Godinho filed suit against the City of Tybee Island, Georgia (“City”), for damages arising out of a fall she sustained when she was walking on the City’s cement sidewalk and tripped in a hole in the cement, fracturing her wrist in three places. She appeals the trial court’s granting of the City’s motion for summary judgment, which ruling was based upon the trial court’s application of the Recreational Property Act (“RPA”) to the sidewalk at issue and upon the trial court’s determination that there is an absence of evidence in the record showing that the City had actual or constructive knowledge of the sidewalk’s defect. However, because (1) the RPA does not apply to the sidewalk at issue and (2) the pleadings demonstrate the City’s constructive knowledge of the defect, we reverse the judgment of the trial court.

1. The Recreational Property Act at OCGA § 51-3-22 provides that “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.” The owner must own and provide the land for recreational use in order to come within the ambit of limited tort liability of OCGA § 51-3-20. The purpose of the RPA is to “encourage property owners to make their property available to the public for recreational purposes by limiting the owner’s liability.” (Emphasis supplied.) Cedeno v. Lockwood, Inc., 250 Ga. 799,. 801 (2) (301 SE2d 265) (1983). For the RPA to apply, “the important criterion is the purpose for which the public is permitted on the property. If the public is invited to further business interests of the owner — e.g., for sales of food, merchandise, services, etc. — then the RPA will not shield the owner from liability even though the public receives some recreation as a side benefit.” Cedeno v. Lockwood, Inc., supra at 802.

Further, the purpose for which the public is permitted on the property does not depend upon an individual’s use. That one may use a sidewalk to reach the local laundromat does not give one a greater cause of action against a city than one who uses the same sidewalk to stop and smell the roses. Under the RPA, the inquiry centers around the purpose for the sidewalk, not the purpose of the individual user. Cedeno v. Lockwood, Inc., supra at 801-802.

Accordingly, the RPA does not apply to the sidewalk at issue for two reasons:

(a) The City of Tybee Island does not own the beach or make it available for recreational purposes to the public. “The foreshore itself belongs to the State and is available to all, with access thereto not diminished.” Lines v. State of Ga., 245 Ga. 390, 397 (9) (264 SE2d 891) (1980); see also State of Ga. v. Ashmore, 236 Ga. 401 (224 SE2d 334) (1976). Thus, the beaches within the City of Tybee Island are neither owned nor provided by defendant for recreational purposes, because the beaches are the property of the State to which all have right of access for recreation or other purposes provided by the State and not the City of Tybee Island. Accordingly, the sidewalks that provide beach access are not provided for recreational purposes within the meaning of OCGA § 51-3-21.

(b) The portion of the sidewalk in question runs from 14th Street to 18th Street bordering a large public parking lot on one side and the beach on the other. The sidewalk is used by visitors and residents alike to reach businesses, restaurants, motels, and condos, as well as to access the beach area. The City attracts the public to its beaches, not for the sheer recreational pleasure of the people, but because the public spends money in the City’s businesses, including paying for entry into the parking lot during the summer months. “They provide scenic areas and comfortable facilities to attract the public to their businesses, not to give the public a place for recreation.” (Emphasis omitted.) Cedeno v. Lockwood, Inc., supra at 802. The City’s sidewalks facilitate this purpose.

The trial court erred in granting summary judgment to the City based upon an application of the RPA.

2. “A municipality is relieved of any and all liability resulting from or occasioned by defects in the public roads of its municipal street system when it has not been negligent in constructing or maintaining the same or when it has no actual notice thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred.” OCGA § 32-4-93 (a). This Code section applies to a municipality’s public sidewalks, as well. See Brumbelow v. City of Rome, 215 Ga. App. 321 (450 SE2d 345) (1994). “If the . . . defect existed for such a length of time as by reasonable diligence in the performance of its duty, the defect ought to have been known by the municipal authorityE,] then notice will be presumed.” (Citation and punctuation omitted; emphasis in original.) Andrews v. City of Macon, 191 Ga. App. 745, 747 (382 SE2d 739) (1989). The question of constructive notice is ordinarily one for the jury, except in the absence of any evidence as to constructive notice, and the issue of negligence is a matter of law, not a question of fact for the jury. Id.

Here, Godinho asserted that her fall was caused by a defect in the cement sidewalk; that the cement sidewalk was in bad repair and in a defective condition; and that the defect had existed for a sufficient period of time prior to her fall that the City knew or in the exercise or ordinary care should have known of its existence and carried out the necessary repairs. The record is replete with evidence from which to infer that the defect had existed for a sufficient period of time that the City’s knowledge of the sidewalk’s defect might be presumed. This includes the conventional wisdom that, generally, holes in cement do not occur overnight; pictures that show that the sidewalk was in a general state of disrepair; pictures which indicate that the hole in the cement sidewalk had been there a long time; testimony that plaintiff’s pictures of the sidewalk with the hole in it are consistent with how the area looked prior to and at the time of plaintiff’s fall; and testimony that the particular stretch of sidewalk in question is especially susceptible to cracking and damage because of its proximity to the ocean. Compare Andrews v. City of Macon, supra. In addition, the record contains extensive, detailed maintenance logs that demonstrate city workers had been “at or near the site of [Godinho’s] accident” prior to the fall in order to sweep the sidewalk, cut weeds by the sidewalk, repair the snow fence adjacent to the sidewalk, and remove all of the handrails embedded in the sidewalk from 14th Street to 18th Street and patch the holes in the sidewalk resulting from the removal of the handrail poles.

“In general, ‘negligence issues are susceptible to summary adjudication only in plain, palpable and indisputable cases; the evidence must be construed most favorably to the party opposing the motion, and he must be given the benefit of all favorable inferences and reasonable doubts. . . . Summary judgment may be granted only where, construing all inferences against the movant, it yet appears without dispute that the case can have but one outcome and that outcome must be in the movant’s favor.’ ECit.]” Sykes v. Colony Regency Partners, 226 Ga. App. 804, 806 (487 SE2d 408) (1997).

Herein, the pleadings were sufficient to raise the inference that the City knew or ought to have known of the hole in its cement sidewalk. Kicklighter v. Savannah Transit Auth., 167 Ga. App. 528, 530-531 (307 SE2d 47) (1983); Andrews v. City of Macon, supra. The City failed to meet its burden on summary judgment to negate such inference. Thompson v. Regency Mall Assoc., 209 Ga. App. 1, 4 (432 SE2d 230) (1993). Accordingly, a jury issue exists as to whether the City of Tybee Island exercised ordinary care in keeping its sidewalks safe, and summary judgment was not warranted as a matter of law. Andrews v. City of Macon, supra. The trial court’s granting of summary judgment was error.

Judgment reversed.

Pope, P. J., Johnson, Blackburn, JJ, and Senior Appellate Judge Harold R. Banke concur. Andrews, C. J., and Birdsong, P. J., dissent.

BIRDSONG, Presiding Judge,

dissenting.

Because I believe that the trial court correctly ruled that the sidewalk where appellant sustained her fall is subject to the Recreational Property Act, OCGA § 51-3-20 et seq., I must respectfully dissent.

The Recreational Property Act at OCGA § 51-3-22 provides that “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.” Significantly, the stated exceptions to this provision which are set forth in OCGA § 51-3-25, pertain to wilful or malicious acts and omissions and to land for which the owner extracts a charge of money, “except that, in the case of land leased to the state or a subdivision thereof!,] any[ ] consideration received by the owner for the lease shall not be deemed a charge.” OCGA § 51-3-21 (4) defines “recreational purpose” as including, “but not limited to, any of the following or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites.”

The Recreational Property Act specifically does not exempt state, city or other public property from its terms, and no power or logic allows us to do so. Moreover, the Act appears to be directed particularly to publicly owned property which is maintained for recreational use and is otherwise subject to the terms of the Act. This view is confirmed by OCGA § 51-3-25 (2), which exempts from the Act’s immunity an owner who exacts a “charge” for people entering his property for recreational purposes, except that where an owner leases property “to the state or a subdivision thereof.” In my opinion the Act’s terms include this sidewalk, which is provided without charge, for access to the beach for persons walking along the beach, an activity Godinho was engaged in when she fell. The Act exempts from the “duty of care” (OCGA § 51-3-22) an owner which gives the public a place for recreation except as provided in OCGA § 51-3-25. The mere fact that a property is so formed or made as to be chiefly a property used and maintained for recreational purposes, such as a beach or city park, does not put the owner of that property “in the business of entertainment or recreation [and] providing] scenic areas and comfortable facilities to attract the public to their businesses,” (Cedeno v. Lockwood, Inc., 250 Ga. 799, 802 (301 SE2d 265)), unless a charge is made. The City of Tybee Island places no charge on the public for using this sidewalk and is not in the business of providing entertainment and recreation.

Decided March 20, 1998

Barrow, Sims, Morrow, Lee & Gardner, Jordon D. Morrow, for appellant.

Oliver, Maner & Gray, Patrick T. O’Connor, David S. Gruskin, for appellee.

The purpose of the Act is “to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.” OCGA § 51-3-20. Therefore, no reason exists to treat a municipality differently than a private owner. Ample and obvious reasons exist, however, to give an oceanside city such protection for its seaside sidewalks which are exposed to the harsh weather and tides. To exclude the City of Tybee Island from the immunity enjoyed by private owners for recreational property would place a prohibitive burden on the City and might require the City to abandon its sidewalks for recreational use or to charge a fee for their use.

Therefore, the City should be relieved of the “duty of care to keep the premises safe for entry or use by others for recreational purposes.” OCGA § 51-3-22.

Furthermore, the sidewalk gives access to and alongside the beach for recreational purposes within the meaning of the Act, and the fact that this sidewalk might also be used by persons to reach a private business or home does not place a duty of care on its owner to those who use it for recreational purposes as defined in the Recreational Property Act.

Accordingly, I must respectfully dissent.

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