author: McMurray, Presiding Judge.

text:
    A98A0606, A98A0607.
    LUKE v. THE STATE (two cases).
    (497 SE2d 376)
   McMurray, Presiding Judge.

Defendants Henry Norman Luke and his son James Wesley Luke were jointly charged in an indictment with possession of marijuana with intent to distribute. Norman Luke was further charged with three counts of possession of a firearm by a convicted felon, in that he did “receive, possess and transport a . . . Mossberg New Haven 12 gauge shotgun, Model 600,” a “Chinese Norinco SKS 7.62 x 39 rifle[, and] one Marlin model 60, .22 caliber rifle,” after having been lawfully convicted in 1995 of felony possession of marijuana. The evidence adduced at defendants’ joint jury trial revealed the following:

David Minter, an investigator with United Parcel Service (“UPS”), testified that “UPS reserves the right to open and inspect any package transported by UPS, [or] presented to UPS by anyone.” On February 7, 1996, in Tifton, Georgia, Minter examined two packages “addressed to Norman Luke, Route One, Box 187, Axson, Georgia,” which had been “[s]hipped across a store-front customer counter, which is a location that’s open to the public, [from] Laredo, Texas.” Neither package had a return address. The contents were “extremely well packaged; covered in different materials.” Minter “[t]ook a pocketknife to the first one and dug into it far enough that [he] determined that [he] felt like it was probably marijuana, but [that] it needed to be tested at that point.” Minter notified the Georgia Bureau of Investigation and “transported them [him] self to the GBI office in Douglas[, Georgia,]” where he turned them over to “Agent Whitley.” Subsequent tracking of proof of UPS delivery “[f]ound several such deliveries from the same exact shipping location, addressed the same exact identical way, all next-day air, anywhere ranging from 30 to 65 pounds.” The two packages were ultimately found to contain a total of 47 pounds of marijuana.

Special Agent Scott Whitley of the Georgia Bureau of Investigation also “determined that marijuana was inside . . .” the two boxes he received from UPS and formulated a plan to make a controlled delivery of the packages to the Norman Luke residence. Willie Jack Connell, the UPS driver, “met [defendant Norman Luke] going out the road as we were coming in; he was not at the residence.” Connell identified defendant Wesley Luke as the person that signed for State’s Exhibits 4 and 5, the two packages addressed to defendant Norman Luke. Wesley Luke had been driving away from the residence but Connell confirmed he “wanted [Wesley Luke] to come back to the house and sign for this packaged and that] it wouldn’t have mattered who it was.” Connell “brought out one package; [and] sat it down; [Wesley Luke] signed for it. [Connell] went back to the car; [and] got another package; [and] sat it on the steps.” Connell further confirmed that defendant Wesley Luke never “open[ed] the package in [his, Connell’s,] presence[.]” Connell “can’t tell you . . . whether [Wesley Luke] ever actually picked up the package or not.”

Connell gave Agent Whitley a signal, at which point, Agent Whitley and two other agents exited the delivery van and arrested Wesley Luke. About five minutes later, defendant Norman Luke returned to his residence. Agent Whitley informed Norman Luke his son was in custody for receiving the marijuana addressed to the father. Norman Luke denied knowledge of any marijuana and signed a form consenting to the search of his residence. The investigators found two of the guns in Norman Luke’s bedroom, the third in the kitchen. In the senior Luke’s jacket pocket was a slip of paper with the name “Maria Belourdes Almanza, Laredo, TX.” Two empty packages addressed to Norman Luke had Texas return addresses.

In a custodial statement, Norman Luke “said Wesley Luke is not involved in receiving the marijuana; he just happened to be at [his father’s] residence . . . when the marijuana was delivered. Norman Luke thought it was possible that an acquaintance of his from Laredo, Texas, named Moses sent the marijuana.” Over Wesley Luke’s hearsay objection, Agent Whitley was permitted to testify that “Agent Mike Pitts has informed me [Agent Whitley] that they have received intelligence that he [Wesley Luke] did provide marijuana to a female in Berrien County.”

Norman Luke was found guilty as charged on each count while Wesley Luke was found guilty of the lesser included offense of possession of marijuana, more than one ounce. These direct appeals followed. At the request of the defendants, the appeals are consolidated. OCGA § 5-6-44 (a). Held:

Case No. A98A0606

1. The State submitted a certified copy of defendant Norman Luke’s 1995 guilty plea to felony possession of marijuana. The trial court admitted this evidence as probative of defendant’s criminal intent and course of conduct, as well as proof of defendant’s status as a convicted felon. In his third enumeration of error, defendant Norman Luke contends the trial court erred “when it failed to instruct the jury on the limited relevance of similar transaction evidence.” We agree and reverse.

“Under the controlling authority of the recent whole court decision in Belt v. State, [227 Ga. App. 425 (1) (489 SE2d 157)], the trial court committed reversible error in failing to give, sua sponte, a limiting instruction contemporaneous with the admission of extrinsic acts or similar crimes evidence. Consequently, we reverse the judgment of conviction for all [four] counts and remand for a new trial.” Hinson v. State, 229 Ga. App. 840 (494 SE2d 693) (whole court).

2. Defendant Norman Luke’s remaining three enumerations have been considered. Defendant’s second enumeration is without merit. The first and fourth enumerations address circumstances unlikely to recur upon any retrial. Consequently, his motion for a stay of this direct appeal with a remand to raise the issue of ineffective assistance of counsel, per Herndon v. State, 229 Ga. App. 457 (494 SE2d 262), is denied.

Case No. A98A0607

3. In the seventh enumeration of error, defendant Wesley Luke contends the trial court erred in denying his motion for directed verdict of acquittal. He argues there is no evidence he knowingly possessed any marijuana. We agree and reverse his conviction for possession of marijuana, more than one ounce.

“Where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty’ as to the entire offense or to some particular count or offense, the court may direct the verdict of acquittal to which the defendant is entitled under the evidence. . . .” OCGA § 17-9-1 (a). Under OCGA § 16-13-30 (a), “[e]xcept as authorized by this article, it is unlawful for any person to purchase, possess, or have under his control any controlled substance.”

Here, the trial court correctly charged the jury that actual possession is where a person “knowingly has direct physical control over a thing . . . [whereas a] person who, though not in actual possession, knowingly has both the power and the intention ... to exercise dominion or control over a thing, is then in constructive possession.” (Emphasis supplied.) See Lee v. State, 126 Ga. App. 38 (2) (189 SE2d 872).

In the case sub judice, there simply is no evidence that defendant Wesley Luke had any knowledge that, when he signed for the delivery, those sealed, opaque packages addressed to his father contained contraband. The direct evidence is that he did not participate in the father’s scheme. The objected-to statement whereby Agent Pitts had told Agent Whitley “they had received intelligence . . .” that Wesley Luke subsequently provided marijuana to a female in Berrien County is non-probative hearsay under OCGA § 24-3-1 (a), and so cannot constitute circumstantial evidence to establish defendant’s state of mind or knowledge at a prior time. See Duke v. State, 205 Ga. 106, 110 (52 SE2d 455); Jones v. State, 50 Ga. App. 97, 98 (176 SE 896).

Decided February 16, 1998

Reconsideration denied February 23, 1998

George A. Bessonette, Sandra L. Michaels, for appellants.

Robert B. Ellis, Jr., District Attorney, Timothy L. Eidson, Assistant District Attorney, for appellee.

“It is well established that merely having been in the vicinity of contraband does not, without more, establish possession. Also, presence at the scene of a crime is not sufficient to show that a defendant is a party to the crime under OCGA § 16-2-20. Even approval of the act, not amounting to encouragement, will not suffice. This is so because under OCGA § 24-4-6[,] to warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” (Citations and punctuation omitted.) Ridgeway v. State, 187 Ga. App. 381, 382 (370 SE2d 216). “While the evidence creates the gravest suspicion that defendant may be guilty of the [lesser included] offense of which he was convicted under [the] Indictment. . ., suspicion [alone] is not sufficient to support a conviction [under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560)]. [Cits.] The trial court erred in faihng to grant defendant’s motion for directed verdict as to [Count 1 of the] Indictment [in the case sub judice].” Ridgeway v. State, 187 Ga. App., supra at 383. See also Whipple v. State, 207 Ga. App. 131 (1) (427 SE2d 101); Shirley v. State, 166 Ga. App. 456 (1), 457 (304 SE2d 468); Collins v. State, 146 Ga. App. 857 (1), 858 (a), 860 (247 SE2d 602).

Judgment reversed and case remanded for new trial in Case No. A98A0606. Judgment reversed in Case No. A98A0607.

Blackburn and Eldridge, JJ, concur.


source: Caselaw Access Project

author: Andrews, Chief Judge.

license: Public Domain

text:
    A97A2339.
    LIL CHAMP FOOD STORES, INC. v. DEPARTMENT OF TRANSPORTATION.
    (498 SE2d 94)
   Andrews, Chief Judge.

Lil Champ appeals the trial court’s award of $13,549 for its leasehold interest in land condemned by the Department of Transportation (DOT). For the reasons which follow, we affirm the judgment of the trial court.

This case arose when the DOT condemned .25 acres of land owned by Betty Miner. Lil Champ Food Stores leased from Miner a portion of the property used as a gas station and convenience store, and Meadows, Inc. held an easement across the property.

The DOT filed a declaration of taking pursuant to OCGA § 32-2-6 and paid $156,600 into the registry of the court as the amount determined by its appraiser to be just and adequate compensation for the condemned property. Meadows, Inc. and Miner filed a timely notice of appeal, demanding a jury trial on the issue of damages. Lil Champ failed to file a notice of appeal within the time prescribed by OCGA § 32-3-14; but after time had expired for Lil Champ to file its own notice of appeal, it filed a motion to join in the appeal filed by Meadows, Inc. and Miner. Although the court allowed Lil Champ to join in the appeal, the court’s order also provided that Lil Champ could participate in the condemnation proceedings only for as long as the appeal of Betty Miner remained pending.

Miner subsequently settled with the DOT. Accordingly, under the terms of the order, Lil Champ was no longer entitled to a jury trial, but was bound by the $156,600 appraisal.

After holding the hearing on the apportionment of the $156,600 between Miner and Lil Champ, the court awarded Lil Champ $13,549 which was the value of the leasehold equipment and fixtures. Lil Champ now appeals the court’s determination as to the value of its interest in the condemned property and also claims it was entitled to a jury trial on the valuation of the taking.

1. Lil Champ’s main argument on appeal is that the trial court erred in dismissing its appeal when Miner settled with the DOT. Lil Champ contends it was entitled to a jury trial on the valuation of its interest, despite the fact that it did not file a timely notice of appeal. We disagree.

The right to appeal to a jury from a declaration of taking is absolutely conditional upon the filing of a timely notice of appeal in the superior court. Not even the trial court is empowered to extend the time for filing a notice of appeal. Dept. of Transp. v. Rudeseal, 156 Ga. App. 712, 714 (276 SE2d 52) (1980). However, this Court has held that a condemnee who fails to file a timely notice of appeal after being served in a condemnation proceeding, may nevertheless join in an appeal filed by other condemnees. Brown v. Dept. of Transp., 191 Ga. App. 321, 322 (381 SE2d 532) (1989); Dept. of Transp. v. Morris, 186 Ga. App. 673 (368 SE2d 155) (1988). The reasoning behind these decisions was that “since the issue of value was going to be tried anyway, fundamental fairness dictated that the condemnee who had not filed a timely appeal, but whose interests would of necessity be adjudicated at the trial on the issue of value, be allowed to participate. [Cit.]” (Punctuation omitted.) Brown, supra at 322; Morris, supra at 675.

Lil Champ contends that Brown and Morris do not make the untimely appeal dependent on the timely appeal. Lil Champ cites no authority for this proposition and we find none. Rather, the language of the cases themselves shows that this Court intended for the untimely appeal to be allowed only because the issue of valuation was going to be tried to a jury anyway and since the condemnee who had not filed a timely notice was going to have his interests adjudicated at trial, fundamental fairness required that he be allowed to participate. Brown, supra; Morris, supra. Here, since Miner settled, the issue of valuation was not going to be tried to a jury and, therefore, there was no requirement that Lil Champ be allowed to participate in a trial. To rule otherwise would be to allow Lil Champ to do indirectly that which it cannot do directly. Richmond County v. McElmurray, 223 Ga. 440, 443 (156 SE2d 53) (1967).

2. In its next enumeration of error, Lil Champ claims the superior court erred when it dismissed Lil Champ’s appeal in the order of October 10, 1996. This is inaccurate. As set out above, in this order the superior court granted the motion to join in the appeal, conditional on Miner’s continued participation. To the extent that Lil Champ claims the court should have entered the order sooner, Lil Champ shows no harm arising from this delay, nor does it state how it would have proceeded differently if the order had been entered earlier. As Lil Champ fully participated in the proceedings up until the time Miner settled with the DOT, there was no harmful error.

3. Lil Champ also appears to be arguing that the court erred in finding its right to appeal was conditioned on Miner’s participation and not on Meadows’ participation. Lil Champ makes no argument and does not cite to any authority in support of this enumeration. In any event, there is no evidence that Meadows was to be paid for its interest from the $156,600 paid into court. Indeed, the record shows that it had no interest in the $156,600. The consent order for the disbursement of funds provided that the $156,600 was to be divided solely between the condemnees, Lil Champ and Miner. Meadows did not appear at the hearing and did not appeal the trial court’s final judgment. Although Lil Champ has submitted an affidavit from Meadows’ attorney stating that Meadows’ claim had not been finalized, there is nothing in the record to show Meadows’ claim is to be tried to a jury or that there are any further proceedings pending in the superior court on Meadows’ claim. Rather, the evidence in the record showed that Meadows séttled its claim for $2,200. Moreover, this affidavit was submitted after the hearing and after the court entered its order on the apportionment of the $156,600. “[T]he grounds we may consider on appeal are limited to those presented to the trial court.” Rogers v. State, 224 Ga. App. 359, 360 (1) (480 SE2d 368) (1997).

4. Next, Lil Champ argues the trial court erred when it refused to hear evidence of business losses. It argues that even though it filed no notice of appeal from the condemnation, it should have been allowed to introduce evidence at the hearing as to its business losses. Lil Champ also contends the DOT should have allowed for business losses in determining what was just and adequate compensation.

As previously discussed, “[i]f the owner, or any of the owners, or any person having a claim against or interest in the property is dissatisfied with the amount of compensation as estimated in the declaration of taking and deposited in court, as provided for in Code Section 32-3-7, such person or persons, or any of them, shall have the right, at any time subsequent to the filing of the declaration and the deposit of the fund into court, but not later than 30 days following the date of the service as provided for in Code Sections 32-3-8 and 32-3-9, to file with the court a notice of appeal, the same to be in writing and made a part of the record in the proceedings.” OCGA § 32-3-14. “It is well-settled that once a condemnation proceeding has been initiated by a condemning authority, that proceeding establishes the exclusive avenue for litigating the issues of just and adequate compensation. [Cits.] If, in a condemnation action initiated pursuant to the declaration of taking procedure set forth at OCGA § 32-3-1 et seq., the condemnee fails to file a timely appeal on the issue of value . . ., the trial court is required to ‘enter judgment in favor of the condemnee and against the condemnor for the sum of money deposited by the condemnor with the declaration of taking.’ OCGA § 32-3-13 (b). That award then becomes res judicata with respect to the issue of just and adequate compensation.” Dept. of Transp. v. Samuels, 185 Ga. App. 871, 872-873 (366 SE2d 181) (1988). Having failed to appeal within the requisite period of time, Lil Champ cannot now raise the issue of business losses.

Moreover, the DOT was not required to include business losses in its computation of just and adequate compensation. “Post-taking business losses can be recovered as a separate element in instances when the business belongs to a separate lessee or when the business belongs to the landowner and there is a total taking of the business. In either event, business losses are recoverable as a separate item only if the property is ‘unique’ and the loss is not remote or speculative.” Dept. of Transp. v. Aeree, 266 Ga. 336 (467 SE2d 319) (1996). Therefore, “business losses are pled as a separate element, apart from the valuation of the leasehold upon which the business is operated.” Bill Ledford Motors v. Dept. of Transp., 225 Ga. App. 548, 550 (484 SE2d 510) (1997). Accordingly, Lil Champ was required to file an appeal from the DOT’s estimate of the fair market value and plead business losses as a separate element. Having failed to do so, Lil Champ cannot now complain that it should be able to recover more than the fair market value of the leasehold.

5. Lil Champ also argues the trial court erred when it awarded Lil Champ nothing for its leasehold interest. “A leasehold interest is property for which the leaseholder is entitled to receive compensation when his interest is taken or damaged for a public purpose. The traditional measure of compensation is the market value of the leasehold for the remainder of the unexpired lease on the date of taking.” (Citations omitted.) Bill Ledford Motors, supra at 549. “Generally, a leasehold has value to the lessee only if he is paying below-market rent and, to the extent that a fee is encumbered by a lease for below-market rent, it is of a correspondingly lesser value to the lessor.” (Emphasis omitted.) Fulton County v. Funk, 266 Ga. 64, 65 (463 SE2d 883) (1995) (citing MARTA v. Funk, 263 Ga. 385, 387-388 (435 SE2d 196) (1993).

The trial court, after hearing the evidence, determined that Lil Champ was not paying below market rent and, therefore, the leasehold had no compensable value at the time of taking. An appellate court will not disturb fact findings of the trial court if there is any evidence to support them. Decatur Co. v. Bowen, 203 Ga. App. 84, 87 (1) (416 SE2d 304) (1992). Here, the record shows that the DOT’s appraiser, after looking at the rent paid by eight comparable convenience stores, determined that the rent paid by Lil Champ was “a reasonable approximation of market rent.” Accordingly, there was sufficient evidence to support the trial court’s finding that Lil Champ was not paying below market rent; therefore, the trial court did not err in finding the leasehold had no compensable value. Fulton County, supra at 64.

6. Lil Champ also argues the trial court erred in failing to award the full value of its real and personal property taken. The trial court awarded Lil Champ $13,549 for the value of the leasehold equipment and fixtures. The DOT’s appraiser had appraised the value of the “gasoline service equipment and trade fixtures” to be $13,549. Lil Champ claims the trial court should have awarded another $30,479 for other “improvements.” Lil Champ does not specify what these “improvements” are, but the record shows that the appraiser listed two lighted metal canopies, one concrete pump island, lighted signs on metal pole, 1,700 square feet of concrete paving, and 8,000 square feet of asphalt paving as equaling $30,479.

Lil Champ’s lease provided that “[a]ll alterations or additions to the premises, which become a part of the realty, . . . including gas tanks, cooler doors, gas islands and all connections and canopy, . . . shall remain for the benefit of the Lessor.” But Lil Champ contends that since it had 15 years remaining on its lease, at which time ownership of these items would revert to Miner, these improvements would have no salvage value. Lil Champ argues that since it would have used up the entire value of these items during its lease, the entire value of these items should be awarded to Lil Champ. It cites no authority in support of this argument; moreover, there was testimony at the hearing as to the age and condition of these improvements and Miner testified that at the end of the lease she expected to be able to get the benefit of the items described above. Under the “any evidence” standard, the court was entitled to find that Lil Champ should not be compensated for improvements which would revert to Miner at the end of the lease. Decatur Co., supra at 87.

7. Lil Champ also claims the trial court erred by allowing the DOT to participate in the hearing. Lil Champ does not cite to, and we do not find, anywhere in the transcript of the hearing where Lil Champ objected to the DOT’s participation. Indeed, at one point, Lil Champ’s attorney stated it was their position that the DOT still had the burden of proof at the hearing. As the grounds we may consider on appeal are limited to those presented to the trial court, this enumeration of error is without merit. Rogers v. State, 224 Ga. App. 359, 360 (480 SE2d 368) (1997).

8. Next, Lil Champ argues the trial court erred in admitting the deposition and appraisal of the DOT’s appraiser. Lil Champ’s main contention seems to be that the admission of the deposition and appraisal violated the rules of evidence because the appraiser was not present at the hearing to be cross-examined.

OCGA § 9-11-32 (a) provides that a deposition may be introduced if the witness is unavailable to testify and the opposing party was present or represented at the taking of the deposition. Whether or not to admit the deposition testimony is left to the sound discretion of the trial court. Atlanta Coca-Cola &c. Co. v. Rosser, 250 Ga. 52, 54 (295 SE2d 827) (1982).

The testimony at the hearing was that the appraiser was out of the state; accordingly, under OCGA § 9-11-32 (a) (3) (B), the trial court could properly admit the deposition testimony. As to the court’s decision to admit the appraisal, it was produced at the appraiser’s deposition and Lil Champ had the opportunity to question the appraiser about the appraisal. Moreover, Lil Champ can show no harm in the admission of the appraisal as the information in the appraisal was merely cumulative to the appraiser’s deposition testimony.

9. In its last enumeration of error, Lil Champ argues the trial court “erred in its understanding of the nature of the proceedings, thus tainting its opinions and rulings.” In light of our holding above, we need not address this enumeration because we have held the trial court did not err in any of its rulings nor in its understanding of the nature of the proceedings.

Judgment affirmed.

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

Decided February 23, 1998

Portman & Felser, Barnard M. Portman, Paul H. Felser, for appellant.

Thurbert E. Baker, Attorney General, Newton, Smith, Durden, Kaufold & Rice, Wilson R. Smith, Beckmann & Lewis, Leo G. Beckmann, Jr., George A. Waters, for appellee.


author: Judge Harold R. Banke.

text:
    A98A0241.
    CLEMMONS v. GRIFFIN.
    (498 SE2d 99)
   Judge Harold R. Banke.

Ernest L. Clemmons, an experienced heating and air conditioning repairman, was seriously injured by an explosion which occurred while he was on a service call to repair the home air conditioning unit of Loretta T. Griffin. Clemmons appeals the summary judgment awarded to Griffin.

The evidence, when viewed in a light most favorable to the nonmovant, showed that Clemmons and another person from Hall Heating & Air responded to a service call at Griffin’s residence. After Clemmons replaced a burnt or corroded wire with a new piece of copper tubing, he then reconnected the wire to the terminal. When he flipped a switch on the power box located beside the unit, an explosion immediately resulted, inflicting severe second and third degree burns to Clemmons’ face, neck, arms, and upper body.

After receiving workers’ compensation benefits from his employer, Clemmons instituted a negligence action against the homeowner, Griffin, alleging that she breached a duty to warn him that an unqualified person had incorrectly rewired the air conditioning unit before his arrival. Clemmons theorized that an incompetent person had disconnected some of the wires to the compressor and then reconnected them to the wrong switch. Clemmons claimed that it was not possible for him to discover the hazard of the improper wiring before he turned the power back on. Clemmons also asserted that Griffin had put him at risk by improperly substituting copper tubing for fuses in the disconnect box.

Griffin moved for summary judgment contending that Clemmons failed to show that she had superior knowledge of the purported hazard. She claimed that no one other than the employees of Hall Heating & Air had ever worked on her unit or repaired it. According to Griffin, after the unit stopped cooling properly, she did not personally inspect it. Neither side offered any testimony from an independent expert and the whereabouts of the fire-damaged unit remain unknown. Clemmons appeals the summary judgment awarded to Griffin. Held:

The mere showing of the occurrence of an injury, without more, does not create a presumption of negligence. Rather, the true ground of liability is the owner’s superior knowledge of the peril and the danger therefrom. Cook v. Home Depot, 214 Ga. App. 133, 134 (1) (447 SE2d 35) (1994). As a general rule, a homeowner has a duty to warn an invitee, such as Clemmons, of dangers or defects of which the owner knew or in the exercise of ordinary care it was the owner’s duty to know. Swanson v. Choate, 108 Ga. App. 152, 153 (1) (132 SE2d 246) (1963). According to Griffin’s undisputed testimony, she had only had the unit serviced on one other occasion about a year earlier and no one had worked on it in the interim. Griffin testified without contradiction that she had no knowledge about the maintenance and repair of air conditioning units and did not examine hers after it developed problems.

At summary judgment, Clemmons had the burden to come forward with specific evidence that Griffin’s knowledge of the alleged hazard was superior to his. Schultheiss v. Prentiss Properties, 227 Ga. App. 560, 562 (489 SE2d 545) (1997). This he failed to do. Clemmons only offered his own speculative testimony that the explosion was a most unusual event which would not ordinarily occur absent negligence, more specifically, someone’s tampering with the unit and the control box. However, he admitted that the explosion could have been caused by oil, or moisture mixed with Freon, or a lightning strike or by any number of different things. See Culberson v. Lanier, 216 Ga. App. 686, 687 (1) (455 SE2d 385) (1995) (to avoid summary judgment, plaintiff must offer some evidence that would tend to establish a causal connection between his injuries and the hazard at issue). Clemmons conceded that the copper tubing in the disconnect box could have been present for years and may have been installed by the original builder. He further acknowledged that “it could have been us that worked on the unit.” By his own admission, Clemmons observed the wiring alteration as soon as he opened the panel but apparently decided the unit was safe to work on. See Whirlpool Corp. v. Hurlbut, 166 Ga. App. 95, 98 (2) (303 SE2d 284) (1983) (contractor’s decision to use flammable liquid in kitchen despite his knowledge of the presence of a nearby gas stove precluded his recovery against homeowner). Because Clemmons’ knowledge of the change to the wiring was at least equal to Griffin’s, his recovery is foreclosed. Cleghorn v. Winn Dixie Stores, 228 Ga. App. 766 (492 SE2d 745) (1997); Newell v. Great A & P Tea Co., 222 Ga. App. 884, 885 (1) (476 SE2d 631) (1996).

Even assuming for the sake of argument only, that Griffin hired a third party who negligently repaired the unit, she would not be liable for the negligence of that party unless she directed and controlled the work done. OCGA § 51-2-4. Where the work performed by an independent contractor is not inherently dangerous, except as a result of the negligence of the contractor, respondeat superior does not apply. St. Paul Cos. v. Capitol Office Supply Co., 158 Ga. App. 748 (282 SE2d 205) (1981). Because Clemmons offered absolutely no evidence that Griffin retained or exercised any control over the unidentified third party’s work even assuming such third party existed, Griffin cannot be held vicariously liable under the doctrine of respondeat superior. Carter v. Allstate Ins. Co., 197 Ga. App. 738, 741 (1) (399 SE2d 500) (1990).

Decided February 23, 1998.

Edward E. Boshears, for appellant.

Whelchel, Brown, Readdick & Bumgartner, Terry L. Readdick, Bradley J. Watkins, for appellee.

Clemmons asserts that Griffin’s disposal of the air conditioning unit nearly 15 months before he initiated his suit constituted spoliation of the evidence. See, e.g., Lane v. Montgomery Elevator Co., 225 Ga. App. 523, 525 (1) (484 SE2d 249) (1997) (violation of statute created presumption against spoliator). We decline to address this issue due to Clemmons’ failure to raise and argue it below. MacDonald v. MacDonald, 156 Ga. App. 565, 566 (1) (a) (275 SE2d 142) (1980).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


author: Birdsong, Presiding Judge.

text:
    A97A2116.
    McDUFFIE et al. v. ARGROVES et al.
    (497 SE2d 5)
   Birdsong, Presiding Judge.

Joseph L. McDuffie and Mary Ellen McDuffie appeal the grant of summary judgment to Dorothy B. Argroves and Angela A. Hand in the McDuffies’ action for breach of contract under a lease-purchase agreement concerning commercial property that required Argroves and Hand to deliver the property to the McDuffies in fit condition. The McDuffies contend that as the property was infested with termites, it was not fit within the meaning of the lease-purchase agreement.

Nine months after the execution of the lease-purchase agreement the McDuffies discovered an insect problem in the store and called Orkin because a contract with Orkin protected the premises. Subsequently, Orkin inspected the premises and found an active termite infestation. The McDuffies also called in a second exterminator company which agreed with Orkin’s conclusions and, ultimately, Orkin paid over $6,000 to repair the property and the McDuffies executed a release of Orkin’s liability for the damage. Contrary to the appellees’ contentions, however, the release did not constitute a release for future damage to the property, including undetected damage.

Five months after the repairs were made and the release executed, the parties closed on the sale of the property. Subsequently, the McDuffies filed a complaint alleging that the appellees failed to deliver the premises in a fit condition and that appellees were liable for actual damages, punitive damages, and also for expenses of litigation and attorney fees. After discovery, appellees moved for and were granted summary judgment on all of the McDuffies’ claims. The McDuffies now appeal contending that the trial court erred by granting summary judgment because genuine issues remain for trial. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). Further, when reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. Boulware v. Quiktrip Corp., 226 Ga. App. 399 (486 SE2d 662); Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432).

2. The McDuffies claim the property had termite damage and active termites when they leased and purchased it, and, therefore, the property was not “fit” within the meaning of Paragraph X of the lease-purchase agreement. Paragraph X provides: “Lessors represent that the premises are in fit condition for use by Lessees. Acceptance of the premises by Lessees shall be construed as recognition that the premises are in a good state of repair and sanitary condition.”

The McDuffies acknowledge that appellees made no representations regarding the premises and that they did not inspect the premises even though they had the opportunity to do so. Further, although the McDuffies admitted that they did not know when the damage occurred, they were provided an affidavit from the owner of an exterminating company stating that the infestation had existed on the property for several years and could not have existed for five months or less. Also, the McDuffies presented evidence that appellees found the buildings were infested with termites in 1988 and refused to authorize the repairs necessary to eradicate the termites. Instead, appellees merely contracted with Orkin to treat the property. Moreover, the McDuffies provided evidence that the termites were not visible to the naked eye and could not be detected by a layperson. The lease-purchase agreement also contained a provision requiring the McDuffies, at their expense, to maintain a termite protection contract on the premises.

In construing contracts, words must be given their usual and common signification (OCGA § 13-2-2; Holyoke Mut. Ins. Co. v. Cherokee Ins. Co., 192 Ga. App. 757, 759 (386 SE2d 524)), and dictionaries may supply the plain and ordinary sense of a word. Southern Guaranty Ins. Co. v. Duncan, 131 Ga. App. 761, 764 (206 SE2d 672). We find that the usual signification of “fit” in these circumstances means to be appropriate or suitable or answering the requirements. See Webster’s Third New Inti. Dictionary; American Heritage Dictionary (2nd College Ed.). Thus, we find that the appellees were required to deliver to the McDuffies premises that were appropriate, suitable, and meeting the requirements for a retail store. To the extent the meaning of “fit” might be considered to be ambiguous, however, we do not find that a different result is required because any ambiguity must be construed most strongly against the drafter of the contract. OCGA § 13-2-2 (5); Kennedy v. Brand Banking Co., 245 Ga. 496, 500 (2) (266 SE2d 154). In this case, the lease-purchase agreement was drafted by the appellees’ attorney. Thus, in either case we find that “fit” would have the same meaning. The issue of whether the premises were, in fact, fit is for the jury. OCGA § 13-2-1.

Further, we do not find that the portion of Paragraph X that states that “[acceptance of the premises by Lessees shall be construed as recognition that the premises are in a good state of repair and sanitary condition” requires a different result because being in a good state of repair or in a sanitary condition does not necessarily include being free of termites. Further, to the extent these terms are also ambiguous, construing them against the appellees, as we must, means that the terms be construed so as to exclude the existence of active termites from their scope.

We do not find that the McDuffies waived this claim because they closed on the property after they learned of the termites. Under the terms of the lease-purchase agreement the McDuffies could not refuse to purchase the property without violating Paragraph VI of the agreement that provided that at the end of the lease period “lessees shall have the obligation to purchase the premises.”

Even though under Paragraph IX of the lease-purchase agreement damage occurring after execution of the agreement was the responsibility of the McDuffies, we do not find that this provision relieves the appellees for liability for the pre-existing termite damage or infestation. Instead, this provision, by its terms, applies to damage that occurred after the execution of the agreement.

Although the McDuffies are bound by the terms of the contract because they did not rescind (Hightower v. Century 21 &c., 214 Ga. App. 522, 523-524 (448 SE2d 271); Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74, 75 (441 SE2d 421)), this does not alter the result in this case because terms of the agreement do not absolve the appellees of their potential liability under the terms of the agreement.

Decided January 26, 1998

Reconsideration denied February 24, 1998.

Harrison & Harrison, Stephen P. Harrison, for appellants.

Daniel W. Lee, for appellees.

Accordingly, the trial court erred by granting summary judgment to the appellees on the McDuffies’ claims for breach of contract and expenses of litigation.

3. Because punitive damages are not authorized in cases asserting a breach of contract, the trial court did not err by granting summary judgment on that claim. OCGA § 13-6-10; Trust Co. Bank v. Citizens &c. Co., 260 Ga. 124 (390 SE2d 589). On appeal, a grant of summary judgment will be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (431 SE2d 746).

Judgment affirmed in part and reversed in part.


author: Pope, Presiding Judge.

text:
    A97A2174.
    PEACOCK v. HCP III EASTMAN, INC. et al.
    (497 SE2d 253)
   Pope, Presiding Judge.

Curtis Peacock, administrator of the estate of his mother, Nina Peacock, filed suit against HCP III Eastman d/b/a Heart of Georgia Nursing Home and Meadowbrook Management Company for aspects of the care his mother received while living at the nursing home. The complaint, which sought punitive damages, alleged that while his mother was a resident at defendants’ nursing home, the defendants negligently failed to perform a number of tasks, including: to feed his mother properly; keep her clean; keep adequate records; and properly train, screen and supervise employees. In Count 2, Peacock asserted that his mother’s injuries were caused by intentional acts constituting an assault.

Evidence at trial established that in 1990 Peacock placed his elderly mother, who was suffering from Alzheimer’s disease, in the care of Heart of Georgia. Soon after placing her in the home, Peacock became concerned about the quality of the care she was receiving. On October 15, 1992, Mrs. Peacock suffered an injury in which her face was bruised and the skin was broken. Peacock testified that initially the Heart of Georgia staff told him that no one knew what had happened to her; Peacock also claimed that he was denied immediate access to his mother’s records. Mrs. Peacock’s condition deteriorated, and in early 1993 she died after having two strokes.

Peacock filed the complaint based on his general dissatisfaction with his mother’s care and based on the specific incident in which she was injured. The jury returned a defendants’ verdict, and Peacock appeals, raising eight enumerations of error.

In reviewing this case we are mindful of the various statutory guidelines regarding the rights of residents of long-term care facilities. See OCGA § 31-8-100 et seq. (the “Bill of Rights for Residents of Long-term Care Facilities”); see also Associated Health Systems v. Jones, 185 Ga. App. 798 (366 SE2d 147) (1988); Thurman v. Pruitt Corp., 212 Ga. App. 766, 768 (2) (442 SE2d 849) (1994). Regarding disclosure of treatment of Alzheimer’s disease or Alzheimer’s related dementia, see OCGA § 31-8-180 et seq. While not directly implicated in this case, this statutory scheme provides a context in which the care Heart of Georgia Nursing Home and Meadowbrook Management Company provided to Mrs. Peacock can be evaluated. Based upon the court’s error in refusing to enforce Peacock’s notice to produce at trial, we reverse.

1. In his first enumeration, Peacock claims that the trial court erred in refusing to enforce a notice to produce at trial which included a request for all incident reports from the home from January 1991 through March 1993, as identified in certain employees’ depositions. Earlier in the litigation, the court had granted a protective order to defendants — and denied Peacock’s motion to compel — regarding the same requests because of the breadth of the requests.

This case is controlled by Apple Investment Properties v. Watts, 220 Ga. App. 226 (469 SE2d 356) (1996), in which this Court concluded that the plaintiff could obtain discovery regarding reports at a personal care home for an 11-month period. In that case, which the decedent’s son brought against the personal care home at which his father had lived while suffering from Alzheimer’s disease, the Court concluded that the incident and accident reports which the plaintiff sought were relevant, particularly in light of his punitive damages claim. The Court concluded that the similar acts evidence might be admissible in both the liability and punitive damages phases of the trial and “could show [the home] had notice its employees were not properly supervising residents or that residents were finding a way out of the facility. . . .” Id. at 228. In so deciding, the Court rejected the home’s arguments that because the reports contained “personal information” about the residents they were privileged. This Court concluded that to protect the residents’ privacy, the trial court could conduct in camera reviews and fashion orders limiting the use and dissemination of the records.

Decided February 4, 1998

Reconsideration denied February 24, 1998

Gleaton, Scofield, Egan & Jones, E. Clayton Scofield III, for appellant.

McLain & Merritt, Howard M. Lessinger, for appellees.

Here, although the notice to produce sought reports for the entire 26-month period during which Mrs. Peacock lived at the home, the logic from Apple Investment Properties v. Watts prevails. Moreover, contrary to defendants’ arguments, the fact that a notice to produce at trial and not a discovery request is at issue is not dispositive. See generally Gaffron v. MARTA, 229 Ga. App. 426, 432 (4) (494 SE2d 54) (1997). Accordingly, the court should have allowed Peacock to obtain these records, and its refusal to do so was erroneous.

2. We find Peacock’s remaining enumerations without merit.

Judgment reversed.

Johnson and Blackburn, JJ, concur.


text:
    A97A2405.
    EVANS v. THE STATE.
    (497 SE2d 248)
   Andrews, Chief Judge.

Michael R. Evans filed a notice of appeal on July 3, 1997, from his convictions and sentences for following too closely and DUI, OCGA § 40-6-391 (a) (1) (less safe to drive), entered on May 28, 1996.

1. We first address the State’s motion to dismiss this appeal as “stale.”

Evans filed a motion for new trial on May 31, 1996, alleging the general grounds and improper admission of the Intoxilyzer 5000 results. By letter of June 4, 1996, he requested the court reporter to prepare the transcript of the trial, which had been heard by a superior court judge sitting by designation. Although the motion for new trial was pending before the state court judge who had no familiarity with the trial, no other efforts were made to get the transcript until a second letter was sent by Evans’ counsel on June 16, 1997, precipitated by notice of the motion for new trial hearing on June 26, 1997. The transcript was not available for the motion for new trial hearing. No motions for extensions of time pursuant to OCGA § 5-5-40 (c) were made by Evans during this period. That section specifically provides that the trial court may grant an extension of time for filing the transcript “[w]here the grounds of the motion require consideration of the transcript of evidence or proceedings. . . .”

The state court judge conducted a hearing on the motion for new trial and denied it because Evans had “failed to make reasonable effort to secure and file the transcript of these proceedings” based on Myers v. Myers, 195 Ga. App. 529 (394 SE2d 374) (1990) and Miller v. Sparks, 124 Ga. App. 4 (183 SE2d 88) (1971).

Evans’ notice of appeal, filed July 3, 1997, does not designate this order, filed July 1, 1997, as the judgment appealed, but instead specifies the May 28, 1996 convictions. Therefore we must consider what effect, if any, the denial of the motion for new trial on this ground has on the timeliness of the appeal from the May 28, 1996 convictions and sentences.

Pursuant to OCGA § 5-6-38 (a), the notice of appeal must be filed within 30 days after entry of the “appealable decision or judgment complained of” except when specified motions, including a motion for new trial, are filed, in which case the appellant has 30 days from the order “granting, overruling, or otherwise finally disposing of the motion.”

Filing a transcript of the trial is not mandatory when a motion for new trial is made, as a general rule, because the trial court is authorized to consider the motion without one. OCGA § 5-5-40 (c). In the present case, however, because the judge hearing the motion for new trial did not try the case and sufficiency of the evidence and evidentiary rulings were the only issues, the trial judge could, in his discretion, dismiss the motion for new trial for failure to provide the transcript. Moore v. Sinclair, 196 Ga. App. 667, 669 (1) (396 SE2d 557) (1990); Myers, supra; Miller, supra; see George v. American Credit Control, 222 Ga. 512 (150 SE2d 683) (1966).

This does not, however, preclude our consideration of the merits of the appeal, since we have previously held that dismissal or denial of the motion for new trial due to failure to provide the transcript is, for purposes of OCGA § 5-6-38 (a), an order “finally disposing” of the motion, triggering the 30 days for filing of the appeal here. Gold Kist v. Stokes, 235 Ga. 643 (1) (221 SE2d 49) (1975); Love v. State, 144 Ga. App. 728, 730 (I) (242 SE2d 278) (1978), rev’d on other grounds, Parker v. State, 161 Ga. App. 37 (288 SE2d 852) (1982). Therefore, the motion to dismiss the appeal is denied.

2. Evans’ sole enumeration of error is that the court erred in admitting the results of the Intoxilyzer 5000 because the State failed to properly prove the foundation required by OCGA § 40-6-392 (a) (1) (A) and (f). The objection voiced at trial was premised only on subsection (a) (1) (A) and that is all we consider.

That subsection requires that the breath test be conducted “on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose.”

During the State’s direct examination of Officer Kirksey, the officer testified that he conducted the test and that he was certified to operate the machine. His certificate was produced, although not introduced into evidence. The only additional testimony regarding the machine given by Officer Kirksey on direct examination was that the machine was “approved for use in the State of Georgia.”

During the officer’s cross-examination, however, the following testimony was elicited: “All I can tell you ... is that the machine was, had been signed off by Marlin James, who is our implied consent officer . . ., and that he had checked the machine and it was operating properly. That’s all I can testify regarding the machine, that it had been checked. Q. Did it have all of its operating parts attached? A. It had all of the parts attached that I have been trained to use. . . . Q. [D]id this Intoxilyzer [5000] have all electronic and operating components described by the manufacturer properly attached to it at the time you used it? A. I know and you know there is no way I can answer that. You will have to speak with the officer who certified the machine. Ml I am required to do is check and make sure the machine is operating properly, and that it has been maintained and certified by that officer, and it had been. Q. What proof is there that it had been? A. His signature on the card. Q. Where is the card? A. It is attached, affixed, to the top of the machine. . . . The card is affixed to the top of the machine.” (Emphasis supplied.)

Pretermitting the issue of whether Evans’ objection on the lack of foundation was adequate, Vincent v. State, 228 Ga. App. 691 (2) (492 SE2d 604) (1997) (failure to state what the proper foundation should be is insufficient), we conclude that although marginal, the foundation proven was adequate for admission of the test results, State’s Exhibit 1.

While introducing the certificate of inspection of the Intoxilyzer is one method of proving the foundation required, see, e.g., Tam v. State, 225 Ga. App. 101, 103 (3) (483 SE2d 142) (1997), it is not the only method. “The ‘other admissible evidence’ that may satisfy the requisites of OCGA § 40-6-392 (a) (1) (A) is the live testimony of an appropriate witness concerning such requirements; the admission of the Certification, itself, is simply an aid to the admission of the chemical test results. [Cits.]” Gaston v. State, 227 Ga. App. 666, 668 (1) (490 SE2d 198) (1997).

Decided February 2, 1998

Reconsideration denied February 24, 1998.

Richard A. Epps, for appellant.

Ben Kirbo, Solicitor, for appellee.

Here, while Officer Kirksey did not, himself, conduct the required testing of the machine, he did testify that the machine was in proper working order, as evidenced by the “self-tests” reflected on the test results, and that Officer James had signed the required certificate indicating compliance with the statute. In Caldwell v. State, 230 Ga. App. 46 (495 SE2d 308) (1997), we concluded that testimony by an officer familiar with the machine testing procedures, but who did not conduct the actual tests on the machine at issue, could testify based on documents produced by that machine that, in her opinion, the testing officer had properly issued the certificate. Id. at 47.

Therefore, there was no error in the admission of the certificate here.

Judgment affirmed. Pope, P. J., concurs.

Blackburn, J., concurs in the judgment only.

       The enumeration of error addresses only the DUI conviction, and therefore, we need not further consider the conviction for following too closely.

       Evans thereby contested the legal sufficiency of the evidence. Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).


author: McMurray, Presiding Judge. Smith, Judge,

text:
    A97A1781.
    SADTLER v. WINN-DIXIE STORES, INC.
    (498 SE2d 101)
   McMurray, Presiding Judge.

Plaintiff Ruby Sadtler filed this tort action against defendant Winn-Dixie Stores, Inc., seeking to recover for personal injuries she sustained “because she tripped over merchandise . . . [negligently] placed in an aisle in [defendant’s] store.” Defendant denied the material allegations and moved for summary judgment, contending that plaintiff may not recover because she had equal knowledge of the alleged hazard, or else she failed to exercise ordinary care to avoid the hazard posed by defendant’s negligence.

In support of its motion, defendant relied on the deposition of the 83-year-old plaintiff, who testified she was pushing a buggy straight down the aisle. She was passing a stacked display when she “turned to look — turned —just as [she] turned, [she] struck [her] leg on this box. [She] didn’t see this [the bottom box] down there, because there wasn’t supposed to be a box down there. But [she] struck [her] leg on that and just fell over. . . .” She explained, “It was blinded, you couldn’t see it.” But when asked what obstructed her view, plaintiff replied, “Oh, you don’t — I don’t know, you just don’t see — when you see butter stacked up like that, you wouldn’t think about another box being sitting out there down below it.” Plaintiff had “just looked over there [for the stir fry], and . . . was going over to . . . that.” She had just “started to turn to go over there, and that’s when the buggy hit the thing. When I hit that — [She] had the buggy, but [her] leg hit that thing there.”

Plaintiff confirmed the box was brown and there was nothing else on the floor. She doubted she could have seen the box if she had been looking down because “it just weren’t [sic] visible.” She “[did not] know [what, if anything, was hiding her vision of the box], but [she] didn’t see it.” She “just was going on normal shopping.” She affirmed “there [was not] anything blocking [her] view[.]”

There is reference at the deposition to photographs taken by plaintiff’s husband the next day, which plaintiff affirmed represented the display “exactly except there was one box there, too.” These photographs were not, however, made a part of the record. Plaintiff still holds a valid driver’s license and still drives an automobile.

The trial court concluded plaintiff “fell because she did not notice the actual dimensions of the display which were clearly visible,” and granted defendant’s motion. This appeal followed. Held,:

Plaintiff enumerates the grant of summary judgment, arguing a jury question remains whether she exercised ordinary care to avoid injury. We agree and reverse.

“Although a merchant has the right to place certain articles in the aisles of his store, nevertheless, the merchant must so place such articles so as not to threaten danger to those using the aisle and so that they are in full sight and within the observation of everyone.” (Citations and punctuation omitted.) McCrary v. Bruno’s, Inc., 219 Ga. App. 206, 208 (464 SE2d 645). “The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citations and punctuation omitted.) Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327). But the “invitee is not barred of a recovery simply because by extreme care on his part it would have been possible for him to have discerned the articles negligently left in the aisles or passageways customarily used by the store patrons at the merchant’s tacit invitation.’ King Hardware Co. v. Teplis, [91 Ga. App. 13,] 15 [(84 SE2d 686)].” Robinson v. Kroger Co., 268 Ga. 735, 741 (1) (493 SE2d 403) (1997).

In Robinson, the Supreme Court of Georgia “disapprove^] of the appellate decisions which hold as a matter of law that an invitee’s failure to see before falling the hazard which caused the fall constitutes a failure to exercise ordinary care.” Id. That Court held “an invitee’s failure to exercise ordinary care is not established as a matter of law by the invitee’s admission that he did not look at the site on which he placed his foot or that he could have seen the hazard had he visually examined the floor before taking the step which led to his downfall. Rather, the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.” Id. at 748.

In our view of the case sub judice, the question of whether plaintiff exercised ordinary care for her own safety in detecting and avoiding the hazard posed by articles negligently placed or arranged in defendant’s aisles falls within the general rule: Such matters “are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Robinson v. Kroger Co., 268 Ga. 735, 748, supra. The grant of summary judgment in this instance was in error.

Judgment reversed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur. Smith, J., also concurs specially.

Smith, Judge,

concurring specially.

I concur fully in the majority opinion. I write separately only for the purpose of noting that this case, like Kelley v. Piggly Wiggly Southern, Inc., 230 Ga. App. 508 (496 SE2d 732) (1998) is one of the first opportunities for this Court to apply the revised doctrines of premises liability cases laid down for us by the Supreme Court of Georgia in Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997). As I indicated in my special concurrence in Kelly, the Supreme Court’s decision will greatly assist this Court in its work.

Because this Court lacks the authority possessed by the Supreme Court to make policy choices and change the substantive law to conform to those policy choices, frequent disagreements over decisions in premises liability cases were inevitable on this Court had the Supreme Court not intervened. In Robinson, the Supreme Court of Georgia made a clear-cut policy choice favoring plaintiffs in these cases. Further, the Supreme Court stated, plainly and emphatically, that “the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety, are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Id. at 748.

Although we no doubt will continue to face difficult casés in this area, I have every expectation that this Court will apply Robinson fully, with the result that the vast majority of these cases, as the Supreme Court clearly intends, will be for jury determination. The cost hkely will be more litigation activity and expense at the trial court level; the benefit should be a significant decrease in the level of uncertainty surrounding these cases for trial judges, lawyers, and litigants. It appears the Supreme Court determined that this benefit is worth the cost. This Court and the trial courts now must implement the Supreme Court’s choice. That duty will present challenges, but I expect it to be less onerous than our task under pre-Robinson law.

Decided February 24, 1998

Walter D. Adams, for appellant.

Lee, Black, Scheer & Hart, Steven E. Scheer, Christopher L. Rouse, for appellee.


author: Beasley, Judge.

text:
    A97A2018.
    A97A2019.
    JORDAN et al. v. ATLANTA AFFORDABLE HOUSING FUND, LTD. et al. ATLANTA AFFORDABLE HOUSING FUND, LTD. et al. v. HAMMONDS.
    (498 SE2d 104)
   Beasley, Judge.

Terrorized and robbed by armed intruders, Yolanda Hammonds and her two young children sued their apartment complex owner (Atlanta Affordable Housing Fund, Ltd.) and its management company (Ledic Management Group) for negligence and recklessness in providing security for their apartment. Only the mother was touched during the intrusion, and although she deposed that neither she nor the children generally suffered any physical injuries, she also deposed the intruders yanked and pulled her by the hair during the episode. She later submitted an affidavit confirming injury to her scalp.

The court granted summary judgment against the children but denied summary judgment against the mother. The issues are (1) whether the mother’s affidavit and deposition testimony about her scalp injury defeat summary judgment in light of her other deposition testimony disclaiming any physical injury, (2) whether, absent physical injury, the intentional actions of the intruders against the children can render the landlord and its management company liable, and (3) whether the alleged reckless actions of the landlord and its management company in failing to maintain adequate security were directed toward the children.

Construed in favor of plaintiffs, the evidence showed that late one night in October 1994 five armed men kicked the locked, barricaded door of the family’s apartment off its frame and demanded money. Begging the intruders for mercy, the mother sent the children to their bedroom. Her son was a little over three and one-half years old and her daughter was not yet five. One man grabbed the mother by her hair, pulled her down the hall to the door of her children’s bedroom, and in front of them placed a gun to her head and demanded the location of her money. She told him, and the men took the money and ran.

Traumatized by the event, the children have become withdrawn, cling to their mother constantly, experience nightmares, and one now wets the bed again. In addition to the scalp pain caused by having her hair pulled, the mother has become “jumpy” and “paranoid,” and does not sleep well. These are the only injuries she identified at her deposition. Her later affidavit explains the gunman pulled out some of her hair and she suffered a scalp injury for several days. None of the victims have received medical or psychiatric treatment for emotional distress.

Case No. A97A2019

1. We will first address the mother’s claim. In Georgia, “there must have been actual bodily contact with plaintiff as a result of defendant’s conduct for a claim for emotional distress to lie. . . . [T]he impact . . . must result in a physical injury.” Physical injury stemming from the emotional stress, without any impact, is not recoverable. Although pecuniary loss may also serve as the basis to recover for emotional distress, the loss must result from an injury to the person, not to property.

At her deposition, the mother confirmed that in response to interrogatories asking her to describe her injuries, she accurately swore that “no physical injuries were suffered by the plaintiffs.” She testified again during the deposition that she suffered no physical injuries. But in response to the question ‘You didn’t suffer any physical injury; is that correct?,” she said, “Except for my head from the way they was — no.”

In response to defendants’ motion for summary judgment, the mother submitted an affidavit stating “[m]y head and scalp hurt when the man yanked me by my hair and forced me down the hallway, and continued to hurt for several days after the incident.” Based on this affidavit and her deposition testimony, the court found she had suffered the requisite physical injury and denied summary judgment on her claim. The trial court was correct. She referred to her scalp injury in response to a deposition question about physical injuries. Her deposition testimony that she was yanked by the hair down the hallway creates a reasonable inference she suffered some physical .injury from that deliberately harsh and heavy-handed bodily contact. Taken in context, her layperson denials of physical injury are understandable, for in this violent encounter neither she nor her children were killed or shot or beaten, which appeared to be a very possible outcome, and it was unnecessary to seek medical aid or administer medical treatment. We perceive no contradiction between her deposition testimony and the later-filed affidavit, and thus there is no cause to construe her deposition testimony against her.

Goins v. Tucker and Littleton v. OB-GYN Assoc. have specifically applied this principle to a plaintiff’s claim of physical injury in an emotional distress case and found in those cases there was no contradiction. In each case, the previous testimony did not foreclose the possibility of physical injury.

The court correctly denied summary judgment on the mother’s claims.

Case No. A97A2018

2. The children were not touched during the encounter, but recovery is available without impact or pecuniary loss if the children can show defendants’ conduct was malicious, wilful, or wanton and was directed toward them. The children argue that the conduct of the intruders was malicious, wilful, and wanton, and was directed to them in that the gunman brought the mother to their bedroom door to make the violent threats. But the children are not suing the intruders for their malicious acts; they are suing the landlord and management company for their alleged negligence and recklessness in failing to warn of prior similar incidents and to adequately secure the apartment and the complex. The court reviews the conduct of the defendants before the court, not of third parties.

Claiming waiver, the children point out the defendants did not complain below that the malicious conduct was that of the armed intruders as opposed to that of the defendants. That is explained by the fact that the children did not argue the malicious exception to the impact rule until appeal.

The children allege defendants basically breached three duties: failure to warn of prior similar incidents in the apartment community; failure to install secure locks and hardware on the apartment doors; and failure to maintain a working security gate at the entrance to the complex, which was stuck open on the night in question. The children further allege the negligence of defendants showed “a reckless and wanton disregard for the safety and well-being of Plaintiffs.”

We assume for purposes of this appeal that the latter allegation (not having been contradicted by evidence from defendants) meets the standard that the defendants’ conduct be malicious, wilful, or wanton, for “reckless and wanton disregard of consequences may evince an intention to inflict injury.” But nowhere do the children allege or present evidence which would allow even an inference that defendants’ misconduct was directed toward them.

Such a showing is essential. The Supreme Court in Ryckeley v. Callaway reversed this Court on this very ground. “[E]ven malicious, wilful or wanton conduct will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff. . . . [S]ince there is no evidence in the record of this case to support a finding that appellants’ conduct was directed at any of the plaintiffs, the trial court was correct in granting summary judgment to defendants. . . .”

Last year Ford v. Whipple considered whether defendant’s reckless and wanton speeding through a red traffic control light was directed toward plaintiff’s child who was riding as a passenger in a car struck by defendant’s vehicle. The child suffered no physical injury but only emotional distress. Affirming the grant of the motion to dismiss, Ford reasoned, “[e]ven if [defendant’s] speeding was wanton and wilful on this thoroughfare . . ., the pleadings do not allege that she directed this conduct at the plaintiff’s child, and without such a claim there is no reasonable construction that she did so. Her conduct cannot be seen as directed at ‘anyone’ in her path, and no authority is cited to support this theory.

“Disregard of general consequences is a part of wanton behavior, but the exception to the impact rule requires more; the wantonness must be directed to the plaintiff. [Cits.] To say the actor’s conduct is directed at anyone who is in the path ignores the additional requirement. Such an analysis would create the tort of negligent infliction of emotional distress and ignore the rule that ‘even malicious, wilful or wanton conduct will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff.’ [Cit.]”

Similarly, the plaintiff in Wellborn v. DeKalb County School Dist. failed to allege in her complaint that any wanton or wilful act of the school district was directed toward her. Because there was no physical injury to her, Wellborn affirmed the dismissal of her claim.

In the case of these children, defendants’ misconduct applied to the apartment community at large, and there is nothing indicating that the children were singled out or targeted to bear the consequences of that misconduct. Absent the element of specific direction on the one hand, or bodily contact resulting in physical injury on the other, the children’s claims fail to provide a basis for recovery.

3. There is language in some decisions that would indicate yet another exception to the impact rule that might possibly apply here. In describing the Georgia impact rule, OB-GYN Assoc, quoted the following from Candler v. Smith: “Mere wrongful acts of negligence will authorize a recovery where the resulting fright, shock, or mental suffering is attended with actual immediate physical injury, or where from the nature of the fright or mental suffering there naturally follows as a direct consequence physical or mental impairment. (Cits.) In either of such events the fright or mental suffering can itself be considered, together with the accompanying physical injury or resulting physical impairment, as an element of damage. [Cits.]” The italicized language, which stems originally from dicta in Williamson v. Central of Ga. R. Co., would indicate that in a negligence action without impact, emotional distress is recoverable if it resulted in a foreseeable physical or mental impairment. Although this language has often been quoted, it appears that only Pinkerton Nat. Detective Agency v. Stevens in 1963 has relied on it as the sole basis for a cause of action. Pinkerton emphasized that the defendant’s overbearing surveillance of the plaintiff had resulted in a “permanent mental impairment having physical manifestations and necessitating medical care, treatment by electric shock therapy and psychiatric aid.” Pinkerton distinguished “mere fright, shock and hurt feelings.”

More recent cases have noticeably failed to refer to this second exception, and have stated unequivocally that a “claim for emotional distress inflicted by negligent conduct is allowed only where there is some physical injury to the claimant. [Cits.]” Other cases have focused on OCGA § 51-12-6 as the exclusive basis for claims to recover for mental or emotional distress where there is no physical injury, and have emphasized that this statute, as judicially construed, requires a showing the conduct was “malicious, wilful, or wanton.” Quoting from Westview Cemetery OB-GYN Assoc, itself referred to OCGA § 51-12-6 as requiring a showing of intentional misconduct where the mental pain and suffering is not accompanied by physical injury or pecuniary loss. Finally, other cases have held that this second exception only applies when there is a showing the defendant knew with reasonable certainty that his conduct would result in mental or physical impairment. Essentially, such a showing must demonstrate the defendant acted with “gross carelessness, ... as amounted to wilful and reckless disregard of consequences,” which ends up being nothing more than a rewording of the first exception that requires a showing of “malicious, wilful, or wanton” misconduct.

Decided February 24, 1998.

Anthony Thomasson, for appellants.

Thomas E. McCarter, for appellees.

Based on the above analysis, the original dicta from Williamson indicating a second exception to the impact rule has now been construed to require a showing of wilful and wanton misconduct, or has simply been abrogated. Thus, the Supreme Court’s most recent elucidation of the impact rule in Ryckeley, which does not refer to any exception beyond a showing of malicious, wilful, or wanton misconduct, is controlling.

The court did not err in granting summary judgment against the children.

Judgments affirmed.

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

        OB-GYN Assoc. v. Littleton, 259 Ga. 663, 665-666 (2) (A) (386 SE2d 146) (1989); see Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992); Owens v. Gateway Mgmt. Co., 227 Ga. App. 815, 816 (490 SE2d 501) (1997); Ford v. Whipple, 225 Ga. App. 276 (483 SE2d 591) (1997); Strickland v. Hodges, 134 Ga. App. 909 (216 SE2d 706) (1975).

        Posey v. Medical Center-West, 184 Ga. App. 404, 405 (361 SE2d 505) (1987); see Harris v. Wall Tire Co., 197 Ga. App. 818 (1) (399 SE2d 580) (1990) (sleep disturbances and stomach problems arising from emotional stress not recoverable without impact or pecuniary loss).

        OB-GYN Assoc., supra, 259 Ga. at 666-667 (2) (B); Harris, supra, 197 Ga. App. at 818 (1).

        See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).

       227 Ga. App. 524, 526-527 (2) (489 SE2d 857) (1997).

       199 Ga. App. 44, 45 (403 SE2d 837) (1991).

        Ryckeley, supra, 261 Ga. at 828; OB-GYN Assoc., supra, 259 Ga. at 666 (2) (A); West-view Cemetery v. Blanchard, 234 Ga. 540, 544 (B) (216 SE2d 776) (1975); Marcelli v. Teasley, 72 Ga. App. 421, 425 (1) (33 SE2d 836) (1945).

        Sanders v. Brown, 178 Ga. App. 447, 450 (1) (343 SE2d 722) (1986); Strickland, supra, 134 Ga. App. at 913.

       See Westvieui Cemetery, supra, 234 Ga. at 545 (“recovery is allowed only where the defendant’s conduct is malicious, wilful, or wanton”) (emphasis supplied); Deutz-Allis Credit Corp. v. Phillips, 193 Ga. App. 79, 81 (387 SE2d 34) (1989) (to recover for emotional distress, plaintiff must show that the defendant’s conduct was wilful or wanton); Sanders, supra, 178 Ga. App. at 449-450 (1) (“in those cases where recovery has been authorized for intentional infliction of emotional distress, the defendant’s actions were so terrifying or insulting as naturally to humiliate, embarrass or frighten the plaintiff”) (emphasis supplied).

        Hamilton v. Powell, Goldstein &c., 252 Ga. 149, 150 (311 SE2d 818) (1984).

       261 Ga. at 830.

       Id. at 829-830.

       225 Ga. App. at 278.

       Id.

       227 Ga. App. 377, 379 (3) (489 SE2d 345) (1997).

       See also Dillman v. Kahres, 201 Ga. App. 210, 211 (411 SE2d 43) (1991) (summary judgment affirmed because evidence showed defendant’s reckless conduct was not directed toward plaintiffs); Sanders v. Brown, supra, 178 Ga. App. at 450 (1) (j.n.o.v. was mandated as to plaintiffs toward whom no wilful act was directed); Strickland v. Hodges, supra, 134 Ga. App. at 912 (“It was the absence of this element of being ‘directed towards the individual plaintiff’ which was the basis of other decisions holding that without a showing of physical injury there was no cause of action for emotional harm”); see generally OB-GYN Assoc., supra, 259 Ga. at 668 (C) (defendant’s act “ ‘must be directed towards the complainant’ ”); Evans v. Willis, 212 Ga. App. 335, 337 (1) (a) (441 SE2d 770) (1994) (plaintiffs must establish that defendant’s “conduct was wilful or wanton and intentionally directed to harm them”). Compare Marcelli v. Teasley, supra, 72 Ga. App. at 426 (1) (defendant verbally abused plaintiff to her face).

       50 Ga. App. 667, 673 (179 SE 395) (1935).

       (Emphasis supplied.) 259 Ga. at 665.

       127 Ga. 125, 131 (3) (56 SE 119) (1906).

       See, e.g., OB-GYN Assoc., supra, 259 Ga. at 665 (no cause of action); Pinkerton Nat. Detective Agency v. Stevens, 108 Ga. App. 159, 166 (2) (b) (132 SE2d 119) (1963); Marcelli, supra, 72 Ga. App. at 425 (1) (defendant acted maliciously); Candler, supra, 50 Ga. App. at 673 (plaintiff was caused to fall); Cooper v. Meaders, 47 Ga. App. 89, 90 (2) (b) (169 SE 685) (1945) (dicta); Pettett v. Thompson, 33 Ga. App. 240 (1) (125 SE 779) (1924) (no cause of action); Hines v. Evans, 25 Ga. App. 829, 833-834 (2) (105 SE 59) (1920) (plaintiff was thrown about).

       108 Ga. App. at 165-167 (2) (b).

       Id. at 166-167.

        Wellborn v. DeKalb County School Dist., supra, 227 Ga. App. at 378 (3); see Ryckeley, supra, 261 Ga. at 828; Sanders, supra, 178 Ga. App. at 450; Howard v. Bloodworth, 137 Ga. App. 478, 479 (224 SE2d 122) (1976).

        Westview Cemetery, supra, 234 Ga. at 544-545 (B); Carroll v. Rock, 220 Ga. App. 260, 261 (1) (469 SE2d 391) (1996); Waldrip v. Voyles, 201 Ga. App. 592, 595 (2) (a) (411 SE2d 765) (1991); Deutz-Allis Credit Corp., supra, 193 Ga. App. at 80-81; Brunswick Gas &c. Co., 179 Ga. App. 495, 496-499 (3) (347 SE2d 240) (1986); see generally Stepperson, Inc. v. Long, 256 Ga. 838, 840-843 (2) (353 SE2d 461) (1987).

       234 Ga. at 544.

       259 Ga. at 666.

        Stanoiu v. Reyes, 198 Ga. App. 692, 693 (1) (402 SE2d 526) (1991); Towler v. Jackson, 111 Ga. App. 8, 9 (140 SE2d 295) (1965); Goddard v. Watters, 14 Ga. App. 722 (2) (82 SE 304) (1914).

        Goddard, supra.

        OB-GYN Assoc., 259 Ga. at 666; see Hamilton v. Powell, Goldstein &c., supra, 252 Ga. 150 (“reckless and wanton disregard of consequences may evince an intention to inflict injur/’); Ford v. Whipple, supra, 225 Ga. App. at 278 (“[disregard of general consequences is a part of wanton behavior but... the wantonness must be directed to the plaintiff”); Velez v. Bethune, 219 Ga. App. 679, 680 (1) (466 SE2d 627) (1995) (reckless disregard of consequences is equivalent to an intentional tort).

       261 Ga. at 828; see also Powers v. Latimer, 215 Ga. App. 245, 248 (4) (450 SE2d 295) (1994) (“[wjhere ... a claim alleges negligent infliction of emotional harm, recovery is allowed only where there has been some impact on the plaintiff that results in a physical injur/’).


author: Smith, Judge.

text:
    A97A2280.
    HALL v. THE STATE.
    (497 SE2d 603)
   Smith, Judge.

Artis Lee Hall was indicted, tried, and convicted on one count of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b), and one count of possession of marijuana with intent to distribute, OCGA § 16-13-30 (j) (1). His motion for new trial as amended was denied, and he appeals, raising as error the admission of similar transaction testimony. We agree with Hall that the trial court failed to properly conduct a Uniform Superior Court Rule 31.3 (B) hearing, and because we conclude that the evidence with respect to both the possession of cocaine with intent to distribute and possession of marijuana with intent to distribute charges was not overwhelming, we cannot say the admission of the similar transaction testimony was harmless. We therefore remand this case to the trial court for the purpose of conducting a USCR 31.3 (B) hearing in accordance with White v. State, 213 Ga. App. 429, 431 (1) (445 SE2d 309) (1994).

Evidence was presented at trial that on December 23, 1993, Officer Partain, an investigator with the Richmond County Sheriffs Department, responded to information he received from a confidential informant concerning drug activity at a convenience store. He drove to the store around 5:25 p.m. and saw Hall’s car and Hall, along with several other people, in the parking lot. Partain parked, approached Hall, and identified himself as a police officer. Hall placed his hand inside his pocket, and Partain pulled his gun. Hall then removed his hand from his pocket, and Partain saw four plastic bags fall to the ground, one bag containing a substance that tested positive for cocaine and three other bags that tested positive for marijuana. Partain later testified that he saw Hall drop or throw the bags down and that they landed less than a foot from Hall. Approximately $199 was found on Hall’s person.]

When asked for the reasons he charged Hall with possessing cocaine with intent to distribute, Partain stated that both the packaging of the cocaine and the amount of cocaine in the bag — seven or eight pieces weighing a total of 22.3 grams — were usually associated “with a dealer amount.” He added that the crack “pieces can be even cut down even further to be distributed out to drug users.” He also testified to the street value of the cocaine. With regard to the charge of possession of marijuana with intent to distribute, Partain testified that he saw three bags containing 1.4 grams of marijuana fall to the ground. The record contains no testimony showing that this quantity and packaging were consistent with distribution rather than mere possession. See Dyer v. State, 218 Ga. App. 879 (463 SE2d 718) (1995).

Hall testified at trial, denying that he placed his hands in his pocket or that he dropped or threw any drugs to the ground and stating that he had just cashed his paycheck. The testimony of Hall’s girl friend corroborated his version of events. She testified that Hall did not throw any plastic bags to the ground and that he did not possess the drugs found. Both Hall and his girl friend further testified that others were in the vicinity when Partain found the plastic bags. They also testified that the officer told them that he had not seen Hall throw the bags down but that no one would believe Hall’s word over his.

Hall contends the trial court failed to conduct a proper USCR 31.3 (B) hearing with respect to similar transactions admitted into evidence and that the transactions therefore were improperly admitted. He further argues that admission of the transactions was not harmless. Rule 31.3 (B) requires the State to make three affirmative showings: (1) the similar transaction evidence is offered for some purpose other than to show a probability that the defendant committed the crime on trial because the defendant is a person of criminal character; (2) the accused committed the independent offenses; and (3) a sufficient connection or similarity between the prior offense and the offense charged such that proof of the former tends to prove the latter. See Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991); Cantrell v. State, 210 Ga. App. 218, 220 (2) (435 SE2d 737) (1993). The trial court is required to determine that each of these showings has been satisfactorily made by the State before any evidence concerning a particular prior transaction is introduced to the jury. Williams, supra at 642.

The hearing conducted by the trial court fell short of these requirements. Without hearing evidence or a proffer by the State concerning the prior incidents, the court ruled them admissible simply because they were “drug transactions.” Although at least one of the prior transactions was very similar to the one for which Hall was tried in this case, we cannot state that the trial court followed the correct procedures for admitting any of the transactions. Regardless of any similarity, a proper hearing was not held. The State was not permitted to affirmatively state the purpose for which the evidence was being offered, and the record consequently does not show that the court “made the requisite determination that the evidence was admitted for a limited purpose.” Stephan v. State, 205 Ga. App. 241, 243 (422 SE2d 25) (1992). As in Stephan, the trial court did instruct the jury generally that Hall was not on trial for the similar transactions and that the transactions were admissible for the purposes of showing “knowledge, common design, modus operandi, motive” and other factors impacting on his state of mind. But this recitation of a “comprehensive list of possible purposes did not sufficiently limit the purpose for which the evidence was to be considered by the jury in accordance with Williams.” Id. at 244.

Decided February 24, 1998.

Clayton L. Jolly III, for appellant.

Daniel J. Craig, District Attorney, for appellee.

The trial court’s error in failing to properly conduct an admissibility hearing as required by Williams is not automatically grounds for a new trial but is subject to scrutiny for harmless error. Stewart v. State, 263 Ga. 843, 845 (1) (440 SE2d 452) (1994). The State’s case against Hall consisted primarily of Partain’s testimony that when he pulled up to the convenience store, he observed Hall drop or throw four plastic bags on the ground. In opposition, Hall and his girl friend testified that Hall did not drop these bags or possess the drugs found. Consequently, we cannot say that the evidence of Hall’s guilt was so overwhelming as to make the erroneous admission of the similar transaction evidence harmless. Stephens v. State, 261 Ga. 467, 468-469 (405 SE2d 483) (1991). See also Head v. State, 253 Ga. 429, 431 (2) (322 SE2d 228) (1984).

But a new trial is not automatically required. We are authorized to remand this case to the trial court to conduct a proper USCR 31.3 (B) hearing. See White, supra at 431 (1). Should the trial court determine that the State’s evidence concerning the prior transactions does not comport with the requirements set out in Williams, supra, a new trial will be required. Riddle v. State, 208 Ga. App. 8, 11 (1) (b) (430 SE2d;153) (1993). But if the trial court determines that the evidence is admissible, a new trial will not be necessary. See White at 431 (1).

Judgment affirmed on condition; otherwise reversed.

McMurray, R J.,: and Beasley, J., concur.

       Evidence concerning four different transactions was later admitted at trial. First, Officer Partain testified to a similar incident that occurred in 1988, when he observed Hall throw down a medicine bottle containing crack cocaine. A certified copy of Hall’s 1988 conviction of one count of possession of cocaine with intent to distribute was admitted into evidence. Two other incidents occurred in April and May 1991, when another officer participated in two separate undercover buys of cocaine from Hall. Hall pled guilty to one count of sale of cocaine with regard to these two incidents; the other count was dismissed. Finally, evidence was admitted of a 1985 incident in which Hall sold a quantity of marijuana during an undercover drug sale.


author: POPE, Presiding Judge.

text:
    A97A2365.
    BUNN et al. v. LANDERS et al.
    (498 SE2d 109)
   POPE, Presiding Judge.

Plaintiffs William Bunn and Debra Bunn are the surviving parents of Nathan Bunn. After Nathan was killed while riding in a go-cart, they brought a wrongful death action against the driver of the go-cart, defendant Dusty Dunbar; his parents, defendants James Dunbar and Denise Dunbar; his paternal grandmother, defendant Helen Landers; and both of his maternal grandparents, defendants Hazel Nix and Douglas Nix. The trial court granted summary judgment to all of the defendants. On appeal, the Bunns contend that the trial court erred in granting summary judgment to Dusty’s parents and grandparents. They do not, however, appeal the grant of summary judgment to Dusty. Upon review, we affirm.

Construed most favorably to the Bunns, the facts of this case demonstrate that on July 5, 1995, Helen Landers took Dusty to visit Nathan at his home. After the visit, Landers asked for and received permission from the Bunns to take Nathan with her and Dusty to the Nixs’ residence. Once there, Dusty and Nathan, both of whom were nearly nine years old, went into a front room to play while Landers and Mrs. Nix stayed in the kitchen in the back of the house, talking and drinking coffee. Shortly thereafter, Dusty and Nathan went outside through the front door and began riding a go-cart owned by Dusty’s father, James. Dusty drove and Nathan rode as a passenger. During this time, Dusty entered the road in front of the Nixs’ home and collided with a car driven by a person who is not a party to the underlying lawsuit. The collision resulted in Nathan’s death.

1. The Bunns contend that the trial court erred in determining that no issue of material fact existed regarding the Nixs’ liability for Nathan’s death, and thus, in granting the Nixs’ motion for summary judgment. We disagree.

The undisputed facts of this case demonstrate that at the time of his death, Nathan was a social guest at the Nixs’ residence. As a social guest, Nathan was a licensee and not an invitee. Bowers v. Grizzle, 214 Ga. App. 718, 720 (4) (448 SE2d 759) (1994); Riley v. Brasunas, 210 Ga. App. 865, 866 (1) (438 SE2d 113) (1993). Under Georgia law, a property owner is liable only for wilful and wanton injuries caused to a licensee. OCGA § 51-3-2 (b); Bowers, 214 Ga. App. at 720 (4); Riley, 210 Ga. App. at 867 (1). As the trial court determined, there is no evidence in this case demonstrating any wilful or wanton act or omission on the Nixs’ part that caused Nathan’s tragic death.

It is undisputed that the go-cart was not owned by the Nixs, and that at the time of the accident, Mr. Nix was not even at home. Although Mrs. Nix was at home, she specifically testified by affidavit and in her deposition that she believed Nathan and Dusty were playing inside the house and never heard them leave or use the go-cart. Contrary to the Bunns’ contention, there is nothing more than speculation and conjecture in the record to suggest otherwise. Nor is there more than mere speculation and conjecture that Mrs. Nix had given permission to the children to go outside and ride the go-cart, or that she had any knowledge that Nathan and Dusty had a desire to do so. Such speculation and conjecture is insufficient to create even an inference which would bar summary judgment in favor of the Nixs. See Taylor v. N.I.L., Inc., 221 Ga. App. 99, 100 (470 SE2d 491) (1996); Brumbelow v. City of Rome, 215 Ga. App. 321, 322 (450 SE2d 345) (1994). And in the absence of evidence that Dusty had a propensity to leave the house and use the go-cart without permission or supervision, Mrs. Nix was not required to keep an unremitting watch and restraint over Dusty and Nathan, or the go-cart. Thus, her failure to do so also does not create a genuine issue of material fact as to the Nixs’ liability in this case. See Scarboro v. Lauk, 133 Ga. App. 359, 361-362 (3) (210 SE2d 848) (1974).

Because there simply is no evidence that the Nixs breached any duty they owed to Nathan, the trial court properly granted their summary judgment motion. Bowers, 214 Ga. App. at 720 (4).

2. “When a person undertakes to control and watch over a young child, even without compensation, he becomes responsible for injury to the child through his negligence, and his duty to use reasonable care to protect the child is not measured by what his duty would have been to a social guest or licensee.” (Citations and punctuation omitted.) Riley, 210 Ga. App. at 868 (2). “The measure of precaution that must be taken by one having a child in his care, who stands in no relation to the child except that he has undertaken to care for it, is that care which a prudent person would exercise under like circumstances. As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm.” (Citations and punctuation omitted.) Wallace v. Boys Club &c., 211 Ga. App. 534, 535 (1) (439 SE2d 746) (1993).

Applying the above principles to the case at bar, we agree with the trial court’s determination that there is no evidence of record in this case of negligence on Landers’ part. Like Mrs. Nix, in her affidavit and deposition testimony, Landers unequivocally states that at all times relevant she believed that Nathan and Dusty were playing in a front room at the Nixs’ residence, and at no time did she hear them leave the house to ride the go-cart or hear them after they started riding it. Her testimony also demonstrates that she had no knowledge that Nathan intended or wanted to ride the go-cart and that she never gave Nathan permission to do so, or even to leave the house. As was the case with Mrs. Nix, there is nothing in the record contrary to Landers’ testimony amounting to more than mere speculation and conjecture. As stated in Division 1, such speculation and conjecture create no inference sufficient to bar summary judgment. See Taylor, 221 Ga. App. at 100; Brumbelow, 215 Ga. App. at 322.

Under the facts presented in this case, the only way that Landers could have prevented Nathan’s death would have been to maintain a constant watch over him at all times. In light of Nathan’s age and the lack of any evidence that Landers knew that he intended or even wanted to ride the go-cart, we must agree with the trial court that Landers’ failure to maintain persistent vigilance and watch over Nathan does not amount to negligence. Scarboro, 133 Ga. App. at 361-362 (3). To hold otherwise would be to make Landers the insurer of Nathan’s safety. Therefore, summary judgment in favor of Landers was appropriate.

3. Summary judgment also was proper with regard to Dusty’s parents, James Dunbar and Denise Dunbar, neither of whom was present at the time of the accident. In this State, “parents [generally] are not liable in damages for the torts of their minor children merely because of the parent-child relationship; when liability exists it is based on a principal-agent or master-servant relationship where the negligence of the child is imputed to the parent, or it is based on the negligence of the parent in some factual situation such as allowing the child to have unsupervised control of a dangerous instrumentality.” (Citations and punctuation omitted.) Hawkins v. Shelly, 212 Ga. App. 267 (441 SE2d 439) (1994); Saenz v. Andrus, 195 Ga. App. 431, 432 (2) (393 SE2d 724) (1990). “Where injury is caused by an instrumentality made accessible to the child by the parent, which if used properly is reasonably safe but which becomes a dangerous instrumentality when not properly handled, the question becomes one of ordinary negligence. Whether or not the parent exercised ordinary care to anticipate and guard against such misuse is thus frequently a jury question as in other negligence cases. Although recovery is permitted where through parental negligence a child is permitted access to an instrumentality which, if not properly used, is foreseeably likely to cause injury to a third person, this does not make the parent liable for an injury negligently inflicted by a child where there is no dangerous proclivity known to the former and no reason to anticipate the injury which in fact occurred.” (Citation and punctuation omitted; emphasis in original.) Id.

In the instant case, as in Saenz, the evidence of record demonstrates that Mr. and Mrs. Dunbar neither furnished nor expressly permitted Dusty access to the go-cart, notwithstanding the fact that the go-cart was left where access to it could be had. Id. at 433 (2). Under such circumstances, “the standard for imposing liability upon [the Dunbars] is whether [they] knew of [any] proclivity or propensity [on Dusty’s part] for the specific dangerous activity. If such knowledge cannot be shown on the part of [the Dunbars], then liability cannot attach to [them], as [parents are] not [the insurers] that [their children] will not harm [others].” (Citations and punctuation omitted; emphasis in original.) Id.

Decided February 24, 1998.

Richard H. Bishoff, for appellants.

Alan W Connell, for appellees.

Although it is true in this case that there is some evidence that Dusty had previously ridden as a passenger in the go-cart in the road while his older sister was driving, as the trial court determined, there is no evidence in the record to indicate that either Mr. or Mrs. Dunbar knew Dusty had a propensity for driving the go-cart without their permission or supervision, or that Dusty had a propensity to drive the go-cart in the road. And the Dunbars specifically stated otherwise by affidavit. Absent this knowledge, they had no reason to anticipate that Dusty would take the go-cart without permission or supervision and drive it into the road, and thus, no duty to guard against such an occurrence. Id.; Hawkins, 212 Ga. App. at 268.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.