author: Judge Harold R. Banke. Eldridge, Judge, Beasley, Judge, Andrews, Chief Judge,

text:
    A98A0707.
    CHAMBLEY et al. v. APPLE RESTAURANTS, INC.
    (504 SE2d 551)
   Judge Harold R. Banke.

The underlying case arose when Michelle Chambley was dining at a restaurant with her husband. While eating the Sante Fe chicken salad prepared on the premises by employees of Apple Restaurants, Inc. d/b/a Applebees (“Apple”), Chambley suddenly noticed an unwrapped condom mixed in with the other ingredients. Chambley immediately reported the incident to the manager and hastily left with the remainder of the salad in a container. After arriving home, she became upset, repulsed, nauseated, and began experiencing emotional and physical problems. Chambley sought medical attention from Dr. Keith Parmer for gastric distress and other stomach disorders and later saw Dr. Richard Hark, a psychologist, to help her cope with panic attacks, depression and humiliation caused by the incident. Chambley sued Apple, the owner of the restaurant, for negligence and breach of implied warranty of merchantability. Her husband asserted a loss of consortium claim. Upon finding there was no physical injury resulting from impact with the condom, the trial court granted summary judgment on all counts. Held:

1. Chambley contends that she satisfied the requirements of the Georgia “impact” rule because she made physical contact with a salad contaminated by a condom and subsequently suffered a physical injury as a result of that impact.

Under the so-called “impact rule” in a claim concerning negligent conduct, “recovery for emotional distress is allowed only where there is some impact on the plaintiff and that impact must be a physical injury.” Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992). Chambley asserts that a jury must determine whether she sustained the requisite “impact” and resulting physical injury which would allow her to recover damages from Apple for negligently serving her adulterated food that caused both physical and psychological injuries. See OB-GYN Assoc. &c. v. Littleton, 259 Ga. 663, 665 (2) (A) (386 SE2d 146) (1989). We agree.

This case is controlled by Whited v. Atlanta Coca-Cola Bottling Co., 88 Ga. App. 241, 246 (76 SE2d 408) (1953), a case which closely parallels the facts here. In Whited, a consumer who drank part of beverage before discovering a dead bug inside his drink bottle did not have to prove actual contamination of his drink or actual physical contact with the dead bug to avert summary judgment. Id. at 248 (2). See OCGA § 26-2-22.

This holding comports with the subsequently enacted Georgia Food Act (OCGA § 26-2-20 et seq.) in which the legislature plainly intended to protect Georgia consumers from defective, contaminated food products. See OCGA § 51-1-23. To effectuate that intent, the legislature adopted a broad definition of the term adulterated food which clearly reaches the facts here. “A food shall be deemed to be adulterated if: (1) it bears or contains any poisonous or deleterious substance which may render it injurious to health.” OCGA § 26-2-26.

Chambley testified without contradiction that after she consumed part of the salad, she discovered an unwrapped condom and almost immediately experienced various digestive problems which necessitated medical treatment. Whether this salad was “adulterated” within the meaning of the statute is a disputed question of fact. Unlike the dissent, we refuse to unnecessarily weaken legislative protection of consumers so that restaurants who serve customers hidden, disgusting objects, as here, are protected as long as the customer does not actually eat the object or the object subsequently tests benign. To encourage restaurants to avoid their statutory duty to consumers by serving adulterated food in blatant violation of the Georgia Food Act, then allowing restaurants to escape liability because the consumer’s physical reaction appears to have been psychological in origin simply cannot be the law. See Whited, 88 Ga. App. at 246. Therefore, we find that a jury must decide whether eating part of a salad containing a concealed, unwrapped condom is sufficient physical contact under the impact rule to permit recovery for damages. Similarly, a jury must determine whether Chambley’s reaction of vomiting and becoming nauseated shortly after ingesting the salad constituted a physical injury within the meaning of our law. See OB-GYN Assoc., 259 Ga. at 668 (2) (C). Compare Posey v. Med. Center West, 184 Ga. App. 404, 405 (361 SE2d 505) (1987) (impact rule precluded recovery against hospital by parents of child struck by vehicle); Ford v. Whipple, 225 Ga. App. 276 (483 SE2d 591) (1997) (impact rule foreclosed recovery by uninjured child passenger for fright and apprehension absent any physical injury). Notwithstanding the dissent’s claim to the contrary, Ford is not “analogous,” and neither requires nor authorizes a different result. In Ford, unlike here, the plaintiff expressly stated that she suffered no physical, psychological, or emotional injuries as a result of the defendant’s wrongful conduct. Id.

Finally, we note that Apple offered no evidence that the salad was not at all times in the possession and control of the restaurant and its employees. Condoms do not just fall into salads, and the restaurant offered no explanation for its presence. Certainly the act here involved some intent, despite the fact that the plaintiffs do not allege any maliciousness. Had that issue reached a jury and a jury determined that the condom was intentionally or maliciously placed there by an employee, Chambley should have been able to recover for mental pain and suffering even absent a physical injury. Westview Cemetery v. Blanchard, 234 Ga. 540, 544 (2) (B) (216 SE2d 776) (1975). See Ryckeley, 261 Ga. at 828.

2. In light of the above holding, we need not reach the remaining enumeration of error.

Judgment reversed.

McMurray, P. J., Pope, P. J., and Blackburn, J., concur. Eldridge, J., concurs specially. Beasley, J., concurs in part and dissents in part. Andrews, C. J., dissents.

Eldridge, Judge,

concurring specially.

While I concur entirely with the majority, I feel that several factors should be further developed.

This action was brought under theories of negligence and warranty and not intentional tort, although the plaintiff could have brought the action as an intentional tort, because an unused but unwrapped condom does not accidentally become mixed in chicken salad and served up to a patron without an intentional act that was “malicious, wilful, or wanton.” For purposes of damages, it is the nature of the conduct, i.e., malicious, wilful, or wanton, rather than the theory of recovery that authorizes the recovery of general damages for mental pain and suffering.

Mental pain and suffering are a form of general damages. OCGA §§ 51-12-1; 51-12-2 (a); 51-12-6. In Westview Cemetery v. Blanchard, 234 Ga. 540, 543 (2) (B) (216 SE2d 776) (1975), the Supreme Court stated: “[w]here there is a physical injury or pecuniary loss, compensatory damages include recovery for accompanying ‘mental pain and suffering’ even though the tortious conduct complained of is merely negligent. [Cits.]” This was an action against a cemetery for intentional disinterment of a body without first obtaining authorization, and damages under OCGA § 51-12-6 (formerly Ga. Code Ann. 105-2003) were sought in addition to special damages. The Supreme Court went on to hold: “[i]f ‘mental pain and suffering’ [are] not accompanied by physical injury or pecuniary loss, recovery is allowed only if the conduct complained of was ‘malicious, wilful, or wanton.’ Montega Corp. v. Hazelrigs, [229 Ga. 126 (189 SE2d 421) (1972)]. . . . The Montega test for recovery for a purely mental injury is essentially the same as the test for recovery for ‘punitive damages.’ See Standard Oil Co. v. Mt. Bethel &c. Church, 230 Ga. 341 (196 SE2d 869) (1973).” Id. at 544-545. Accord Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992).

In OB-GYN Assoc. &c. v. Littleton, 259 Ga. 663, 666 (2) (A) (386 SE2d 146) (1989), the Supreme Court held: “[w]e take this opportunity to clarify our rule regarding impact and now hold that the impact which will support a claim for damages for emotional distress must result in a physical injury.” Accord Ryckeley v. Callaway, supra at 828. “On the other hand, where the conduct is malicious, wilful or wanton, recovery can be had without the necessity of an impact. [Cit.]” Id. “[E]ven malicious, wilful or wanton conduct will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff.” Id. at 829. However, in this case the intentional misconduct was directed at the plaintiff, as one of the small group of patrons ordering chicken salad, although the employee may or may not have known which customer would receive it.

Beasley, Judge,

concurring in part and dissenting in part.

I concur with the judgment of reversal on the negligence and loss of consortium claims but disagree with the analysis of the majority, which misapprehends some issues of fact and law. I respectfully dissent from the reversal of summary judgment on the breach of warranty claim.

1. Regarding facts.

(a) The majority’s closing comment that a jury would be authorized to determine the condom was intentionally or maliciously placed there by an employee is unsupported by the record. Chambley and her husband repeatedly represented in the court below that they did not allege any employee of defendant intentionally or maliciously put the condom in the salad; they simply claimed negligence, i.e., that the offending substance found its way into the salad through an employee’s failure to assure the salad remained unadulterated. In its summary judgment order, the court expressly relied upon this representation in reaching its conclusion. The majority’s gratuitous suggestion to the contrary simply blurs the clear contours of the case and may confuse it in the trial court.

(b) Despite what the majority relates, Chambley was not immediately sick. “When did I get sick? It was when I got home.” Only after gathering up the salad in a container, returning home, and thinking about the incident did she become nauseated and vomit.

(c) The majority does not state that Chambley had the State Crime Lab test the salad, which test found no contaminants from the condom. Plaintiffs did not challenge nor attempt to contradict this finding.

2. Regarding law. OCGA § 26-2-26 (1) and (2) define adulterated food to include, inter alia, that which “contains any poisonous or deleterious substance which may render it injurious to health . . .” and that which “contains any added poisonous or added deleterious substance which is unsafe. . . .” OCGA § 26-2-22 (1) prohibits the sale of any food that is adulterated. OCGA § 51-1-23 expressly establishes civil liability: “Any person who knowingly or negligently sells unwholesome provisions of any kind to another person, the defect being unknown to the purchaser, by the use of which damage results to the purchaser or to his family, shall be liable in damages for such injury.”

Chambley has shown evidence to support a potential jury finding of liability under this statute. Chambley used food which was “unwholesome” in that it contained the “defect” of being adulterated. OCGA § 51-1-23. It was adulterated because it “contained” a “deleterious substance which rendered it injurious to health” or an “added deleterious substance which is unsafe.” OCGA § 26-2-22 (1), (2). In 1863, if not before, the legislature established the public policy that negligent sellers of such “provisions” would be liable civilly for resulting “damages for such injury.” OCGA § 51-1-23. Chambley presented evidence she suffered psychic injury that manifested itself in physical symptoms.

The later judicial creation of the “impact rule” in Chapman v. Western Union Tel. Co., 88 Ga. 763 (15 SE 901) (1892), which requires a physical impact resulting in a physical injury, did not involve adulterated food, and no subsequent case citing or refining this rule has attempted to apply it to OCGA § 51-1-23 or to adulterated foods. See Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992); OB-GYN Assoc. &c. v. Littleton, 259 Ga. 663, 665-666 (2) (A) (386 SE2d 146) (1989). At least five factors indicate that the legislature did not intend the “impact rule” to apply to actions under OCGA § 51-1-23.

(a) OCGA § 51-1-23 does not limit the injury to that resulting from a physical impact. It does not preclude liability for injury where the bridge between the impact (“use”) and the injury was psychic, “psychic” meaning that the user saw the unwholesomeness or defect and, based on what she saw, ascribed such a repulsive or horrific meaning to it that it made her physically sick. It is the effect of the defect on the person who uses it for which the seller is liable, so long as the injury was proximately caused by the negligent act. That distinguishes Ford v. Whipple, 225 Ga. App. 276 (483 SE2d 591) (1997), which did not involve food.

(b) Nor does the statute limit the types of recoverable injuries to physical injuries and to mental injuries that follow physical injuries. The general language of the statute includes all injuries or damages resulting from the use of the defective food, including mental distress which results in physical symptoms.

(c) OCGA § 51-1-23 relates to the Georgia Food Act (OCGA § 26-2-20 et seq.), which sets standards for those items which constitute food, something that is taken into the body and so has great potential for harm to the body. The Act is now in the title covering food, drugs, and cosmetics, all products which are highly regulated because of their potential for harm to the human body.

(d) The legislature chose to give a broad definition to when “food shall be deemed to be adulterated.” OCGA § 26-2-26. Since OCGA § 26-2-26 (2) includes food which “bears or contains any added poisonous or added deleterious substance which is unsafe within the meaning of Code Section 26-2-27," we must construe this to mean that there would be liability under OCGA § 51-1-23 from injury resulting from food which is not defective itself but which merely contains a defective item and is used. The term “deleterious” is not defined in the Georgia Food Act, but according to the dictionary means “hurtful, destructive, noxious, pernicious.” Webster’s Third New Inti. Dictionary, p. 596.

(e) The legislature provided for express statutory sanctions against those who sell such food. Statutory civil liability (independent of common law), OCGA § 51-1-23; criminal liability, OCGA §§ 26-2-24 and 26-2-41; and allowing the commissioner to publish adverse court orders, OCGA § 26-2-39, are the teeth of the Act, designed to enforce the high standards set for protection of health. The statute even provides for injunctions. OCGA § 26-2-23.

The impact rule does not apply. Chambley’s negligence claim survives summary judgment, which means the husband’s derivative loss of consortium claim also survives.

3. The trial court should be affirmed with respect to the grant of summary judgment on the implied warranty of merchantability claim. The majority does not decide this issue but instead in effect remands the whole case for trial. This claim is a separate claim, not based on the cited statutes. “In order to recover on this warranty [Chambley] had to demonstrate that (1) it had been breached and (2) that [she] had sustained recoverable damages as the proximate result. [Cit.]” Teledyne Indus. v. Patron Aviation, 161 Ga. App. 596, 598 (2) (288 SE2d 911) (1982).

Defendant maintains that no warranty arose because Chambley did not pay for the salad, but “a warranty is implied upon a contract for sale and not solely upon the execution of the sale itself.” (Emphasis in original.) Fender v. Colonial Stores, 138 Ga. App. 31, 32 (1) (A) (225 SE2d 691) (1976). Just as a contract for sale arises when a grocery store patron places the goods in her shopping basket (even though she could return the goods to the shelf and not buy them — see id. at 33-34), so a contract for the sale of restaurant food arises upon placing the order (even though the order could be canceled). See Keaton v. A.B.C. Drug Co., 266 Ga. 385, 386 (1) (b) (467 SE2d 558) (1996) (“grasping the product and beginning to take the product from the shelf with the intent to purchase it” constitutes privity necessary for implied warranty); cf. Ray v. Deas, 112 Ga. App. 191, 192 (2) (144 SE2d 468) (1965) (restaurateur may be liable for breach of implied warranty of merchantability for serving food containing foreign substance that causes injury). Chambley presented evidence establishing the warranty and its breach.

Nevertheless, Chambley does not show recoverable damages caused by the breach. OCGA § 11-2-715 (2) (b) allows as damages in a breach of warranty action “[i]njury to person or property proximately resulting from any breach of warranty.” Such damages are considered the same as those allowed under common law. Alterman Foods v. G. C. C. Beverages, 168 Ga. App. 921, 923-924 (310 SE2d 755) (1983). The common law does not afford mental distress damages in breach of contract actions. Cheeley v. Henderson, 197 Ga. App. 543, 547 (2) (398 SE2d 787) (1990) (where only cause of action was suit on contract, court properly entered summary judgment on prayer for mental distress damages), rev’d on other grounds, 261 Ga. 498 (405 SE2d 865) (1991); Rogers v. Ga. Ports Auth., 183 Ga. App. 325, 329 (3) (358 SE2d 855) (1987) (damages for mental pain and suffering “are not compensable in an ex contractu action in the absence of fraud”); see Woodward v. Naylor Motor Sales, 14 UCC Rep. Serv. (CBC) 1269, 1274-1275 (VI) (Mich. Dist. Ct. 1974) (damages for mental distress are not available in breach of warranty action).

Since this is all plaintiff claims, in that the physical aspects were simply manifestations of the psychic injuries, she cannot recover for breach of the implied warranty. Summary judgment was proper on this claim.

The trial court correctly granted summary judgment on the breach of warranty claim but erred as to the negligence and loss of consortium claims.

Andrews, Chief Judge,

dissenting.

This is not a case where the plaintiff claims a physical injury as a result of food poisoning, nor is it a case where the plaintiff claims to have been physically injured by the consumption of a harmful foreign object in otherwise good food. Here, the evidence is undisputed that the portion of the salad Chambley consumed was not physically contaminated or tainted by the condom found in the salad, and Chambley does not claim that she was injured by consuming the condom itself. What Chambley does claim is that she found a repugnant foreign object (a condom) in the salad, and that seeing and thinking about the condom in the salad she had been eating caused her such great emotional distress that she later became physically ill as a result of the continuing emotional distress.

These facts do not support Chambley’s cause of action because there is no evidence of an impact resulting in a physical injury that could support her claim for emotional distress damages. OB-GYN Assoc. &c. v. Littleton, 259 Ga. 663, 665-666 (386 SE2d 146) (1989); Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992). Chambley makes no allegation of malicious, wilful, or wanton conduct by the defendant, Apple Restaurants. The complaint alleges that, by serving the salad with a condom in it, Apple Restaurants was: (a) negligent as a matter of law (per se) because it violated the provisions of the Georgia Food Act (OCGA § 26-2-20 et seq.) against selling adulterated food, and (b) negligent as a matter of fact under the provisions of OCGA § 51-1-23 for knowingly or negligently selling unwholesome food. Donaldson v. Great A & P Tea Co., 186 Ga. 870 (199 SE 213) (1938). Under either allegation of negligence in the complaint, Chambley states a cause of action based on long-established principles of common law negligence. Id. at 871-879 (construing provisions of the former pure food and drug act similar to the present Georgia Food Act, and provisions of former Code § 105-1101 almost identical to the current provisions of OCGA § 51-1-23). See also Criswell Baking Co. v. Milligan, 77 Ga. App. 861, 871-873 (50 SE2d 136) (1948); Norris v. Pig’n Whistle Sandwich Shop, 79 Ga. App. 369, 373-374 (53 SE2d 718) (1949); Burns v. Colonial Stores, 90 Ga. App. 492 (83 SE2d 259) (1954).

“In a common law negligence action, . . . the impact which will support a claim for emotional distress must result in a physical injury.” (Punctuation omitted.) Abernathy v. City of Albany, 269 Ga. 88, 89 (495 SE2d 13) (1998), quoting OB-GYN Assoc., 259 Ga. 663, 666. Ryckeley, 261 Ga. at 828. In OB-GYN Assoc., the Supreme Court overruled the expansive impact rule stated in Christy Bros. Circus v. Turnage, 38 Ga. App. 581 (144 SE 680) (1928). In addressing the impact holding in Christy Bros., the Supreme Court stated that the plaintiff in that case “was allowed to seek damages for emotional distress resulting from the impact of a circus horse’s evacuating its bowels in her lap.” OB-GYN Assoc, 259 Ga. at 665 (2) (A). In stating its expansive version of the impact rule, Christy Bros, further held that “[a]ny unlawful touching of a person’s body, although no actual physical hurt may ensue therefrom, yet, since it violates a personal right, constitutes a physical injury to that person. [Cit.] The unlawful touching need not be direct, but may be indirect, as by the precipitation upon the body of a person of any material substance.” Id. at 581 (2). Quoting the above holding by Christy Bros., the Supreme Court overruled it and held that the holding constituted an improper expansion of the impact rule because it “reduces the requirement that there be some physical injury or at least an impact for the recovery of damages for emotional distress as a result of defendant’s conduct to an absurdity.” OB-GYN Assoc., 259 Ga. at 666 (2) (A).

No doubt, the condom hidden in the salad was a repugnant sight and the source of great emotional distress for Chambley, especially given the fear that the condom may have been soiled or contaminated. Nevertheless, the evidence is undisputed that, no matter how offensive its appearance in the salad was, the condom was tested at Chambley’s request by the State Crime Lab and was found to contain no contaminants. The condom itself was an uncontaminated foreign object in the salad, which did not impart any unwholesome physical qualities to the otherwise normal ingredients of the salad. Accordingly, Chambley cannot and does not claim that she was physically injured because she consumed food that was contaminated or unwholesome as a result of being mixed with a contaminated condom. Her sole claim is that, after seeing and thinking about the condom in the salad she was eating, she suffered great emotional distress and later became physically ill as a result of the continuing emotional distress.

On these facts, there is no evidence of any impact resulting in physical injury sufficient to support a claim for emotional distress damages. The only impact Chambley alleges is that she made physical contact with the salad by eating a few bites of it before discovering the condom. But even if this constituted some bodily impact, there is no evidence that this impact resulted in a physical injury. The physical injury alleged by Chambley, resulting not from the impact but stemming from the emotional distress itself, is not sufficient. Posey v. Med. Center-West, 184 Ga. App. 404, 405 (361 SE2d 505) (1987).

This case is controlled by the Supreme Court’s holding in OB-GYN Assoc. applying the Georgia impact rule in claims for damages for emotional distress in common law negligence cases. By overruling Christy Bros, in OB-GYN Assoc., the Supreme Court determined that the plaintiff in Christy Bros., who had horse manure negligently dumped in her lap, showed insufficient impact or physical injury to support a claim for emotional distress damages. Chambley has shown even less evidence of impact or physical injury than the plaintiff in Christy Bros. It follows that Chambley’s claim for emotional distress damages and her husband’s related consortium claim were properly dismissed on summary judgment by the trial court.

The majority’s contention that this case is controlled by Whited v. Atlanta Coca-Cola Bottling Co., 88 Ga. App. 241 (76 SE2d 408) (1953) is misplaced. In that case, the allegations and evidence, as construed in favor of the plaintiff, were that the plaintiff drank from a bottle of Coca-Cola containing the dead remains of a partially decomposed roach. The plaintiff alleged that the liquid he drank was putrid and unwholesome because of the decaying matter mixed with it, and that consumption of the liquid caused him to vomit and become physically ill in addition to suffering mental anguish. Id. at 242-244. Thus, the refusal to grant a nonsuit to the defendant in Whited was based on allegations and evidence that the plaintiff suffered a physical injury by the consumption of Coca-Cola contaminated with the decomposed remains of a roach. No such comparable injury was suffered by Chambley in the present case.

In the absence of any claims of wilful or wanton misconduct by the defendant, there is no reasonable basis for not applying the impact rule established in OB-GYN Assoc, to the emotional distress claim made in this food-related case. As the Supreme Court made clear in Donaldson, 186 Ga. at 871-879, allegations that a defendant has violated statutory provisions like the Georgia Food Act (OCGA § 26-2-20 et seq.) or OCGA § 51-1-23 state causes of action based on common law negligence. Common law negligence actions have traditionally limited recovery for psychological and emotional distress damages to cases where there has been a discernible physical injury. Abernathy, 269 Ga. at 88-89. Allowing purely subjective claims for emotional distress damages, without any physical injury to provide an objective component by which to judge the claims, would open the door to potentially fraudulent emotional distress actions of all kinds. The impact/physical injury rule is designed to safeguard against the possibility of such fraudulent claims in common law negligence cases, whether food-related or not. Accordingly, I disagree with the conclusion reached in Judge Beasley’s concurring opinion (Division 2) that the impact rule does not apply in this case.

Decided July 16, 1998.

York, McRae & York, Michael D. McRae, Robert T. Monroe, for appellants.

Hall, Booth, Smith & Slover, John E. Hall, Jr., Kevin P. Race, for appellee.

As to Chambley’s claim based on breach of an implied warranty of merchantability, I fully concur in Judge Beasley’s dissenting opinion (Division 3) that the trial court properly granted summary judgment in favor of Apple Restaurants on this issue.

       This particular salad is mixed by hand at the restaurant just prior to serving. It consists of a combination of six ounces of premixed salad, three ounces of Mexi-Ranch dressing, chicken strips, tortilla strips, and cheddar-jack cheese. All of the ingredients are thoroughly shaken and mixed together.

       The Code says “22-2-27” but that is obviously a typographical error and should be “26-2-27.” There is no § 22-2-27; that chapter has to do with condemnation, and § 26-2-27 does designate what shall be considered “unsafe.”


source: Caselaw Access Project

author: Eldridge, Judge. Andrews, Chief Judge,

license: Public Domain

text:
    A98A0736.
    JOHNSON v. KIMBERLY CLARK.
    (504 SE2d 536)
   Eldridge, Judge.

Michael Johnson, plaintiff-appellant, appeals from the trial court’s grant of summary judgment to Kimberly Clark, defendantappellee, on his premises liability claim for a crushed thumb suffered while painting safety poles on Kimberly Clark’s premises.

Plaintiff was employed by Goodman Decorating as a painter. Goodman had contracted with Kimberly Clark to paint various structures and fixtures on its property. Each morning plaintiff and other painters reported to Goodman’s central location on Kimberly Clark’s property where they were told by Tim Day, their Goodman Decorating supervisor, to which job they were assigned. Plaintiff had been working on these premises for three or four weeks prior to the accident at issue and became familiar with the layout. No one from Kimberly Clark gave the painters directions or controlled the method or manner of their painting.

On March 30, 1994, Johnson had been assigned to a building containing four bays with machinery in them and was told by Day to paint the safety poles in the hallway and bays “safety yellow.” These poles were iron tubes,, approximately four feet high, filled with concrete and bolted to the floor around the machinery to protect it. At the bottom of each pole was a square plate with four holes, which were placed over bolts in the concrete floor and secured by nuts. The bolts, when secured, stuck up from the plates one inch to one and one-quarter inches. Plaintiff’s job was to paint the pole, plate, and bolts. There were four safety poles around each piece of machinery in each bay.

Plaintiff began working in the first bay around 8:00 a.m. and had painted approximately 16 poles in the first bay and 16 poles in the second bay before arriving in the third bay around lunchtime.

Over the two weeks he had been working, plaintiff had seen that the four-foot-tall and five-inch-diameter safety poles were filled with concrete and bolted to the concrete floor through small base plates just large enough that four bolts could be installed and that the nut and bolt protruded above the plates. Plaintiff was injured in the last bay to be painted, in which there were eight to ten poles; he saw for the first time that day two safety poles not bolted down and off to the side. Plaintiff did not examine the poles or pay close attention to them. The two poles were leaning against each other.

Plaintiff was asked: “Did you see them before you started painting the pole where the accident happened?” A. ‘Yeah, I assume. Yeah.” “Did you examine them?” “No. I just sat there and I was painting this pole. I was three feet away from these painting. I didn’t know they were going to fall on me. I mean, I was a good ways away from them. They wasn’t that close but” — “Did anyone tell you that the pole or poles that fell on your hand were bolted to the ground?” “No, but you could see that they was bolted at one time by the, you know, when you have got bolts on top of paint and you tighten them down and you paint over them or, well, when you take that bolt off, you have got a little silver spot on the metal because the bolt was bolted, I mean, painted on the pole; and when you move that bolt, it’s going to be a raw spot there, you know, it will be metal.” The plaintiff was not asked if he saw that there were no bolts before or after he was injured. The record fails to show that he knew that the two safety poles were not bolted down prior to his injury, and on summary judgment, we must take the inference most favorable to the non-moving plaintiff.

Because he had not inspected or painted the poles, all the plaintiff knew about the two safety poles off to the side was that there were no bolts sticking up through the base plates. He did not know: if there were any bolt stubs below the surface of the plate; if there was any internal fixation inside the pole into the concrete; if there was any mastic or cement holding the plate to the floor; if the floor beneath the plate was sloped or rough; if the safety pole was movable; if it was safer for the poles to be laid down; or if the poles should not be leaned against each other. All of the information that the plaintiff needed for his own safety was known to Kimberly Clark, because its employees had placed the two safety poles there at an earlier time, i.e., such time within which a reasonable inspection could have been made, and prior to the time plaintiff had been painting. See Smith v. Winn-Dixie Atlanta, 203 Ga. App. 565 (417 SE2d 202) (1992); Queen v. Kroger Co., 191 Ga. App. 249 (381 SE2d 413) (1989).

Under the facts of this case, the only people with access to the area where plaintiff was injured were either employees of Kimberly Clark or employees of Goodman Decorating, Kimberly Clark’s independent contractor. Thus, one entity or the other was responsible for the removal and negligent placement of the safety pipes, because the evidence shows no one else could have done it. Plaintiff did not place the pipes.

Under OCGA § 51-2-4, “[a]n employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.” “An employer is liable for the negligence of a contractor: ... (4) If the wrongful act is the violation of a duty imposed by statute.” OCGA §§ 51-2-5 (4); 51-3-1. “Because the owner or occupier’s duties to keep the premises and approaches safe are statutory (OCGA § 51-3-1), those duties are nondelegable even though the owner has a contract for another party to provide [the painting]. OCGA § 51-2-5 (4); Confetti Atlanta v. Gray, 202 Ga. App. 241, 244 (4) (414 SE2d 265) (1991). An employer is liable for the negligence of a contractor ... if the wrongful act is the violation of a duty imposed by statute.’ OCGA § 51-2-5 (4).” Griffin v. AAA Auto Club South, 221 Ga. App. 1, 2 (1) (470 SE2d 474) (1996); accord Parking Co. of America v. Sucan, 195 Ga. App. 616, 617 (1) (394 SE2d 411) (1990); Towles v. Cox, 181 Ga. App. 194, 196 (351 SE2d 718) (1986); Gerald v. Ameron Auto. Centers, 145 Ga. App. 200, 202 (2) (243 SE2d 565) (1978). “[K]nowledge and conduct of [Goodman Decorating] are imputed to [Kimberly Clark].” Bruno’s Food Stores v. Taylor, 228 Ga. App. 439, 442 (1) (491 SE2d 881) (1997); see Kelley v. Piggly Wiggly Southern, 230 Ga. App. 508, 512-514 (496 SE2d 732) (1997) (Eldridge, J., concurring specially). Thus, if any Goodman Decorating employee removed the safety poles and leaned them together, then the knowledge would be imputed to Kimberly Clark.

“[Kimberly Clark] would still owe a duty to [plaintiff] to exercise ordinary care to keep the premises and approaches safe unless [Kimberly Clark] had delivered full and complete possession of the premises to [Goodman Decorating] either on a temporary or permanent basis.. Little v. Liberty Savings Bank, 191 Ga. App. 732 (382 SE2d 734) (1989); Towles v. Cox, [supra].Feggans v. Kroger Co., 223 Ga. App. 47, 50 (1) (476 SE2d 822) (1996). Under the facts of this case, there is no evidence that Goodman Decorating had full and complete control of the premises where painting was being done, even on a temporary basis. Therefore, a fact issue exists as to control of the premises. If the premises have not been relinquished to the independent contractor, then the owner remains liable; however, if the exclusive control of the premises is in the independent contractor, then the owner is not liable for the premises while the premises are out of its control. See Towles v. Cox, supra at 195-198; compare Braswell v. Walton, 208 Ga. App. 610, 611 (431 SE2d 417) (1993); Green v. Moreland, 200 Ga. App. 167, 169 (4) (407 SE2d 119) (1991); Modlin v. Swift Textiles, 180 Ga. App. 726 (350 SE2d 273) (1986) (where control of the premises relinquished either by written agreement or de facto).

If any employee of Kimberly Clark, not just the employee in the area, removed the safety poles and leaned them against each other, then such conduct was the active negligence, the knowledge of which would be imputed to Kimberly Clark. See Lipham v. Federated Dept. Stores, 263 Ga. 865 (440 SE2d 193) (1994). “Acts or omissions of an owner/occupier of the premises can create a dangerous condition on the premises; such acts or omissions constitute active negligence and do not become static just because the condition pre-exists the arrival of the invitee. Where acts or omissions of the owner/occupier work positive injury to others, such acts or omissions are active negligence in the classic sense. See Smith & Prosser, Cases & Materials on Torts, p. 320 (1). . . . Where the owner/occupier of the premises through malfeasance (commission of an act wrongful in itself), misfeasance (improper performance of an act), or nonfeasance (the failure to perform an act) creates a reasonably foreseeable danger to an invitee, then knowledge is presumed or imputed to the owner/occupier, because it is the tortfeasor’s act or omission that created the danger or allowed the danger to continue unabated or without warning. [Cits.]” Bruno’s Food Stores v. Taylor, supra at 443-444; see also Lipham v. Federated Dept. Stores, supra; Wade v. Mitchell, 206 Ga. App. 265 (424 SE2d 810) (1992); Ga. Power Co. v. Deese, 78 Ga. App. 704, 707 (51 SE2d 724) (1949); Clinton v. Gunn-Willis Lumber Co., 77 Ga. App. 643 (49 SE2d 143) (1948). Thus, if any employee of the defendant removed and placed the safety poles where plaintiff was injured, then such knowledge and negligence are imputed to Kimberly Clark. A factual issue exists as to the acts and knowledge of defendant’s employees regarding the two loose safety poles.

Not only under OCGA § 51-3-1 did Kimberly Clark have a duty of inspection to discover the negligent acts of its employees or contractor, but under the Occupational Safety & Health Act of 1970, 29 USCS § 651 et seq., 84 Stat. 1593 (“OSHA”), Kimberly Clark had a duty to inspect “Walking-Working Surfaces” for dangerous conditions. See 29 CFR § 1910.22 (a) (1) and (3), (b) (1). While the plaintiff was not an employee of Kimberly Clark under 29 USCS § 654, so that negligence per se would apply, if Kimberly Clark had actual or constructive knowledge (for purposes of OSHA) of the hazard, then Kimberly Clark also had knowledge for purposes of OCGA § 51-3-1. See generally Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). Thus, if there was an OSHA violation, the knowledge by Kimberly Clark would be superior to the knowledge of the plaintiff when he “assumed” that he saw the safety poles before one fell on him, because Kimberly Clark was under an affirmative OSHA duty to periodically inspect and to see. that work and walk surfaces were unobstructed, which duty was owed to its employees. Even if plaintiff knew the poles had no bolts, such knowledge was inferior to Kimberly Clark’s knowledge. A fact issue exists as to the knowledge of the defendant and of the plaintiff’s knowledge at the time of injury.

There also exists a factual question as to plaintiff’s exercise of ordinary care for his own safety. See Robinson v. Kroger Co., 268 Ga. 735, 739-740 (1) (493 SE2d 403) (1997).

Under the facts and circumstances of this case, for purposes of summary judgment it does not matter who removed and negligently placed the safety poles, because the knowledge of such acts, as well as the negligence, is imputed to Kimberly Clark. Under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), all favorable inferences must be given to the plaintiff, even though plaintiff has raised by circumstantial evidence only the disputed issues of knowledge and negligence. Issues of material disputed fact remain for a jury. The grant of summary judgment should be reversed.

Judgment reversed.

McMurray, P. J., Johnson, P. J., Smith, J., and Senior Appellate Judge Harold R. Banke concur. Andrews, C. J., and Blackburn, J., dissent.

Andrews, Chief Judge,

dissenting.

Because the record is devoid of evidence of Kimberly Clark’s superior knowledge of the hazard presented by the freestanding poles, I respectfully dissent. This case deals with the first prong of Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980), the owner’s superior knowledge, as discussed in Robinson v. Kroger Co., 268 Ga. 735, 736 (493 SE2d 403) (1997) and is therefore not affected by the changes in summary judgment evidentiary burdens made in Robinson, supra at 748, regarding the second prong of Alterman Foods.

In addition to the facts set out in the majority, the record reflects that in the third bay painted by Johnson, in addition to the four poles bolted to the floor around each piece of machinery, there were two poles not bolted to the floor and “just standing there” off to the side. This was the only time he had encountered two freestanding safety poles, and he had seen them during the morning when he walked through the bay. He did not know how the poles came to be loose or standing in the bay or who might have put them there. He did not further examine these two poles, but began painting one of the bolted-down poles about three feet away from those two. He was on his knees facing the pole he was painting and concentrating on it, painting with his left hand. His right hand was fisted on the concrete for balance. The two poles fell, and one crushed his right thumb.

There was no one else in the bay with him, and although there were Kimberly Clark personnel in the offices adjoining the bay, they could not see him because their view was blocked by a wall. Johnson stated repeatedly that he did not knock the poles over, but he did not know what happened or what had caused the poles to fall.

1. The trial court based its grant of summary judgment in large part upon the affidavit of Graf, an Operations Specialist for Kimberly Clark. In reviewing grant or denial of summary judgment, this Court conducts a de novo review of the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996); Gaskins v. Hand, 219 Ga. App. 823 (466 SE2d 688) (1996).

On summary judgment, evidentiary rules apply, Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (2) (a) (397 SE2d 576) (1990), and hearsay evidence is without probative value and cannot be considered unless it is part of the res gestae. Taylor & Mathis, Inc. v. Doyle, 219 Ga. App. 445 (465 SE2d 484) (1995).

Here, the affidavit of Graf consists primarily of his summary of numerous conversations with unnamed Kimberly Clark employees concerning the loose poles. Such conversations after the fact are clearly hearsay, not part of the res gestae, and inadmissible. Harrison v. Golden, 219 Ga. App. 772, 774 (2) (b) (466 SE2d 890) (1995).

Nonetheless, the grant of summary judgment should be affirmed on appeal if it is right for any reason. Deese v. NationsBank of Ga., 222 Ga. App. 275, 277 (1) (474 SE2d 18) (1996).

2. In addition to Graf’s affidavit, discussed supra, Kimberly Clark relied on Johnson’s answers to interrogatories in which Johnson described the incident and his claim that Kimberly Clark was negligent. In addition to the facts previously set out, Johnson stated that while he was painting the bolted-down pole, “[blehind him and approximately 3 to 5 feet away, a safety pole barrier device of similar size, weight and dimensions, which was not bolted down, fell. . . . Plaintiff asserts that the negligent failure to maintain the heavy steel safety pole barrier device, filled with concrete, in a bolted down condition caused an extreme hazard to persons working at the facilities by creating the potential of the barrier becoming mobile, such as by falling and injuring a person in its vicinity.”

(a) Initially, in response to Kimberly Clark’s denial of negligence, Johnson has failed to show that there was any “defect” present in the two unattached safety poles. That they had not yet been installed as they were designed to be does not alone suffice.

(b) Also, even assuming this was a defect, “ ‘ “[bjefore the owner of premises can be held liable for injuries done by reason of a defect therein to one lawfully on the premises in the employ of an independent contractor engaged by the owner to perform services on the premises, it must appear that the owner had control of the premises.” (Cits.) The basis of the owner or occupier’s liability is his superior knowledge of the existence of the defect or hazard that may subject an invitee to an unreasonable risk of harm. (Cits.)’ Amear v. Hall, 164 Ga. App. 163, 167 (2) (296 SE2d 611) (1982).” Brooks v. Oil-Dri Corp. &c., 205 Ga. App. 214, 215-216 (422 SE2d 22) (1992).

Johnson’s own testimony shows that there were no Kimberly Clark employees in the vicinity of the loose poles, nor did any such employee in any way direct how he was to do his work for Goodman. Therefore, there is no evidence of Kimberly Clark’s superior knowledge of the defect. McCurley v. Ludwig, 215 Ga. App. 798 (1) (452 SE2d 554) (1994) (failure of plaintiff to demonstrate superior knowledge of owner of defect in arena under construction which collapsed and injured plaintiff).

(c) Also, here, the fact that Johnson was in the employ of an independent contractor imposes on Goodman and Johnson the obligation to determine whether the place of employment is safe or unsafe and, ordinarily, an independent contractor or his employee may not recover against the owner for injuries sustained in the performance of the contract. Hudson v. Santangelo, 228 Ga. App. 768, 774 (3) (492 SE2d 673) (1997); Torrington Co. v. Hill, 219 Ga. App. 453, 455 (1) (465 SE2d 447) (1995); Brooks, supra; Amear, supra.

(d) Apparently recognizing the dearth of evidence of Kimberly Clark’s knowledge of the defect, Johnson urges the doctrine of res ipsa loquitur as a basis for denial of summary judgment.

“ The expression “res ipsa loquitur” means that the transaction speaks for itself. It is a rule of evidence which allows an inference of negligence to arise from the happening of an event causing an injury to another where it is shown that the defendant owned, operated, and maintained, or controlled and was responsible for the management and maintenance of the thing doing the damage and the accident was a kind which, in the absence of proof of some external cause, does not ordinarily happen without negligence.’ [Cit.]” Evans v. Heard, 264 Ga. 239, 240 (442 SE2d 753) (1994).

The doctrine is not applied absent the showing of control by the defendant or where there is the possibility of any intervention of an intermediary cause which could have produced the injury. Parker v. Dailey, 226 Ga. 643, 645 (1) (177 SE2d 44) (1970); Bridgestone Firestone v. Green, 198 Ga. App. 858, 860 (2) (403 SE2d 442) (1991).

Decided July 16, 1998.

Alexander J. Repasky, for appellant.

Temple, Strickland, Counts & Dinges, William D. Strickland, for appellee.

Here, as in Innes v. Dixie Svc. Center, 224 Ga. App. 584, 585 (481 SE2d 572) (1997), there has not been the required showing of exclusive control over the object, the loose pole, causing the injury. Innes, employed by Express Services, was dispatched to Dixie Service after a fire to help clean up. limes and his co-worker were to clean storage room shelves by taking down the items off the shelf, cleaning the shelf and item, and replacing items on the shelf. Innes was sitting on a crate cleaning bottom shelves when he was hit on the head and shoulder by a baffle pipe falling from the shelves behind him.

Innes was unable to show how or by whom the baffle pipe had been placed on the shelf before it fell and there was no one from Dixie Service present in the storage room when it fell. Under these circumstances, this Court found no application of res ipsa loquitur.

Similarly, in Sams v. Wal-Mart, 228 Ga. App. 314 (491 SE2d 517) (1997), Sams and her husband were shopping in the housewares department of Wal-Mart when a box or boxes of cookware fell from the shelves and injured her. No Wal-Mart employee was in the vicinity at the time.

Summary judgment to Wal-Mart was affirmed because there was no showing that Wal-Mart’s knowledge of the alleged peril was superior, and the superior knowledge analysis, not res ipsa loquitur, applied. Sams, supra at 316.

Here, as in Sams, the plaintiff was unable to show exclusive control by the owner of the object causing damage, there was no explanation for the actual event causing injury, and on summary judgment, res ipsa loquitur could not be used to “fill the evidentiary gap. Proof of the occurrence of an injury, without more, is insufficient to establish liability on the part of a proprietor.” Id. at 316.

Therefore, for the reasons discussed, I believe the grant of summary judgment to Kimberly Clark should be affirmed.

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


author: McMurray, Presiding Judge.

text:
    A98A1013.
    JAMES v. THE STATE.
    (504 SE2d 533)
   McMurray, Presiding Judge.

Defendant Pete James, a/k/a Terrell Howard and Depetro Antonio James, was charged in an indictment with a single count of violating the Georgia Controlled Substances Act in that on May 13, 1993, he did “unlawfully sell cocaine. . . .” The evidence adduced at his jury trial, including defendant’s incriminating written statement, revealed the following:

On May 13, 1993, Cynthia J. Ford, an undercover agent with the Dougherty County Police Department, attached to the AlbanyDougherty Drug Unit, had a confidential informant (“Cl”) drive her to various areas in Thomaston, Georgia. “On that day, [Agent Ford] was attached with a wire, [i.e.J a transmitter. It picks up voices and the Narcotics Task Force is able to hear what’s going on so they’ll know [Agent Ford’s location], what’s going on, in case anything happens. . . . The Cl was driving and we went over to East Walker Street, and as we drove along, there’s a set of brick apartments, and we drove down that street and the defendant yelled at . . . the car, and the Cl stopped. The defendant walked over to the car, and he asked us what we wanted. And the informant said he wanted a ten, and when he said a ten, he was indicating drugs. The defendant placed his right hand inside of the car and opened his hand. Inside of his hand, he had several small purple plastic bags, plastic ziplock[type] bags. And inside of the bags was what appeared to be crack cocaine or rock cocaine. And he said they were 20s. So [Agent Ford] picked out one and gave him [defendant] two tens for it.” At that time, defendant “said his name was Terrell Howard.”

This sale occurred “about ten minutes after 5 p.m. and it was still daylight.” After she completed her purchase and left the area, Agent Ford “called the investigators from the Narcotics Task Force, gave them a description of the subject, what he was wearing, where he was at, and about ten minutes after [she] bought the drugs, [Agent Ford] turned the drugs over to [Agent] Partridge.” Defendant was described to other investigators as a “young black male, light skin, about 5'8", wearing a black and white cap, light shirt and black dress pants.” Agent Ford was positive of her in-court identification of defendant as “the person that said he was Terrell Howard that night.” The only other people around that particular area “were people down at the other end of the apartments.”

After receiving Agent Ford’s description of the seller, Undercover Agent Ken Partridge, with the City of Thomaston Police, assigned to the Narcotics Task Force, “rode by and got a look at the [defendant]. . . .” Agent Partridge also made an in-court identification of defendant as the suspect found fitting Agent Ford’s description of the seller. Agent Partridge confirmed there were no “other people around that fit that description.” Specifically, Agent Partridge “saw [defendant,] Mr. James[,] there, the only light-skinned black male there.” It took Agent Partridge “[p]robably one minute . . .” to get to the site of the drug sale. Katherine Lee, a Georgia Bureau of Investigation forensic chemist with the State Crime Laboratory in Macon, analyzed “the off-white compressed material [and determined it] is positive for cocaine and the weight is less than one gram.” Captain William Hosely, Jr., Chief Investigator for the Upson County Sheriff’s Office identified State’s Exhibit 4 as defendant’s written custodial statement, wherein defendant admitted: “I, Depetro James, did sell Ramone Carter and a girl $20 crack cocaine, East Walker, [signed:] Depetro James.”

The jury found defendant guilty as charged. His motion for new trial as amended was denied, and this appeal followed. Held:

1. Defendant’s second enumeration contends the trial court erred in denying defendant’s motion in limine and in failing to strike at trial the identification of defendant by Agent Ford. He argues “her identification of [defendant] as the perpetrator was based solely on an impermissibly suggestive show-up. . . .” The factual basis for this assertion is that Agent Ford saw a single photograph of defendant as she examined the State’s file looking for her own notes and previous statements and also saw him outside of a courtroom sometime after the May 13, 1993 drug sale in question.

(a) The pretrial “motion in limine” is captioned “MOTION FOR PRETRIAL HEARING TO DETERMINE ADMISSIBILITY OF ANY ACTS ALLEGED BY THE STATE TO BE SIMILAR TRANSACTIONS,” and nowhere urges that Agent Ford’s identification of defendant as the drug seller is impermissibly tainted. “Grounds for reversal which may be considered on appeal are limited to those which were argued before the trial court. [Cit.]” State v. Browning, 209 Ga. App. 197, 198 (2) (433 SE2d 119). Consequently, whatever ruling the trial court made in response to that motion for a pretrial hearing on similar transactions evidence, there was certainly no error therein, based on the grounds urged in this enumeration.

(b) During defendant’s cross-examination of Agent Ford, she confirmed she had “been through training school and got some training in identification,” including the use of photographic lineups; that the procedure for a photographic lineup was to do an array of six to eight pictures of people whose features are fairly the same; and that proper procedure “[i]f you’re going to do a photo lineup, . . . you don’t give [the witness just] one photo,” because, in Agent Ford’s opinion, a single photo “makes it very suggestive. . . .” Based on her limited opportunity to view the actual culprit during the two-minute drug sale, alleged discrepancies between Agent Ford’s testimony and that of Agent Partridge, and the circumstances whereby Agent Ford saw defendant in a courtroom hallway and also his photograph in a file, defendant argues Agent Ford’s in-court identification of him as the drug seller was impermissibly tainted by improper pre-trial exposure.

“In exercising its discretion whether an in-court identification was tainted by a pre-trial defect, the trial court must examine the totality of the circumstances. Neil v. Biggers, 409 U. S. 188, 199 (93 SC 375, 34 LE2d 401) (1972). The court should consider: (1) the opportunity of the witness to view the perpetrator at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the defendant; (4) the level of certainty demonstrated by the witness; and (5) the length of the time between the crime and [the] confrontation. Id. In evaluating these factors, the trial court is the trier of fact and must judge the credibility of the witnesses and the weight and conflict in the evidence.” Lowe v. State, 264 Ga. 757, 758 (2) (452 SE2d 90). Where there is evidence to support the trial court’s determination, an appellate court will not disturb that ruling. Id.

In our view, the circumstance that Agent Ford is a trained investigator who was, during the brief time of the sale, professionally focused on the identity of the perpetrator, is an adequate evidentiary basis for admitting her subsequent in-court identification testimony, even though she inadvertently saw and recognized defendant in a courthouse hall, and even though she was exposed to a single photograph of defendant while examining the State’s file. Although defendant refers to this event as an impermissible photo lineup, there is no evidence to support a conclusion that Agent Ford intended to do anything more than refresh her recollection with her own notes when she examined the file. Thus, we do not accept defendant’s characterization of this circumstance as an impermissible showup, i.e., done for the purpose of identifying a suspect. Furthermore, there is no evidence that Agent Partridge, within one minute of the sale, saw any person but defendant who matched Agent Ford’s contemporaneous description of the seller. The trial court did not abuse its discretion in denying defendant’s motion to strike the in-court identification testimony of Agent Ford.

2. Defendant’s first enumeration complains of the denial of his motion for directed verdict of acquittal. Although he argues in his brief that the identification of him as the seller by Agents Ford and Partridge was impermissibly suggestive and therefore insufficient to sustain the jury’s verdict, the sole ground urged before the trial court in support of this motion was that the State “failed to prove the essential elements of this crime, and specifically the identification of this defendant in this case has not been proven.”

Decided July 16, 1998.

William A. Adams, Jr., for appellant.

William T. McBroom III, District Attorney, Mark M. Irvin, Assistant District Attorney, for appellee.

“The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. In the case sub judice, the in-court identification of defendant as the seller is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of selling crack cocaine as alleged in the indictment. Flemister v. State, 229 Ga. App. 8 (1) (492 SE2d 907); Rauls v. State, 209 Ga. App. 101, 102 (2) (432 SE2d 677). Moreover, the eyewitness identification of defendant in the case sub judice is corroborated by defendant’s own custodial statement, in which he identified himself as the seller of crack cocaine to Ramone Carter (the suspected Cl) and a girl (Agent Ford) on East Walker Street. “The defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. The defendant is the most knowledgeable and unimpeachable source of (any incriminating) information about his past conduct, and one can scarcely imagine evidence more-damaging to his defense than his own admission of guilt.” (Citations and punctuation omitted.) Collins v. State, 229 Ga. App. 210, 211 (1) (a) (493 SE2d 592). The trial court correctly denied defendant’s motion for directed verdict of acquittal, on the ground that the State had failed to supply proof of the identity of the perpetrator. Humphrey v. State, 252 Ga. 525, 526 (1), 527 (314 SE2d 436).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Ruffin, Judge. POPE, Presiding Judge, Beasley, Judge,

text:
    A98A0366.
    ZACHERY v. THE STATE.
    (504 SE2d 466)
   Ruffin, Judge.

A jury found Robert Zachery guilty of six counts of robbery. On June 12, 1997, the trial court denied Zachery’s motion for new trial. On June 25, 1997, Zachery, through counsel, timely filed a notice of appeal which merely states: “THE DEFENDANT, ROBERT ZACHERY, hereby files his Notice of Appeal to the Georgia Court of Appeals pursuant to 5-6-38, O.C.G.A.” For reasons which follow, we find that Zachery’s notice of appeal is insufficient to invoke the jurisdiction of this Court and therefore dismiss the appeal.

“It is the duty of this Court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction. The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” (Citations and punctuation omitted.) Coles v. State, 223 Ga. App. 491, 492 (2) (477 SE2d 897) (1996). The required contents of a notice of appeal are stated in OCGA § 5-6-37: “The notice shall set forth the title and docket number of the case; the name of the appellant and the name and address of his attorney; a concise statement of the judgment, ruling, or order entitling the appellant to take an appeal; the court appealed to; a designation of those portions of the record to be omitted from the record on appeal; a concise statement as to why the appellate court appealed to has jurisdiction rather than the other appellate court; ... if the appeal is from a judgment of conviction in a criminal case, a brief statement of the offense and the punishment prescribed[; and] . . . whether or not any transcript of evidence and proceedings is to be transmitted as part of the record on appeal.”

Though it is clear under OCGA § 5-6-37 that this information is required, the statute prohibits dismissal of an appeal “because of failure to include the jurisdictional statement or because of a designation of the wrong appellate court.” Similarly, OCGA § 5-6-48 (f) provides that “[w]here it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.” (Emphasis supplied.)

The foregoing emphasized language of OCGA § 5-6-48 (f) was construed by our Supreme Court in Ballew v. State, 225 Ga. 547 (170 SE2d 242) (1969). In Ballew, the notice of appeal provided: “ ‘Now comes (the appellant) and files this his appeal to the Supreme Court of Georgia.’ ” Id. at 547. The Court found that “[n]owhere does the notice set forth ‘a concise statement of the judgment, ruling or order entitling the appellant to take an appeal.’ Nor does it contain ‘a brief statement of the offense and the punishment prescribed,’ as required in criminal cases.” Id. at 547. Because the notice did not satisfy the requirements of the Appellate Practice Act, the Court dismissed the appeal. Id. As for the language of OCGA § 5-6-48 (f), the Court held that “[t]he situation here is not one provided for in [the statute], where the notice of appeal fails ‘to specify definitely the judgment.’ Rather, it is a situation where the notice of appeal fails to specify any judgment whatever. [Cit.]” (Emphasis in original.) Id. at 548 (decided under former Code Ann. § 6-809 (d)).

Fifteen years after the Supreme Court’s decision in Ballew, this Court addressed the same issue in Blackwell v. Cantrell, 169 Ga. App. 795 (1) (315 SE2d 29) (1984), but reached a different result. In Blackwell, the notice of appeal complied with OCGA § 5-6-37 in all respects except that it did not specify the order or judgment from which the appeal was taken. Though we cited the Supreme Court’s decision in Ballew for the proposition that the failure to designate an appealable judgment “constitutes a fatal defect requiring the dismissal of the appeal[,]” we nevertheless concluded that it was an amendable defect. Id. at 795, 796.

It is not necessary for us to explore whether Ballew is still viable authority for the proposition that an appellant’s failure to designate an appealable judgment is a fatal deficiency in the notice of appeal; the Supreme Court has already reached this conclusion in Brumby v. State, 264 Ga. 215, 217 (2) (443 SE2d 613) (1994). The Court in Brumby, citing Ballew, reiterated that OCGA § 5-6-48 (f) “would save [an appellant’s] appeal if the notice had merely failed to specify the judgment definitely, as opposed to failing ‘to specify any judgment whateverf.]’ [Cit.]” (Emphasis in original.) Id. at 217. Accordingly, “as long as the judgment is adequately specified, a failure to state the offense and punishment prescribed is not grounds for dismissal.” Id.

Zachery’s notice of appeal in this case is identical in all material respects to the notice of appeal that was at issue in Ballew. Inasmuch as the notice fails to specify any judgment whatever, OCGA § 5-6-48 (f) does not apply, and the appeal must be dismissed. See id.; Ballew, supra; Ray v. Maxwell, 198 Ga. App. 849 (403 SE2d 442) (1991).

Although the dissent acknowledges that the letter of the law requires this result, it nevertheless concludes that we should disregard such requirement to reach the merits of the case. Such conclusion, however, undermines the clear constitutional mandate that “[t]he decisions of the Supreme Court shall bind all other courts as precedents.” Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI. This mandate is not contingent, and the Court of Appeals is not at liberty to modify Supreme Court precedent merely because that precedent would, as the dissent contends, make “more work for this Court as well as for the trial court. . ., the parties, counsel, and custodians of defendant.” See Adams v. State, 174 Ga. App. 558, 559 (2) (331 SE2d 29) (1985). For the same reason, Blackwell, supra, does not permit a different result. Though Blackwell held that this was an amendable defect, we are compelled by the Constitution to abide by the Supreme Court’s precedent in Ballew and Brumby. Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI; Adams, supra. In sum, neither Ballew nor Brumby permits the judicial shortcuts to jurisdiction proposed by the dissent.

However, notwithstanding the requirement that we dismiss this appeal because appointed counsel failed to follow appellate procedural prerequisites, “[a] criminal defendant who has lost his right to appellate review of his conviction due to error of counsel is entitled to an out-of-time appeal. [Cits.]” Rowland v. State, 264 Ga. 872, 875 (2) (452 SE2d 756) (1995). And, “[w]hile an out-of-time appeal may afford a remedy, it can be a meaningful remedy only if the defendant is aware of his right to an out-of-time appeal and how to exercise it.” (Emphasis in original.) Reese v. State, 216 Ga. App. 773, 774 (456 SE2d 271) (1995).

Accordingly, Zachery is advised: Your appeal has been DISMISSED because your attorney failed to file a proper notice of appeal. If you have decided you do not want to appeal, you need not do anything more. However, if you do still want to appeal, you may have the right to an OUT-OF-TIME APPEAL — but YOU MUST TAKE ACTION to exercise that right by moving for an out-of-time appeal in the trial court. If your motion for an out-of-time appeal is granted, the trial court should appoint another attorney for you if you want one and cannot pay for one. If your motion for an out-of-time appeal is denied, you have the right to appeal that denial to this Court within thirty (30) days of the trial court’s decision. See Reese, supra at 775.

The Clerk is directed to send a copy of this opinion to Zachery and to Zachery’s appellate counsel with direction that she also send a copy of the opinion to Zachery.

Appeal dismissed.

Andrews, C. J., McMurray, R J., Blackburn and Eldridge, JJ, concur. Pope, P. J., and Beasley, J., dissent.

POPE, Presiding Judge,

dissenting.

I do not agree with the majority that this case must be dismissed. Contrary to the majority’s view, I think we should look at the entire notice of appeal, not just the recitation, in deciding whether it is sufficient to invoke this Court’s jurisdiction. Viewing the notice from this vantage, we see that the notice contains both the lower court case number and the court which entered the judgment below. This information, combined with what we know from the record and the enumeration of errors, clearly discloses what judgment is being appealed, as well as the nature of the offenses and the sentence imposed. I would thus argue that this case is controlled by the Supreme Court’s decision in Brumby v. State, 264 Ga. 215, 217 (2) (443 SE2d 613) (1994), and that dismissal is not required. And I would also argue that since the notice of appeal, record and enumeration of errors provide us with all we need to know to decide the merits of this appeal, we need not go through the useless exercise of having the defendant’s attorney amend the notice of appeal simply to provide us with information we already have. The record and transcript appear to be complete, and briefs have been filed. All that remains to be done is for us to decide this case on its merits — as we are both permitted and required to do.

Beasley, Judge,

dissenting.

It is a terrible waste of judicial and legal resources, and an unnecessary delay, to dismiss this direct criminal appeal and thereby require trial court provision of an out-of-time appeal, when the deficiencies can easily be corrected by an amendment to the notice of appeal and the appeal can move expeditiously to final resolution. We are making more work for this Court as well as for the trial court, both as to judges and as to administrators and clerks, not to mention the parties, counsel, and custodians of defendant. The dismissal may also prompt the appointment of new appellate counsel for Zachery. True, the letter of the law will be enforced, but the spirit of the law will be ignored.

OCGA § 5-6-37, which current counsel apparently overlooked, requires the notice to contain:

(1) title and docket number of the case, which it has;

(2) name of the appellant and name and address of his attorney, which it has;

(3) a concise statement of the judgment, ruling, or order entitling the appellant to take an appeal, which it does not have;

(4) the court appealed to, which it has and which is the proper court because it is a direct appeal from convictions of robbery;

(5) a designation of those portions of the record to be omitted from the record on appeal, which it does not have and thus means nothing is to be omitted, as is standard in criminal appeals and which has been acknowledged by the trial court clerk, who sent the entire record and transcript;

(6) a concise statement as to why the appellate court appealed to has jurisdiction rather than the other appellate court, which it does not have but which is obvious;

(7) a brief statement of the offense and the punishment prescribed, which it does not have; and

(8) whether or not a transcript is to be transmitted, which it does not state but which transcript is included in the record on appeal, so that is moot.

Counsel was retained to pursue this appeal after defendant represented himself at the hearing on the motion for new trial, which was brought solely on the general grounds. It is clear from the order of the trial court denying the motion for new trial that defendant appeals from the conviction, and that the conviction is for six robberies and the sentence is twenty years imprisonment.

OCGA § 5-6-37 provides that the appeal shall not be dismissed “because of failure to include the jurisdictional statement or because of a designation of the wrong appellate court.”

In addition, OCGA § 5-6-48 (f) mandates: “Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed from or that the enumeration of errors fails to enumerate clearly the errors sought to be reviewed.” The two enumerations of error make abundantly clear that it is the judgment of conviction and sentence that are challenged.

American Oil Co. v. McCluskey, 116 Ga. App. 706, 708 (1) (158 SE2d 431) (1967), rev’d on other grounds, 224 Ga. 253 (161 SE2d 271) (1968), concluded that “nothing in the law prohibits the addition of such specification^] of record [as required by the notice of appeal statute] by amendment” and allowed the notice of appeal to be perfected by amendment. Were that not allowed, the Supreme Court would have reversed the decision on that ground and not reached the merits when it considered the case.

Sixteen years later, after OCGA § 5-6-48 (d) had been enacted (Ga. L. 1972, p. 624, § 1), this Court in a unanimous whole court decision held that a notice of appeal could be amended to correct a defect. Blackwell v. Cantrell, 169 Ga. App. 795, 796 (1) (315 SE2d 29) (1984). That subsection of the Code provides in part: “If an error appears in the notice of appeal, the court shall allow the notice of appeal to be amended at any time prior to judgment to perfect the appeal so that the appellate court can and will pass upon the appeal and not dismiss it.”

Appellant Zachery has not been alerted to the problem, as was the appellant in Blackwell by appellee’s motion to dismiss. Nor have we given appellant an opportunity to correct the deficiency, which the record shows can easily be done. Nothing is missing insofar as the requisites are concerned; rather, several items just were not stated. The notice is timely, it was filed in the right court, the appeal is taken to the right court, and the judgment is directly appealable.

The majority reads too narrowly the opinion of the Supreme Court of Georgia in Brumby v. State, 264 Ga. 215, 217 (2) (443 SE2d 613) (1994), and the public policy expressed in OCGA § 5-6-48, the purpose of which statute is to be ameliorative. In Brumby, this court’s dismissal of Brumby’s appeal was reversed by the Supreme Court because we applied too hypertechnical a test which shut the door on a direct criminal appeal. The Supreme Court reviewed not only Brumby’s notice of appeal but also the record itself. It stated that what was contained in the notice “considered in conjunction with even a cursory inspection of the record, would make clear the judgment Brumby was appealing, as well as the offense and punishment indicated by that judgment.” Id.

Here we need not even search the record. The enumeration of errors saves the day, as permitted expressly by OCGA § 5-6-48 (f). As stated by the Supreme Court in Brumby, that statute furthers “the policy of both appellate courts in Georgia to attempt to avoid dismissing appeals and to try to reach the merits of every case when it can be done consistent with the mandate of the law.” (Citations and punctuation omitted.) Id. at 217-218.

The practice of permitting an out-of-time appeal will no doubt recycle this case back to this Court with the same issues as have already been briefed and perhaps some new ones arising in the additional activity ordered. The out-of-time appeal is granted where a procedural deficiency involves the frustration of the right of appeal. Rowland v. State, 264 Ga. 872, 875 (2) (452 SE2d 756) (1995). The deficiency in this case, if it is not considered remedied by the examination called for in OCGA § 5-6-48 (f), can easily be rectified by an amendment to the notice of appeal, keeping the appeal on the track to finality expeditiously.

If there is any doubt what judgment of the trial court is appealed in this case, we should simply issue an order stating that if OCGA § 5-6-37 is not complied with by the filing of an amended notice of appeal in the trial court within ten days and prompt transmittal thereafter by the clerk (which it will be appellant’s obligation to assure), the appeal will be dismissed.

That would serve the purpose of the procedural requirements of the Appellate Practice Act, which are to be “liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein, except as may be specifically referred to in this article.” OCGA § 5-6-30. It would also serve the constitutional mandate for “speedy, efficient, and inexpensive resolution of disputes and prosecutions,” which we cannot say applies only to the trial courts. Ga. Const, of 1983, Art. VI, Sec. IX, Par. I; see St. Simons Island &c. Assn. v. Glynn County Bd. of Commrs., 205 Ga. App. 428 (422 SE2d 258) (1992) (applying mandate to appellate process).

Such a course would not weaken the rule of law or tolerate ineptness or negligence of counsel. Rare would be the attorney who through lack of care courted an opinion like either one in this case. There is still pride in professionalism. Total dismissal of the appeal is not strictly mandated in order to uphold the requirements of OCGA § 5-6-37, particularly when it burdens the judicial system unnecessarily.

Decided June 18, 1998

Reconsideration denied July 17, 1998

Marcia G. Shein, for appellant.

David McDade, District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellee.

Gray Brumby, amicus curiae.

       Appellee had no trouble identifying the judgment appealed, as demonstrated in its brief.


text:
    A98A0779.
    HALL COUNTY v. MERRITT et al.
    (504 SE2d 754)
   McMurray, Presiding Judge.

Appellant-condemnor Hall County (“the County”) filed a special master petition to condemn the fee simple interest in 51.578 acres belonging to appellee-condemnee, Roy Merritt, for the purpose of constructing and maintaining a municipal solid waste landfill. The special master awarded $575,000 as the actual market value with no consequential damages or consequential benefits. Both condemnee Roy Merritt and the condemnor County appealed to the superior court. The issue of just and adequate compensation was tried before a jury which returned a general verdict awarding Roy Merritt “$1,035,600 (20,000.00) per acre.” From the judgment entered on the jury’s verdict, the County brings this appeal. Held:

1. Hall County first contends the trial court erred in denying its motion in limine and in admitting opinion testimony by David Childers, an expert real estate appraiser, that the highest and best use of the property was as a private sanitary landfill. The County argues that a private sanitary landfill was not reasonably possible, even though state environmental authorities already had declared the area including Roy Merritt’s 51 acres to be a suitable site for a landfill, because the County already acquired the adjacent property; the Hall County land use master plan did not envision private sanitary landfills; and County ordinances forbade dumping municipal waste that originated from outside of Hall County. Consequently, the County argues that Childers’ opinion testimony is based on mere speculation and without probative value.

James Henry Miller, the County Engineer, affirmed that on March 7, 1994, “the county did obtain from the [Georgia] Environmental Protection Division a site suitability approval; . . . [that on] August 18th of 1995, [the subject] property was taken from Mr. Merritt for this landfill[; and] that the landfill is now in operation.” County Engineer Miller also conceded that a private “construction demolition landfill . . .” operated legally in Hall County. County Engineer Miller further acknowledged that “some counties have turned to private landfill companies to operate landfills for them. . . .”

Condemnee’s expert real estate appraiser, David Childers, testified as follows: “As of the date of taking, . . . this property had been designated as suitable for part of a sanitary landfill. Site suitability is the key word here. . . . And so the highest and best use of the property at that time was then to combine it with the adjoining properties to complete this landfill site and develop it as a sanitary landfill. Childers recognized the fact that the front part of the property was already zoned for industrial use and [that a] landfill was an allowed use on that part of the property, but that the rear part of the property was not zoned for industrial use. So the property would have to be rezoned in order to develop a sanitary landfill.”

“It has long been the policy of the Georgia appellate courts to be liberal in allowing matters to be considered by the jury which might affect their collective mind in determining the just and adequate compensation to be paid the condemnee. In Georgia the condemnee is entitled to recover for the value of property based on its special adaptability for uses, [cits.], and, unlike most jurisdictions, including those which can only be effectuated by an authority with the power of condemnation. [Cits.] In short, the Georgia courts have permitted almost any possibility to be submitted to the jury which might shed light on the true value of the property, subject only to the limitations that the matter must not be merely remote or speculative and its consideration must be authorized by the evidence.” Civils v. Fulton County, 108 Ga. App. 793, 795 (2), 796 (2) (b) (134 SE2d 453).

The jury is not restricted solely to present zoning. Dept. of Transp. v. Sconyers, 151 Ga. App. 824, 826 (2) (261 SE2d 728). See also City of Albany v. Oxford Solid Waste Landfill, 267 Ga. 283, 284 (2) (476 SE2d 729) (mandamus issued ordering city to approve land disturbance permit). Specifically, “where there ‘is a possibility or probability that the zoning restrictions may in the near future be repealed or amended so as to permit the use in question, such likelihood may be considered if the prospect of such repeal or amendment is sufficiently likely as to have an appreciable influence upon present market value[, provided] such possible change in zoning regulations must not be remote or speculative.’ ” Civils v. Fulton County, 108 Ga. App. 793, 797, supra.

“In condemnation proceedings, it is within the trial court’s discretion to determine whether the evidence shows that the subject property is reasonably suited for a use different from its existing use, and it may admit or exclude evidence of value for such other use. Its rulings admitting or excluding such evidence will not be reversed unless there was a manifest abuse of its discretion. Dept. of Transp. v. Great Southern Enterprises, 137 Ga. App. 710, 713 (2) (225 SE2d 80) (1976).” Colonial Pipeline Co. v. Williams, 206 Ga. App. 303, 304 (425 SE2d 380). The salient circumstances in the case sub judice are that the state environmental authorities had determined the surrounding area, including a portion of the condemned property, was a suitable site for a sanitary landfill, and that the county already was operating a sanitary landfill in close proximity to the condemned parcel. There is evidence that some counties have contracted the responsibility for maintaining and operating sanitary landfills to private concerns. In an era in which privatization is an increasingly common alternative to tasks hitherto the domain of local government, we cannot say the superior court manifestly abused its discretion in admitting expert opinion as to the true market value on the date of taking, premised on the use of the property as a proprietary landfill. See State Hwy. Dept. v. Thomas, 106 Ga. App. 849 (1), 851 (128 SE2d 520). Even where the relevancy of evidence is doubtful, it should be admitted and its weight determined by the jury. Moss v. Hall County Bd. of Commrs., 197 Ga. App. 76, 77 (397 SE2d 493).

2. Next, the County contends the trial court abused its discretion in refusing to strike the expert opinion testimony of Childers, arguing that Childers’ testimony was only the hearsay opinion of others.

Because there were no known comparable sales of public landfills to private concerns, Childers applied a cash flow analysis indicating that condemnee’s 51 acres had a true market value of $33,256 per acre. To check this figure, Childers inquired of four persons in the landfill business. They each confirmed to him the existence of a rule of thumb that “raw land approved having site suitability is worth one dollar per cubic yard.” That rule of thumb yielded a value of “$31,120 per acre. So based on those two estimates, [Childers] concluded that a reasonable . . . market value estimate for the raw land as of the date of taking was $32,000 per acre.”

“Market value is exclusively a matter of opinion even though expressed as a fact. It may rest wholly or in part upon hearsay, provided the witness has had an opportunity of forming a correct opinion.” (Citations and punctuation omitted.) Hirsch v. Joint City County Bd. of Tax Assessors, 218 Ga. App. 881, 882 (1) (463 SE2d 703). See OCGA § 24-9-66. “The law in Georgia is that ‘(a)n expert may give an opinion upon the facts testified to by other witnesses, but not upon their opinions.’ Walker v. Fields, 28 Ga. 237 (2) (1859). ‘A witness’ opinion must be his own and he cannot act as a mere conduit for the opinions of others. (Cit.)’ Stephen Brown Radiology Assoc. v. Gowers, 157 Ga. App. 770, 780 (5) (278 SE2d 653) (1981).” (Emphasis omitted.) Hyles v. Cockrill, 169 Ga. App. 132, 134 (4) (312 SE2d 124).

It is clear that Childers expressed his own opinion as to the true market value of condemnee’s specific property. In our view, the existence of a formula or rule of thumb used by professionals in valuing raw land for landfill purposes does not render Childers’ own independent opinion an impermissible conduit for the opinions of non-witnesses. The trial court did not err in refusing to strike the testimony of condemnee’s expert on this ground.

3. As a rebuttal witness, the County proffered Jim Shuler, the assistant county administrator and former county engineer, to testify it “has always been the intentions of the citizens of Hall County and the government of Hall County, the law of Hall County, the comprehensive plan of Hall County that this [landfill] would be a public and not a private landfill.” The trial court concluded this testimony “would only be cumulative of what [County Engineer] Miller ha[d] already testified to on the subject. And he testified . . . repeatedly on that subject.” Therefore, the trial court excluded the rebuttal testimony “as being covered by Mr. Miller and as being cumulative and speculative as well.” This evidentiary ruling is the County’s third enumeration of error. The County argues the testimony of Shuler was “relevant to a crucial element in the case, namely, the highest and best use of the subject property . . . [because Shuler was] in a position to know the policies of the Hall County governing authorities [and so his testimony] would not have been merely cumulative. . . .”

“ ‘Cumulative evidence’ means evidence which is additional to other evidence already obtained.” OCGA § 24-1-1 (2). It is “‘additional evidence offered to establish a fact to which witnesses have already testified.’ ” Dale v. State, 88 Ga. 552, 558 (5), 561 (15 SE 287). “It is not error to exclude otherwise relevant evidence if its probative value is substantially outweighed by considerations of avoiding the needless presentation of cumulative evidence from which the jury might or might not draw a certain inference. Deters v. State, 261 Ga. 186 (3) (b), 187 (402 SE2d 733).” Green v. State, 218 Ga. App. 648, 649 (2), 650 (463 SE2d 133). Based on the meager proffer noted above, it appears Shuler’s testimony about County policies was entirely redundant of the actual ordinances, the existing zoning regulations, and the comprehensive land use plan already testified to by County Engineer Miller during the County’s case-in-chief. Accordingly, the trial court did not abuse its discretion in excluding this alleged rebuttal evidence as cumulative. Jackson v. Dept. of Transp., 159 Ga. App. 130, 134 (5) (283 SE2d 59). As to future intentions, certainly Shuler has no personal knowledge about how any future board of county commissioners would react to any concrete proposal to privatize solid waste management. In our view, the trial court correctly disallowed such evidence as speculative hearsay. Consequently, this enumeration is without merit.

Decided July 17, 1998

Stewart, Melvin & Frost, Frank Armstrong III, for appellant.

Hulsey, Oliver & Mahar, Thomas L. Fitzgerald, for appellees.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

       We express no opinion of the validity of certain county ordinances were they to be challenged on interstate commerce grounds. See, e.g., Pine Ridge Recycling v. Butts County, Ga., 855 FSupp. 1264, 1274 (D) [18] (M.D. Ga. 1994).


text:
    A98A0811.
    ORR v. CSX TRANSPORTATION, INC.
    (505 SE2d 45)
   McMurray, Presiding Judge.

Plaintiff Nickey Orr, along with five others, brought this claim under the Federal Employers’ Liability Act (45 USC § 51 et seq.) against defendant CSX Transportation, Inc. (“CSX”), alleging they sustained “hearing loss [and] ringing in the ears or tinnitus,” as a result of defendant’s negligence in “failing to provide ... a safe place to work [and] failing to provide proper ear protection for Plaintiffs . . .” during their employment affecting interstate commerce. CSX denied the material allegations, and after severance of the parties, the action was tried before a jury which returned a defense verdict in response to special interrogatories, expressly finding that CSX was not “negligent in one or more of the particulars alleged. . . .” Plaintiff’s motions for new trial and for judgment notwithstanding the verdict were denied, and this appeal followed. Held:

1. It was certainly not error for the trial court not to give a written request to charge on hearing loss prevention standards as promulgated by the federal Occupational Safety & Health Administration (OSHA), when such written request was withdrawn by plaintiff. Graham Bros.’ Constr. Co. v. C. W. Matthews Contracting Co., 159 Ga. App. 546, 549 (3) (284 SE2d 282).

2. Plaintiff’s second enumeration contends the trial court “erred as a matter of law when the court improperly charged the jury by neglecting to include applicable law, and including irrelevant matters, which confused the jury.” Plaintiff explains that, “Mather than an objection as to the court’s failure to give a requested charge, this [compound] enumeration challenges the actual charge which the court gave to the jury.” But then plaintiff argues the “failure to give the OSHA regulations as a standard of care in the charge was harmful as a matter of law.”

Here, in response to direct inquiry by the trial court, plaintiff interposed the following exception to the charge as given: “[PLAINTIFF’S COUNSEL]: Your Honor, we think that the issue on instructing of the duty to inspect the premises was —. THE COURT: That was your charge number what? [PLAINTIFF’S COUNSEL]: 12. THE COURT: All right. So noted counsel.”

(a) “Except as otherwise provided in [OCGA § 5-5-24 (c)], in all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” OCGA § 5-5-24 (a); Mathews v. Penley, 242 Ga. 192, 193 (2) (249 SE2d 552). In the case sub judice, plaintiff did not reserve any exceptions to the charge for post-trial motions, and “the objection made at trial is abandoned as it is not enumerated as error. [Cit.]” Jackson v. Meadows, 157 Ga. App. 569, 570 (1), 571 (278 SE2d 8). The error enumerated and argued was not preserved for appellate review. Id. at 574 (5).

(b) Nor was the refusal to give the withdrawn request to charge on such OSHA standards as existed while plaintiff was employed by a predecessor railroad company a substantial error, harmful as a matter of law within the meaning of OCGA § 5-5-24 (c). This latter subsection refers “only to the failure to make objection to the charge, and not to those instances where the giving of an instruction, or the failure to give an instruction, is induced by counsel for the complaining party during the course of the trial, or specifically acquiesced in by counsel.” Irvin v. Oliver, 223 Ga. 193, 195 (2), 196 (154 SE2d 217).

3. Plaintiff moved in limine “to exclude [evidence] and direct the railroad’s attorneys not to argue that [plaintiff’s] hearing loss was caused by leukemia [or its treatment].” The trial court declined to rule on this motion and instructed plaintiff to “make objections during the course of the trial. [The trial court did not] see any basis to cut it out right now.” Thereafter, defendant “call[ed] by deposition Dr. Carlos Osmon . . . (Whereupon, the sworn testimony by deposition of CARLOS A. OSMON, M. D., was read into the record.)” In his third enumeration, plaintiff contends the trial court erred in allowing speculative testimony regarding plaintiff’s leukemia and treatment. The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to trial. State v. Johnston, 249 Ga. 413, 414 (3), 415 (291 SE2d 543). The court may reserve ruling on the admissibility of evidence until it is offered during trial. Morris v. Southern Bell Tel. &c. Co., 180 Ga. App. 145 (1) (348 SE2d 573). For aught that appears of record, plaintiff never obtained a ruling from the trial court on his pre-trial motion in limine. Thereafter, he never renewed his objections to Dr. Osmon’s testimony, or, in the one instance where he objected to testimony as speculative, never pursued his objection to a ruling because the witness agreed with the objection. In those instances where plaintiff did not raise a contemporaneous objection, he forfeited his right to insist the testimony should be excluded from evidence. Sharpe v. Dept. of Transp., 267 Ga. 267 (1), 270 (476 SE2d 722). In the one instance where a timely objection was interposed, no ruling was elicited from the trial court. Consequently, this enumeration presents nothing for decision on appeal.

Decided July 17, 1998.

Edward S. Cook, for appellant.

Casey, Gilson & Williams, James E. Gilson, for appellee.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Blackburn, Judge.

text:
    A98A1502.
    PENROD v. THE STATE.
    (504 SE2d 757)
   Blackburn, Judge.

Randall Allen Penrod appeals the denial of his motion for an out-of-time appeal, contending that his failure to file a timely appeal was due to his counsel’s failure to advise him of his appeal rights. For the reasons discussed below, we affirm.

Penrod was convicted of aggravated assault in February 1996 and sentenced to ten years in prison and ten years on probation. Pen-rod did not appeal this conviction. However, on December 12, 1997, almost two years after his conviction, Penrod filed a motion for an out-of-time appeal, claiming that he had not been advised of his right to appeal his conviction. After a hearing, the trial court denied this motion, and Penrod appeals.

“[A]n out-of-time appeal is appropriate where due to the ineffective assistance of counsel, no appeal has been taken.” (Punctuation omitted.) Lane v. State, 263 Ga. 517, 518 (2) (436 SE2d 9) (1993). However, “an attorney renders effective assistance of counsel with regard to the decision whether to appeal when he advises his client of his appellate rights, and does not preempt his client’s decision to appeal. . . . [N]either the sixth amendment nor the fourteenth amendment requires that the record reflect that the defendant made a knowing and intelligent decision not to appeal before he can be precluded from appellate review.” (Citation and punctuation omitted.) Murphy v. Balkcom, 245 Ga. 13, 14 (262 SE2d 784) (1980). The grant or denial of a motion for an out-of-time appeal is within the discretion of the trial court, and its decision will not be reversed absent abuse of such discretion. See Hightower v. State, 192 Ga. App. 836 (386 SE2d 716) (1989).

Penrod claims that his trial attorney, Edward T. Murray, never advised him of his appeal rights. However, Murray testified to the contrary at the hearing on the motion for an out-of-time appeal. Murray testified that he specifically recalled discussing the possibility of an appeal with Penrod, and that Penrod never requested that he file an appeal. Although Murray did not recall the exact details of his conversations with Penrod almost two years earlier, he testified that he always informed his clients of the thirty-day period in which an appeal or motion for new trial must be filed. Murray testified that, before his appointment, Penrod had been represented by a different attorney, Nick Winn. After trial, Penrod talked with Murray about the possibility of Winn handling the appeal. Murray speculated that, although he “couldn’t speak for Mr. Penrod,” Penrod might have been confused about whether Murray or Winn would handle any appeal. However, Penrod never advised Murray to file an appeal.

Penrod testified that he discussed a possible appeal with Murray, but that Murray said that he did not see any grounds for appeal. Penrod testified that he asked Murray to file an appeal.

This case is remarkably similar to Murphy, supra, in which a defendant sought to file an out-of-time appeal by claiming that his attorney never advised him of his appeal rights. The attorney testified that, while he had no independent recollection of the case, it was his usual practice to inform his clients of their right to appeal following a conviction. He testified that he did not recall any request for appeal in that case. The Supreme Court affirmed the denial of defendant’s motion, holding that the trial court, as finder of fact, was entitled to believe the attorney’s testimony as to his usual practice. See also Jackson v. Hopper, 243 Ga. 41 (252 SE2d 467) (1979) (evidence of attorney’s standard practice or customary procedures sufficient to show compliance with constitutional standards).

In this case, as in Murphy and Jackson, the trial court was authorized to believe Murray’s testimony that he advised Penrod of his right to appeal and that Penrod did not elect to exercise that right. Indeed, this case is stronger than Murphy, because Murray expressly testified that he discussed with Penrod the possibility of an appeal and that Penrod did not advise him to file an appeal. Furthermore, Penrod’s failure to file a motion for out-of-time appeal for almost two years after his conviction undercuts the credibility of his testimony that he directed Murray to file a timely appeal. Accordingly, the trial court was authorized to conclude that Penrod’s failure to timely exercise his appeal rights was not due to ineffective assistance of counsel and thus did not abuse its discretion in denying Penrod’s motion.

Decided July 17, 1998.

Brian Steel, for appellant.

James R. Osborne, District Attorney, David B. Fife, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J, and Eldridge, J., concur.

       The motion was actually denominated a “Motion for Out of Time Motion for New Trial,” and did not specifically request permission to file an out-of-time appeal. However, the trial court treated the motion as one for an out-of-time appeal and denied it as such. See, e.g., Maxwell v. State, 262 Ga. 541, 542 (3) (422 SE2d 543) (1992) (granting of out-of-time appeal constitutes permission to pursue appropriate post-conviction remedies including motion for new trial).