text:
    A99A0596.
    WORLD TRADE BUSINESS, INC. v. AMIT, INC.
    (521 SE2d 40)
   Barnes, Judge.

After World Trade Business, Inc. (‘World Trade”), filed suit against Amit, Inc., d/b/a Comfort Inn-Atlanta Airport (“Comfort Inn”), and both parties filed motions for summary judgment, the trial court denied World Trade’s motion and granted summary judgment to Comfort Inn. World Trade appeals that judgment. World Trade contends the trial court erred by holding it had no standing under OCGA § 43-21-16 (“the Olympic Anti-Price Gouging Statute”), by denying summary judgment to World Trade and by refusing to hold that the contracts between World Trade and Comfort Inn violated the Olympic Anti-Price Gouging Statute as a matter of law. World Trade also contends the trial court erred by granting summary judgment to Comfort Inn, and by holding the liquidated damages clauses in the contract between Comfort Inn and World Trade were not unenforceable penalties.

The trial court based its grant of summary judgment to Comfort Inn primarily on its determination that World Trade lacked standing to seek relief under the Olympic Anti-Price Gouging Statute, and that is our primary concern in this appeal. As we find the trial court misconstrued the Olympic Anti-Price Gouging Statute, we reverse.

World Trade was authorized by a foreign Olympic Committee to locate hotel accommodations for use by overseas visitors during the Atlanta Olympic games. After locating rooms at the Comfort Inn, World Trade entered into a “Convention Guest Rooms Rental Contract” with Comfort Inn.

The contract stated that World Trade wished to “purchase” and Comfort Inn would guarantee a specified number of guest suites between July 15, 1996, and August 13, 1996, at a designated price per room. World Trade would provide Comfort Inn a list of designated guests, and World Trade would make specified non-refundable payments to Comfort Inn by dates designated in the contract. The contract farther provided that World Trade and “its foreign Olympic tourist guests have the right to occupy the guest suites reserved pursuant to this agreement.”

Under this contract, the suites were to rent for $143 per night. Comfort Inn, however, also required a separate facilities contract for food and drinks and for the use of the hotel’s facilities such as the hotel’s lounge, restaurant, kitchen, atrium, and in-room microwave ovens, hair dryers, and automatic coffee makers. In combination, the room contract and the facilities contract would result in a per room charge of $460 per night. World Trade paid a deposit of $125,000, $100,000 for the facilities contract and $25,000 for the room contract. World Trade did not intend to use the rooms as an organization and did not use them. Instead, the plan was to provide the rooms to others as part of tour packages.

After signing the contracts, World Trade learned that the intended Olympic visitors could not afford such exorbitant room rates and that a Georgia law (the Olympic Anti-Price Gouging Statute) would prohibit renting these rooms at the rates specified in the contracts. When efforts to renegotiate the arrangement with Comfort Inn were unsuccessful, World Trade advised Comfort Inn that it could not use the rooms under the original agreements and requested the return of its deposit. Comfort Inn refused, and after World Trade terminated the contracts, Comfort Inn retained the deposits as liquidated damages under the contracts.

Thereafter, World Trade brought suit to rescind the contract, to recover the deposits paid, and to recover damages authorized by OCGA § 43-21-16. The superior court determined, however, that World Trade was not authorized relief under OCGA § 43-21-16 because World Trade was a hotel operator as defined in subsection (a) (3) of OCGA § 43-21-16: “ ‘Operator’ means the operator of a hotel . . . who conducts the business of providing overnight accommodations to guests. The term operator shall also include brokers, wholesalers, and other persons who purchase and resell hotel rooms.” The trial court reasoned that because the “intention of the legislature, as disclosed in OCGA § 43-21-16 (b), [was] to prevent the perceived long term effects from rampant price-gouging during the 1996 Olympic games,” and the “purpose of the statute [was] to seemingly protect and allow for a cause of action to be brought by the ultimate consumer,” the statute did not “provide protection for brokers, owners, wholesalers, and others similarly situated in the accommodation profession.”

World Trade argued below that it had standing under the Olympic Anti-Price Gouging Statute because it paid for the rooms and thus fell within the statutory definition of a guest. A “ ‘[g]uest’ means a person who pays a fee to the keeper of an inn for purpose of entertainment at that inn.” OCGA § 43-21-1 (1). The trial court rejected this argument because it found that it “could be extended to the. absurd conclusion that a credit card company which pays the charges for a room rental in excess of the statutory amount would have a valid cause of action under the statute. Such a conclusion does not comport with the legislative intention as disclosed in the statute.” We disagree with the trial court’s analysis of the intended scope of the statute.

1. “In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). In this instance, the General Assembly stated both the evil to be prevented and the remedy it selected to accomplish that result. The Olympic Anti-Price Gouging Statute was designed “to protect the state’s convention and tourism industries against long-term ill effects that could result from a perception of rampant price gouging during the 1996 Olympic Games.” OCGA § 43-21-16 (b) (2). To achieve that end, the General Assembly made it unlawful to charge excessive hotel room rates during the Olympic period, to require renting unnecessary room nights before or after the Olympic period, or to require the purchase of other goods or services to use a hotel room. OCGA § 43-21-16 (d).

Hotel operators who violated the Olympic Anti-Price Gouging Statute would be guilty of price gouging, a misdemeanor (OCGA § 43-21-16 (f)) and subject to civil damages and penalties under OCGA § 43-21-16 (g) (1) (B). Additionally, the Olympic Anti-Price Gouging Statute provided that “[a]ny contract or arrangement for the use of rooms in violation of this Code section, whether entered into before or after the enactment of this Code section, shall be voidable by the person contracting to use such rooms.” OCGA § 43-21-16 (g) (1).

In construing the Olympic Anti-Price Gouging Statute to determine whether World Trade had standing to seek such relief, we must first look to the statute’s literal meaning, and if the language is plain and does not lead to any absurd or impracticable consequences, we will simply construe the statute according to its terms without conducting further inquiry. Diefenderfer v. Pierce, 260 Ga. 426, 426-427 (396 SE2d 227) (1990). In doing so, we give words their ordinary meaning unless they are words of art or words that are given a particular meaning within a particular trade or subject matter. OCGA § 1-3-1 (b). Also, in Georgia the word “ ‘[p]erson’ includes a corporation.” OCGA § 1-3-3 (14).

Considering the phrase “person contracting to use the rooms” in this context, the only real dispute is over the meaning of “contracting to use.” Comfort Inn, like the trial court, would define those words as meaning only actually staying in or occupying the rooms, i.e., personal use of the rooms. We find no definition in the Olympic Anti-Price Gouging Statute, however, that supports such a restrictive reading of the words “contracting to use.” Also, Comfort Inn does not contend that “contracting to use” is either a term of art or a term with a particular meaning in the hotel industry. Thus, we must look to the ordinary meaning of “contracting to use.” In doing so, we find that the plain meaning of “contracting to use” requires a broader scope than that applied by the trial court or Comfort Inn. “To use” means “to put into service,” or “to have recourse to or enjoyment of.” Webster’s Third New International Dictionary (unabridged) (1986).

“Contracting to use” does not require that the person or entity entering into the contract actually occupy a room. Instead, it simply means that parties to the contract have reached a binding agreement that confers the right to use the room on one of the parties. In this case, the contract explicitly provided that World Trade had the right to occupy the rooms.

Thus, “contracting to use” in the sense of OCGA § 43-21-16 (g) does not exclude the arrangements made by World Trade for the use of the rooms by others as specified in its contracts with Comfort Inn. Moreover, after careful reflection, it is not apparent how interpreting that phrase in this manner could lead to absurd or impractical consequences.

Applying the Olympic Anti-Price Gouging Statute according to its terms, we need not decide whether the trial court properly interpreted either “operator” or “guest,” because nothing in OCGA § 43-21-16 (g) indicates that it protects only guests or excludes operators from its protection. Statutes are to be construed in accordance with their real intent and meaning and not so strictly as to defeat the legislative purpose. Johnson v. Housing Auth. of Atlanta, 198 Ga. App. 816-817 (403 SE2d 97) (1991).

Because this section of the Olympic Anti-Price Gouging Statute is not limited to guests who were actually to use the rooms, World Trade, as a party contracting to use the rooms, has standing under OCGA § 43-21-16 (g) to void the contracts with Comfort Inn. A statute should be read according to the natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation. Bur-bridge v. Hensley, 194 Ga. App. 523, 524 (391 SE2d 5) (1990).

Further, allowing entities that contracted for hotel rooms on behalf of others to void the contract advances the legislative intent of protecting the reputation of Georgia’s convention and tourist industries. In our view, adopting the construction of OCGA § 43-21-16 (g) urged by Comfort Inn would not protect the reputation of our convention and tourism industries. Instead, it would lead to the absurd result that hotel operators could violate OCGA § 43-21-16 and yet retain the payments made by tour promoters and travel agencies, even though the tour promoters or travel agencies could not legally lease or rent the rooms under their contracts with the hotel operators. See ALLTEL Ga. Communications Corp. v. Ga. Pub. Svc. Comm., 270 Ga. 105, 108 (505 SE2d 218) (1998). Additionally, because credit card companies typically do not contract for the use of rooms, we find nothing in this construction of the Olympic Anti-Price Gouging Statute that would justify the trial court’s extreme extension of World Trade’s argument. Statutory construction “ ‘must square with common sense and reasoning.’ ” Tuten v. City of Brunswick, 262 Ga. 399, 404 (7) (a) (i) (418 SE2d 367) (1992).

Decided July 15, 1999

Reconsideration denied July 29, 1999

Johnson, Matte & Hobgood, Thomas T. Hobgood, for appellant.

Therefore, as World Trade had standing under OCGA § 43-21-16 (g), the trial court erred by granting summary judgment to Comfort Inn.

2. The trial court also erred by ruling that Comfort Inn was entitled to retain the deposits paid by World Trade as liquidated damages for its breach of the rooms and amenities contracts. Although that determination may have been authorized under the trial court’s holding that World Trade lacked standing to void the contract, in view of our decision on the standing issue, the trial court’s grant of summary judgment on liquidated damages must be vacated. A ruling on liquidated damages is premature until the trial court decides whether World Trade was authorized to void its contracts with Comfort Inn. Further, because the trial court did not consider the merits of World Trade’s claims under OCGA § 43-21-16 (g) and genuine issues of material fact may exist, World Trade is not entitled to a reversal of the trial court’s ruling on its motion for summary judgment. Nevertheless, because the trial court’s decision was based upon an erroneous interpretation of OCGA § 43-21-16 (g), the trial court’s denial of World Trade’s motion is also vacated.

Accordingly, the case is remanded for consideration of the merits of World Trade’s claims in accordance with this opinion.

3. We cannot consider Comfort Inn’s argument that the Olympic Anti-Price Gouging Statute is unconstitutional because the trial court did not rule on this issue. Devins v. Leafmore Forest Condo. Assn, of Owners, 200 Ga. App. 158,159 (3) (407 SE2d 76) (1991). Further, we lack jurisdiction to rule on the constitutionality of the statutes of this State (Art. VI, Sec. VI, Par. II, Ga. Const. (1983)), and Comfort Inn did not file a cross-appeal on this issue. Chester v. Ga. Mut. Ins. Co., 165 Ga. App. 783, 784 (1) (302 SE2d 594) (1983).

Judgment reversed in part, vacated in part, and remanded.

Blackburn, P. J, and Ellington, J, concur.

Stokes, Lazarus & Carmichael, Kevin R. Wolff, Michael J. Ernst, for appellee.


source: Caselaw Access Project

author: Andrews, Presiding Judge. McMurray, Presiding Judge,

license: Public Domain

text:
    A99A0634.
    STEWART v. HARVARD et al. SIDRE v. HARVARD et al.
    A99A0635.
    (520 SE2d 752)
   Andrews, Presiding Judge.

We granted interlocutory appeals in these two cases to consider whether Stewart, the homeowner and fiancé of Sidre, Jr., and Sidre, Jr., father of Louis Sidre III (hereinafter Louis), should have been granted summary judgment on the Harvards’ negligence, attractive nuisance, and premises liability claims against her and negligence and wrongful death claims against him arising from the unfortunate death of the Harvards’ son, Scott, in a fire caused by Louis and Scott playing with matches while Stewart and Sidre, Jr. were away from the home.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). If a defendant, as the moving party, shows that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a genuine issue as to any essential element of the plaintiff’s claim, then the plaintiff, as the non-moving party, cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. (Emphasis supplied.) Id. In reviewing a grant or denial of summary judgment, this Court conducts a de novo review of the evidence. Eastside Properties v. Dept. of Transp., 231 Ga. App. 217 (498 SE2d 769) (1998).

(Punctuation omitted; emphasis in original.) Phillips v. Key Svcs., 235 Ga. App. 564-565 (510 SE2d 304) (1998).

So viewed, the evidence was that Stewart and Sidre, Jr. became engaged in July 1995. Sidre, Jr. and his ten-year-old son, Louis, of whom Sidre, Jr. had custody, had been living without charge with Stewart in her home since August 1995. The two-bedroom house was titled in Stewart’s name, and there were no common financial arrangements between Stewart and Sidre, Jr. Stewart’s son by a prior marriage, Steven, was 22 and also lived in the house. He occupied one bedroom, Sidre, Jr. and Stewart the other, and Louis slept in a partitioned area of the dining room. Steven Stewart worked as an electrician, generally leaving the house around 7:00 a.m. and returning around 6:00 p.m.

The Harvards lived in the same neighborhood, and their son, Scott, met Louis in 1995 while playing in the neighborhood, and the two boys became friends. Scott was two years younger than Louis. The boys played together regularly, and Scott had spent the night with Louis on several occasions. Sidre, Jr. had taken both boys to the World Series in 1995. On that occasion, Mr. Harvard brought Scott over and visited briefly. He had also been in the house on other occasions. During these visits, Mr. Harvard noticed a Bic type lighter on the kitchen counter, although its presence did not concern him at the time. Mrs. Harvard had also been in the Stewart home numerous times and knew Stewart smoked.

During the Christmas/New Year’s holiday 1995, Louis had spent time with his mother, but had returned to Stewart and Sidre, Jr.’s house on New Year’s Eve. Scott spent most of the holiday with Louis, who was not to return to school until January 3, 1996.

The Stewarts and the Sidres had put up a natural Christmas tree in the living room, and Stewart checked the tree every evening and watered it as needed. Although it had been her custom to take the tree down on New Year’s Day, the Sidres usually did it on January 6. Stewart deposed that since the tree was still healthy and not dried out, she agreed for it to stay up until the sixth.

Mr. Harvard had been in Stewart’s home a week or week and a half prior to January 2, and the tree “looked in good, great shape at the time I was there. It was in excellent shape.”

Nonetheless, because Louis deposed that the tree, once it began to burn, burned real fast “because it was very dry, but it still had water in it but it was just dry at the time,” we consider the issues based on the assumption that the tree was dry. Lau’s Corp., supra.

On Tuesday, January 2, 1996, Stewart left for work around 8:00 a.m. Before she left, she was aware that Louis did not have to attend school that day and did not want to go to day care. Stewart had told Sidre, Jr. that, in her opinion, Louis should go to Kindercare, where Sidre, Jr. had prepaid for after school and other services. Although Stewart assisted Louis with his homework and other things, Sidre, Jr. took charge of anything to do with Louis and had told her not to discipline him.

When Stewart left, the issue of whether Louis would attend day care had not been resolved. After she left, Sidre, Jr. had decided to take Louis to day care, but Louis prevailed upon his father to allow him to stay home by himself. As Sidre, Jr. deposed, “I just made a decision off the cuff” and allowed Louis to stay. It was, according to Sidre, Jr., “my decision for him to stay home alone that day. And that was my decision at that time, but I gave him rules.” Louis was not to have anyone else come into the house and had to remain near a phone so that Sidre, Jr. could call and check on him.

Mr. and Mrs. Harvard were both ill with a virus that day. Louis called Mrs. Harvard and asked if Scott could come and play with him. About an hour later, Louis came by the Harvard home and “begged” for Scott to come out and play. The Harvards allowed Scott to go and play, and the boys played outside and were seen by Mr. Harvard riding bikes and playing during the day. Neither Harvard inquired of Louis as to whether any adult was at the Stewart home that day. Mr. Harvard said that, sometime prior to January 2, Sidre, Jr. and Stewart had come to ask if Scott could visit with Louis while they went out with some friends. When asked about supervision, Sidre, Jr. assured the Harvards that, when he and Stewart were not there, Stewart’s son, who was over 21, was there. According to the Harvards, this assurance is why neither of them specifically inquired of Louis regarding adult supervision on January 2. Neither Harvard had ever been introduced to Stewart’s son, but had waved to him when they saw him in the yard.

Between 10:00 a.m. and 4:00 p.m., when Mr. and Mrs. Harvard spoke with Scott when he telephoned from the Stewart home, neither of them had spoken with Scott or attempted to contact anyone at the Stewart home. When Scott called at 4:00 p.m., his father gave him permission to stay another hour and told him to come home by dark. According to his mother, Scott knew that if no adult were present when he visited, he was not supposed to go inside.

Sidre, Jr. had talked to Louis by phone six or seven times during the day. When he spoke to him around 1:00 p.m., Louis told his father that Scott had come over. Sidre, Jr. told his son that they could play outside, but not to go inside. Sidre, Jr. called again at 2:30 p.m. and spoke with his son.

Louis was aware that he was not supposed to have anybody in the house when he was there alone, but he “figured my dad would call and maybe he would say it was all right.” When his father called at 2:30 p.m., Louis told him that he and Scott had finished playing with the remote controlled cars outside and “we’re going to watch a movie.” Sidre, Jr. did not tell his son to make Scott leave.

After the boys watched part of a movie, they started wandering around the house, and one of them spotted the matchbook in the kitchen around the sink area. As Louis testified, “I don’t know who spotted them really but, you know — and then I guess we both just got this idea to strike them or whatever, and like to see who could hold them the longest or whatever.” Louis reached up onto the counter and got the matches, and the two boys began striking them, seeing which one could hold the match longest “until you could feel the heat.” Then, they would blow them out.

They proceeded to strike the matches, moving into the living room where the tree was located. Because some of the matches were “soft,” some were struck after they had broken and the boys had to hold them right by the tip in order to strike them. One of these matches was lit, and “it went into the tree but we didn’t know that; we just thought it ripped; we didn’t know part of the match had light [sic], and it had just went right into the tree.” Louis and Scott had also gotten a can of hair spray, and Scott was spraying it around, including in the living room, about four or five feet from the Christmas tree.

The boys did not know the tree was on fire until it began to smoke and three branches ignited. The boys initially attempted to put the fire out by throwing two bowls of water on it. Louis then tried to use a home fire extinguisher, but either he used it improperly or it malfunctioned.

Because Louis had locked the double-keyed dead bolt lock when the boys came in the house, the door to the carport could not be opened without the key. Louis had placed it on the couch in the living room but, due to panic, spent 15 or 25 seconds hunting for it. Although he found the key and the two boys went into the kitchen, by this time the smoke was already down to the dead bolt lock and Louis was unable to get the door open.

Louis then crawled on his belly into a bedroom, believing that Scott was crawling behind him. When he reached a window, he looked back and Scott was not there. He called for him, but to no avail. Scott was later found under a bed in the other bedroom and had died of smoke inhalation.

There had been no previous unauthorized use of matches or a lighter by Louis or any indication of fascination with fire. During his deposition, taken in 1998, Louis was asked if he “like[d] to light matches” and responded “[o]nly for like thrills and stuff.”

Case No. A99A0634

1. Stewart argues that she should have been granted summary judgment on any remaining negligence claim against her.

Because the trial court granted summary judgment to Stewart on the Harvards’ claim premised on negligent supervision of Louis, we do not find any remaining issues of simple negligence. Bunn v. Landers, 230 Ga. App. 744, 745 (2) (498 SE2d 109) (1998).

2. Her second enumeration deals with the Harvards’ premises liability claim, and we conclude that Stewart was entitled to summary judgment on this claim.

It is not disputed by the Harvards that their son Scott was a social guest of Louis. As such, he was a licensee to whom Stewart owed the duty not to injure him wilfully and wantonly. OCGA § 51-3-2 (b); Aldridge v. Tillman, 237 Ga. App. 60Ó, 602 (1) (516 SE2d 303) (1999). That the injured person was a child does not alter this standard. Hemphill v. Johnson, 230 Ga. App. 478, 481 (2) (497 SE2d 16) (1998) (wilful and wanton standard applied to homeowner when an eleven-year-old drowned while swimming in homeowner’s pool); Bunn, supra at 744 (1) (same standard applied to nine-year-old social guest killed while riding a go-cart on homeowner’s property); Bowers v. Grizzle, 214 Ga. App. 718, 719 (3) (448 SE2d 759) (1994) (same standard regarding minor child social guest who drowned in homeowner’s pool).

The Harvards rely upon Riley v. Brasunas, 210 Ga. App. 865 (438 SE2d 113) (1993) (social guest injured by fall while jumping from trampoline onto chin-up bar) and Barry v. Cantrell, 150 Ga. App. 439 (258 SE2d 61) (1979) (hammock secured by dead tree fell, injuring social guest) for their contention that there is a different rule for children. Those two cases, however, are distinguished by the fact that, in both, the issue was whether the condition involved was a “man trap” or hidden peril. Riley concluded that the trampoline was not such a peril and the child knew the danger of falling and Barry found an issue of fact as to whether the homeowner was aware of the condition of the tree so as to impose upon him the duty to protect his social guest.

The actual danger encountered by the deceased or injured social guest must be known and foreseen by the property owner before any duty to protect exists. Aldridge, supra at 603 (Í).

Riley also recognizes the principle that:

[t]he dangers associated with fire, falling from heights, and from water are said to be normally understood by young children absent other factors creating additional risks of harm. See Gregory v. Johnson, 249 Ga. 151, 154 (289 SE2d 232) (1982); McCall v. McCallie, 48 Ga. App. 99, 100 (1) (171 SE 843) (1933). . . . While it is recognized that children of tender years and youthful persons generally are entitled a degree of care proportioned to their ability to foresee and avoid the perils that may be encountered, (cit.), this rule must be considered in the light of the fact that even young children have a natural fear of water, fire and heights. [Cit.]. Higginbotham v. Winborn, 135 Ga. App. 753, 757 (2) (218 SE2d 917) (1975).

(Punctuation omitted; emphasis supplied.) Riley, supra at 867 (1).

As pointed out in Bowers, supra at 720 (4), regardless of the age of the deceased or injured person, “in the absence of a breach of some legal duty toward such person by the [homeowner], there can be no liability.”

There is no evidence in the record before us that, on January 2, Stewart was even aware that Scott was in her house as a guest of Louis. Mere speculation by the Harvards that she somehow should have known will not provide the missing evidence. Bunn, supra at 745 (1). Nor is there any evidence that merely leaving matches on a kitchen counter and having a somewhat dry Christmas tree in another room would amount to the necessary wilful and wanton conduct on her part, had she been aware of Scott’s presence. Hemphill, supra at 481 (2). Stewart was unaware of any previous act by Louis that would indicate his predisposition to play with fire. The only evidence of record of Louis even using matches prior to the fire was that he had, in the presence of his father and with his permission, lit a charcoal grill once and, also with his father’s permission, lit a candle with a match at the Stewart home.

Even assuming that Louis’s statement in 1998, two years after the fire, that he liked to strike matches “[o]nly for like thrills and stuff” was admissible and probative concerning Stewart’s knowledge in 1996, this alone would not make her aware of a prior propensity to play with fire so as to create a duty to a social guest. As held in Jackson v. Wimbley, 218 Ga. App. 698 (1) (463 SE2d 48) (1995), even where a parent has, through negligence, allowed a child access to a dangerous instrumentality, if the parent did not furnish the instrumentality to the child, “ ‘the standard for imposing liability upon a parent is whether the parent knew of the child’s proclivity or propensity for the specific dangerous activity.’ ”

If a parent would not be liable under these circumstances and the trial court granted Stewart’s motion for summary judgment on the negligent supervision claim, finding she had no duty to supervise Louis, there is no basis for any duty on her part merely because she was the homeowner. Therefore, as to the premises liability aspect of the Harvards’ claim, Stewart was entitled to summary judgment.

3. Finally, Stewart contends that she should have been granted summary judgment on the Harvards’ claim of attractive nuisance. Because the doctrine is not applicable to the present facts, we agree.

In Gregory, supra, the Supreme Court reviewed the evolution of the turntable or attractive nuisance doctrine in Georgia and adopted the five conditions set out by the Second Restatement of Torts for imposing liability pursuant to the doctrine.

Even assuming that a matchbook located in a different room but in the same house as a dry Christmas tree can be considered, without more, an artificial condition on land which constitutes a threat to children, the condition at issue here is whether “ ‘the children because of their youth [did] not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it.’ ” Gregory, supra at 154.

As set out in Riley, supra, fire is not such a condition because even young children have a natural fear of it. Here, Scott was eight years old, and even assuming, as stated by his parents, that he had never encountered a match or lighter in his home nor had the dangers of fire been discussed with him by them, at least by the time he and Louis moved from the kitchen into the living room where the tree was located, they had each struck and held matches until they could “feel the heat.” Therefore, at that point, Scott was aware of the danger of fire, even had he not previously been, and of the fact that the Christmas tree was dry.

Therefore, Stewart was not liable under the attractive nuisance doctrine.

Case No. A99A0635

4. The Harvards claim that Sidre, Jr. is liable for the death of their son because he negligently left Louis alone with his guest, Scott, and allowed them to have unsupervised control of a “dangerous instrumentality,” the matchbook.

(a) Regarding this claim,

[T]he true test of parental negligence vel non is whether in the exercise of ordinary care the parent should have anticipated that harm would result from the unsupervised activities of the child and whether, if so, the parent exercised the proper degree of care to guard against this result. (Cit.) Hill v. Morrison, 160 Ga. App. 151 (286 SE2d 467) (1981).

(Punctuation omitted.) Manuel v. Koonce, 206 Ga. App. 582, 584 (1) (b) (425 SE2d 921) (1992), overruled on other grounds, Riley v.H&H Operations, 263 Ga. 652 (436 SE2d 659) (1993).

In this regard, the evidence of record is that, while Louis was left home alone, Sidre, Jr. had instructed him to stay near a telephone and not have any visitors in the house. During the day, Sidre, Jr. repeatedly phoned and spoke with his son. He knew that, at some point in the midmorning, Scott and Louis were playing together outside, and as of 2:30 p.m., he knew that, in violation of the instructions he had given Lords, Scott was visiting in the house and that the two boys were watching a movie.

This is contrasted with the Harvards’ situation which, without dispute, is that they had no contact with their son from 10:00 a.m. until 4:00 p.m. when Scott phoned them. They knew only that he was playing with Louis in the neighborhood.

Assuming, as claimed by the Harvards, that Sidre, Jr. had assumed some obligation to supervise their son based on his previous statement that Steven would always be there when he and Stewart were not, the evidence shows that, even though neither he nor Steven was present in the home, Sidre, Jr., via telephone, was periodically speaking with and checking on his son and Scott. In such a situation, the person undertaking care of a child 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.’” Hemphill, supra at 480 (1).

Regarding the matches as a dangerous instrumentality and the foreseeability of the risk of harm to the boys from them and the dry tree, the evidence is undisputed that Scott had never shown any predisposition to play with matches or fire. Louis had been instructed by Sidre, Jr. regarding the dangers of fire, including Sidre, Jr.’s taking him to fire stations for instruction. Louis’s lighting of the grill and candle was done with his father’s permission.

Even assuming that the 1998 statement regarding striking matches for “thrills and stuff” is admissible regarding Sidre, Jr.’s knowledge in 1996, such knowledge, as discussed in Division 2, supra, without more, is insufficient for imposition of liability on a parent because there is no evidence that Sidre, Jr. furnished the dangerous instrumentality to Louis or Scott or had any knowledge of any dangerous propensity on either child’s part. Bunn, supra at 744-745 (1); Jackson, supra.

In Hawkins v. Skelly, 212 Ga. App. 267 (441 SE2d 439) (1994), three boys, all under age 13, were playing with a plastic baseball bat, hitting rocks with it. Plaintiff Hawkins’s eye was injured when Skelly threw a rock at which Bassinger swung and the rock ricocheted off a tree. Skelly, Bassinger, and their fathers were sued by Hawkins. This Court upheld the grant of summary judgment to Skelly’s father, finding that he had no knowledge of any such prior activity by his son.

The onus a parent’s responsibility has been limited to such instances where the parent has taken some active part in the creation of the danger. A failure to supervise or regulate the play is not such an active part, because in our society strict control of children is today so rare that its absence is no indication of a lack of reasonable care. (Citation and punctuation omitted.) Assurance Co. of America v. Bell, 108 Ga. App. 766, 774 (4) (134 SE2d 540) (1963).

(Punctuation omitted.) Id. at 268. See also Saenz v. Andrus, 195 Ga. App. 431, 432 (2) (393 SE2d 724) (1990).

Therefore, Sidre, Jr. was entitled to summary judgment on this ground.

(b) There is also an additional basis upon which summary judgment should have been granted.

As discussed above, at least by the time the boys went into the living room, they were both aware of the dangers of a lighted match. They both knew, according to the Harvards’ claim, that the tree was dry. Nonetheless, Scott sprayed a flammable substance, hair spray, within four or five feet of the dry tree, and the boys continued to light matches.

Although assumption of the risk is ordinarily a jury question, in plain, palpable and indisputable cases, it may be decided as a matter of law. Young v. Brandt, 225 Ga. App. 889, 891 (485 SE2d 519) (1997). In order to establish the defense of assumption of the risk, [Sidre, Jr.] was required to show that [Scott Harvard] (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed [him] self to those risks. (Footnote omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996). As to a child between the ages of seven and fourteen, there is no presumption that the child did or did not exercise due care or does or does not have sufficient capacity to recognize danger or to observe due care. (Citations and punctuation omitted.) Jackson v. Young, 125 Ga. App. 342, 343-344 (187 SE2d 564) (1972). For children between these ages, these issues hinge on the circumstances of the case and the capacity of the particular child. Id. at 344. Nevertheless, there is no bar to applying assumption of the risk, as a matter of law, to the conduct of a child between these ages when the evidence shows that the danger was obvious, that the child knew of the danger and was able to appreciate the risks associated with it, and the child voluntarily chose to run the risk. Abee v. Stone Mountain Mem. Assn., 252 Ga. 465, 466 (314 SE2d 444) (1984), affirming 169 Ga. App. 167 (312 SE2d 142) (1983).

(Punctuation omitted.) Goodman v. City of Smyrna, 230 Ga. App. 630, 631-632 (497 SE2d 372) (1998) (physical precedent). See also Barnes v. Fulton, 213 Ga. App. 806 (446 SE2d 213) (1994).

As noted in Gregory, supra; Goodman, supra; and Riley v. Brasunas, supra, the dangers of fire are considered to be understood by even a young child absent factors creating additional risks which could not be appreciated by the child. There was none here. Therefore, Sidre, Jr. was entitled to summary judgment.

On remand, the trial court is directed to enter summary judgment in favor of Stewart and Sidre, Jr.

Judgments reversed with direction.

Johnson, C. J., Pope, P. J., Smith and Ruffin, JJ., concur. McMurray, P. J., and Eldridge, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as I believe the trial court correctly decided that genuine issues of material fact remain as to both Kathleen Stewart’s and L. E. Sidre, Jr.’s liability for jointly deciding to leave ten-year-old Louis Sidre at home alone — knowing that Louis’ regular (daily) playmate, eight-year-old Scott Harvard, would likely be visiting. To this extent, I cannot go along with the majority’s premises liability analysis with regard to Kathleen Stewart’s liability because she was not L. E. Sidre, Jr.’s landlord. She was his fiancé and was residing together with Sidre and his son as a family. I believe that a jury would therefore be authorized in finding that Kathleen Stewart stood in loco parentis to ten-year-old Louis Sidre on the day of the fatal fire and that she, as a consequence, should be judged by a jury, along with L. E. Sidre, Jr., for deciding to leave ten-year-old Louis Sidre at home alone for an entire day — with no adult contact or supervision.

Scott Harvard died from smoke and heat inhalation because he and Louis Sidre were, in the absence of adult supervision, playing with carelessly placed matches near a dry Christmas tree in a home with a defective fire extinguisher and a front door dead bolted from the inside. After the tree caught fife and the boys failed to put it out with the fire extinguisher, they attempted to escape through the front door, but the door was locked from the inside and the key could not be found through the smoke of the developing fire. Ten-year-old Louis Sidre discovered an escape route through a back bedroom window, but eight-year-old Scott Harvard could not find his way. Frightened and lost in the smoke, young Scott Harvard hid under a bed. The child’s body was discovered after the fire.

While I agree the law does not require constant vigil over children in all cases, absent circumstances requiring such action (Hill v. Morrison, 160 Ga. App. 151 (286 SE2d 467); Scarboro v. Lauk, 133 Ga. App. 359, 361 (2) (210 SE2d 848)), I believe Georgia demands adult accountability for any alleged failure to provide basic care and supervision to children of tender years. For instance, in Davis v. Gavalas, 37 Ga. App. 242 (139 SE 577), this Court held parents accountable for allowing their five-year-old child to ride a velocipede at night. And in Herrin v. Lamar, 106 Ga. App. 91 (126 SE2d 454), this Court held a mother accountable for allowing her ten-year-old daughter to operate a riding lawnmower. Unlike the majority’s analysis in the case sub judice, these decisions are not based upon a foreseeable risk of harm stemming from a specific activity, nor upon the absence of proof regarding parental knowledge of a child’s alleged careless or reckless nature. Davis and Herrin are based upon the general notion of adult responsibility for basic care and supervision of young children. The same logic persuades me to reject the majority’s “known hazard” and “premises liability” rationale and to voice support for a view which would hold adults answerable for the conduct and activity of unsupervised children of tender years to whom they are charged with care. I thus believe a jury should decide whether Kathleen Stewart and L. E. Sidre, Jr. are responsible for the consequences of leaving young Louis Sidre at home alone, without adult supervision, control, or protection. Scott Harvard’s parents’ alleged negligent supervision of their son would, in my view, be but another factor for jury resolution.

Decided July 14, 1999

Reconsideration denied July 29, 1999

Gray, Hedrick & Edenfield, L. Bruce Hedrick, for appellants (case no. A99A0634).

Kenneth C. Pollock, for appellant (case no. A99A0635).

Mills, Moraitakis & Kushel, Nicholas C. Moraitakis, for appel-lees.

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

       Stewart was granted summary judgment on the Harvards’ negligent supervision claim against her. Hemphill v. Johnson, 230 Ga. App. 478, 480 (1) (497 SE2d 16) (1998).

       The dissent’s attempt to craft a duty to supervise Louis onto Stewart despite the trial court’s grant of summary judgment to her on the Harvards’ negligent supervision claim against her is futile. Both cases relied upon by the dissent, Herrin v. Lamar, 106 Ga. App. 91 (126 SE2d 454) (1962) and Davis v. Gavalas, 37 Ga. App. 242 (139 SE 577) (1927), involve parents who provided dangerous instrumentalities to their children who then injured third parties, one on a public, street and the other in the parents’ yard. Neither dealt with premises liability. Corley v. Lewless, 227 Ga. 745, 748 (182 SE2d 766) (1971) describes Herrin and Davis as allowing recovery “where there was some parental negligence in furnishing or permitting a child access to an instrumentality with which the child likely would injure a third party.” (Emphasis supplied.)

       We need not address, for purposes of this opinion, whether or not the doctrine applies only to trespassers. Compare Gregory, supra, with Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 526-527 (317 SE2d 853) (1984).

       In Cruce v. Remington, 220 Ga. App. 49 (2) (467 SE2d 227) (1996), this Court concluded that the mere existence of a bam, used or unused, was not an “artificial condition on land,” nor did the mere existence of a hole in the second floor, covered by a board, constitute an unreasonable risk of death or serious bodily harm to children and it was not an attractive nuisance.

       But even assuming premises liability is the appropriate standard, I do not agree that eight-year-old Scott Harvard was a licensee to whom Stewart owed only a duty not to act wilfully and wantonly. Because there is proof that this child was a daily guest inside and outside Kathleen Stewart’s home, I believe a jury would be authorized in finding that she knew or should have' known that Scott Harvard would be in her home on the day in question and that she thus had a duty to exercise ordinary care in watching out for his safety. After a proprietor becomes aware of a person’s presence, the duty to exercise ordinary care is owed whether the person is a licensee or an invitee. Herrin v. Lamar, 106 Ga. App. 91, 92 (1) (126 SE2d 454).


author: Eldridge, Judge. Smith, Judge,

text:
    A99A0680.
    HOWARD et al. v. CITY OF COLUMBUS et al. HOWARD et al. v. CHASE.
    A99A1258.
    (521 SE2d 51)
   Eldridge, Judge.

At 1:20 a.m. on May 25, 1992, James Howard, Jr., a prisoner of the City of Columbus, Muscogee County, died of diabetic ketoacidosis at Columbus Medical Center. Conswella L. Howard, his minor daughter, by and through her natural and legal guardian, Stephanie Corbin, brought a wrongful death action, and Stephanie Corbin, as temporary administratrix of the estate of James Howard, Jr., brought a personal injury action against the City of Columbus, Muscogee County; J. E. “Gene” Hodge, individually and in his official capacity as Sheriff of Muscogee County; Dr. Jerry Stephen Chase, individually and in his official capacity as jail medical director; and three jail licensed practical nurses, Mildred Chapman, Ava J. McLeod, and Lawrence Thompson, individually and in their official capacities. Plaintiffs contended that Howard received such grossly incompetent and inadequate medical care or such refusal to provide essential care so as to evidence an intentional violation of his constitutional rights. The following were the basis for plaintiffs’ actions: Counts 1 through 4 were premised upon a violation of the statutory duty to provide medical care under OCGA § 42-5-2, and the common law duty and the state constitutional duty as personal injury and wrongful death actions; Count 5 was a medical malpractice action for personal injury and wrongful death; and Count 6 was a 42 USCA §§ 1983 and 1988 action for violation of due process and the Eighth Amendment of the United States Constitution prohibiting cruel and unusual punishment.

After extensive discovery, all the defendants moved for summary judgment on all counts. On August 6, 1998, oral argument was held. On August 11, 1998, the trial court granted summary judgment on all counts against the plaintiffs. On December 10, 1998, the trial court granted Dr. Chase’s motion for summary judgment as well. Plaintiffs timely filed their notice of appeal.

The record shows that Howard was a diabetic with hypertension. By policy, the intake screening in the Muscogee County jail was performed by a deputy with no medical training who did not take a medical history for diabetes or hypertension and looked only for observable physical conditions or injuries. Thus, Howard’s jail records did not flag his medical condition. After his incarceration on October 1, 1991, lack of proper diet and medication caused Howard’s diabetic condition to worsen over time. By April 1992, Howard’s diabetic condition had deteriorated to the extent that he appeared visibly sick to a lay person.

On April 23, 1992, Howard’s cellmate, Melson, prepared a sick-call slip for Howard, because Howard was too weak to do it for himself. Within the week, Melson prepared two or three more sick-call slips for Howard. By the first week in May, Howard experienced symptoms of overheating, craving of water, dizziness, constipation, and fainting. After one fainting spell, Howard was examined in the cell by a deputy. At other times, when the cellmates told the jailors that Howard was seriously sick or had fainted, the jailors did not even look at him or do anything to determine if he was sick. Howard lost considerable weight, i.e., 30 to 40 pounds, and had a shrunken face, indicating to a lay person that he was profoundly sick and had a serious medical need.

On May 22,1992, Officer J. V. Kennedy learned that Howard was sick. Kennedy talked by telephone to LPN Mildred Chapman in the clinic at 8:30 a.m. Chapman did nothing. Kennedy called again at 10:30 a.m., but Chapman said that the clinic was full. At 2:00 p.m., Kennedy saw Chapman in person and told her that Howard appeared very sick and in serious need of medical care. Chapman refused to see Howard. Kennedy was sufficiently concerned over Howard’s condition that he notified his supervisor, Lt. Wanda Clem-mons, about Howard and Chapman’s refusal to see Howard. Clem-mons merely told him to prepare a written report of the incident. This was another policy or procedure of the jail regarding medical care.

On May 23, 1992, at 8:00 a.m., Howard manifested symptoms of profound weight loss, total absence of appetite, slurred speech, lethargy, fainting, blurred vision, and profound weakness. He had to be carried to the clinic. Howard had a heart rate of 148 beats per minute. Although the protocol required that 911 be called when a prisoner’s heart rate exceeded 120 bpm, LPN Lawrence Thompson did not call 911 or Dr. Chase, but gave Howard medication for high blood pressure that had been preapproved for such general use. However, such medication was dangerous for a diabetic. Howard was kept in the clinic from 11:00 a.m. until 7:00 p.m., when he was returned to his cell. Howard was never seen by a physician. At 11:00 p.m., Howard was returned to the clinic. He told LPN Ava McLeod that lie was dying. At that time, he had an unsteady gait, blurry vision, faintness, a heart rate of 126 bpm, and a rebounding pulse of 136 bpm. The LPN did not call an ambulance or Dr. Chase, but continued to treat him only for high blood pressure by changing the blood pressure medication.

After Howard’s return to the clinic at 11:00 p.m. on May 23, 1992, Deputy Gary Nicholson observed Howard in the holding cell and observed that Howard appeared “rough,” in distress, lethargic, incoherent, and thirsty. Howard had an overwhelming odor of sweet ammonia about him. LPN McLeod told Nicholson that she thought that Howard was a diabetic. While LPNs had the authority to call 911 for an ambulance, the policy was that, because of cost, an ambulance was not to be called except in the case of a medical emergency. LPN McLeod consulted by telephone with Dr. Chase, who was on call. Dr. Chase neither came to the clinic to examine Howard nor ordered that Howard be sent to the emergency room at the hospital. By telephone, Dr. Chase ordered a change in blood pressure medication without knowing Howard’s clinical signs and symptoms.

After 6:30 a.m. Sunday, May 24, 1992, Howard was returned to his cell by LPN Thompson. Howard told his cellmate Melson that he was dying. The cellmates created a commotion to get the deputies to do something about Howard, because Howard appeared to them to be critically ill. At 7:00 a.m., LPN Thompson arrived with a deputy at the cell, and Howard was again carried to the clinic. At 1:40 p.m., Howard’s father and sister came to the jail, and Howard was taken to the visitors area, but Howard could not talk and fainted. Howard was then returned to the clinic. At 1:55 p.m., Howard’s heart rate increased to 144 bpm, and his blood pressure dropped. A jailor became sufficiently concerned that he called 911; LPN McLeod called Dr. Chase to tell him that the deputy had called for the paramedics. Dr. Chase did not come to the jail.

At 2:10 p.m. on May 24, 1992, as a result of the telephone call from the jailor, two paramedics, Jim Waites and William Moore, arrived. They immediately detected acetone on Howard’s breath. Howard was in a near coma and in a wheelchair. He was lethargic and could not keep his eyes open; he was non-responsive to voice commands' and responded only to pain; and he lacked a grasp. The paramedics administered a simple glucose fingerstick test, which registered the maximum for glucose. Based on this simple test, it was their immediate opinion that Howard was diabetic. At the hospital, Howard registered 1200+ on the blood workup.

At 1:00 a.m. on May 25, 1992, after removal from the jail to the Medical Center, Howard stopped breathing. He died at 1:20 a.m. Held:

Case No. A99A0680

The plaintiffs set forth six enumerations of error, all of which state different reasons why the trial court erred in granting summary judgment to the defendants. For a proper analysis, the theories of liability must be examined on the basis of federal and state claims.

1. The plaintiffs contend that the trial court erred in granting summary judgment on Howard’s 42 USCA § 1983 claims for violating Howard’s rights under: (a) the Eighth Amendment of the United States Constitution to be free from cruel and unusual punishment, i.e., grossly inadequate medical care and failure to treat Howard, and (b) the Due Process Clause. We agree.

(a) Liability on an action under 42 USCA § 1983 prohibiting cruel and unusual punishment as a violation of Eighth Amendment rights under the United States Constitution exists through “acts [and] omissions sufficiently harmful to evidence deliberate indifference to serious medical needs,” of an inmate in jail. Estelle v. Gamble, 429 U. S. 97, 106 (97 SC 285, 50 LE2d 251) (1976).

Not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny. After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment. To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety. It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock. . . . Whitley [v. Albers, 475 U. S. 312, 319 (106 SC 1078, 89 LE2d 251) (1986)].

(Punctuation omitted.) Alford v. Osei-Kwasi, 203 Ga. App. 716, 718-719 (2) (418 SE2d 79) (1992); accord Cantrell v. Thurman, 231 Ga. App. 510, 512 (1) (499 SE2d 416) (1998); Webb v. Carroll County, 229

Ga. App. 584 (494 SE2d 196) (1997).

To state an Eighth Amendment violation for inadequate medical care under Estelle v. Gamble, supra, it must be shown that [Howard’s] treatment was “so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness or where the medical care is so inappropriate as to evidence intentional maltreatment or a refusal to provide essential care.” Rogers v. Evans, 792 F2d 1052, 1058 (11th Cir. 1986).

Alford v. Osei-Kwasi, supra at 722-723 (6); accord Cantrell v. Thurman, supra at 512; Webb v. Carroll County, supra. “Also, delay in access to medical care that is tantamount to unnecessary and wanton infliction of pain may constitute deliberate indifference to a prisoner’s serious medical needs.” (Citations and punctuation omitted.) Adams v. Poag, 61 F3d 1537, 1544 (11th Cir. 1995); see also Brown v. Hughes, 894 F2d 1533, 1537 (11th Cir. 1990). “If [jailors] delay or deny access to medical care . . ., the [E]ighth [A]mendment is violated. ... [A] refusal to provide essential care violates the [E]ighth [A]mendment.” Rogers v. Evans, supra at 1058.

All [Eighth Amendment medical] cases require knowledge of the medical needs of the plaintiff and the intentional refusal to provide such necessary care in order for such conduct to constitute “deliberate indifference” as an Eighth Amendment violation within Estelle. Our cases have consistently held that “knowledge of the need for medical care” and “an intentional refusal to provide that care” constitute “deliberate indifference.” . . . Carswell v. Bay County, 854 F2d 454, 457 (11th Cir. 1988); Ancata v. Prison Health Svcs., 769 F2d 700, 704 (11th Cir. 1985).

(Emphasis omitted.) Merritt v. Athens Clarke County, 233 Ga. App. 203, 205 (1) (504 SE2d 41) (1998).

We hold instead [as to the meaning of deliberate indifference] that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.

Farmer v. Brennan, 511 U. S. 825, 837 (B) (1) (114 SC 1970, 128 LE2d 811) (1994); accord Yizar v. Ault, 265 Ga. 708, 709 (462 SE2d 141) (1995); Merritt v. Athens Clarke County, supra at 208.

However, “an Eighth Amendment claimant need not show that a [jailor] acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Farmer v. Brennan, supra at 842. “To state an Eighth Amendment violation for inadequate medical care under Estelle v. Gamble, supra, it must be shown that [Howard’s] treatment was ‘so grossly incompetent, inadequate or excessive ... or [was] a refusal to provide essential care.’ [Cit.]” Alford v. Osei-Kwasi, supra at 722-723 (6). Thus, knowledge for the purpose of deliberate indifference means an awareness that the inmate needs medical care because of a serious risk of harm from illness or injury, as evidenced by the clinical signs and symptoms that are readily observable by a reasonable person. Knowledge for the purpose of deliberate indifference does not require a final diagnosis, correct diagnosis, or a complete medical history when the inmate has not been allowed to see and to be examined by a physician or when medical care has been unreasonably delayed. Adams v. Poag, supra at 1544; Brown v. Hughes, supra at 1538; Carswell v. Bay County, supra at 457.

Such knowledge may be shown by circumstantial evidence by demonstrating that the surrounding facts and circumstances are such that a reasonable person would know and appreciate the risk of harm from a serious medical need, unless they were deliberately indifferent. A defendant will rarely make the admission of an awareness and appreciation that the inmate was in serious need of medical care to avoid the risk of harm, because to do so is an admission of subjective indifference, i.e., admission of a culpable state of mind and liability. Merritt v. Athens Clarke County, supra at 208. “[W]hen the need for medical treatment is obvious, medical care that is so cursory as to amount to no treatment at all may constitute deliberate indifference.” (Citation omitted.) Adams v. Poag, supra at 1544; accord Ancata v. Prison Health Svcs., supra at 704. “A medical need is serious if it is ‘. . . one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.’ [Cits.]” Ramos v. Lamm, 639 F2d 559, 575 (10th Cir. 1980). “A series of incidents closely related in time may disclose a pattern of conduct amounting to deliberate indifference. Repeated examples of delayed or denied medical care may indicate a deliberate indifference by prison authorities to the suffering that results.” (Citations omitted.) Rogers v. Evans, supra at 1058-1059; accord Todaro v. Ward, 565 F2d 48, 52 (2nd Cir. 1977); Harris v. Thigpen, 941 F2d 1495, 1505 (11th Cir. 1991); Ramos v. Lamm, supra at 575. “When [jail guards or medical personnel] ignore without explanation a prisoner’s serious medical condition that is known or obvious to them, the trier of fact may infer deliberate indifference.” (Citations omitted.) Brown v. Hughes, supra at 1538. Therefore, such subjective deliberate indifference may be proven as a reasonable inference drawn from circumstantial evidence of the surrounding facts and circumstances.

(i) In this case, repeatedly denying an obviously sick inmate with a serious medical need access to a physician or a hospital emergency room where proper medical diagnosis and treatment can be made does not escape from the Eighth Amendment prohibition against denial of medical care simply because neither jailors nor paramedical personnel know what is specifically wrong with the inmate, other than that he is seriously sick. Adams v. Poag, supra; Brown v. Hughes, supra. Such repeated and prolonged denial of access to a physician for an obviously seriously sick inmate constitutes deliberate indifference and reckless conduct. Farmer v. Brennan, supra at 842. Ignorance is not bliss; otherwise, a premium would be placed upon ignorance in order to escape liability when an illness is not diagnosed and the sufferer is allowed to slowly die without proper diagnosis or treatment. Therefore, repeated denial, delay, insufficient or inappropriate medical care of an obviously sick inmate in serious need of medical care constitutes circumstantial evidence of subjective, deliberate indifference. See Whitley v. Albers, supra at 321; Estelle v. Gamble, supra at 103-104; Wilson v. Setter, 501 U. S. 294, 296-299 (111 SC 2321,115 LE2d 271) (1991); Anderson v. City of Atlanta, 778 F2d 678, 686, n. 12 (11th Cir. 1985); Merritt v. Athens Clarke County, supra at 208.

Here, jail LPNs deliberately ignored the pleas of Howard, his cellmates, and deputies either to have a physician examine Howard or to send him to the hospital, and — finally — a medically untrained deputy was forced to call 911 for paramedics; such evidence (plus the evidence of the serious medical needs of Howard from the same witnesses) constitutes some circumstantial evidence of their culpable state of mind, i.e., subjective deliberate indifference, because such acts or omissions are not negligent but require a conscious decision to act or not to act. See Merritt v. Athens Clarke County, supra at 208; Van Alstine v. Merritt, 222 Ga. App. 734, 735 (1) (476 SE2d 6) (1996); Johnson v. Jones, 178 Ga. App. 346, 348 (343 SE2d 403) (1986); see also Wilson v. Setter, supra at 296-299.

The government has a duty to provide minimally adequate medical care to its inmates. West v. Atkins, 487 U. S. 42, 54 (108 SC 2250, 101 LE2d 40) (1988); Harris v. Thigpen, supra. However, adequate medical care means that level of medical care reasonably commensurate with modern medical science and a quality of care acceptable within prudent professional standards; it means a level of health services that is reasonably designed to meet routine as well as emergency medical care. Fernandez v. United States, 941 F2d 1488, 1493-1494 (11th Cir. 1991); United States v. DeCologero, 821 F2d 39, 43 (1st Cir. 1987); Ramos v. Lamm, supra at 574. "Where the inmate demonstrates that the medical care system is inadequate, so that he is effectively denied access to medical care for his condition, liability has been established. Anderson v. City of Atlanta, supra at 686-687, n. 12; Ancata v. Prison Health Svcs., supra at 703, n. 5; accord Garcia v. Salt Lake County, 768 F2d 303, 308 (10th Cir. 1985); Wellman v. Faulkner, 715 F2d 269, 272-274 (7th Cir. 1983); Ramos v. Lamm, supra at 574-575; Todaro v. Ward, supra at 52. The absence of proper care and the policy underlying such lack of care constitute objective, deliberate indifference. Merritt v. Athens Clarke County, supra at 206-207.

Here, there is evidence that a life-threatening, serious medical need existed, because Howard died from his untreated diabetic ketoacidosis. Accordingly, the evidence raises a factual question as to whether the defendants’ response to such serious medical need amounted to deliberate indifference. Farmer v. Brennan, supra at 837 (B) (1); Adams v. Poag, supra; Merritt v. Athens Clarke County, supra at 207. As an established policy or practice, the LPNs’ examination, treatment, and delay in transfer to a hospital of an obviously critically ill inmate, rather than examination and treatment by a physician, constitute such totally inadequate medical care that a jury may find that it constituted non-treatment. Thus, such non-treatment, as a consequence of such policy, would be the proximate cause of Howard’s death. Collins v. City of Harker Heights, 503 U. S. 115, 120-124 (112 SC 1061, 117 LE2d 261) (1992).

(ii) As to Sheriff Hodge, his liability arises from his failure to supervise the jail employees. See also Division 2 (b), infra.

We apply a three-prong test to determine a supervisor’s liability: (1) whether the supervisor’s failure to adequately train and supervise subordinates constituted deliberate indifference to an inmate’s medical needs; (2) whether a reasonable person in the supervisor’s position would understand that the failure to train and supervise constituted deliberate indifference; and (3) whether the supervisor’s conduct was causally related to the subordinate’s constitutional violation. [Cit.]

Adams v. Poag, supra at 1544; see also Ancata v. Prison Health Svcs., supra at 706. As to each prong, plaintiffs have presented sufficient evidence to raise an issue of material fact for jury determination.

In this case, the policies of Columbus, Muscogee County, a governmental entity, constitute a violation of constitutional rights by providing for potentially inadequate, delayed, or insufficient medical care and treatment and raise a factual question as to the causation of Howard’s death. Here, the policy caused the constitutional violation as the “moving force,” which was executed by its employees. Monell v. Dept. of Social Svcs., 436 U. S. 658, 690-694 (98 SC 2018, 56 LE2d 611) (1978). Such policy or policies constituted the evidence of actual deliberate indifference. Merritt v. Athens Clarke County, supra at 207. “If the government itself is to be held liable, as opposed to holding its employees liable individually, then such liability must arise from a governmental policy of action or inaction that caused the constitutional violation, as well as the injury.” Id. at 206.

In this case, such has been shown, because the LPNs and Dr. Chase acted or refused to act due to the implementation of such governmental policy of providing insufficient care and treatment of Howard and excessively delaying his transportation to the hospital for budget reasons. Such acts or omissions of the employees and agents were not individual acts of negligence or vindictiveness, but were within the policy of providing inadequate treatment. Bd. of County Commrs. of Bryan County v. Brown, 520 U. S. 397, 403-407, 411 (117 SC 1382, 137 LE2d 626) (1997); Monell v. Dept. of Social Svcs., supra at 691-695; Merritt v. Athens Clarke County, supra at 206. The subjective element of “deliberate indifference” is evidenced by the acts and omissions of Chase, Chapman, McLeod, and Thompson in implementing such policies. Id. at 207. “[A] claim of deliberate indifference to a prisoner’s serious medical needs has two components: whether evidence of a serious medical need exists; [and] if so, whether the defendants’ response to that need amounted to deliberate indifference. [Cit.]" Adams v. Poag, supra at 1543. As to the first prong in this case, death established that the medical need was serious; as to the latter, the evidence presented by the plaintiffs makes it a jury question.

Under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), plaintiffs raised sufficient issues of material fact that the trial court should have denied the defendants’ motions for summary judgment on the federal issues. See OCGA § 9-11-56 (e).

Thus, [with some evidence in and permissible reasonable inferences from] the record that a jailor/prison official acted or failed to act, despite knowledge of the substantial risk of harm to [an inmate] of permanent injury under the policy, there is [the creation of a material issue of fact] by the plaintiff on summary judgment [by coming] forward with evidence of subjective deliberate indifference, [in addition to] evidence of objective deliberate indifference. [Cits.]

Merritt v. Athens Clarke County, supra at 208.

(iii) Plaintiffs provided evidence that, prior to Howard’s death from diabetes, the defendants engaged in deliberate indifference through a policy and pattern of practice in not treating diabetics. The fact that ten to thirteen inmates have died from diabetes while in custody between 1980 and 1992 is some evidence of deliberate indifference to providing appropriate medical care and treatment for diabetics. As early as 1986, Dr. Bruce Newsome and physician’s assistant Richard Holmes warned that the identification, care, and treatment of diabetics was inadequate and that preventable deaths were needlessly occurring. Sheriff Hodge, Dr. Newsome, and Roy Reese, Director of Risk Management, were aware specifically that diabetic inmates were at risk.

(iv)

The allegations of one denied medical attention and incarcerated [when sick] have been held to state a cause of action under 42 USCA § 1983. Hughes v. Noble, 295 F2d 495 (5th Cir. 1961). The federal courts have demonstrated concern that where needed medical care is refused the denial or improvident delay of such aid may constitute deprivation of constitutional due process. Fitzke v. Shappell, 468 F2d 1072 (6th Cir. 1972).

Davis v. City of Roswell, 250 Ga. 8 (295 SE2d 317) (1982); accord Cantrell v. Thurman, supra at 512-513 (2); see Collins v. City of Harker Heights, supra at 119-120.

Thus, the policies of conducting a restrictive medical history and inmate intake examination with undertrained deputies who do not inquire regarding or examine for diabetes and hypertension; having LPNs examine and treat seriously ill inmates with significant medical needs without a physician present and seeing a seriously sick patient without a physician examining the inmate within a reasonable time thereafter; having the physician consulting with the LPN by telephone instead of directly observing, examining, and working up the seriously sick inmate or performing a follow-up examination; having the LPNs continuing to see a chronically seriously ill inmate without a physician ever examining the inmate; narrowly defining a medical emergency so that an obviously sick inmate is not transported to a hospital emergency room in the absence of a physician examining him in the clinic; and designing medical protocols which are primarily for cost effectiveness and to save money by limiting direct physician care and hospitalization of seriously ill inmates — all such policies demonstrate a question of fact for the jury as to whether they constitute “deliberate indifference.”

(b) Deliberate indifference to serious medical needs by governmental custodians violates Due Process. However, unlike an Eighth Amendment violation, a Due Process violation does not require subjective deliberate indifference; such violation requires action under color-of-law and causation, as in an Eighth Amendment violation. See City of Roswell v. Davis, 255 Ga. 158, 163 (335 SE2d 582) (1985).

[PJlaintiff must establish a causal connection between any policy of inadequate medical care or omissions of medical care and the constitutional deprivation of due process rights [or an Eighth Amendment violation]. City of Roswell v. Davis, [supra at 163]. “A plaintiff in a [42 USCA] § 1983 action must show (1) that he has been deprived of a right secured by the constitution and laws of the United States, and that (2) the defendant acted under color of state law.”

Cantrell v. Thurman, supra at 512-513; Poss v. Moreland, 253 Ga. 730, 731-732 (324 SE2d 456) (1985); accord City of Cave Spring v. Mason, 252 Ga. 3, 4-5 (310 SE2d 892) (1984).

Here, the medical policies were promulgated and carried out under the mandate of a state statute requiring that a county provide adequate medical care for its inmates. OCGA § 42-5-2. Howard was never examined by a physician in the jail clinic from April 23, 1992, through May 25, 1992, when he died. Howard was seen only by under-trained LPNs under the practices and policies promulgated by the defendants. It was only after Howard reached a diabetic stupor that a jailor, not jail medical personnel, called 911 for an ambulance to transport Howard to the hospital emergency room. When the paramedics examined Howard, they immediately suspected diabetes from the acetone smell on Howard’s breath, his respiration, and his non-responsiveness except to pain. Therefore, the paramedics administered a simple fingerstick glucose test that showed the maximum glucose level possible of 400+ on that device, indicating diabetes. Thus, Howard’s critical medical condition was obvious to a properly trained paramedic. The LPNs should have recognized earlier the clinical signs and symptoms of diabetes or realized, at the minimum, that this profoundly sick inmate needed to see a physician. This was a violation of a constitutional right that was coupled with causation.

The Supreme Court . . . set forth an analysis of the “under-color-of-state-law” part of the . . . two-part requirement. The conduct causing the deprivation must be fairly attributable to the state in order to be conduct “under-color-of-state-law.” This is characterized as the “fair attribution” test. It is itself broken into a two part approach which we outline here for ease in application to the facts of this case[:] A. The deprivation must be caused by: (i) The exercise of some right or privilege created by the state, or (ii) a rule of conduct imposed by the state, or (iii) a person for whom the state is responsible. B. The party charged with the deprivation must be a “state actor” in that: (i) He is a state official, or (ii) he has acted together with or has obtained significant aid from state officials, or (iii) his conduct is otherwise chargeable to the state. A and B are separate requirements each of which is necessary to establish conduct “under-color-of-state-law.”

Poss v. Moreland, supra at 731-732, citing Lugar v. Edmondson Oil Co., 457 U. S. 922 (102 SC 2744, 73 LE2d 482) (1982); accord Cantrell v. Thurman, supra at 513. Thus, under this test, a fact question exists as to whether there is a causal connection between the implementation of jail medical policies under-color-of-state-law and Howard’s death.

2. Plaintiffs contend that the trial court erred in granting summary judgment on their various state claims.

(a) While OCGA § 42-5-2 (a) imposes the duty and the cost for medical care of inmates in the custody of a county upon the county, such statute did not waive sovereign immunity of the county or its agents and employees. Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution created constitutional sovereign immunity for the state and its political subdivisions. The Georgia Tort Claims Act, OCGA § 50-21-20 et seq., specifically excluded tort suits against counties.

Further, the county sheriff in his official capacity is immune from tort liability in performing an official function and may be liable only to the extent that the county had waived sovereign immunity by statute. See Seay v. Cleveland, 270 Ga. 64, 65 (1) (508 SE2d 159) (1998); Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476) (1994). “[A] county is not liable to suit for any cause of action unless made so by statute.” OCGA § 36-1-4. “This includes actions brought under a theory of negligence as the plaintiffs have asserted in this case. Early County v. Fincher, 184 Ga. App. 47, 49 (2) (360 SE2d 602) (1987).” (Punctuation omitted.) Schulze v. DeKalb County, 230 Ga. App. 305, 307 (496 SE2d 273) (1998). Thus, the City of Columbus, Muscogee County, as well as Sheriff Hodge and LPNs Chapman, McLeod, and Thompson in their official capacities, are all protected from tort action by sovereign immunity. See Seay v. Cleveland, supra at 65; Gilbert v. Richardson, supra.

(b) Sheriff Hodge and LPNs Chapman, McLeod, and Thompson were all sued in their individual capacities, as well as their official capacities.

“[Hodge] might be held liable for negligent supervision [when he has] been sued in his personal capacity!.] [Cit.]” Seay v. Cleveland, supra at 65; see also Gilbert v. Richardson, supra at 754. Since the requirements of supervision, including adequate training and enforcement of all policies, practices, and protocol, are ministerial in nature, then, in his individual capacity, Sheriff Hodge has no protection by official or qualified immunity. See Seay v. Cleveland, supra at 65-66, n. 1; see also Gilbert v. Richardson, supra at 750.

Providing adequate medical attention for inmates under defendants’ custody and control is a ministerial act by the sheriff and his or her deputies . . . because medical care is a fundamental right and is not discretionary in requiring medical care; thus, such act is not subject to either sovereign immunity or official immunity. OCGA §§ 42-4-4 (a) (2); 42-5-2 (a); Davis v. City of Roswell, supra; Johnson v. Mayor &c. of Carrollton, 249 Ga. 173 (288 SE2d 565) (1982); Macon-Bibb County Hosp. Auth. v. Houston County, 207 Ga. App. 530 (428 SE2d 374) (1993); Webb v. Carroll County, supra; Cherokee County v. North Cobb Surgical Assoc., 221 Ga. App. 496, 499 (2) (471 SE2d 561) (1996); Alford v. Osei-Kwasi, supra. In contrast, the determination of what medical treatment to provide is an act of discretion subject to official immunity. See Schmidt v. Adams, 211 Ga. App. 156, 157 (438 SE2d 659) (1993).

(Emphasis in original.) Cantrell v. Thurman, supra at 514 (4).

The dissent cites Lowe v. Jones County, 231 Ga. App. 372, 373 (499 SE2d 348) (1998) for the proposition that training and supervision of law enforcement personnel were discretionary acts. In that case, the sheriff was sued in his official capacity only but had the protection of sovereign immunity rather than official immunity for the conduct of a deputy in attempting to arrest a motorist for DUI. See Seay v. Cleveland, supra at 65; Gilbert v. Richardson, supra at 754. In this case the sheriff was sued in his individual capacity as well as his official capacity. If the dicta in Lowe v. Jones County, is a correct statement of the law, then, as stated in dicta of the Supreme Court, “[although [the sheriff] might be held liable for negligent supervision had he been sued in his personal capacity,” in Seay v. Cleveland, supra, based upon Gilbert v. Richardson, supra, is to be treated as an incorrect statement of the law by the dissent and accorded no force and effect? If the statement of the Supreme Court is a correct statement of law, then supervision in a personal capacity is not discretionary but ministerial. The dissent relies upon cases dealing with supervision of law enforcement personnel as a discretionary rather than a ministerial act; such authority does not deal with jailors, who lack peace officer certification, nor medical personnel. Therefore, any language in such opinions as to ministerial versus discretionary acts of non-peace officers was dicta.

Schmidt v. Adams, supra, is good law but inapplicable to the facts of this case, because such case was based upon a failure to diagnose by the physician’s assistant-nurse, a discretionary act, and physician’s assistants under OCGA § 43-34-101 et seq. have broad discretion to carry out medical treatment under the supervision of a physician that a registered nurse or an LPN cannot perform. In this case, the LPNs exercised no discretion, because they failed to allow the patient to be examined by a physician when the clinical signs and symptoms under the protocol mandated either a physician examination or an ambulance to take the prisoner to the emergency room, failed to accurately report the existing signs and symptoms to the jail physician on call, and failed to act in following clearly set out guidelines, all ministerial acts requiring no exercise of deliberation and judgment. Thus, Schmidt v. Adams is distinguishable from this case.

An LPN has the least training and can exercise the least discretion as a licensed health care provider. See OCGA § 43-26-30 et seq.

“The practice of licensed practical nursing” means the provision of care for compensation, under the supervision of a physician practicing medicine, a dentist practicing dentistry, a podiatrist practicing podiatry, or a registered nurse practicing nursing in accordance with applicable provisions of law. Such care shall relate to the maintenance of health and prevention of illness through acts authorized by the board, which shall include, but not be limited to, the following: (A) Participating in the assessment, planning, implementation, and evaluation of the delivery of health care services and other specialized tasks when appropriately trained and consistent with board rules and regulations; (B) Providing direct personal patient observation, care, and assistance in hospitals, clinics, nursing homes, or emergency treatment facilities, or other health care facilities in areas of practice including, but not limited to: coronary care, intensive care, emergency treatment, surgical care and recovery, obstetrics, pediatrics, outpatient services, home health care, or other such areas of practice; (C) Performing comfort and safety measures; (D) Administering treatments and medication; and (E) Participating in the management and supervision of unlicensed personnel in the delivery of patient care.

OCGA § 43-26-32 (7).

A registered nurse requires a different license and qualifications from an LPN; therefore, an RN has greater discretion in patient care. See OCGA § 43-26-1.

“Practice nursing” or “practice of nursing” means to perform for compensation or the performance for compensation of any act in the care and counsel of the ill, injured, or infirm, and in the promotion and maintenance of health with individuals, groups, or both throughout the life span. It requires substantial specialized knowledge of the humanities, natural sciences, social sciences, and nursing theory as a basis for assessment, nursing diagnosis, planning, intervention, and evaluation. It includes, but is not limited to, provision of nursing care; administration, supervision, evaluation, or any combination thereof, of nursing practice; teaching; counseling; the administration of medications and treatments as prescribed by a physician practicing medicine in accordance with Article 2 of Chapter 34 of this title, or a dentist practicing dentistry in accordance with Chapter 11 of this title, or a podiatrist practicing podiatry in accordance with Chapter 35 of this title.

OCGA § 43-26-3 (6).

The dissent cites Edwards v. Dept. of Children &c. Svcs., 236 Ga. App. 696, 699 (512 SE2d 339) (1999) and mistakes the discretionary health care powers set forth in this case, which only RNs possess, with the limited discretionary powers of an LPN in this case. As described in the licensing statutes, the discretion is not the same. While this case merely says “nurses,” their discretionary powers by statute are neither conferred upon nor exercisable by LPNs. See OCGA § 43-26-32 (7). Further, the dissent fails to distinguish Edwards v. Dept, of Children &c. Svcs., supra, an action under the Georgia Tort Claims Act, OCGA § 50-21-23 waiving sovereign immunity, from a suit against a city/county employee under official immunity. OCGA § 50-21-22 (2) defines “discretionary function or duty” for purposes of the Georgia Tort Claims Act only; it is “a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.” Even under the Georgia Tort Claims Act, this court’s interpretation of “discretionary function” in Edwards v. Dept, of Children &c. Sues., supra, appears to be an overly broad statutory construction. “The scope of the discretionary function exception urged by [the dissent], which would include any decision affected by ‘social, political, or economic factors,’ is so broad as to make the exception swallow the waiver.” Dept. of Transp. v. Brown, 267 Ga. 6, 7 (1) (471 SE2d 849) (1996); accord Dept. of Transp. v. Brown, 218 Ga. App. 178, 180-182 (2) (460 SE2d 812) (1995). Clearly, Edwards v. Dept. of Children &c. Svcs., supra, is distinguished from this case on both the law and facts.

Further, since the sheriff and the LPNs were sued in their individual capacities, the record raised serious questions as to conscious indifference by such defendants as to the deceased’s medical condition and treatment so that a jury could find that their conduct amounted to wilfulness, malice, or corruption as actual malice. See Merrow v. Hawkins, 266 Ga. 390 (467 SE2d 336) (1996). Thus, the trial court erred in granting summary judgment on such issue.

As to LPNs Chapman, McLeod, and Thompson, to the extent that their failure to diagnose or to treat appropriately was a discretionary act, qualified or official immunity protected them from tort liability. See Gilbert v. Richardson, supra at 750; Schulze v. DeKalb County, supra at 308. However, to the extent that their refusal or delay in administering medical care and treatment and their refusal to call an ambulance when Howard’s condition exceeded the protocol mandating transfer to the hospital did not require the exercise of discretion, they lack qualified or official immunity for performance of their ministerial duties. See Seay v. Cleveland, supra at 65-66, n. 1; Gilbert v. Richardson, supra at 750.

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

(Citations and punctuation omitted.) Schulze v. DeKalb County, supra at 308 (2).

Thus, some of the LPNs’ acts or omissions are entitled to official immunity while other acts or omissions constitute ministerial conduct for which they may be found liable in tort. Therefore, the trial court erred in granting summary judgment as to those ministerial acts and omissions.

Case No. A99A1258

3. Plaintiffs contend that the trial court erred in granting summary judgment to Dr. Chase on the 42 USCA § 1983 action for violating Howard’s due process rights and his rights under the Eighth Amendment of the United States Constitution to be free from cruel and unusual punishment, i.e., grossly inadequate medical care and failure to treat Howard. We agree for the reasons set forth in Division 1, which controls.

4. Plaintiffs contend that the trial court erred in granting summary judgment on their various state claims as to Dr. Chase. We agree.

As a county employee acting in his official capacity, Dr. Chase was covered by sovereign immunity while acting as medical director for the jail, because he was performing such duties in the course of his employment with the city; therefore, he cannot be liable for negligent supervision or training of the medical staff at the jail or for its policies. See Art. I, Sec. II, Par. IX, 1983 Ga. Const.; OCGA § 50-21-20 et seq.; Seay v. Cleveland, supra at 65 (1); Harry v. Glynn County, 269 Ga. 503, 505 (501 SE2d 196) (1998); Gilbert v. Richardson, supra; Schulze v. DeKalb County, supra at 308; Jackson v. Miller, 176 Ga. App. 220 (335 SE2d 438) (1985).

However, as a medical doctor, he was not acting in the course of his official duties as a county employee and jail medical director when he failed to act in this case, but, instead, was acting as a physician, so that his alleged negligence was simply that of a medical doctor who failed to provide treatment to a patient. His primary duty in this instance was to his patient rather than to the city. Keenan v. Plouffe, 267 Ga. 791, 794 (2) (482 SE2d 253) (1997); see also Davis v. Stover, 258 Ga. 156 (366 SE2d 670) (1988); Schmidt v. Adams, supra at 157-158; Jackson v. Miller, supra; Roberts v. Grigsby, 177 Ga. App. 377, 378 (339 SE2d 633) (1985); cf. dicta in Cantrell v. Thurman, supra at 515. A physician’s professional standing creates a trusting relationship that cannot be breached with impunity. A professional person is liable for an abuse of the trust reposed in him by the public, provisions of the compensation notwithstanding. A prisoner is compelled to trust that his treatment will be made by the doctor’s independent professional judgment. Because of the relationship between physicians and patients, jail physicians cannot use the sovereign immunity law as a shield to insulate themselves from individual liability for medical malpractice claims. Keenan v. Plouffe, supra at 795.

Since Dr. Chase failed to go to the jail and examine or treat Howard or to have him transferred to the hospital, instead choosing to order a change in medication without knowing all of the clinical signs and symptoms that a reasonable examination would disclose, there was no exercise of discretion as to Howard’s diagnosis and treatment. Therefore, Swofford v. Cooper, 184 Ga. App. 50, 52-53 (1), (2) (360 SE2d 624) (1987), aff’d, Cooper v. Swofford, 258 Ga. 143 (368 SE2d 518) (1988), and Roberts v. Grigsby, supra at 379-383 (Deen, P. J., concurring specially), which deal with the exercise of discretion, are inapplicable to this case. Swofford v. Cooper, supra, did not deal with a medical diagnosis or treatment, but with a decision to allow a psychiatric leave as part of therapy. Likewise, in Roberts v. Grigsby, supra, the chief of psychology made the decision to allow a psychiatric patient to be released.

The case against Dr. Chase is supported by an expert opinion that he deviated from the standard of care in failing to go to the jail after hearing the clinical signs from the nurse at 11:00 p.m. on May 23, 1992. He failed to examine, treat, or transfer Howard to the hospital. Therefore, there existed a material issue of fact for jury determination. Thus, this was a simple medical malpractice action for failure to examine, treat, or transfer. The trial court erred in granting summary judgment to Dr. Chase.

5. Plaintiffs contend that the trial court abused its discretion in denying their renewed motion for sanctions.

Plaintiffs sought to strike Sheriff Hodge’s answer for wilful failure to comply with a discovery order. The trial court, in the exercise of its sound discretion, on plaintiffs’ renewed motion for sanctions denied the ultimate sanction of striking the defensive pleadings and entering a default judgment against Hodge.

Dismissal of the answer and entry of a default judgment against a defendant who is in wilful, in bad faith, or in conscious disregard of an order compelling discovery are an appropriate sanction. Didio v. Chess, 218 Ga. App. 550, 551 (462 SE2d 450) (1995); Smith v. Nat. Bank of Ga., 182 Ga. App. 55, 58 (354 SE2d 678) (1987). Neither the movant nor the trial court need find actual wilfulness, but only a conscious or intentional act in disregarding the duty to make discovery is necessary for imposing the sanction of default. Resource Network Intl. v. Ritz-Carlton Hotel Co., 232 Ga. App. 242 (1) (501 SE2d 573) (1998); Potter v. American Medicare Corp., 225 Ga. App. 343, 346 (484 SE2d 43) (1997); Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga. App. 344, 345 (373 SE2d 50) (1988); Sta-Power Indus, v. Avant, 134 Ga. App. 952, 956-957 (2) (216 SE2d 897) (1975).

However, “[t] rial judges have broad discretion in controlling discovery, including imposition of sanctions, and appellate courts will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion.” (Citations and punctuation omitted.) West v. Equifax Credit Information Svcs., 230 Ga. App. 41, 42 (1) (495 SE2d 300) (1997). The appellate courts refuse to interfere with a trial court’s exercise of its broad discretion, in the absence of abuse under the discovery provisions of the Civil Practice Act. Gen. Motors Corp. v. Conkle, 226 Ga. App. 34, 38 (1) (486 SE2d 180) (1997). The trial court should attempt to compel compliance with its orders through the imposition of sanctions less than dismissal. The drastic sanctions of dismissal and default are imposed only in the most flagrant cases — where the failure is wilful, in bad faith, or in conscious disregard of an order. However, a very broad discretion is granted judges in applying sanctions to assure compliance with court orders. Joel v. Duet Holdings, 181 Ga. App. 705, 707 (353 SE2d 548) (1987); see also Gen. Motors Corp. v. Conkle, supra at 44; Loftin v. Gulf Contracting Co., 224 Ga. App. 210, 214-215 (3) (480 SE2d 604) (1997); Hernandez v. State of Ga., 200 Ga. App. 368, 369 (408 SE2d 160) (1991).

However, the failure of the trial court to impose any sanctions at all when discovery abuse has been flagrant constitutes an abuse of discretion. Vlasz v. Schweikhardt, 178 Ga. App. 512, 516-517 (2) (343 SE2d 749) (1986); Hohlstein v. White, 117 Ga. App. 207 (1) (160 SE2d 232) (1968). Where no sanction has been imposed in a flagrant case and there was no evidence of a legitimate excuse before the trial court, this Court will “remand for reconsideration and the imposition of such sanctions as the trial court deems appropriate.” Vlasz v. Schweikhardt, supra at 517. Even so, it is for the trial court, from all the facts and circumstances, to decide what sanction is appropriate. Therefore, the trial court in this case did not err in denying the imposition of the ultimate sanction of default when it previously imposed other sanctions.

Judgment affirmed in part and reversed in part and remanded with direction.

Pope, P. J., Barnes and Ellington, JJ, concur in judgment only. Johnson, C. J., Blackburn, P. J., and Smith, J., concur in judgment only in part and dissent in part.

Smith, Judge,

concurring in judgment only in part and dissenting in part.

I concur in the result reached in Divisions 1, 2 (a), 3, 4, and 5 of the majority, but I do not agree with all that is said in those divisions. Because I believe that they contain much that is not necessary to the analysis, I cannot concur fully and must concur in the judgment only as to those divisions.

I must respectfully dissent, however, to Division 2 (b) of the opinion. The majority opinion declares, with respect to Sheriff Hodge, that “the requirements of supervision, including of adequate training and enforcement of all policies, practices, and protocol, are ministerial in nature.” But neither Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476) (1994), nor Seay v. Cleveland, 270 Ga. 64 (508 SE2d 159) (1998), supports that broad and far-reaching proposition.

As the majority correctly observes,

“[a] ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” [Cit.]

Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). Supervision of a law enforcement agency is generally a discretionary rather than ministerial function. Lowe v. Jones County, 231 Ga. App. 372, 373 (3) (499 SE2d 348) (1998) (“‘The operation of a police department, including the degree of training and supervision to be provided its officers, is a discretionary governmental function of the municipality as opposed to a ministerial, proprietary, or administratively routine function.’ ”). The majority has not demonstrated the basis for its conclusion that Sheriff Hodge’s acts were ministerial in nature.

The majority also has failed to set forth any basis for holding that the actions of the licensed practical nurses employed at the jail were ministerial rather than discretionary. Cantrell v. Thurman, 231 Ga. App. 510, 514 (4) (499 SE2d 416) (1998), written by the author of the majority, also declares that the general obligation to provide medical care to prisoners is a ministerial act by the sheriff, but the authorities cited therein do not support that assertion. The writer of the majority also proposed this view of ministerial functions in a dissent to Coffey v. Brooks County, 231 Ga. App. 886, 895 (500 SE2d 341) (1998), rev’d on other grounds, Rowe v. Coffey, 270 Ga. 715 (515 SE2d 375) (1999).

The law as currently established by this court is quite different. In Schmidt v. Adams, 211 Ga. App. 156, 157 (438 SE2d 659) (1993) (full concurrence on issue of discretionary function), we held that the actions of a physician’s assistant employed by a jail in failing properly to diagnose a condition and failing to order a timely transfer to a hospital were “based on his examination of the facts, his experience, and the exercise of his best judgment,” and therefore were discretionary. The declaration of the existence of a “protocol” does not create a ministerial duty. The medical field has long published diagnostic and procedural manuals that establish criteria and make recommendations for the diagnosis and treatment of disease. The mere publication of such standards, however, does not remove from the practice of medicine or nursing the requirement that, as professionals, nurses examine the facts and exercise judgment, as in Schmidt.

Decided July 15, 1999

Reconsiderations denied July 29, 1999

Burkey & Burkey, Frederick D. Burkey, for appellants.

Page, Scrantom, Sprouse, Tucker & Ford, W. G. Scrantom, Jr., James C. Clark, Jr., Eugene H. Polleys, Jr., for appellees (case no. A99A0680).

Hatcher, Stubbs, Land, Hollis & Rothschild, Robert C. Martin, Jr., Clarence M. Mullin, Carter R. Page, for appellee (case no. A99A1258).

In the recent decision of Edwards v. Dept. of Children &c. Svcs., 236 Ga. App. 696 (512 SE2d 339) (1999), the parents of a deceased inmate alleged that workers and nurses at a youth development center had an absolute, nondiscretionary duty to summon medical aid for their daughter and failed to do so within a reasonable time. We concluded, however, that the “type of care and support and what and how much medical treatment to provide are decisions that must be left to the discretion of the employees who work with the inmates. [Cits.]” Id. at 700. Moreover, Edwards itself relies upon Cantrell, supra, to hold that while the county had a duty to provide medical care and treatment, “what medical care to provide is discretionary and therefore is subject to immunity. [Cit.]” Edwards, supra at 699.

We note that the Supreme Court of Georgia has granted certiorari in Edwards specifically to consider whether this court “improperly expanded the definition of ‘discretionary function’ found in OCGA § 50-21-22,” part of the Georgia Tort Claims Act, in light of the Supreme Court’s decision in Dept. of Transp. v. Brown, 267 Ga. 6 (471 SE2d 849) (1996), involving the distinction between design decisions and policy decisions in opening a highway intersection to traffic. But even if the scope of the discretionary function may be altered by the Supreme Court in the near future, it is nevertheless incumbent upon the majority at this time to articulate the reasons for its determination that the decisions made here were ministerial and not discretionary. Moreover, it appears that this result will require that we overrule Lowe and Schmidt and the decisions upon which they rely, because Cantrell is wholly inconsistent with the existing law in Georgia governing ministerial and discretionary acts.

For these reasons, I must respectfully dissent from Division 2 (b) of the majority opinion.

I am authorized to state that Chief Judge Johnson and Presiding Judge Blackburn join in this opinion.

       For example, on March 6,1992, inmate Eric Killibrew required emergency treatment for diabetic ketoacidosis. On March 22,1992, inmate David Lewis had to be hospitalized for diabetic ketoacidosis.

       In Seay, the Supreme Court of Georgia merely reiterated that a sheriff may be sued in his individual capacity only to the extent he is not protected by official or qualified immunity. Id. at 65-66, n. 1. Gilbert in fact concluded that the actions of the police officer in that case were discretionary rather than ministerial and affirmed the grant of summary judgment to the officer under the doctrine of official immunity. Gilbert, supra at 752-753 (6).