text:
    A94A2748.
    BROWN v. WELLER.
    (456 SE2d 602)
   Ruffin, Judge.

Aaron Brown appeals from the trial court’s grant of summary judgment to appellee, Janet Weller. Weller and Brown were involved in a multi-car collision in which Weller hit the rear of Brown’s car. Jane Prine was a passenger in Weller’s car. Weller and Prine were coworkers en route to a medical seminar sponsored by the hospital for which they worked. Each was injured in the accident and received workers’ compensation benefits. Prine sued Brown and several other drivers involved in the accident, and Brown then filed a third-party complaint against Weller seeking indemnity or contribution from Weller for any judgment against him. Weller moved for summary judgment, arguing that because the injuries from the accident were compensable under the workers’ compensation statute, that the exclusive remedies provision of that statute, OCGA § 34-9-11 (a), barred Brown’s claim against her.

1. Brown contends that the trial court erred in ruling that Prine’s injuries arose in the course of her employment. We disagree. The evidence shows that at the time of the accident Weller and Prine were co-workers at the same hospital and were en route to attend a mandatory medical seminar sponsored by the hospital. The hospital paid the seminar fee and paid Weller and Prine for an eight-hour day while they attended the seminar. In addition, Prine received workers’ compensation benefits for her injuries.

Under our holding in Dickey v. Harden, 202 Ga. App. 645 (414 SE2d 924) (1992), “there is no doubt in this instance that [Prine’s] injury arose out [of] and in the course of employment. [Cit.]” Id. at 646.

2. Brown also argues that even if Prine’s injury arose out of the course of her employment, the trial court erred in finding that under OCGA § 34-9-11 (a) he was precluded from impleading Weller. We agree. The relevant provision of that statute provides that “[t]he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee . . . provided, however, that no employee shall be deprived of any right to bring an action against any third-party tort-feasor, other than an employee of the same employer. ...” The trial court found that because OCGA § 34-9-11 (a) prevents an employee in this context from suing both his employer and fellow employee and because the statute further prevents a third party from impleading the employer for contribution that, a fortiori, the fellow employee is likewise protected from being impleaded by a third party. We disagree. Under the statute’s “balance of rights and privileges,” “the employer is required to pay benefits to the employee without regard to fault. [Cit.] In turn, the employee may not sue the employer . . . and the employer may not be impleaded as a joint tortfeasor in the employee’s action against a third party. [Cit.]” (Emphasis supplied.) K-Mart Apparel Corp. v. Temples, 260 Ga. 871, 873-874 (401 SE2d 5) (1991).

In contrast, the employee has no corresponding right to automatically recover against the co-employee and the co-employee has no obligation to pay any benefits without a prior determination of fault. In other words, the legislature’s concern with balancing the obligations and corresponding immunity from suit is simply not present with a co-employee who, unlike the employer, does not risk the potential of having to pay the injured employee twice if he is impleaded. Thus, we find a significant distinction between the respective situations of the hospital and Weller in this case, and we see no reason to extend to Weller the protection from impleader that the hospital enjoys by virtue of its corresponding burden under the statute. Further, we find no reason to prejudice Brown by preventing him from seeking contribution in this manner and do not conclude that the General Assembly intended such a result under the statute.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.

On Motion for Reconsideration.

On motion for reconsideration Weller argues that if Brown is successful at trial on his third-party complaint against her, the effect will be to establish liability on the part of a co-employee in favor of the plaintiff in contravention of the exclusive remedy provisions of OCGA § 34-9-11. We are aware of decisions from other jurisdictions which have reached a similar conclusion. See Phillips v. Union Pacific R. Co., 614 P2d 153 (1980). (Utah Supreme Court held that since plaintiff could not sue co-employee directly, the defendant was also precluded from doing so for purposes of contribution.) See also Walker v. Manley, 637 FSupp. 142 (M.D. Ga. 1986). (Federal district court concludes that Georgia courts would likely bar such a suit and that this inequity must be resolved by the Georgia courts or legislature.) In this jurisdiction, however, both this court and the Supreme Court have traditionally examined the policy considerations underlying the provision, and we find that these considerations outweigh the argument advanced by Weller or the other courts.

In Wright Assoc. v. Rieder, 247 Ga. 496 (277 SE2d 41) (1981), the Supreme Court explained that under OCGA §§ 34-9-8 and 34-9-11, “[t]he quid pro quo for the statutory employer’s potential liability [under OCGA §§ 34-9-8 and 34-9-11] is immunity from tort liability. Id. at 500. In Long v. Marvin M. Black Co., 250 Ga. 621 (300 SE2d 150) (1983), the Supreme Court cited Rieder and held that “[a]n employee of a statutory employer does not have any potential liability for workers’ compensation payments. Thus there is no quid pro quo, no reason to relieve him of liability for his negligence, and ample reason to hold him accountable for his negligence.” (Emphasis supplied.) Id. at 623. While these decisions did not arise in the context of a third-party action against a co-employee, they are nonetheless instructive in evaluating the policy concerns at hand and applying the exclusive remedy provision to the instant case. See also Pardue v. Ruiz, 263 Ga. 146 (429 SE2d 912) (1993). (When suit against employee would mandate indemnification by employer, the policy underlying the act is defeated.)

Decided February 27, 1995

Reconsideration denied March 29, 1995

Haas, Bridges, Kane & Coburn, Alvin L. Bridges, Jr., for appellant.

Lane, O’Brien, Caswell & Taylor, Richard T. Taylor, for appellee.

Weller, likewise, has no liability for workers’ compensation payments and has given no quid pro quo for any tort immunity from a third-party action. Nor is there an argument that the hospital would be required to indemnify her if Brown prevails, particularly as any duty Weller breached while driving was “a general duty of care, not one derived from [her] status as an employee [of the hospital].” Id. at 148. Thus, we do not find that the exclusive remedy rule should be extended to protect her in this particular situation at Brown’s expense. The inequity in allowing the rule to be construed in this manner so as to protect Weller, while forcing Brown to pay all the expenses for damages which he may not have caused, outweighs any potential argument that the effect of a contrary construction would contravene the rule that an injured employee who receives workers’ compensation benefits may not sue a co-employee.

Motion for reconsideration denied.


source: Caselaw Access Project

author: Beasley, Chief Judge.

license: Public Domain

text:
    A94A2814.
    DEPARTMENT OF HUMAN RESOURCES et al. v. HUTCHINSON.
    (456 SE2d 642)
   Beasley, Chief Judge.

A juvenile was declared delinquent and committed to the custody of the Department of Human Resources (“Department”), whereupon a screening committee determined that noninstitutional placement would be appropriate and placed him in a group home. He was removed from the home after being accused of taking the house parent’s car keys. He was eventually placed in a “contract home” operated by Hutchinson, which was considered an alternative to institutional placement. She kept a loaded handgun under her mattress, which the juvenile found and used to shoot Hutchinson.

She sued the Department, alleging that it was negligent and consciously indifferent to her safety in placing the juvenile in her home and in failing to warn her of the juvenile’s violent propensities. The Department moved for summary judgment, claiming sovereign immunity from suit because: (1) the act of placing the offender in Hutchinson’s home was discretionary; and (2) Hutchinson’s injury resulted from an assault and battery. The court denied the motion and issued a certificate of immediate review. Interlocutory appeal was permitted.

1. We first address the Department’s claim of sovereign immunity from suit on claims arising from assault or battery.

In the 1992 Georgia Tort Claims Act, OCGA § 50-21-20 et seq. (“Act”), the State waived “its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment . . . subject to all exceptions and limitations set forth in [the Act].” OCGA § 50-21-23 (a). See also OCGA § 50-21-21 (a). The parties do not dispute that all the acts for which Hutchinson would hold the Department liable were committed within the scope of the official duties of state employees or officials, that Hutchinson’s injury was the result of the juvenile offender’s act, and that his act constitutes a tortious battery, or assault and battery. See OCGA §§ 51-1-13; 51-1-14; Hendricks v. Southern Bell Tel. &c. Co., 193 Ga. App. 264, 265 (1) (387 SE2d 593) (1989).

An exception to liability addresses acts of assault or battery: “The state shall have no liability for losses resulting from . . . [a]ssault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, or interference with contractual rights.” OCGA § 50-21-24 (7). Hutchinson argues that OCGA § 50-21-24 (7) only provides an exception to liability if a state officer or employee commits one of the listed torts. Whether the State is liable if the tort was committed by a third person is a matter of first impression.

“The doctrine of sovereign immunity requires that the conditions and limitations of the statute that waives immunity be strictly followed. [Cits.]” Ingalls Iron Works Co. v. Blackmon, 133 Ga. App. 164, 165 (210 SE2d 377) (1974). Applying this rule of statutory construction, the exception to the waiver of immunity covers any and all losses resulting from the torts enumerated in OCGA § 50-21-24 (7), regardless of who committed them. The language used does not provide any limitation on the status of the person committing an OCGA § 50-21-24 (7) tort; it provides instead that “[t]he state shall have no liability for losses resulting from” the enumerated torts. (Emphasis supplied.) “Loss” is extensively defined in OCGA § 50-21-22 (3) and includes “any . . . element of actual damages recoverable in actions for negligence.” The focus of the exceptions to liability in OCGA § 50-21-24 (7) is not on the government action taken, but upon the act that produces the loss. Here, the government action taken, placing the juvenile in Hutchinson’s home, itself produced no loss to her; it was the juvenile’s independent tort, one specified in OCGA § 50-21-24 (7), that resulted in Hutchinson’s injury and damages.

Other subsections of OCGA § 50-21-24 also reveal that the exceptions in subsection (7) are not intended to apply to losses resulting from specified torts only when those torts are committed by state employees or officials. Two subsections specifically except liability for losses resulting from certain acts by “a state officer or employee.” OCGA § 50-21-24 (1), (2).

The inclusion of these words gives the exceptions in subsections (1) and (2) the narrowness Hutchinson urges for subsection (7). Hutchinson would have us add a limiting phrase into a subsection when the legislature, faced with a choice, did not do so. “[A] statute shall be construed so as to give full force and effect to all of its provisions and so as to reconcile any apparent conflicts. [Cits.]” Head v. H. J. Russell Constr. Co., 152 Ga. App. 864, 865 (264 SE2d 313) (1980). The interpretation Hutchinson advocates does not reconcile the various subparts of OCGA § 50-21-24.

The omission of any reference to “state officer or employee” from OCGA § 50-21-24 (7) also “ ‘invites the application of the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare taciturn, which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned. (Cit.)’ [Cit.]” State v. Peters, 213 Ga. App. 352, 355 (444 SE2d 609) (1994). The omission of any such reference from OCGA § 50-21-24 (7) must be regarded as deliberate.

Finally, “ ‘[i]t is elementary that “(i)n all interpretations of statutes, the courts shall look diligently for the intention of the (legislature).” OCGA § l-3-l[,]’ [cit.][, which] is determined from a consideration of the entire statute.” Restina v. Crawford, 205 Ga. App. 887, 888 (424 SE2d 79) (1992). This confirms the conclusion that the legislature did not intend to waive immunity for any loss resulting from a tort specified in OCGA § 50-21-24 (7), regardless of who committed it.

The construction that Hutchinson advocates would either render absurd subsection (6), which provides that the State will not be liable for losses resulting from “ [c]ivil disturbance, riot, insurrection, or rebellion . . . ,” or require that OCGA § 50-21-24 be analyzed inconsistently within its subsections. Applying Hutchinson’s construction to subsection (6) would make the State liable for any losses due to riot or insurrection except when state employees or officials are the persons engaging in riot or insurrection. We decline such a construction and decline to apply a different analysis to subsection (7) than would be applied to subsection (6). The legislature intended in both subsections (6) and (7) to preserve the immunity for losses that result from intentional acts. Whether these acts are civil insurrection, slander committed by a state employee or, as here, battery committed by one placed into the State’s custody, the result is the same; the State’s immunity is not waived.

Decided March 15, 1995

Reconsideration denied March 29, 1995

Michael J. Bowers, Attorney General, William C. Joy, Carol A. Cosgrove, Senior Assistant Attorneys General, Cynthia H. Frank, Assistant Attorney General, Whelchel, Brown, Readdick & Bumgartner, Terry L. Readdick, for appellants.

Robert C. Harper, Tinkler & Groff, William P. Tinkler, Jr., Deana L. Simon, for appellee.

It was error to deny summary judgment to the Department.

2. The Department’s other enumeration of error, concerning OCGA § 50-21-24 (2), (4), and (5) and immunity for discretionary functions, is moot.

Judgment reversed.

Andrews and Johnson, JJ., concur.

       The parties are also in disagreement about whether a 1994 amendment to OCGA § 50-21-22 (7), including “foster parents and foster children” in the definition of “state officer or employee” applies to this case. Because of our analysis of the exception to waiver set forth in OCGA § 50-21-24 (7), we need not address this issue.


author: Ruffin, Judge.

text:
    A94A2830.
    FLANDERS v. THE STATE.
    (456 SE2d 604)
   Ruffin, Judge.

Everett Flanders was convicted of theft by conversion and appeals from the judgment of conviction and sentence.

The evidence showed that in furtherance of their plans to begin a crop-dusting business, the victim gave Flanders $16,000 to purchase an airplane in the victim’s name in California and return to Emanuel County, Georgia. Instead, at Flanders’ direction, a pilot flew the plane to Butler, Georgia, where Flanders sold it for $22,000. The proceeds of the sale were not given to the victim.

1. Flanders enumerates as error the denial of his motion in limine to exclude evidence of his alleged involvement in other criminal activity in Jenkins County. He contends his character was impermissibly placed in issue by the victim’s testimony in which she explained her purpose in going into business with him. The victim testified, “He was in need of an attorney, he was accused of something, and I knew he needed a criminal attorney, which I thought was kind of expensive, we did, and we talked about it, and I agreed to help him. . . .”

Although the victim made a tangential reference to Flanders’ prior difficulty with the law, the testimony “did not rise to ‘the level of prejudice that would demand a mistrial.’ ” Hillman v. State, 184 Ga. App. 712, 714 (3) (362 SE2d 417) (1987). Nor do we find “from the context of the comment .that it was made with the intention of prejudicing the jury against appellant.” Martin v. State, 193 Ga. App. 581, 584 (2) (388 SE2d 420) (1989). Thus, this enumeration is without merit.

2. Flanders next contends the court erred in admitting a personal check into evidence without proper authentication. The record shows that prior to its admission, the victim identified the check which had been made out for $15,000 to the person from whom Flanders purchased the airplane as the check she signed and gave to Flanders to purchase the plane with specific instructions that he not make out the check for more than $15,000. She also testified that the handwriting on the check, other than her own signature, was Flanders’ handwriting. Flanders contends the check was not properly authenticated without evidence demonstrating the basis for the victim’s conclusion that the handwriting was his.

“Proof of handwriting may be resorted to in the absence of direct evidence of execution. In such case, any witness who shall swear that he knows or would recognize the handwriting shall be competent to testify as to his belief. The source of his knowledge shall be a question for investigation and shall go entirely to the credit and weight of his evidence.” OCGA § 24-7-6. The victim’s identification of the check as the check which she gave to Flanders and her acknowledgment of her signature were sufficient foundation for the admission of the check. Thereafter, the victim’s identification of Flanders’ handwriting was a matter entirely for the jury. Accordingly, we find no error in the admission of the check. Furthermore, under cross-examination, Flanders admitted that he made out the check.

3. In his third and fourth enumerations of error, Flanders contends the court erred in admitting into evidence a photograph of the subject airplane and a postcard stamped and postmarked in Canada which the victim received from Flanders six months after she gave him the check to buy the plane. Flanders objected to both items on the ground of relevance.

“[A]dmission of evidence is within the sound discretion of the trial court and appellate courts will not interfere absent abuse of that discretion. Evidence having a tendency to establish facts in issue is relevant and admissible, and no matter how slight the probative value, our law favors admission of relevant evidence. [Cit.]” Mantooth v. State, 197 Ga. App. 797, 800 (5) (399 SE2d 505) (1990).

The evidence showed that the check the victim gave Flanders on May 10, 1991 to purchase the plane was dated May 17, 1991, and cleared the bank on May 24, 1991. From May until September 1991, Flanders repeatedly told the victim he was going to California to get the plane. In fact, the victim financed two of his purported trips back to California to retrieve the plane, but the plane was never returned to Emanuel County. Flanders would call the victim periodically during this period and report excuses for his inability to transport the plane to Georgia. However, other testimony revealed that in July, the plane was actually flown first to LaGrange, Georgia, where it was met by Flanders. Flanders then instructed the pilot to fly on to Butler, Georgia, where the buyer eventually accepted delivery on July 18, 1991. After Flanders’ last call in September, in which he still claimed he was going to California to get the plane, the victim did not hear from him again until she received the subject postcard from Canada in November. Flanders testified that he was never actually in Canada but that he had his friends mail the postcard to the victim because he was hiding from her and to “get her off [his] back.” Shortly thereafter, she discovered the whereabouts of the plane and traveled to Butler where she took the subject photograph. The plane in the photograph was identified by the buyer from Butler as the plane he purchased, and the Federal Aviation Administration number on the plane corresponded with the number written on the victim’s check when the plane was initially bought in California. Since the photograph and the postcard constituted evidence of Flanders’ conversion of the victim’s property and his fraudulent intent, respectively, both elements of the offense of theft by conversion, we find no abuse of discretion in their admittance. See OCGA § 16-8-4.

4. Flanders contends the court erred in denying his motion for directed verdict based on the State’s failure to prove venue. He contends that if any offense was committed, it occurred outside Emanuel County in Butler, Georgia, where the airplane was sold. We disagree.

“[Vjenue in a case such as now before us may be laid in the county where the property was entrusted, although the physical conversion of it was in another county, where the facts of the case authorized the jury to find that the intent to convert the money was formed in the county where the property was entrusted. . . . [T]he evidence authorized the jury to infer that [Flanders] intended, at the time he received the money, not to buy the [plane] for which purpose the money was entrusted to him, but to convert the money to his own use. [Cits.]” Price v. State, 76 Ga. App. 283, 287 (2) (45 SE2d 462) (1947). Both the victim and Flanders testified that the check was given to Flanders in Emanuel County; therefore, proper venue was established.

5. Flanders enumerates as error the trial court’s failure “to exercise discretion in ruling on the admissibility of evidence, instead allowing the jury to do so.” In his appellate brief, Flanders indicates that the alleged error involved the admission of the check, postcard and photograph discussed above. However, instead of citing that portion of the record in which these items were admitted and discussing the alleged error, Flanders cites a different portion of the record in which the trial court set forth its findings on the sufficiency of the evidence prior to denying Flanders’ motion for directed verdict. Flanders then cites authority which purportedly stands for the proposition that the trial court abused its discretion in letting the jury “pass on whether or not there’s been proof.” However, that authority is inapplicable to the exercise of the court’s discretion in either the admission of evidence in the context of this case or the consideration of a motion for directed verdict.

Decided February 28, 1995

Reconsideration denied March 29, 1995

Lovett Bennett, Jr., for appellant.

Richard A. Malone, District Attorney, for appellee.

Since Flanders failed to support the enumeration with argument, citation of authority or proper reference to the record, it is deemed abandoned. Court of Appeals Rule 15 (c) (2). Moreover, we cannot consider the question of the court’s abuse of discretion in denying Flanders’ motion for directed verdict because basic appellate practice dictates “ ‘that error argued in the brief but not enumerated as error will not be considered on appeal. [Cit.] And, enumerations of error cannot be enlarged by means of statements in the brief of counsel to include issues not made in the enumeration. [Cit.]’ [Cit.]” Bowen v. State, 191 Ga. App. 760 (382 SE2d 694) (1989).

6. Finally, Flanders contends that he was denied effective assistance of counsel at trial.

The record shows that a new attorney filed a timely motion for new trial on Flanders’ behalf but did not raise the issue of effective assistance of trial counsel. On appeal to this court Flanders asserts, for the first time, that trial counsel was ineffective. Since the issue was not raised in the motion for new trial “so that the challenge [could] be heard at the earliest practicable moment, i.e., during the hearing on the . . . motion [for new trial],” it is deemed waived. Thompson v. State, 257 Ga. 386, 388 (2) (359 SE2d 664) (1987).

Judgment affirmed.

Birdsong, P. J, and Blackburn, J., concur.


author: Blackburn, Judge. Andrews, Judge,

text:
    A95A0170.
    BANK SOUTH, N.A. v. ZWEIG et al.
    (456 SE2d 257)
   Blackburn, Judge.

This is an appeal from the trial court’s dismissal of Bank South’s petition to foreclose upon a certain 1988 Porsche 911 automobile.

The facts found by the trial court following a bench trial are as follows: On May 17, 1993, Claude DeFontaine, through Ace Automotive, purchased the 1988 Porsche automobile, which is the subject of this foreclosure action, and gave John Nelson permission to sell the automobile as an agent of Ace Automotive. Nelson was an automobile dealer in the business of buying and selling automobiles for profit, and previously sold vehicles owned by Ace Automotive.

Acting as Ace Automotive’s agent, on May 26, 1993, Nelson sold the Porsche to Dennis Zweig through March Enterprises, Inc., Zweig’s closely held corporation. Zweig financed the purchase of the vehicle in part through a loan from Trust Company Bank, and in exchange for the loan, Zweig gave Trust Company Bank a security interest in the vehicle. Nelson had informed a representative of Trust Company Bank that the title to the vehicle would be delivered to the bank and that the bank would be listed on the title as a lienholder. However, a certificate of title was not transferred to Zweig through March Enterprises.

Zweig has been in continuous possession of the vehicle since the date of the sale with the exception of a one or two-day period when Nelson obtained possession of the vehicle in order to have some promised repairs made on the vehicle. During that time period, Nelson gave DeFontaine possession of the vehicle and DeFontaine took the vehicle to Chattahoochee Bank, Bank South’s predecessor in interest, for the purpose of substituting the Porsche as collateral on a prior $40,000 note issued to DeFontaine but guaranteed by Ace Automotive. On or about July 22, 1993, the Porsche was substituted as collateral on the prior note and the security interest on one of the two Mercedes Benz automobiles previously securing the note was released. When payments were not made pursuant to the terms of the note, Chattahoochee Bank instituted the instant foreclosure proceeding against Zweig and Ace Automotive. Trust Company Bank subsequently intervened in the action.

1. In its first three enumerations of error, Bank South asserts that the trial court erred in dismissing its foreclosure petition because its security interest in the vehicle was superior to Zweig’s security interest inasmuch as the transfer to Zweig was not effected on the certificate of title on the vehicle. However, Zweig’s “failure to obtain the certificate of title does not deprive him of any right, title, or interest in the [Porsche] under OCGA § 40-3-3 [2] (d) since this section recognizes that as between the parties an ownership may change hands without the necessity of transferring a title certificate by the seller and obtaining a new one in the name of the purchaser.” (Citation and punctuation omitted.) McDowell v. Owens, 170 Ga. App. 421, 422 (317 SE2d 275) (1984).

“The Georgia Title Certificate Law does indeed provide a simple statutory method of proving ownership to motor vehicles but it is not exclusive. . . . The statute did not change the existing case law as to the manner in which ownership of chattels including automobiles could be proven. The certificate is not the title or ownership itself but only evidence of it.” (Citations and punctuation omitted.) Owensboro Nat. Bank v. Jenkins, 173 Ga. App. 775, 778 (328 SE2d 399) (1985). It is the substantive law of contract and not the Motor Vehicle Certificate of Title Act which creates and defines property interests in motor vehicles. State of Ga. v. Banks, 215 Ga. App. 828 (452 SE2d 533) (1994).

Since the trial court found as fact that Ace Automotive authorized Nelson as its agent to sell the vehicle to Zweig, Zweig through March Enterprises, became the owner of the vehicle at the time that the sale was made on May 26, 1993, for valuable consideration. Id. Consequently, the trial court correctly concluded that title to the vehicle passed to March Enterprises at that point and Ace Automotive retained no interest in the vehicle.

Security interest in chattel attaches only to the extent of the debtor’s interest in the chattel. Inasmuch as Ace Automotive did not have any interest in the subject vehicle at the time that the purported substitution agreement was executed, and hence no property to encumber, Chattahoochee Bank did not have a valid security interest. Id.

Under the rationale of the special concurrence, Bank South should prevail as an innocent third party because the bank took every possible action to protect itself. In reaching its conclusion, the special concurrence relies on facts contained in Bank South’s brief that the bank obtained the original title and the MV-1 application prior to its substitution of the collateral. However, such factual assertions are not supported by the record before us. It is well-settled that facts asserted in appellate briefs which are unsupported by the appellate record should not be considered on appeal. Colevins v. Federated Dept. Stores, 213 Ga. App. 49, 51 (443 SE2d 871) (1994). Ace Automotive, as the seller of the vehicle, and DeFontaine, as an officer with Ace Automotive, should not be allowed to benefit by the purported substitution of the collateral based upon their failure to comply with OCGA § 40-3-32 (d) after their agent has received valuable consideration for the purchase of the vehicle. See Jenkins, supra.

2. Bank South’s remaining enumerations of error involve issues which require consideration of the transcript of the bench trial and all of the evidence submitted in the trial court in connection with this petition. Although Bank South indicated in its notice of appeal that a transcript of the evidence and proceedings in its entirety would be filed for inclusion in the appellate record, the record before us does not contain the trial transcript or any of the exhibits tendered at trial which are referred to in the parties’ briefs. The certificate of the deputy clerk of the trial court shows that no transcript of evidence and the proceedings was filed in this case.

“The burden is on the party alleging error to show it affirmatively by the record and when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed. Where the transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.” (Citations and punctuation omitted.) Mullins v. Columbia County, 202 Ga. App. 148, 150 (413 SE2d 489) (1991). Consequently, we must affirm the trial court’s dismissal of Bank South’s foreclosure petition.

Judgment affirmed.

McMurray, P. J., concurs. Andrews, J., concurs specially.

Andrews, Judge,

concurring specially.

Because the record is incomplete, there is no evidence before us regarding the precise status of the certificate of title on July 22, 1993 when DeFontaine took the Porsche to Chattahoochee Bank and substituted it as collateral on the prior $40,000 note. Accordingly, affirmance of the trial court appears correct and I concur therein.

Nonetheless, I differ with the majority’s analysis in Division 1 regarding the effect of title certificates on third parties. “ ‘[A]s between the parties[,] an ownership may change hands without the necessity of transferring a title certificate by the seller and obtaining a new one in the name of the purchaser.’ Canal Ins. Co. v. Woodard, 121 Ga. App. 356, 358 (173 SE2d 727) (1970).” (Emphasis supplied.) McDowell v. Owens, 170 Ga. App. 421, 422 (317 SE2d 275) (1984).

In the context of third parties, here Bank South, this rule is different. OCGA § 40-3-32 (d) provides that “[e]xcept as provided in Code Section 40-3-33 and as between the parties, a transfer by an owner is not effective until this Code section and Code Section 40-3-33 have been complied with; and no purchaser or transferee shall acquire any right, title, or interest in and to a vehicle purchased by him unless and until he shall obtain from the transferor the certificate of title thereto, duly transferred in accordance with this Code section.” In Canal, supra, the court stated: “as between the parties an ownership may change hands without the necessity of transferring a title certificate by the seller and obtaining a new one in the name of the purchaser. [Cit.] However, as to third parties who may acquire an interest, it is essential that the title transfer be completed.” Id. at 358-359.

Decided March 10, 1995

Reconsideration denied March 29, 1995.

Leon S. Jones, for appellant.

Barry Staples, Goldner, Summers, Scrudder & Bass, William W. Horlock, Jr., Quirk & Quirk, Neal J. Quirk, for appellees.

The requirement that a title transfer be completed as to third parties who acquire an interest in the vehicle ensures that the interests of a third party acting in good faith will be protected. Here, Bank South claims that it inspected the Porsche as collateral and obtained the original title and MV-1 title application prior to allowing the substitution of collateral. In so doing, Bank South took every possible action to protect itself.

On the other hand, Zweig did not take all reasonable actions to protect his interest in the vehicle. He could have demanded the certificate of title before he paid for the vehicle, and thereby protected his interest in the vehicle. He did not do so, and left open the possibility that his interest would be unprotected as to a third party.


author: Birdsong, Presiding Judge.

text:
    A95A0514, A95A0515.
    JONES, DAY, REAVIS & POGUE v. AMERICAN ENVIRECYCLE, INC.; and vice versa.
    (456 SE2d 264)
   Birdsong, Presiding Judge.

These appeals arise from a suit averring legal malpractice initiated by plaintiff, American Envirecycle, Inc. (AEI) against the defendant law firm of Jones, Day, Reavis & Pogue (law firm), based on the participation of Hansell & Post, predecessor to appellant/defendant law firm, in the drafting of a contract for the purchase by AEI of certain real property from Emanuel County Development Authority (ECDA) for the purpose of constructing a bio-medical and industrial waste incineration facility. Public opposition arose to this project and ultimately ECDA refused to convey the property notwithstanding the tender of the purchase price by AEI. In October 1990, ECDA sued AEI seeking to quiet title to the property and to have the contract declared unenforceable on grounds of fraud in the inducement and ultra vires. The trial court granted summary judgment to ECDA on the ground the contract was ultra vires. AEI appealed to the Supreme Court of Georgia which affirmed that judgment without opinion.

Appellant/cross-appellee law firm now appeals from the order of the superior court entered October 24, 1994, which granted partial summary judgment to appellee/cross-appellant AEI and denied appellant law firm’s cross-motion for partial summary judgment, from the order entered December 3, 1993, which denied appellant law firm’s motion for partial summary judgment, and from the order entered April 14, 1994, which denied appellant law firm’s motion to strike the affidavit of William W. Gardner and dismiss the complaint (Case No. A95A0514). Cross-appellant AEI cross-appeals from the order of the superior court entered October 24, 1994, denying its motion for partial summary judgment as to liability for legal malpractice and as to the defense of fraud in the inducement and its entirety, and appeals from the order entered on December 3, 1993, denying cross-appellant’s alternative claim of tolling of the statute of limitation (Case No. A95A0515). Held:

Case No. A95A0514

1. The trial court did not err in denying appellant’s motion for summary judgment based on the statute of limitation. “ ‘[A] cause of action for legal malpractice, alleging negligence or unskillfulness, sounds in contract (agency) and, in the case of an oral agreement, is subject to the four-year statute of limitation in OCGA § 9-3-25. (Cits.)’ [Cits.] ‘ “In Georgia legal malpractice is based upon the breach of a duty imposed by the attorney-client contract of employment, and as such, the applicable statute of limitation is four years.” ’ ” Royal v. Harrington, 194 Ga. App. 457, 458 (390 SE2d 668). This legal malpractice case is governed by the four-year statute of limitation.

Appellant contends that the running of the four-year statute of limitation (OCGA § 9-3-25) should commence on April 17, 1989, when the drafting of the contract is asserted to have been completed. A cause of action for legal malpractice may, depending on the circumstances, be either an action ex delicto or an action ex contractu. See generally Hamilton v. Powell, Goldstein &c., 167 Ga. App. 411 (1) (306 SE2d 340), aff'd 252 Ga. 149 (311 SE2d 818). When legal malpractice is grounded in an ex contractu cause of action, the four-year statute of limitation “commences to run ‘from the date of the breach of duty [imposed by the attorney-client contract], and not from the time when the extent of the resulting injury is ascertained.’ ” Frates v. Sutherland, Asbill & Brennan, 164 Ga. App. 243, 244 (1) (296 SE2d 788). Certain cases indicate that when the action is grounded ex delicto, then damages as well as breach of duty must occur to give rise to a cause of action (arguably commencing the running of only the two-year statute of limitation of OCGA § 9-3-33; Hamilton, supra at 414). See, e.g., Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804, 805 (1) (273 SE2d 16); Ekern v. Westmoreland, 181 Ga. App. 741, 742 (353 SE2d 571) (“Georgia recognizes the accrual of a right of action for a tort where there is a violation of a specific duty accompanied with damage.” (Emphasis supplied.)) However, in Jankowski, supra at 806 (1), the Supreme Court concluded the holdings in Gould v. Palmer & Read, 96 Ga. 798 (22 SE 583), Lilly v. Boyd, 72 Ga. 83, and Crawford v. Gaulden, 33 Ga. 173, that “a right of action [for legal malpractice] arises immediately upon the wrongful act having been committed, even though there are no special damages [,]” were not in conflict with the basic rule as to when a cause of action in tort accrues. “Jankowski recognizes the validity of these older cases and holds . . . that since nominal damages arise upon the commission of the wrongful act, such nominal damages are sufficient as a triggering device for the statute of limitation and thus the cause of action then arises.” Hamilton, supra at 414-415 (1). As a breach of contract would occur upon the commission of the wrongful act violating the contractual duty, a cause of action ex contractu, like a cause of action ex delicto, arises and the statute of limitation for legal malpractice is triggered immediately upon the commission of the wrongful act. See Hamilton, supra. Compare Loftin v. Brown, 179 Ga. App. 337 (1) (346 SE2d 114) with Royal v. Harrington, supra.

The remaining issue is at what point is the wrongful act committed when legal malpractice is alleged to arise from the negligent preparation (drafting) of a contractual document. This court, at times, has referred to relatively imprecise criteria in deciding this matter. See, e.g., McClain v. Johnson, 160 Ga. App. 548, 549 (288 SE2d 9) (the alleged unskillful act “was the drafting of the agreement which was signed ... in 1962 and made a final judgment ... in 1964”); Riddle v. Driebe, 153 Ga. App. 276 (265 SE2d 92) (merely noting that the last of the documents was prepared over five years before filing of complaint); Loftin, supra (merely noting the documents were prepared six years before suit was filed). “It is well established that questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been decided so as to constitute precedent.” Chives v. State, 214 Ga. App. 786, 788 (449 SE2d 152).

We find controlling those cases concluding that the date of contract execution is the controlling date in giving rise to a cause of action for malpractice and in commencing the running of the statute of limitation. Compare Arnall, Golden & Gregory v. Health Svc. Centers, 197 Ga. App. 791 (399 SE2d 565); Ekern v. Westmoreland, supra; cf. Frates, supra at 245 (statute of limitation began to run when the services rendered “consummated in the agreement and attendant documents”).

At AEI’s request, the law firm’s attorney transmitted the contract to counsel for the ECDA on Tuesday, April 18, 1989, with an acknowledgment of his understanding that the documents would be signed the following Friday. It is disputed whether the contract actually was executed on Friday, April 21 or Monday, April 24 of 1989. AEI did not file its complaint until Monday, April 26, 1993. For purposes of time computation in statute of limitation cases arising under OCGA § 9-3-25, the provisions of OCGA § 1-3-1 (d) (3) apply; the first day shall not be counted but the last day shall be counted. See Davis v. Desa Intl., 209 Ga. App. 318 (433 SE2d 410); Hollingsworth v. Hubbard, 184 Ga. App. 121 (361 SE2d 12); compare Weems v. Munson Transp., 210 Ga. App. 766 (437 SE2d 640). If the contract were executed on April 21, 1989, the applicable statute of limitation would have expired on Thursday, April 22,1993, before suit was filed; however, if execution occurred on April 24,1989, the four-year period would have fallen on Sunday, April 25, 1993 and, pursuant to OCGA § 1-3-1 (d) (3), appellee/plaintiff would have had through Monday, April 26, 1993 to file suit. In the latter instance the statute of limitation would not have expired. Contrary to the conclusion of the trial court, we find no genuine issue of material fact exists as to the date of contract execution. The contract, at issue, on its face reflects, without ambiguity, that it was executed on April 24, 1989. The affidavit and deposition testimony of Mr. Santora confirms that the contract was not executed by him until April 24, 1989. Appellant’s claim that the contract at issue was executed on April 21, 1994 is at best the product of circumstances giving rise to mere speculation or conjecture. “ ‘(A)n inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.’ ” Derry v. Clements, 197 Ga. App. 173, 174 (397 SE2d 594).

2. The applicable standard of care in the legal profession is reported in Kellos v. Sawilowsky, 254 Ga. 4 (325 SE2d 757). In Hughes v. Malone, 146 Ga. App. 341, 344-345 (247 SE2d 107), it was clarified that: “Although an attorney is not an insurer of the results sought to be obtained by such representation, when, after undertaking to accomplish a specific result, he then wilfully or negligently fails to apply commonly known and accepted legal principles and procedures through ignorance of basic, well-established and unambiguous principles of law or through a failure to act reasonably to protect his client’s interests, then he has breached his duty toward his client. As the legal profession is at best an inexact science, a breach of duty arises only when the relevant, i.e., legal principles or procedures are well settled and their application clearly demanded, and the failure to apply them apparent.” (Emphasis supplied.) “[U]nless the law is so well settled, clear, and widely recognized, an attorney acting in good faith and to the best of his knowledge will be insulated from liability for adverse results.” Berman v. Rubin, 138 Ga. App. 849, 853 (227 SE2d 802). The state of the law as to the requirement for affirmatively including a statement of purpose within the body of a contract for sale of land by a development authority was not, at the time the contract document was prepared, well settled, clear, and widely recognized within the meaning of Hughes, supra, and Berman, supra. Accordingly, the law firm was insulated from any liability arising from a claim of legal malpractice by negligent drafting of the contract of sale. Likewise, any claim of malpractice by reason of negligence in legal research and investigation fails. Pursuant to Hughes, supra, and Berman, supra, regardless of the type of research or investigation conducted, the law firm was insulated from liability for not discovering the relatively obscure legal principle here at issue.

Decided March 13, 1995

Reconsideration denied March 29, 1995

Smith, Gambrell & Russell, Rex M. Lamb III, Thomas B. Barton, for appellant.

Beltran & Associates, Frank J. Beltran, Ralph Perales, W. Dent Aeree, Williams & Henry, Phillip C. Henry, for appellee.

3. In view of our holding in Division 2 above, we elect not to address the law firm’s remaining enumerations.

Case No. A95A0515

4. In view of Division 2, we find cross-appellant’s enumerations of error are moot.

Jones, Day, Reavis & Pogue is entitled to the grant of summary judgment on the merits of the malpractice claim.

Judgment reversed and remanded with direction.

Johnson and Smith, JJ., concur.


author: Pope, Presiding Judge. Smith, Judge,

text:
    A94A1949.
    LUKE et al. v. SUBER.
    (456 SE2d 598)
   Pope, Presiding Judge.

Plaintiffs Karen and Marcus Luke appeal from a jury verdict for defendant obstetrician. Because the trial court improperly allowed defendant to elicit testimony regarding plaintiffs’ insurance coverage, we reverse the judgment entered on the jury verdict and remand the case for a new trial.

Defendant performed a caesarean section on Karen Luke on Friday, February 2, 1990. Although the baby was healthy, the mother suffered from ileus (paralysis of the bowel) following the surgery. Her stomach became severely distended, she was in extreme pain, and her pulse and respiration rates were elevated. Post-surgery ileus is not unusual, and defendant pursued a usual course of treatment. Luke’s condition continued to worsen for several days, however, and defendant eventually called in Dr. Clark, a general surgeon, on February 6, 1990. Dr. Clark operated and discovered a perforation in Luke’s bowel, which had resulted in gross contamination of her abdominal cavity. About half of Luke’s large intestine had to be removed, as well as a portion of her small intestine.

The evidence with respect to defendant’s liability would have supported a verdict for either plaintiffs or defendant. Plaintiffs presented expert testimony that the bowel was damaged by defendant in the course of the original surgery; that this damage caused the ileus and eventually the perforation; that defendant should have realized sooner that Luke was suffering from more than normal post-surgery ileus; and that defendant’s failure to call in the surgeon earlier caused the damage to Luke’s intestines to be more severe than it otherwise would have been. Defendant’s experts, on the other hand, testified that defendant did not damage the bowel in the course of the original surgery; that Luke’s symptoms were all consistent with normal post-surgery ileus until the morning of February 6, 1990, when her condition seriously worsened; that x-rays taken February 4 indicated there was no perforation at that time; that the perforation was simply the result of the extreme distension resulting from the ileus, which cut off the blood supply to that area; and that the perforation probably did not occur until the morning of the 6th, or the contamination of Luke’s abdomen would have been worse.

1. Plaintiffs argue that defendant should not have been allowed to question Mr. Luke about plaintiffs’ medical insurance coverage, and we agree. See Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991).

Citing Moore v. Mellars, 208 Ga. App. 69 (430 SE2d 179) (1993), defendant argues the collateral source evidence was properly allowed to impeach Mr. Luke. Specifically, defendant contends Mr. Luke “opened the door” when, following testimony that the baby was healthy, Mr. Luke testified on direct as follows: “Q: Did the baby also stay in the hospital from the 6th through the 28th? A: Yes, sir. Q: And what was your understanding of that? A: Well, whenever I talked to a couple of doctors and nurses, they told me don’t worry about it, you know, it’s best that the baby stays here. That way Karen can, you know, know that the baby is all right. I told them, I said, T don’t think I can afford to keep the baby in the hospital for a month.’ And they said don’t worry about it, you know. I didn’t worry about it until they — Q: Did you also receive a bill for the baby in the hospital? A: Yes, sir.”

In Moore, we held that otherwise inadmissible evidence of insurance could be admissible for impeachment purposes, stating that “when plaintiff opens the door and testifies that lack of insurance or financial hardship prevented her from seeking treatment, defendant is allowed to cross-examine her on this point.” 208 Ga. App. at 72. The plaintiff in Moore actually testified that she discontinued her examinations because she no longer had insurance. In Patterson v. Lauderback, 211 Ga. App. 891 (2) (440 SE2d 673) (1994), we took this holding one step further: even though the plaintiff in Patterson did not actually testify that his decedent was deprived of medical care because she lacked insurance, evidence of the decedent’s insurance was admissible for impeachment because “[t]he clear import of the testimony presented by the deceased’s son regarding his mother’s lack of wealth was that she was not able to afford all the extensive medical treatment she would need as a result of her injuries.” 211 Ga. App. at 892-893. In this case, Mr. Luke’s testimony did not even suggest that plaintiffs lacked insurance or were unable to afford needed medical care. Rather, the clear import of the testimony was that even though the Lukes had insurance, Mr. Luke understandably doubted that it would cover hospitalization of a healthy baby simply because the mother was hospitalized.

Because evidence of insurance is so prejudicial, it should not be admitted unless it is clearly relevant. See Collins v. Davis, 186 Ga. App. 192 (1) (366 SE2d 769) (1988) (physical precedent only), cited with approval in Denton, 261 Ga. at 43. In this type of case, this means that evidence of insurance should not be admitted unless it is clearly impeaching (i.e., unless the testimony which purportedly “opens the door” is clearly inconsistent with the existence of insurance). Here, Mr. Luke’s testimony was fully consistent with the existence of insurance, so evidence of insurance was not impeaching and therefore not admissible.

Accordingly, the trial court erred in allowing this evidence. Moreover, given our Supreme Court’s statements that evidence of insurance “ ‘involves a substantial likelihood of prejudicial impact’ ” and “is inherently prejudicial because its infectious nature tends to contaminate the entire trial” (Denton, 261 Ga. at 43), we cannot deem this error harmless, particularly in light of the relatively balanced testimony regarding liability in this case.

2. In three enumerations of error, plaintiffs contend that a number of potential jurors should have been excused for cause. Some of the challenged jurors allegedly had economic ties to defendant, and others were former patients of defendant (or husbands of former patients of defendant).

“There are two types of challenges to an individual juror for cause: (1) for principal cause, and (2) for favor. Challenges for principal cause are based on facts which, if proved, automatically disqualify the juror from serving. Challenges for favor are based on admissions of the juror or facts and circumstances raising a suspicion that the juror is actually biased for or against one of the parties.” (Citations omitted.) Jordan v. State, 247 Ga. 328, 338 (6) (276 SE2d 224) (1981). Where challenges for favor are involved, “ ‘[t]he trial judge has a discretion in determining whether a juror can decide the case in accordance with the evidence presented during the trial and without bias or partiality or outside influences. Unless there is manifest abuse we cannot require a new trial. (Cit.)’ [Cit.]” Stein Enterprises v. Chatham County, 200 Ga. App. 385, 386 (2) (408 SE2d 173) (1991).

With respect to alleged financial ties between jurors and defendant based on the jurors’ employment in or ownership of pharmacies, the trial court did not abuse its discretion in failing to excuse the jurors, as there was no evidence of any business arrangement between the jurors and defendant “whereby the juror [s] could be motivated by financial concerns.” See Daniel v. Bi-Lo, 178 Ga. App. 849, 851 (1) (344 SE2d 707) (1986). Indeed, the record indicates that the usual practice is for the doctor to give the patient the prescription, and the patient then takes it to the pharmacy of his choice.

We find the challenges based on a former doctor-patient relationship between defendant and certain jurors more troubling, and believe the better practice would be to eliminate defendant’s former patients (and their spouses) from the panel of potential jurors if possible. However, the trial court’s discretion in this area is extremely broad, particularly in civil cases; and where the potential juror says he can be objective, we have held there was no abuse of discretion in failing to excuse the juror under circumstances at least as suspicious as those present here. See Green v. Wilcox, 206 Ga. App. 192 (424 SE2d 801) (1992) (in medical malpractice action, it was not an abuse of discretion to fail to excuse another doctor associated with the same hospital as defendant, as long as doctor indicated he could be impartial); Stein Enterprises, 200 Ga. App. at 385 (2) (where juror said he could be objective, it was not an abuse of discretion to fail to excuse him even though he formerly worked for one party’s expert witness and owned property with him at time of trial). Compare Meintzer v. Weinberg, 212 Ga. App. 307 (1) (441 SE2d 774) (1994) (failure to excuse juror where questioning revealed he could not be objective was an abuse of discretion).

Plaintiffs urge us to hold that the existence of a doctor-patient relationship between a party and a potential juror provides a basis for a challenge for principal cause, so that any juror who is the defendant’s present or former patient would be categorically excluded. We do not consider it necessary to create such a categorical exclusion, however. Rather, the existence of the doctor-patient relationship is a circumstance raising a suspicion that the potential juror may be biased. Either party may then question the potential juror to establish bias, and may move the court to excuse the potential juror for cause. See Hill v. Hosp. Auth., 137 Ga. App. 633 (1) (b) (224 SE2d 739) (1976) (potential jurors whose family members were patients of the defendant doctor need not be excused for cause as long as they stated they could decide the case without bias).

Judgment reversed.

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

Smith, Judge,

dissenting.

I respectfully dissent to Division 1 of the majority opinion, because I conclude that plaintiff Marcus Luke “opened the door” to cross-examination regarding evidence of insurance coverage by testifying that he did not believe he could afford certain hospital care. The crucial part of Mr. Luke’s testimony was: “I told them, I said, T don’t think I can afford to keep the baby in the hospital for a month.’ ” (Emphasis supplied.) This not only suggests but clearly states, as the majority phrases it, that plaintiffs “were unable to afford needed medical care,” either because of lack of wealth or lack of insurance. Patterson v. Lauderback, 211 Ga. App. 891, 892-893 (2) (440 SE2d 673) (1994).

I cannot conclude, as the majority suggests, that the jury may have attributed Mr. Luke’s testimony to concern about whether the baby would be covered by existing insurance. The conversation took place with hospital personnel, rather than with anyone who could have informed Mr. Luke about insurance coverage. Insurance itself was not mentioned; instead, Mr. Luke stated that he did not think he could afford the hospital charges. This is an even more explicit comment on inability to pay than the testimony in Patterson that the plaintiff “was not a wealthy woman.” 211 Ga. App. at 892. This conelusion is reinforced by counsel’s follow-up question, “Did you also receive a bill for the baby in the hospital?” which suggests that the testimony regarding inability to afford hospital bills was not an inadvertent, nonresponsive comment by Mr. Luke, but deliberately elicited for the benefit of the jury. Under these circumstances, the trial court did not err in allowing limited evidence of insurance to respond to the “clear import” of Mr. Luke’s testimony. Therefore, I must dissent to the majority’s ruling in Division 1.

Decided February 27, 1995

Reconsideration denied March 30, 1995

Hallman & Stewart, Ronald W. Hallman, Sutton & Associates, Berrien L. Sutton, for appellants.

Newton, Smith, Durden, Kaufold & Rice, Wilson R. Smith, for appellee.

I am authorized to state that Chief Judge Beasley, Presiding Judge Birdsong and Judge Andrews join in this dissent.

       Contrary to the dissent’s suggestion, it is undisputed that the baby was well and did not need hospital care; the medical professionals suggested the baby remain in the hospital to be near plaintiffs. A plaintiff does not “open the door” to allow evidence any time he mentions his financial circumstances or says he cannot afford something. Since the exception to the general rule disallowing evidence of insurance is based on its relevance for impeachment purposes, a plaintiff’s testimony — even if it addresses his inability to afford something — only “opens the door” if it is inconsistent with, and thus impeached by, the existence of insurance.

       Although the judgment must be reversed based on our decision in Division 1, we address the issues raised by plaintiffs’ challenges to the panel of prospective jurors because they are likely to be raised again on retrial.


text:
    A94A2003.
    BLUE RIDGE MOUNTAIN FISHERIES, INC. et al. v. DEPARTMENT OF NATURAL RESOURCES et al.
    (456 SE2d 651)
   Beasley, Chief Judge.

This case comes to us on the denial of plaintiffs’ motion for partial summary judgment and the grant of defendants’ motion for summary judgment. It is an action based on 42 USC § 1983 and state tort law.

On May 1, 1990, the Georgia Department of Natural Resources (DNR) searched the Wilson Spring Fish Hatchery owned by Blue Ridge Mountain Fisheries, Inc. Officers seized approximately 1,223 white sturgeon fish being held for breeding and eventual caviar production. David Cochran, president and principal stockholder of Blue Ridge, was arrested. He was charged with violating OCGA § 27-5-5 (b) (6), based on allegations that the sturgeon were “exotic fish” possessed by him without a wild animal permit. The fish were seized as contraband pursuant to OCGA § 27-5-8 (a).

In 1977, the General Assembly enacted the “Game and Fish Code.” OCGA § 27-1-1 et seq. Under it, animals and fish are generally classified as either domestic species, wildlife, or wild animals. A license or permit is generally required for all wild animals either listed in OCGA § 27-5-4 or OCGA § 27-5-5, or specified by regulation of the board pursuant to either Code section. OCGA § 27-5-5 (b) (6) lists as wild animals “[a]ll exotic fish which are not held in aquaria or tanks.” Neither the Game and Fish Code nor any DNR regulation contained any definition of “exotic fish” when the DNR seized the plaintiffs’ sturgeon.

Apparently, as evidenced by a trade journal article from 1987 submitted by appellees, it has been the DNR’s position that under the Game and Fish Code, the term “exotic fish” means all fish species not native to Georgia. The DNR held this position notwithstanding the fact that in the fisheries trade or profession, the generally accepted meaning of the term “exotic fish” is fish “not native to the country where found” (just as the generally accepted meaning of the term “exotic” is “not native to the country where found”). The stated reason for the DNR’s more inclusive definition is that the introduction into Georgia lakes and streams of fish not native to Georgia, even though native to other parts of the United States, poses dangers to Georgia’s native fish.

Cochran began fish farming in this state in 1975. An outspoken critic of the DNR, his primary objection was to the DNR’s position that pond-raised fish are wildlife and thus subject to state ownership and regulation. His position was that they are domestic species. He maintains that in the early 1980’s, Ledbetter (then Commissioner of the DNR), Kirkland (then Director of the Game and Fish Division of the DNR), and Gennings (Chief of the Fisheries Section of the Game and Fish Division) told him of their opposition to his position because its acceptance would result in a loss to the DNR of major revenue sources. He also testified that the DNR used its veto power with the United States Corps of Engineers in an attempt to block an application by Blue Ridge to dam a creek in Gilmer County for the purpose of building a trout farm. Another member of Georgia’s aquaculture industry testified that after state legislative hearings in 1987 at which Cochran made certain accusations against the DNR, Gennings threatened to “get” him.

The first investigation of Cochran began in May 1987. In 1988, he was arrested by DNR rangers at Blue Ridge’s Price Creek Fish Hatchery and charged with possession of “exotic fish” without a wild animal permit. The fish were Coho Salmon, which are native to the United States but not to Georgia. As a result of the state charges, the United States Fish and Wildlife Service charged Cochran and Blue Ridge with violations of the federal Lacey Act. In 1989, all Lacey Act charges were dismissed against Cochran, but Blue Ridge entered an Alford plea to one Lacey Act misdemeanor and was placed on probation. This did not constitute either admission on the part of Cochran or a judicial determination that the salmon or other fish native to the United States but not to Georgia are “exotic fish.” In entering an Alford plea, which must be voluntarily and intelligently arrived at, a defendant claims innocence but concludes it is in his best interest to do so. Freeman v. State, 211 Ga. App. 716, 717 (1) (440 SE2d 490) (1994). The underlying state charges were dismissed in April 1990.

According to Kirkland, the second investigation of Cochran began in 1989 because of information received by the DNR from special investigators that Cochran and Blue Ridge were committing continuing violations of Georgia’s game and fish laws. DNR investigator Parrish testified that during the course of a state-wide investigation into unlicensed commercial hatcheries in October 1989, it was determined that the Wilson Spring Fish Hatchery and another hatchery were being operated without a commercial license, and that in March 1990 investigators went to the Wilson Spring Hatchery for the first time and discovered the white sturgeon.

Cochran testified that in the spring of 1990, he secured financing commitments for the sturgeon project, one condition of which was elimination of the conflict between him and the DNR. He wrote a letter in March to Gennings, stating that he wanted to discuss the required permits for his planned production of the sturgeon as well as salmon. He also purchased a license for his Price Creek Hatchery. Although he was advised by letter from Gennings that licenses were required for each hatchery, he did not purchase any additional licenses.

After the sturgeon were observed at the Wilson Spring Hatchery, Parrish asked Black (the Chief of the Law Enforcement Section of the Game and Fish Division) for an opportunity to discuss this finding. On April 3, 1990, a meeting was convened by Kirkland. He and Gennings were present, as was Primmer (DNR Regional Supervisor and Fishery Biologist), Walden (executive legal assistant to the DNR Commissioner), and others. The question for decision was whether the sturgeon should be seized as contraband. Walden testified that based on the expertise of the biologists, it was the collective opinion of the meeting participants that the sturgeon, being a fish not native to Georgia, constituted an “exotic fish” under the Game and Fish Code and that Cochran’s possession of the sturgeon was thus unlawful. No final decision was made at the meeting.

Thereafter, Gennings sent Walden a memo recommending prosecution of Cochran for, among other things, possession of white sturgeon without a wild animal license. He referred to Cochran’s longstanding and “blatant disregard” of Georgia’s game and fish laws, and he stated that in order to maintain credibility with other members of Georgia’s aquaculture industry, it was necessary for the DNR to respond to Cochran’s “frontal assault” on state laws. He also expressed concern that the white sturgeon posed a threat to Georgia’s indigenous sturgeon. Walden then sent Ledbetter a memo recommending that Cochran be prosecuted for, among other things, possession of sturgeon without a wild animal license. He expressed the opinion that the General Assembly would not view the prosecution as harassment.

Several days after Walden sent the memo, sturgeon were again observed at the Wilson Spring Hatchery. Gennings and Primmer later saw Cochran and informed him that a wild animal permit was required for raising sturgeon and Atlantic salmon. Ledbetter subsequently approved a raid on the hatchery and seizure of the sturgeon. Parrish filed an affidavit for a warrant to search the Wilson Spring Hatchery, stating that Cochran was in possession of exotic fish without a wild animal license. He also filed an affidavit for a warrant for Cochran’s arrest for possession of exotic fish without a wild animal license. After the arrest, Parrish offered to allow him to sell the sturgeon in another state if he would agree not to file a civil action against the DNR under OCGA § 27-5-8. He refused.

Instead, he and Blue Ridge filed a civil action under OCGA § 27-5-8 (b) to recover the sturgeon. The superior court declared the DNR’s seizure of the sturgeon illegal. The court noted the dictionary definition of the term “exotic,” the generally accepted definition of the term “exotic fish” in the fisheries profession, and the variance between these definitions and the definition of “exotic fish” adopted by the DNR. The court held that insofar as OCGA § 27-5-5 (b) (6) criminalized the possession of “exotic fish,” it was unconstitutionally vague and that, in any event, sturgeon were not “exotic fish” as defined by the statute.

The court premised its constitutional holding on due process principles applied in Price v. State, 253 Ga. 250 (319 SE2d 849) (1984), and Bullock v. City of Dallas, 248 Ga. 164 (281 SE2d 613) (1981). As held in Price, supra at 251, “Due process mandates that criminal laws give adequate warning of what conduct will constitute a crime. ‘(A) statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.’ [Cits.]” As held in Bullock, supra at 166, “ ‘No one may be required at peril of life, liberty, or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.’ [Cit.]”

After the superior court ruled, the criminal charges against Cochran were dismissed.

Cochran and Blue Ridge subsequently instituted this action against Ledbetter, Kirkland, Gennings, Primmer, and other DNR employees later dismissed without prejudice. Plaintiffs charge the defendants, along with Black, Parrish, and Walden, with having acted as co-conspirators/joint tortfeasors in creating the crime of unlawful possession of white sturgeon by private agreement. Plaintiffs have asserted state tort claims, as well as claims under 42 USC § 1983 for deprivation of various constitutional rights.

After plaintiffs instituted this action, the Georgia Supreme Court, in reliance on Price, supra, held that the superior court did not err in holding that OCGA § 27-5-5 (b) (6) was void for vagueness. Dept. of Natural Resources v. Blue Ridge Mtn. Fisheries, 262 Ga. 305 (417 SE2d 12) (1992). During the pendency of that appeal, the General Assembly amended OCGA § 27-5-5 (b) (6) to provide that exotic fish are all fish species not native to Georgia. Following the Supreme Court’s decision, plaintiffs amended their complaint in this case to specifically allege due process and First Amendment violations. On cross motions by defendants for summary judgment and by plaintiffs for partial summary judgment, the trial court granted defendants’ motion and denied plaintiffs’.

1. The court erred in ruling that under federal law (42 USC § 1983) defendants are entitled to qualified immunity from plaintiffs’ constitutional claims.

Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known. Rich v. Dollar, 841 F2d 1558, 1563 (2) (11th Cir. 1988).

It is clearly established that as a matter of due process, criminal laws must give adequate warning of the conduct that will constitute a crime and that a statute may not forbid the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is also clearly established that according to its generally accepted definition in the fisheries trade or profession, the term “exotic fish” means fish not native to the country where found. In making a decision to prosecute plaintiffs for a criminal violation of the Georgia Game and Fish Code, based on a definition of “exotic fish” different than its generally accepted definition and not codified or set forth in any promulgated regulation, the DNR officials violated clearly established due process rights of which a reasonable person should have known and were acting outside their discretionary authority. Thus, they are not entitled to qualified immunity.

2. The court erred in granting summary judgment to defendants on plaintiffs’ Fourth Amendment claim of unlawful seizure, but not on their claim of illegal arrest.

As to the seizure, the court concluded that under the facts of this case, defendants could have reasonably believed that plaintiffs had violated OCGA § 27-5-5 (b) (6). See Anderson v. Creighton, 483 U. S. 635 (107 SC 3034, 97 LE2d 523) (1987). For the reasons given in Division 1, we disagree.

With respect to the arrest, the court found that Cochran was arrested under warrants charging him with violation of OCGA § 27-4-75 as well as OCGA § 27-5-5 (b) (6), and that his arrest under OCGA § 27-4-75 was not unlawful. We agree. There is no merit in plaintiffs’ argument that there is an issue of fact as to whether Cochran’s arrest for violating OCGA § 27-4-75 was pretextual. The record shows that the investigation of Cochran began because of his violation of OCGA § 27-4-75.

3. The court erred in granting summary judgment to defendants on plaintiffs’ due process claims.

Citing Hudson v. Palmer, 468 U. S. 517 (104 SC 3194, 82 LE2d 393) (1984), and Parratt v. Taylor, 451 U. S. 527 (101 SC 1908, 68 LE2d 420) (1981), the court held that OCGA § 27-5-8 establishes a meaningful post-deprivation remedy for the DNR’s seizure of the fish and, since plaintiffs have successfully employed this remedy to recover possession of the seized fish, their due process claim fails.

These cases hold that where state employees either negligently or intentionally deprive the plaintiff of property through a random unauthorized act, as opposed to an established state procedure, tort remedies which the state provides as a means of redress for property deprivations satisfy the requirements of due process. See Zinermon v. Burch, 494 U. S. 113 (110 SC 975, 108 LE2d 100) (1990). The fish were seized under a search warrant which was issued by authorization from the Commissioner of the DNR. This constituted a deprivation of property by way of an established state criminal procedure the implementation of which was authorized by an official act. Consequently, plaintiffs have a claim for a pre-deprivation denial of due process, notwithstanding the availability of a post-deprivation remedy.

4. The court erred in dismissing Cochran’s First Amendment claim on the ground that it is barred by the statute of limitation.

In Georgia, OCGA § 9-3-33 provides the period of limitation for § 1983 claims. Day v. Brown, 207 Ga. App. 134 (1) (427 SE2d 104) (1993). It generally allows two years after the right of action accrues, which occurs upon the infliction of injury. Burns v. Brickle, 106 Ga. App. 150 (126 SE2d 633) (1962).

The original complaint was filed within two years after the infliction of the injury, and Cochran asserted his First Amendment claim in an amendment to it. Although any First Amendment expression by Cochran arose out of activities engaged in by him in the 1980’s, his First Amendment claim arose out of the DNR’s seizure of the sturgeon in 1990. The amendment to the complaint did not assert an entirely new cause of action based on wholly different facts. In consequence, it related back to the date of the original complaint. OCGA § 9-11-15 (c); see generally Henson v. American Family Corp., 171 Ga. App. 724, 732 (8) (321 SE2d 205) (1984).

5. The court erred in granting summary judgment to defendants on the claims for wrongful deprivation of personalty and damage to it.

Decided March 16, 1995

Reconsiderations denied March 30, 1995

Kinney, Kemp, Pickell, Sponcler & Joiner, F. Gregory Melton, Tracey S. Witt, Douglas W. Brown, Jr., Weaver & Weaver, George W. Weaver, Cook & Palmour, Bobby Lee Cook, for appellants.

Michael J. Bowers, Attorney General, Isaac Byrd, Robert S. Bomar, Senior Assistant Attorneys General, for appellees.

Summary judgment was premised upon the conclusion that the seizure of the sturgeon was lawful. However, as held in Division 2 and by the superior court in the prior action by plaintiffs against the DNR under OCGA § 27-5-8 (b), the seizure of the sturgeon was unlawful.

6. The court did not err in ruling that defendants are not liable to Cochran for false arrest and imprisonment.

The arrest was not unlawful. See Division 2.

7. The court did not err in ruling that plaintiffs’ claim for lost profits must fail since the evidence shows that Blue Ridge does not have any history of making profits. See Shaw v. Ruiz, 207 Ga. App. 299, 303 (11) (428 SE2d 98) (1993).

Plaintiffs argue that they are entitled to recover profits which would have been obtained in raising the sturgeon under OCGA § 51-12-10: “When a tort is committed, a contract is broken, or a duty is omitted with knowledge and for the purpose of depriving the plaintiff of certain contemplated benefits, the remote damages occasioned thereby become a proper subject for the consideration of the jury.” According to this Code section, a defendant who acts knowingly for the purpose of bringing about an injury may be held liable for the damages traceable to his tortious act, even though such act would not otherwise be the legal or natural cause of the damages. Hodge v. Dixon, 119 Ga. App. 397 (167 SE2d 377) (1969); see Jenkins v. Cobb, 47 Ga. App. 456 (170 SE 698) (1933). This exception to the rule against recovery of remote damages does not authorize the recovery of anticipated future profits by a business that has not made any profits in the past. Such damages cannot be recovered for the reason that they are not provable rather than that defendant’s act is too remote.

Judgment affirmed in part and reversed in part.

Johnson, J., concurs. Andrews, J., concurs in the judgment only.


author: Johnson, Judge. Ruffin, Judge, Andrews, Judge,

text:
    A94A2062.
    UNION CAMP CORPORATION v. DUKES.
    (456 SE2d 645)
   Johnson, Judge.

Randy Dukes brought this action against Union Camp Corporation after he allegedly slipped and fell in a puddle of oil while doing contracting work at Union Camp. Union Camp moved for summary judgment, which the trial court denied. We granted Union Camp’s application for interlocutory appeal.

Union Camp contends that the trial court erred in denying its motion for summary judgment because it proved: (a) that it had neither actual nor constructive knowledge of the presence of oil on the floor; (b) that no such puddle could have existed; and (c) that Dukes had superior knowledge of the alleged hazard but failed to exercise ordinary care for his own safety. Viewed in a light most favorable to the respondent in a motion for summary judgment, the evidence shows that Randy Dukes was employed by Great Barrier, a subcontractor of Union Camp. Dukes worked at a Union Camp facility insulating pipes inside a paper machine. Dukes wore rubber-soled boots while working. According to Robert Jones, Union Camp’s employee who serves as the assistant superintendent of the paper machine, 15,000 gallons of oil circulate through the machine each day. The paper machine also generates a tremendous amount of steam, resulting in the formation of water puddles on the machine floor. Dukes arrived at the Union Camp site for work at 7:00 a.m. Immediately after receiving his assignment from his foreman, while proceeding to his work area, Dukes noticed a puddle on the floor which he believed to be water. He walked through it and fell. While on the floor, Dukes felt the substance and determined that it was oil rather than water. Dukes did not see any other oil in the area and did not know where the oil came from, but noted that the puddle was located next to an oil pump. While Dukes initially described the oil as light blue in color, he later stated that he could not recall the specific color of the oil. Another Great Barrier employee, William Oliver, was working in the same area on the day of the accident and at approximately 8:00 a.m. noticed an amber-colored oil on the floor. Oliver stated that it was difficult to discern the color and to distinguish the oil from the puddles of water because the floor was dark and dirty. Oliver also noticed Union Camp employees in the area applying “oil dry” to absorb oil in some areas of the floor. (The record is silent as to whether Dukes noticed oil-dry on the day in question or on any other day.) According to Oliver, there was also a problem with oil leaks in the machine the week prior to the accident. Dukes had not worked inside the machine for several weeks prior to the fall. Union Camp presented evidence that a Union Camp employee inspected the area within approximately 15 minutes of the fall but did not detect or report any oil leaks or other dangerous conditions. Union Camp also introduced evidence that it does not use blue oil in its paper production.

To prevail on a motion for summary judgment, the defendant as movant has the burden of proof and must establish the absence of superior knowledge, with all doubts and conflicts in the evidence being resolved in favor of the plaintiff. Rose v. Kennesaw House, 203 Ga. App. 648, 649 (417 SE2d 379) (1992). Union Camp bases its claim that it lacked superior knowledge on evidence that Dukes saw the puddle and chose to walk through it, that there was no problem with oil leaks in the machine, and that Union Camp inspected but found no oil leaks on the day in question.

First, we examine the question of whether Dukes had knowledge of the hazard and whether he assumed the risk of injury by walking through the puddle. It is clear that Dukes noticed a puddle in his path and so had knowledge of some type of potential danger. However, “(m)ere knowledge of the danger of doing a certain act, without a full appreciation of the risk involved, is not sufficient to preclude a plaintiff from recovery, even though there may be added to the knowledge of danger a comprehension of some risk. It is still in most cases a question of fact whether, taking into account all the circumstances, including the knowledge and appreciation as well as every other material condition, the plaintiff is guilty of such negligence as to preclude recovery.” (Citation and punctuation omitted.) Stouffer Corp. v. Henkel, 170 Ga. App. 383, 384 (1) (317 SE2d 222) (1984); see Wade v. Mitchell, 206 Ga. App. 265, 270 (4) (b) (424 SE2d 810) (1992). Dukes did not realize until after he fell that the puddle contained oil. Walking into a puddle of water while wearing rubber-soled work boots may not present the same danger as walking into a puddle of oil. Dukes has alleged a particular hazard, in excess to that normally caused by water on the floor of the job site. A jury could conclude that the alleged hazard of oil on the floor was greater than the general hazard of water on the floor perceived by Dukes. See Flood v. Camp Oil Co., 201 Ga. App. 451, 452 (411 SE2d 348) (1991).

Furthermore, “[t]he doctrine of the assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury.” (Citations, punctuation and emphasis omitted.) Moore v. Svc. Merchandise Co., 200 Ga. App. 463, 464 (408 SE2d 480) (1991). We cannot decide as a matter of law that Dukes had either a full appreciation of the danger involved or that his freedom of choice was unrestricted. Walking through what appears to be a puddle of water while wearing rubber-soled work boots is not obviously perilous. In addition, any construction worker has a certain amount of his freedom of choice restricted by the circumstances under which he works and the coercion of seeking to remain employed. Kitchens v. Winter Co. Builders, 161 Ga. App. 701, 703 (1) (289 SE2d 807) (1982). Dukes testified that there were puddles “all over the place,” and that walking around the puddle would have prevented him from being able to reach the pipes he was responsible for insulating. Dukes also stated that walking around the puddle would have been impossible given the structure of the building, and would have been in direct contravention of his supervisor’s orders not to walk in certain areas of the machine. The question of whether there was a safer route than the one taken by Dukes is one for the jury. See Kitchens, supra. “Only in clear and palpable cases, where it appears that one recklessly tests an observed and clearly obvious peril, or voluntarily assumes a position of imminent danger, will he be barred from recovery as a matter of law; otherwise, the question of what negligence, as well as whose negligence is responsible for the injury is a jury question.” (Citations and punctuation omitted.) Wade, supra. The issue of Dukes’ knowledge of the hazard is not so plain and indisputable that it may be decided as a matter of law.

Secondly, we examine whether Union Camp presented sufficient evidence to show it had neither actual nor superior constructive knowledge of the alleged hazard. Although Union Camp presented testimony that it had no ongoing oil leak problems in the machine, an assistant superintendent at Union Camp testified that its employees are trained to look for oil spills on the floor and to apply “oil dry” immediately. When presented with a photograph of the machine, Union Camp’s witness verified the presence of “oil dry” on the floor. Dukes’ co-worker testified that he noticed oil on the floor the morning of the accident and observed Union Camp employees in the area. He also noticed that oil dry had already been applied in some areas. This evidence presented a jury question on the issue of Union Camp’s knowledge of the dangerous condition. See Geiger v. Brooks Super Market No. 4, 119 Ga. App. 57 (166 SE2d 580) (1969). The trial court did not err in denying Union Camp’s motion for summary judgment.

Judgment affirmed.

Beasley, C. J., McMurray, P. J., Birdsong, P. J., Blackburn and Smith, JJ., concur. Ruffin, J., concurs specially. Pope, P. J., and Andrews, J., dissent.

Ruffin, Judge,

concurring specially.

Water, oil! Oil, water! Color, color! While not in evidence, our common experience teaches us that water and oil do not mix, and that oil in a puddle on a floor takes on different colors in direct relation to how the light is reflected on it. I concur with the majority.

Andrews, Judge,

dissenting.

I respectfully dissent.

Dukes testified on deposition that, while walking through an area of paper machine no. 8 on March 11, 1991, to get to his assigned work area, he approached a puddle of liquid “about the size of the top of a bushel basket” on the floor in his path. He testified that he thought he could walk through the puddle because he thought it was water, so he stepped in it. He testified that when he stepped in the puddle, it turned out to be oil in which he slipped and fell. It is undisputed that water in the area of the paper machine was a normal condition of the job. Dukes does not claim that the presence of water on the floor was a defect in the premises.

Dukes was asked at his deposition given on May 26, 1993 what color the oil was. “Q: What color was the oil? A: A light color. Q: Pardon? A: Light color. Q: Light brown, like oil is? A: No. Q: Blue, black? A: It was more like a light blue. Q: Like a clear blue or a light blue? A: Right. Q: As opposed to black grease? A: No. It wasn’t black grease.”

On January 24, 1994, Dukes gave an affidavit in which he elaborated on and contradicted his deposition testimony. The affidavit states: “[I]n his deposition on May 26, 1993 Affiant originally stated simply that the oil was light in color. He may have been mistaken that the color was light blue but he was sure that the oil was not black grease. The oil appeared clear and this is the information Affiant tried to describe when asked whether it was blue or black. The reason for his mistake between light blue and light brown was the lapse of over two years between the time he fell and his deposition. He does not recall the specific color of the oil, but he does recall that the oil was heavier than the type of oil which would be used to lubricate small hand tools and he does specifically recall that the oil was located next to an oil pump for the paper machine. He felt the oil with his hands after he feel [sic] in it. Affiant recalls that the oil was clear, and whether it was light blue or brownish, it was not dirty oil at the time he fell in it.”

Portions of the affidavit clearly contradict Dukes’ earlier deposition testimony that the oil was light blue. The apparent explanation for the contradiction — that Dukes had a better memory of what the oil looked like in his affidavit given eight months after his deposition — is not reasonable. Under Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), the portions of the affidavit which contradict Dukes’ earlier testimony that the oil he stepped in was light blue, should be construed against him.

Elimination of the contradictory testimony is important for two reasons. First, if the color of the liquid in the puddle was light blue, as Dukes originally testified, he should have been able to see it and distinguish it from a puddle of water on the floor. Dukes gave no explanation as to why he mistook a puddle of light blue oil for a puddle of water. Second, in support of his claim that the oil looked like a puddle of water, Dukes presented an affidavit from a co-worker, who stated that he saw oil in various areas on the floor where Dukes fell, and that the oil was leaking from the paper machine. He further stated that “[t]he oil appeared to be amber in color but the color was difficult to distinguish when it was on the floor because the floor was dark and dirty.” The Union Camp employee in charge of lubrication for the paper machine gave an affidavit stating that: “The lubricating oil used in paper machine no. 8 by Union Camp is brown in color and not light blue as described by Mr. Dukes. No bluish lubricating oil is used by Union Camp in the system of this machine.” By changing his earlier testimony that the oil he stepped in was light blue, Dukes attempted to add evidence that the oil he stepped in: (1) was like the difficult-to-see amber colored oil his co-worker saw leaking from the paper machine, and (2) was consistent with the brown colored oil described in the affidavit of the Union Camp employee that was used in the paper machine. This is precisely the type of contradiction that the rule in Prophecy Corp., supra, was intended to address.

Dukes also attempted to establish that he could not have avoided the puddle because of the requirements of his work. When asked on deposition why he did not simply walk around the puddle, Dukes replied that he could not go in one direction around the puddle because he had been instructed not to walk under the roller section of the paper machine. However, he was then asked if he could have gone the other way around the puddle.

“Q: Well, let me ask you this. When you came upon the puddle, which you thought was water, think with me, you could have certainly gone to the left of the machine out in this area and then gone around the puddle and come right back into the direction you were walking and gone on to where you were working, couldn’t you? A: There wasn’t any sense in doing that if I thought it was water. Q: In other words, you walked through it anyway; is that what you are telling me? A: Previous, before I was there, there was water all over the place. Q: No, that’s not what we are talking about. Let’s get back to what we were discussing. I simply asked you if you could not have walked out in this area and gone around the puddle? A: I probably could have. . . . Q: You agree that you could have avoided the puddle altogether by walking out in this area and coming back into your path had you wanted to? A: If I was working in that area instead of looking to see to my right? Q: If what? A: All my work was on the right. . . . And if I am over here, how am I going to see over here.”

In the above testimony Dukes claimed that he had to walk through the puddle because avoiding it to the left would have prevented him from seeing work he was performing to the right of the puddle when he approached it. However, this claim by Dukes contradicted his earlier deposition testimony that he encountered the puddle on the way to his assigned work area, not while he was performing work. “Q: Now, did you actually start this work before you fell? Did you fall going over there? What happened? A: I had the accident going over there to where I was going. Q: So then you were walking to the area where he gave you your instructions to the area where he wanted this work done? A: Right. . . . Q: Now, how far down the line were you going to go to do your work before you fell? In other words, if you hadn’t fallen, how much farther down in this direction was the work to be done? A: I don’t recall how far down it was. Q: But you know you hadn’t gotten there? A: That’s right. I hadn’t gotten there.”

Since no reasonable explanation was offered for this contradiction, Dukes’ testimony that work he was performing prevented him from avoiding the puddle should be construed against him. Prophecy Corp., supra. In the absence of this contradictory testimony, there was no evidence to support a claim that Dukes was coerced by the circumstances of his employment to walk through the puddle. Compare Kitchens v. Winter Co. Builders, 161 Ga. App. 701, 702-703 (289 SE2d 807) (1982).

Accordingly, the record, absent the contradictory testimony construed against Dukes, shows that he was confronted with a puddle of light blue oil. Dukes did not explain why he thought it was water other than to say that, previously, there had been water all over the place. Instead of taking an available path around the puddle, he freely chose to walk through it and slipped and fell. There was no evidence as to where the light blue oil came from, how it got on the floor, or how long it had been there.

Imposition of liability in this case must be based on evidence that Union Camp had superior actual or constructive knowledge of the puddle of light blue oil. Pound v. Augusta National, 158 Ga. App. 166, 167-168 (279 SE2d 342) (1981). “[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

There is no evidence that Union Camp had any actual knowledge of the puddle of light blue oil. It is undisputed that Union Camp did not use blue colored oil in the paper machine. Other evidence showed that the oil Dukes’ co-worker saw leaking from the paper machine and collecting on the floor was amber or brown in color.

As to constructive knowledge, “[i]n general, there are two classes of cases supporting claims that a defendant had constructive knowledge of a defect. The first class involves a claim that the defendant had a duty to exercise reasonable care to inspect and keep the premises safe and that the defect had existed for a sufficient period of time to afford the defendant a reasonable opportunity to conduct such an inspection and discover and remove the defect. The second class . . . involves a claim that an employee of the defendant was in the immediate area of the hazard and had the means and opportunity to have easily seen and removed the hazard. Banks v. Colonial Stores, 117 Ga. App. 581, 584-585 (161 SE2d 366) (1968); Mitchell v. Food Giant, 176 Ga. App. 705, 708-709 (337 SE2d 353) (1985).” Lonard v. Cooper &c. Properties, 214 Ga. App. 862, 863-864 (449 SE2d 348) (1994).

There was no evidence that any Union Camp employees were in the area on the day Dukes fell and had the means and opportunity to have seen the puddle and removed it. Although Dukes’ co-worker deposed that, prior to the day of Dukes’ fall, he saw a crew of Union Camp employees in the general area cleaning up the oil leaking from the paper machine, he stated in his affidavit that he did not see a clean-up crew in the area on the day Dukes fell.

Any claim that Union Camp had constructive knowledge because of a failure to inspect the premises to keep it safe requires evidence showing the period of time the puddle at issue had been on the floor. Colevins v. Federated Dept. Stores, 213 Ga. App. 49, 51 (443 SE2d 871) (1994). There was no evidence as to how long the puddle of light blue oil of unknown origin had been on the floor, and “[w]ithout such proof it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard.” (Punctuation omitted.) Id. The Union Camp employee in charge of lubrication for the paper machine gave an affidavit stating that he performed daily inspections of the machine for maintenance problems or any kind of spills, and that he did not see the spill at issue during his inspection of the area where Dukes fell at about the time of the fall.

Since there was no evidence that Union Camp had superior actual or constructive knowledge of the light blue puddle of oil in which Dukes slipped and fell, the trial court erred by denying Union Camp’s motion for summary judgment.

Moreover, summary judgment was appropriate in favor of Union Camp in this case for the additional reason that the facts plainly and indisputably show that Dukes had superior knowledge of the puddle of light blue oil and failed to exercise ordinary care for his own safety.

The rule that a plaintiff with equal or superior knowledge of the alleged hazard is barred from recovery is the practical application of the rule that a plaintiff cannot recover if by ordinary care he could have avoided the consequences of the defendant’s negligence. OCGA § 51-11-7; O’Steen v. Rheem Mfg. Co., 194 Ga. App. 240, 242 (390 SE2d 248) (1990); Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (422 SE2d 305) (1992). “[An invitee] must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the [proprietor’s] negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citations and punctuation omitted.) Alterman Foods, supra at 623.

Decided March 15, 1995

Reconsideration denied March 30, 1995

Bouhan, Williams & Levy, Frank W. Seiler, Peter D. Muller, Charles V. Loncon, for appellant.

Eugene C. Brooks IV, for appellee.

Dukes testified that he stepped in the puddle because he thought it was water. By his own description, the puddle was actually composed of light blue oil. Dukes gave no explanation as to why he was unable to distinguish a puddle of light blue oil from a puddle of water. Dukes may not have known the puddle was oil before he stepped in it, but he knew or should have known that it was not like the water he commonly stepped through on the job. Even though he could have walked around the puddle, and even though he was aware of the normal risk of slipping in the wet conditions of the paper machine area, Dukes took the additional risk of stepping into the puddle of light blue colored liquid. In the absence of evidence to the contrary, there is a presumption that Dukes is a person possessing ordinary intelligence to whom the additional risk of slipping attendant to stepping in a puddle of light blue liquid under these circumstances would be obvious. By choosing to walk in a puddle of colored liquid in the midst of the otherwise wet slippery conditions, Dukes assumed the risks incident thereto and was guilty of such lack of ordinary care for his own safety that he cannot recover. See Bloch v. Herman’s Sporting Goods, 208 Ga. App. 280, 281 (430 SE2d 86) (1993).

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