text:
    77628, 77629.
    BLAIR v. GEORGIA BAPTIST CHILDREN’S HOME & FAMILY MINISTRIES, INC.; and vice versa.
    (377 SE2d 21)
   Birdsong, Chief Judge.

Appellants Margaret M. Blair (administratrix of the estate of Margaret E. Chastain) and her decedent’s children, bring this appeal from the grant of summary judgment to appellee, the Georgia Baptist Children’s Home and Family Services (Children’s Home). Ms. Chastain was employed by the Children’s Home as a group leader and perished in a fire which took place in a residential building that formed part of the facilities of the Children’s Home. “Group leaders staying overnight at residences provided by the Georgia Baptist Children’s Home are subject to call while staying in such residence to answer any emergencies which may arise at the facility.” At the time of her death, Ms. Chastain was not “on duty” but was “subject to call.” The workers’ compensation insurance carrier for the Children’s Home issued a check to the funeral home for partial payment of Ms. Chastain’s funeral expenses. An employee of the Children’s Home’s workers’ compensation insurance carrier stated that Ms. Blair “acquiesced” in the payment of this workers’ compensation benefit.

A tort action was filed and service made upon the person designated by the Office of the Secretary of State as the agent for appellee. No answer was made and appellants took a partial default judgment as to liability and eventually a final judgment in the amount of $200,000. After filing judgment and garnishment, it was determined that the Secretary of State’s office had made a mistake as to the registered agent and appellee’s motion to set aside the judgment for lack of service was granted. A second tort action was filed in Richmond County and service made upon the correct agent for appellee. Appellee’s defense of improper venue was filed and appellant’s motion to transfer this action to DeKalb County was granted. Appellees defended, inter alia, on claims of the running of the statute of limitations and that the action was barred by the Workers’ Compensation Act.

Appellee filed a motion to dismiss, or in the alternative for summary judgment, on three grounds: (I) this tort action was barred by OCGA § 34-9-11 which provides that an employee’s rights under the Workers’ Compensation Act provide the exclusive remedy, (2) that appellants are estopped to bring a tort action because of the acceptance of workers’ compensation benefits paid to the funeral home, and (3) this action is barred by the running of the statute of limitations. The trial court granted appellee’s motion for summary judgment on the basis that Ms. Chastain’s death was compensable pursuant to the workers’ compensation act and OCGA § 34-9-11 precluded the filing of this action. The appellee’s motion for summary judgment on the remaining grounds was denied. Appellants appeal from the grant of summary judgment to appellee and the appellee cross-appeals from the denial of their motion for summary judgment on the basis of estoppel. Held:

Main Appeal No. 77268

1. At issue is whether Ms. Chastain’s death was compensable under the Workers’ Compensation Act. We hold that it was and affirm the trial court’s grant of summary judgment to appellee. To be compensable under workers’ compensation, an injury or death of an employee must be one “arising out of’ and “in the course of’ the employment. OCGA § 34-9-1 (4). These two terms are not synonymous. State Dept. of Labor v. Yates, 131 Ga. App. 71, 72 (205 SE2d 36). An injury or death “ ‘ “arises out of employment” when it is apparent to the rational mind, upon consideration of all the circumstances, that there is a causal connection between the conditions under which the work is required to be performed and the resulting injury.’ ” Id. “In the course of” employment “refers to time, place and circumstances under which the accident took place. ...” Id.

Appellant contends that whether decedent’s death arose out of and in the course of her employment is a mixed question of fact and law and should have been submitted to a jury. Appellant is correct, up to a point. “ ‘The issue of whether an injury arises out of and in the course of employment... is a mixed question of fact and law.’ ” Knight v. Gonzalez, 181 Ga. App. 468, 469 (352 SE2d 646); accord Utz v. Powell, 160 Ga. App. 888, 889 (288 SE2d 601). However, disputes as to immaterial facts do not preclude summary judgment. Murphy v. Bank of Dahlonega, 151 Ga. App. 264, 265 (2) (259 SE2d 670); Wood v. Metro. Atlanta Girls’ Club, 141 Ga. App. 473, 474 (2) (233 SE2d 862). “The summary judgment law does not require the defendant to show that no issue of fact remains, but rather tha[t] no genuine issue of material facts remains [cit.]; and while there may be some ‘shadowy semblance of an issue’ [cit.], the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.” (Emphasis deleted.) McCray v. Hunter, 157 Ga. App. 509, 511-512 (277 SE2d 795); accord Evans v. Bibb Co., 178 Ga. App. 139 (1) (342 SE2d 484); Southern Trust Ins. Co. v. Braner, 169 Ga. App. 567, 569 (314 SE2d 241); see also Chelena v. Ga. Fed. &c. Assn., 256 Ga. 336, 337 (349 SE2d 180). Where the material facts are undisputed, as here, and there remains no genuine issue as to any material fact, the moving party can be entitled to judgment as a matter of law. Miles v. Brown Transport Corp., 163 Ga. App. 563, 564-565 (294 SE2d 734); Lewis Wood Preserving Co. v. Jones, 110 Ga. App. 689, 691 (140 SE2d 113).

2. There is no dispute as to the fact that Ms. Chastain resided in a residence in a building furnished her by the Children’s Home, and that she was not “on duty” at the time of the fire, but was “subject to call” in the event her employer determined there was an emergency which required her presence. This was “free time” for her, unless she was needed. The words “in the course of employment” relate to the time, place, and circumstances under which the incident takes place, and if the incident occurs within the period of employment, at a place where the employee may reasonably be in the performance of her duties or engaged in doing something incidental thereto, the employee is within “the course of employment.” Barge v. City of College Park, 148 Ga. App. 480, 481 (251 SE2d 580). We have not been cited nor have we found any cases involving the facts of this case where an employee remains on the premises, not on duty, and is not per se actively involved in the performance of her normal duties, but is “on call” if needed for performance of her duties. But, it is well-settled law in this state that where a “rest break” or “lunch break” is provided to an employee, during which time the employee is free to use the time as he chooses, making it personal to him, an injury occurring during the break period arises out of personal pursuit and not out of the employment and is not compensable. Edwards v. Liberty Mut. Ins. Co., 130 Ga. App. 23, 24 (202 SE2d 208).

We have cases in which an employee is on a break, although not regularly scheduled, but remains “on call” and is injured on the premises. In Twin City Fire Ins. Co. v. Graham, 139 Ga. App. 318, 319 (228 SE2d 355), when a nurse taking such a break when activities were slack and was “subject to being called to the operating room at any time,” we held that the evidence supported a workers’ compensation award for an injury incurred during the break. Again, in Miles v. Brown Transport Corp., supra, we discussed an injury occurring during a break which was not regularly scheduled, but claimant was “free to act as she chooses” and stated that where “two facts concurrently exist, i.e. ‘regularly scheduled’ and ‘freedom of action,’ the injury does not arise out of and is not in the course of employment even though within working hours and on the employer’s premises. [Cit.] Freedom of action alone is not enough to remove the mantle of workers’ compensation from the employee nor absolve the employer from liability under the Workers’ Compensation Act. The employer must show both [1] the injury occurred during a scheduled break and [2] the employee has full control of personal actions during the break time.” (Emphasis supplied.) Miles, supra at 564. But, Miles often did work during her break period and performed job-related duties during the lunch break. We held: “This too constitutes some evidence demanded of the employer that the employee’s time was not wholly free and was without the untrammelled choice of the employee required on all occasions to show a scheduled free break time.” (Emphasis supplied.) Id. at 564.

Here the employee was “off duty” during a “break period” — albeit it was an overnight “break period” in which she was free to do as she wished. But, by agreement, and as a condition of her employment, if she remained in the residence on her employer’s premises, which was provided the employee by the employer, she was subject to the control of the employer and could be required to perform duties of her employment if the need arose. Hence, “the employee’s time was not wholly free” of her employer’s control at the time of the fire when she was on the employer’s premises. See Miles, supra at 564.

One other factor bears on our decision. One exception to the general rule of lack of coverage for an employee who is “off duty” and is free to do as he or she pleases, is an employee, who by the nature of employment is considered to be “continuously employed.” See Heirs & Potter, Ga. Workers’ Compensation 84, § 5-19. These employees are not at work, are on their own time, but are “on call” in a locale which is dictated by the nature of their employment. Some persons within this category, but by no means inclusive of all persons, are traveling salesmen, policemen, firemen, bus drivers, railroad and aviation employees. Early cases were reluctant to place the cloak of protection of workers’ compensation benefits around employees away from home or the employer’s premises, even though the locale in which injury or death occurred was required by the nature of their employment. See Hartford Accident &c. Co. v. Thornton, 71 Ga. App. 486 (31 SE2d 115). However, recent cases have been more liberal. Thus, in Barge v. City of College Park, supra, we found a police officer who was “on call” 24 hours per day, came under “the rule of continuous employment” and was covered by workers’ compensation even though he was off duty. In another case, an employee of the State Highway Department, whose work necessitated him staying in Dalton, Georgia, away from his home, was found to be “in continuous employment, day and night” and covered by workers’ compensation when he “was expected to make himself available to the home interviewers under his supervision to answer questions that might arise during their hours of work after 5:00 p.m.” McDonald v. State Hwy. Dept., 127 Ga. App. 171 (192 SE2d 919). See also General Fire &c. Co. v. Bellflower, 123 Ga. App. 864 (182 SE2d 678) (bus driver “on call” in city away from home).

Perhaps the most persuasive case is Thornton v. Hartford Accident &c. Co., 198 Ga. 786 (32 SE2d 816), in which a traveling salesman was away from his home in a distant city and was injured while returning to his hotel from a restaurant. He subsequently died from his injury. It was held that “ ‘[a]n accident arises “out of” the employment when it arises because of it, as when the employment is a contributing proximate cause.’ ” Id. at 787. “While lodging in a hotel or preparing to eat, or while going to or returning from a meal, he is performing an act incident to his employment, unless he steps aside from his employment for personal reasons. Such an employee is in continuous employment, day and night.” (Emphasis supplied.) Id. at 790. The court refused to agree with appellee’s argument that an employee “is no longer in the course of his employment when his usual duties for the day are completed.” Id. at 791. But, it was found that the employee’s injuries did “arise ‘out of’ the employment” because of the “causal connection between the conditions under which the employee worked and the injury which he received. The causative danger . . . [was] incidental to the character of the employment, and not independent of the relation of master and servant. The accident . . . [was] one resulting from a risk reasonably incident to the employment. And a risk is incident to the employment when it belongs to, or is connected with, what a workman has to do in fulfilling his contract of service.” Id. at 792-793. In the instant appeal, Ms. Chastain’s duties were not completed when the usual hours for work had passed, but as long as she remained on the premises and in her residence she was subject to call at any time. The risk was incident to her employment because she was fulfilling a part of her duties when she was involved in the fire. See Free v. McEver, 79 Ga. App. 831 (54 SE2d 372).

Decided November 29, 1988 —

Rehearing denied December 8, 1988

George P. Graves, E. Graydon Shuford, for appellant.

Harman, Owen, Saunders & Sweeney, Michael W. McElroy, Craig A. Nance, for appellee.

Accordingly, we concur with the trial court that Ms. Chastain’s death was compensable under the workers’ compensation act and this action is barred by OCGA § 34-9-11.

Cross-Appeal No. 77629

3. Because we affirm the grant of summary judgment for appellee, the cross-appeal is moot.

Judgment affirmed in Case No. 77628.

Appeal dismissed in Case No. 77629. Banke, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    76800.
    PEEK et al. v. THE STATE.
    (377 SE2d 8)
   McMurray, Presiding Judge.

On March 17,1987,13 individuals, the defendants in the case sub judice, were each charged by successively numbered accusations with the offense of theft by taking (unlawfully taking money which was the property of United Parking, Inc., with the intention of depriving the owner of said property, a misdemeanor). On May 19, 1987, each defendant filed a motion seeking an order of the state court allowing all motions filed by any of the 13 defendants to be adopted as motions and pleadings by and on behalf of all 13 defendants. The record fails to disclose any court order specifically allowing such adoption of all motions. Also, on May 19, 1987, defendant Peek (whose accusation was numerically the first of the sequence of 13 accusation numbers) filed 18 additional motions and demands. Among the additional motions and demands filed by defendant Peek, under the number of the accusation filed against her, was a demand to be tried within the next succeeding term of court.

On November 2, 1987, each of the defendants filed a joint motion for acquittal predicated upon OCGA § 17-7-170 and the fact that they had not been brought to trial. (Three terms had passed since May 19, 1987 — May-June, July-August, September-October, 1987.)

Following a hearing on defendants’ motion to acquit, the state court found “that the thirteen Defendants [met] all the requirements of acquittal with one exception,” but denied defendants’ motion on the sole ground that the filing of nineteen (19) motions for each of thirteen (13) Defendants was an affirmative act which waived their right to a speedy trial.” All 13 defendants appeal from the denial of their motions to acquit. Held:

In reaching its decision to deny defendants’ motion to acquit the state court explicitly relied upon and apparently misread our decision in State v. McNeil, 176 Ga. App. 323 (335 SE2d 728). In McNeil we quoted from a previous case as follows: “ ‘(B)y filing a motion to suppress, a defendant effectively consents to a delay of his trial pending final resolution of the issue of evidentiary admissibility, if the motion is granted and the State elects to have that appellate determination made. (Emphasis supplied.) State v. Waters, 170 Ga. App. 505, 508 (317 SE2d 614) (1984).’ ” State v. McNeil, 176 Ga. App. 323, 326, supra. We did not suggest in McNeil by the quoted language or any other statement in that case, that the filing by a defendant of pretrial motions was a consent or other affirmative act amounting to waiver of a demand for trial in the next succeeding term of court under OCGA § 17-7-170. As the language emphasized in the quote indicates, our reference was limited to those circumstances where “the motion is granted and the State elects to have [an] appellate determination made.” This principle is inapplicable to the case sub judice since no appeals have arisen from rulings adverse to the State made on defendants’ motions and consequently there was no delay attributable to waiting for an appellate determination.

The state court’s reliance upon State v. McNeil, 176 Ga. App. 323, supra, was misplaced. Nor do the facts and circumstances of the case sub judice reflect an affirmative act amounting to a waiver of OCGA § 17-7-170.

The prosecutor argues that the state court was correct in denying defendants’ motions for acquittal since defendants failed to make a proper demand under OCGA § 17-7-170. This contention is predicated upon the fact that the other 12 defendants (defendant Peek having filed the specific motions and demands hereinbefore mentioned) filed only a “Motion to Adopt all Motions and Pleadings in Companion Cases,” which the prosecutor contends did not amount to the demand required by OCGA § 17-7-170.

“The purpose of [OCGA § 17-7-170] is to aid and implement both the common-law right to a speedy trial existing in Georgia since prior to 1861 and the provision of the State’s constitution which declares that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. Underhill v. State, 129 Ga. App. 65 (198 SE2d 703); Reid v. State, 116 Ga. App. 640 (158 SE2d 461).” Ferris v. State, 172 Ga. App. 729, 730 (1) (324 SE2d 762).

The issue to be addressed is whether, within the contemplation of OCGA § 17-7-170 and relevant case law, any of the 13 defendants’ pleadings were a sufficient demand to trigger the provisions of OCGA § 17-7-170 (b) and invoke the terminal sanctions of that subsection. OCGA § 17-7-170 (b) provides in pertinent part that “[i]f the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.”

In State v. Adamczyk, 162 Ga. App. 288 (290 SE2d 149) (1982) at 289, we held “that henceforth a demand for trial will not be considered sufficient to invoke the extreme sanction of Code § 27-1901 [now OCGA § 17-7-170] unless it is presented for what it is — a demand to be tried within the next succeeding term of court.”

Under the particular facts and circumstances of the case sub judice, we hold that defendant Peek’s demand for speedy trial was sufficient to invoke the extreme sanction of acquittal as provided in OCGA § 17-7-170. Consequently, the trial court erred in denying defendant Peek’s motion to acquit. In the pleadings filed by each of the other 12 defendants styled “Motion to Adopt All Motions and Pleadings in Companion Cases,” each moved for a court order allowing such adoption of all motions filed in companion cases. The record fails to disclose any court order specifically allowing such adoption of all motions.

We further hold that in view of the numerous defendants and of the possibility of terminal sanctions resulting from the filing of a demand for trial and particularly in the absence of the permission of the trial court, by appropriate order, such “[Motions] to Adopt All Motions and Pleadings in Companion Cases” filed by each of the other 12 defendants (not including defendant Peek) were insufficient to invoke the extreme sanction of acquittal as to each of these 12 defendants. Although the trial court denied each of these 12 defendants’ motion to acquit in reliance upon an apparent misreading of our decision in State v. McNeil, 176 Ga. App. 323, supra, the trial court did not err in the denial of each of these 12 defendants’ motion to acquit.

Decided November 2, 1988 —

Rehearing denied December 9, 1988

Louis K. Polonsky, Jane E. Strell, for appellants.

James L. Webb, Solicitor, Norman Miller, Carmen Smith, Assistant Solicitors, for appellee.

Judgment affirmed in part and reversed in part.

Pope and Ben-ham, JJ., concur.


author: Carley, Judge. Banke, Presiding Judge, Beasley, Judge,

text:
    76630.
    MILLER v. THE STATE.
    (376 SE2d 901)
   Carley, Judge.

Appellant was tried before a jury and convicted of child molestation and aggravated sodomy. Appellant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts.

1. The trial court allowed appellant to examine the notes which a witness for the State had used to refresh his recollection while he was on the stand. The trial court refused, however, to allow appellant to examine any other notes which the witness may have reviewed prior to his being called to the stand. This ruling is enumerated as error.

In Baxter v. State, 254 Ga. 538, 548 (18) (331 SE2d 561) (1985), our Supreme Court held “that a defendant in a criminal case has the right, upon request, to examine a document used by a witness to refresh his recollection. [Cits.]” Appellant urges that this right extends to any and all materials which were reviewed by a witness in preparation for his testimony at the trial and is not limited to only those materials which were reviewed by a witness to refresh his recollection while actually on the stand. There is explicit authority for the proposition advanced by appellant. In Caviness v. State, 180 Ga. App. 792, 793 (3) (350 SE2d 813) (1986), this court held that “because we can discern no logical basis for distinguishing between notes used by a witness to refresh his or her recollection while actually on the witness stand and notes reviewed for that purpose immediately prior to trial, we hold that the trial court erred in refusing to allow the appellant’s counsel to examine the report in question in the present case.” (Emphasis supplied.) There is, however, also implicit authority for the contrary proposition. Our Supreme Court has indicated that where it “does not appear that the witness was using these notes during the trial to refresh his recollection. . . . Baxter is inapposite.” (Emphasis supplied.) Catchings v. State, 256 Ga. 241, 247 (9) (347 SE2d 572) (1986). Accordingly, resolution of the merits of appellant’s enumeration of error requires that we undertake a reconsideration of our explicit holding in Caviness in light of the implicit holding of the Supreme Court in Catchings.

As previously noted, the reason given in Caviness for its broad holding was an inability to discern a logical basis for distinguishing between the right to an examination of notes used to refresh the recollection of a witness for the State immediately prior to trial and the right to an examination of notes which were used for that purpose during the trial itself. Upon reconsideration, however, we find that a logical basis for making such a distinction does exist. The obvious rationale which underlies the holding in Baxter v. State, supra at 548 (18), is that the defendant in a criminal case is to be afforded the right to a thorough and sifting cross-examination concerning the credibility of the assertion by a witness for the State that certain materials had served the purpose of refreshing his recollection. See Williams v. State, 250 Ga. 664, 667 (300 SE2d 685) (1983) (Special concurrence of Weltner, J., and dissent of Hill, C. J., which were cited with approval in Baxter v. State, supra at 548 (18)). This right is preserved by affording the defendant in a criminal case the limited opportunity to examine only those specific materials upon which the witness for the State has based his assertion of a refreshed recollection. To extend that right to encompass any and all other materials which a witness for the State may have reviewed at some indefinite point in time prior to his actually being called to testify would not result in an extension of the right to a thorough and sifting cross-examination as to a relevant topic. The only relevant inquiry is the credibility of the witness’ assertion of a refreshed recollection as the basis for his testimony at trial, not the credibility of the witness’ trial testimony for which no such assertion of a refreshed recollection is advanced.

An extension of the right to encompass such materials as the witness may have reviewed out-of-court would result in an unwarranted and potentially unworkable extension of the permissible scope of discovery in criminal cases beyond its presently limited statutory bounds. Any and all materials which had been reviewed by a State’s witness in preparation for trial would be “discoverable” at trial by the defendant, notwithstanding the absence of any statutory authorization for such discovery. Every cross-examination of a witness for the State would become a potential “fishing” expedition, wherein the defendant could seek access to any and all materials which the witness may have seen prior to and in preparation for trial. Trial courts would be required to interrupt criminal trials to conduct a series of hearings to determine exactly what materials each witness for the State may or may not have reviewed in advance of the trial. It is undoubtedly for these reasons that the majority of jurisdictions allow only a limited rather than a broad right of access to materials which are available for a witness’ review. “Although there is some authority to the contrary, it is generally held that opposing counsel is not entitled to examine a writing which the witness used to refresh his recollection prior to his examination, where he was able to testify from independent recollection after so refreshing his memory.” 98 CJS, Witnesses, § 362, p. 101. See also 81 AmJur2d, Witnesses, § 460, p. 469; Cleary, McCormick’s Handbook of the Law of Evidence, § 9 (3d ed. 1984); Torcia, Wharton’s Criminal Evidence, § 388 (14th ed. 1986).

Accordingly, we construe the decision in Catchings as an implicit recognition by our Supreme Court that Georgia is among those states which follow the majority rule: The defendant in a criminal case is entitled to examine all materials which are used by a witness for the State to testify from recollection refreshed during the trial itself, but he is not entitled to examine any and all such documents as may have been reviewed by the witness prior to trial, without regard to whether ' the out-of-court review was conducted “immediately” prior to trial or at some earlier time. To the extent that Caviness v. State, supra, is in conflict with Catchings v. State, supra, as thus interpreted, it is hereby overruled. It necessarily follows that the trial court did not err . in not allowing appellant access to notes reviewed by the witness before he began his testimony.

2. The State called Dr. Michael Campion, a clinical psychologist, as an expert witness. During Dr. Campion’s direct examination, the. State asked if he had “developed] an opinion as to whether or not [the child] had been molested by [appellant]?” Appellant immediately objected on the ground that the question sought to elicit such opinion testimony from Dr. Campion as would oust “the jury of the ultimate determination of the facts of this case.” The jury was removed from the courtroom and an extensive colloquy between counsel and the trial court ensued. The trial court eventually concluded that it would allow the State to ask Dr. Campion two rephrased questions: Whether he was of the opinion that the child had been “sexually involved”; and, if it was his opinion that she had been, whether he had a further opinion regarding appellant’s connection therewith. In response to the trial court’s ruling, appellant stated that he “would object to the second question.” The jury returned and Dr. Campion was asked the first of the two questions which the trial court had allowed: “Do you have an opinion as to whether or not [the child] has been sexually involved in any way?” When he responded that he had, he was then asked to give his opinion in that regard. Dr. Campion not only responded to that question, but he also anticipated the State’s next inquiry. He testified: “I believe there was a sexual involvement between [the child and appellant] on more than one (1) occasion from a period of her first grade up until and including the fourth grade.” At that point, appellant stated “[f]or the record [that he was] renew[ing] [his] motion — renewing] [his] objection.” On appeal, appellant enumerates the admission' of Dr. Campion’s opinion testimony as error.

We need not decide whether it would have been error for the trial court to confine the State’s inquiry merely to Dr. Campion’s opinion concerning the child’s “sexual involvement.” See State v. Butler, 256 Ga. 448 (349 SE2d 684) (1986) (holding that it was not error to allow an expert to give her opinion that the child had been molested); Allison v. State, 256 Ga. 851 (353 SE2d 805) (1987) (holding that it was error to allow an expert to give his opinion that the child had been molested). By allowing the State to propound and Dr. Campion to respond to both inquiries, the trial court erroneously allowed the State to elicit what was, in effect, Dr. Campion’s opinion that appellant was guilty of child molestation. If the child had been “sexually involved” with appellant, then appellant was guilty of sexually molesting the less than fourteen-year-old child. It has long been the law of this state that such opinion testimony is inadmissible. See Allen v. State, 9 Ga. 492 (1) (1851); Woolfolk v. State, 81 Ga. 551, 556 (2) (8 SE 724) (1889); Tiller v. State, 96 Ga. 430, 433 (3) (23 SE 825) (1895). Dr. Campion’s testimony “was clearly inadmissible. It amounted to nothing more than the opinion of the witness as to the [appellant’s] guilt. It was just as inadmissible as it would have been if he had been asked his opinion as to whether the [appellant] was guilty or not.” Woolfolk v. State, supra at 556 (2). The guilt or innocence of appellant was clearly the ultimate issue in the case and, as a matter of law, that issue was certainly not beyond the ken of the jurors whose sole and exclusive function it was to make that determination. “While it would have been entirely proper to permit [Dr. Campion] to testify to relevant facts within his knowledge [and expertise], it was for the jury, and not for him, to say what conclusions should be drawn from the same.” Tiller v. State, supra at 433 (3).

It is clear that appellant preserved the right to enumerate as error on appeal the admission of Dr. Campion’s opinion testimony. See generally Woolfolk v. State, supra at 556 (2). Appellant raised a viable objection to the original question posited to Dr. Campion as an invasion of the province of the jury. When, after the colloquy, the trial court ruled that it would allow the rephrased questions to be asked, appellant indicated his continued objection to the second of the rephrased questions. Immediately upon Dr. Campion’s giving of the inadmissible testimony in the presence of the jury, appellant renewed his objection for the record. Under these circumstances, it would be a misstatement of the record to suggest that appellant failed to preserve his right to enumerate the admission of Dr. Campion’s testimony as error on appeal. Compare Boatner v. Kandul, 180 Ga. App. 234 (3) (348 SE2d 753) (1986); Glisson v. State, 165 Ga. App. 342, 343 (5) (301 SE2d 62) (1983); Jackson v. State, 146 Ga. App. 736 (1) (247 SE2d 512) (1978). Accordingly, we hold that the trial court erred in allowing the erroneous opinion testimony of Dr. Campion into evidence over appellant’s objection. “No evidence can be admitted against him, that is not legal, according to the rules of evidence, as they obtain in other cases on the criminal side of the Court. The opinion of [Dr. Campion], that [appellant] is guilty of the offense charged, is clearly illegal evidence, and ought not to be admitted.” (Emphasis in original.) Allen v. State, supra at 494 (1).

3. Appellant further enumerates as error certain other portions of the testimony of Dr. Campion and portions of the testimony of two other expert witnesses called by the State. We have reviewed each instance cited by appellant as error. In some instances, there was a failure to preserve the right to enumerate the testimony as error on appeal. In other instances, the objection which was raised below differs from that asserted by appellant in his enumeration of error on appeal. Accordingly, the enumeration of the admission of these other instances of expert testimony presents nothing for review.

4. Appellant’s remaining enumerations need not be addressed, as the issues raised therein are not likely to recur on retrial. See generally Guilford v. State, 258 Ga. 253 (2) (368 SE2d 116) (1988).

Judgment reversed.

Birdsong, C. J., Deen, P. J., Sognier, Pope and Benham, JJ., concur. Banke, P. J., concurs specially. McMurray, P. J., and Beasley, J., concur in part and dissent in part.

Banke, Presiding Judge,

concurring specially.

I agree with all that is said in Divisions 2, 3, and 4 of the majority opinion. I also agree with the holding in Division 1 that the appellant was not entitled to examine the materials which had been reviewed by one of the state’s expert witnesses prior to his taking the stand. However, for what it is worth, I disagree with the majority’s evident conclusion that Caviness v. State, 180 Ga. App. 792 (3) (350 SE2d 813) (1986), would have mandated a different result.

The majority reads Caviness as having held that a criminal defendant has the right to review “any and all . . . materials which a witness for the State may have reviewed at some indefinite point in time prior to his actually being called to testify. . . .” There is no such language in that decision. In fact, Caviness merely held that a defendant was entitled to see notes made by a police witness regarding the content of his (the defendant’s) in-custody statement, where the witness had reviewed those notes “immediately prior to trial” to refresh her recollection. Id. at 793. (Emphasis supplied.) Normally, of course, notes used by a witness to refresh his recollection immediately prior to trial would either be in the courtroom itself or close enough to it to be readily available. I can find no holding nor any implication in Caviness that a defendant is entitled to discover “any and all. . . materials which a witness for the State may have reviewed at some indefinite point in time prior to his actually being called to testify.”

Nevertheless, regardless of how broadly or restrictively Division 3 of Caviness is construed, I agree that it cannot be reconciled with Division 9 of the Supreme Court’s decision in Catchings v. State, 256 Ga. 241 (347 SE2d 572) (1986), holding that the right to review notes utilized by a prosecution witness to refresh his recollection extends only to notes used for that purpose “during the trial.” Consequently, I agree that, to the extent of this inconsistency, Caviness must be overruled.

Beasley, Judge,

concurring in part and dissenting in part.

1. I concur in Division 1 of the majority opinion.

2. I respectfully dissent as to part of Division 2, which addresses the enumeration that the court erred “when it permitted, over repeated objection, prosecution witnesses to give their opinions that the victim had been sexually abused.”

The portion with which I cannot concur relates to Dr. Campion’s testimony: “I believe there was a sexual involvement between her and her stepfather on more than one occasion from a period of her first grade up until and including the fourth grade.” The majority holds that in allowing this testimony, the court erred because the expert gave his opinion on the ultimate issue in the case, i.e., defendant’s guilt or innocence of the charged crime of molesting his stepdaughter in a specific way and with a specific intent.

Defendant’s counsel expressly did not have objection to the question whether the expert had an opinion as to whether or not the child had been “sexually involved.” During argument before the trial court, a distinction had been made between that word description and “molested,” which defendant contended called for an opinion as to whether defendant had committed a crime. The trial court had accepted the defendant’s argument that the use of “molested” invaded the jury’s province, because one of the charges was “child molestation.” So the substitute words were used.

The question, then, is whether Dr. Campion was legally permitted to testify that, based on his professional training and experience and application thereof in interviewing, testing, and evaluating the child, it was his opinion that the child had experienced sexual involvement with her stepfather. The trial court allowed this identification because identity of the person was part of the objective of the professional examination and an inextricable part of the professional conclusion reached by the application of professional means.

The trial court was correct. “The opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” OCGA § 24-9-67.

Dr. Campion’s opinion that there had been a sexual involvement between the child and her stepfather was based on psychological testing and professionally structured interviews from which a layman could not knowledgably draw conclusions insofar as their results and the interpretations thereof are concerned.

Dr. Campion gave a detailed account and explanation of the basis for his opinion and how it was arrived at, with no objection as the methods and tests were described and what the child told him was repeated. To ask the jury to step into the shoes of this expert to analyze the results of the tests and the interviews and the demeanor of the child during these would require the jurors to apply the same expert training and experience, which they did not have, to reach the conclusions of fact which the expert reached. Just because the objective of the interviews and tests was to ascertain whether the child had been sexually abused by the person she identified, and this depended on whether the expert found verity in the child’s statements, does not detract from the fact that this was a question where “skill” and “science,” in the words of the statute, were employed. The expert offered “a method of proving the fact” which was beyond the average layman’s comprehension in the testing context. Cf. Williams v. State, 254 Ga. 508, 511 (330 SE2d 353) 1985.

Even if the strictly opinion testimony had been excluded, it is perfectly clear that the opinion of this witness, as well as two other expert witnesses, was that the child had been sexually involved with Mr. Miller. The whole tenor of their testimony showed that. Each acted on the information received from the child in a manner consistent only with the belief that sexual abuse had occurred as she claimed. Each dealt with the child as a victim of sexual abuse.

It remained with the jury to determine ultimately whether defendant did in fact commit acts of child molestation and aggravated sodomy as explicitly charged in the indictment. State v. Butler, 256 Ga. 448 (349 SE2d 684) (1986). The jurors were free to reject the opinions of the expert, as the court charged. The defendant was free to attack the expert’s methods of deducing his opinion, which was a professional opinion arrived at on the basis of training and experience and which was not binding on the jury. “[T]he opinion was one of fact, and was not inadmissible as a legal conclusion ... or a conclusion constituting. a mixture of law and fact ...” State v. Butler, supra at 450.

Were the majority and concurring opinions correct, the testimony of an expert such as the psychologist in particular could never be utilized in child molestation cases, because to allow the psychologist to describe all the tests administered and the course of the scientifically-devised interview without the psychologist’s analysis would require an untrained jury to make that analysis itself. Better it is for the expert to give the results which he has reached, let them be attacked by a thorough and sifting cross-examination, and leave to the jury the acceptance or rejection of such results upon an application of the rules relating to evidence as given in charge.

Moreover, it was abundantly clear from other unobjected-to testimony that Dr. Campion had concluded that the identity of the person with whom the child experienced sexual involvement was her stepfather. At the outset of his testimony he stated that the purpose of his evaluation of the child was to give his impressions with regards to allegations of sexual abuse from her stepfather. He examined the child at the request of her mother, her mother’s attorney, her father’s attorney, and a judge. He described in great detail the method of interview, the reasons for certain approaches, the tests given plus their results and meanings, and the statements made and behavior exhibited by the child. This was not objected to.

In the test in which she was asked to draw a family tree, he stated: “The family constellation was that she did not include her stepfather as part of her bonding process and that she included her natural father, . . . she did not include her stepfather in that picture. The purpose of that is to attempt to establish the bonding process, who she sees as the individuals in her life that are significant to her in terms of important relationships.”

He conducted tests on other family members which excluded them.

In explaining that portion of the interview of the child on the subject of sex abuse, Dr. Campion testified that: “I open up with questions that I would hope would not be leading. The kind of questions I ask are, ‘How do you get along with your stepfather,’ and ‘Is there anything that’s ever happened between you and your stepfather that concerns you’ — that type of question. With [child’s name] the rapport was established rather quickly and she was able to respond that there had been something that happened between her and her stepfather that wasn’t right, and she began to relate an incident that occurred earlier in the summer; I believe it was in June, approximately that, sometime around that time in 1986; and we began from that point, then.”

In explaining the interview process which is conducted by the professional as part of his attempt to verify or discredit the child’s story, he described some of the checks and balances used to validate it, such as the asking of professionally developed questions which would elicit answers “that a child would not be able to fabricate.”

He described the three areas he wanted “to check out rather quickly,” this being a “sexual abuse” case: “Number one, did this occur with the alleged perpetrator, or did it occur with some other child; was this a part of the sexual play with some child. Is this a result of watching an X-rated movie or late-night HBO or something. Is this a result of seeing some dirty magazine or whatever. I want — or, in number three I want to make sure, is this something that happened to the child or is this something that a vengeful parent brain-washed the child into saying.”

After further explication along this line, Dr. Campion testified: “In my opinion, to summarize that, I do not believe that her story is a result of confusion with somebody else, some other age mate or someone else; I don’t believe that it was a result of watching TV or reading some pornographic literature, nor do I believe that she was, quotes, brain washed into saying this. I think this is a spontaneous answer — a spontaneous relating of an event that happened.” He then was asked, and talked about, cases in which the children’s stories were found to be false, relating how falsity is detected.

In the effort to ferret out falsity, he described giving the child in this case the task of drawing her family. He explained: “they will draw who they consider to be their family and they’ll put in that picture who they’re bonded towards. Now, that’s just part of a lot of things we look at in the pictures, but in this case, that’s significant. If [child’s name] would have included her stepfather in the pictures as somebody who is — as somebody she’s bonded to, it would have made me very suspicious as to any problems going on between them, because a child’s not going to include somebody who they — they’re having significant problems with.”

He also related other tests and evaluations he conducted to verify her story that she had sexual contacts with her stepfather, and he stated that he found verification. (T 169) In concluding this line, he stated: “I felt that she was responding in a typical way that a child with her abilities would respond. She was fairly accurate in her accounts of recalling what happened, . . . .” He testified in detail what the child told him had happened in relation to defendant, and how she communicated this to Dr. Campion.

He described a test conducted during clinical interview in which he asked the child what she would wish for if she had three wishes. One was that she would not have to continue to be with her stepfather, which Dr. Campion considered out of the ordinary. Then comes the objected-to question and the long hearing outside the jury’s presence, which has been described.

Defense counsel thereafter cross-examined the witness at length about the methods he used in his evaluation and about his conclusions. He also sifted through what and who prompted the evaluation and what its purpose was, asking many questions to undermine the psychologist’s conclusion that the child was relating what actually happened to her insofar as sexual contact with her stepfather was concerned.

For example: “. . . [the prosecutor] . . . asked you whether it was not a fact that the conclusions that you’ve drawn in this case, the very essence of the conclusions that you have drawn in this case, necessarily depend on the truthfulness of [child’s name]? Answer: “It depends on her ability to understand and relate truth; yes. That’s a — I hate to use the word truth because that’s a very philosophical statement, but I would say it’s her ability to perceive reality would be a better way to put it and to accurately report reality.” Question: “Doctor, are you suggesting that there would be a speck of validity to your conclusions if [child’s name] had been lying?” Answer: “If she was not perceiving reality correctly, there would be no basis to, you know, to accept information from her.”

In addition to cross-examining about the verification methods used with respect to the identity of assailant as defendant, he also cross-examined about the doctor’s exclusion of other males.

One of defendant’s exhibits is a letter from the doctor to the attorney for the child’s mother. It quotes a part of a letter from that attorney to the doctor: “she requested and the Court ordered your examination of the child for the purpose of trying to determine if there is any truth to the matter set forth in the petition.” The doctor writes further in his letter: “The releasing of reports to appropriate individuals may be something that should be taken in context with regards to the whole issue of confidentiality and privileged communication. The Confidentiality Act requires a psychologist to report abused or neglected children that he comes in contact with in regards to his professional or official capacity. The psychologist is protected from liability under the Confidentiality Act ... , if he reports such information. There are also references made to this in the Abused and Neglected Child Reporting Act. . . Because I was aware of the situation through my professional capacity, I probably have referred this material to an appropriate authority such as a judge.”

With all of this unobjected to and deliberately introduced evidence before the jury, it simply cannot be said that the jury learned about the psychologist’s opinion of who the perpetrator was, or learned any more about this opinion, when the psychologist made the statement which now is being held to require retrial.

In sum, there was no reversible error in this connection, for three reasons:

1) The belief of the expert, that there had been a sexual involvement between the child and her stepfather during a particular period of time, was a factual conclusion “which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman.” Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981). The jury would not be equipped to apply the professional tools which the psychologist testified were used as a basis for his conclusion, analyze and decipher them as though the jurors were trained and experienced professionals, and reach a conclusion whether the subject of the examination was relating reality. There is no violation of OCGA § 24-9-67.

Even though his opinion approached the ultimate issue of whether defendant had committed the crimes of child molestation and aggravated sodomy as alleged in detail in the indictment and as legally defined, it would not be inadmissible, according to Smith. It was not a legal conclusion, as differentiated in State v. Butler, 256 Ga. 448, 450, supra.

2) If it was error to permit the jury to consider the statement, the error is harmless. Throughout cross-examination, defense counsel attacked the witness’ “conclusions” and elicited testimony about them, including the identity of the perpetrator. Robinson v. State, 229 Ga. 14, 16 (1) (189 SE2d 53) (1972); Chalker v. State, 184 Ga. App. 596, 597 (2) (362 SE2d 152) (1987); Fields v. State, 180 Ga. App. 771 (350 SE2d 488) (1986).

3) Considering the setting in which the statement was made, and the context in which it was spoken, it is harmless error if error. As to setting, the witness had been called as a State’s witness, and he had testified at great length about how he had verified the child’s story. It would be preposterous to say that the jury did not know, but for the statement, that the psychologist who tested the little girl’s story upon request of a court, drew the professional conclusion that her naming the man on trial was a statement of reality.

The second material fact about setting is that the court fully charged the jury that the weight and credit to be given to expert witness’ opinion is for the jury to decide. “You’re not bound or concluded by the opinion testimony of any witness, expert or otherwise,” the court made clear as part of its instructions to the jury on this subject, and “You are made by law the sole and exclusive judges of the credibility or believability of the witnesses.” Thus there was no invasion of the jury’s domain by the expert’s statement.

As to context, the witness had said the same thing though in different words, over and over again without objection. The jurors were not told any more about the doctor’s opinion as to the identity of the perpetrator, by this statement, than they already knew and defense counsel’s later questioning elicited in repetition.

Decided November 22, 1988 —

Rehearing denied December 12, 1988

Herbert Shafer, for appellant.

Frank C. Winn, District Attorney, for appellee.

The whole point of the examination and evaluation was to verify the child’s story that she had been sexually abused by her stepfather. That is what the psychologist verified. It was left up to the jury to accept or reject his verification. That part of it which included the identity of the perpetrator does not decide the legal issue of guilt or innocence of a legally-defined crime for the jury. Instead, it gave them expert opinion with respect to truth or falsity. They were charged to accept or reject this evidence as they deemed it deserved.

Identity is an issue of fact and may be proved indirectly, by circumstantial evidence which tests the veracity of the accuser. And if there is an expert way to test that veracity, the expert opinion is relevant, albeit not determinative of the final verdict. The defendant had explicitly accepted this, insofar as the child’s claim of sexual involvement itself was concerned.

It is not necessary to retry this case because of one statement which was an express form of what had already been said, even if in different words and actions. We are not dealing here with the question of a fair trial, or a constitutional infirmity, but with a rule of evidence which the Supreme Court of Georgia has departed from at least to some degree. It chose instead to hold “in accord with the modern view as exemplified by Rules 702, 704 of the Federal Rules of Evidence, . . . .” Smith, supra at 619. The Court expressly reiterated its more open position in State v. Butler, 256 Ga. 448, 450, supra, and it further clarified it in Allison v. State, 256 Ga. 851, 852 (3-5) (353 SE2d 805) (1987). We should follow.

       As to the testimony of the experts, defense counsel explained his position: “. . .1 have not protested when people who have the discipline that relates to the nature of the offense committed here where information has been imparted to them as part of ongoing treatment or evaluation and so on. I believe that that may properly come in.”


author: Carley, Judge.

text:
    76766, 76767.
    APEX SUPPLY COMPANY, INC. et al. v. BENBOW INDUSTRIES, INC. et al.; and vice versa.
    (376 SE2d 694)
   Carley, Judge.

Benbow Industries, Inc. (Benbow) contracted to construct a greenhouse for Manalpan Investment Company (Manalpan). When Manalpan failed to pay the outstanding balance allegedly due under the contract, Benbow brought suit. Manalpan answered, denying the material allegations of the complaint. Manalpan also counterclaimed for damages allegedly caused by Benbow’s use of defective piping in the construction of the greenhouse.

As a result of Manalpan’s counterclaim, Benbow filed a third-party action against the wholesaler of the piping, Apex Supply Co., Inc. (Apex), alleging a breach of implied warranties. Apex, in turn, filed a fourth-party indemnification action against the distributor of the piping, Cambridge-Lee Industries, Inc. (C-LI).

The main action was settled and the case was tried only as to Manalpan’s counterclaim against Benbow, Benbow’s third-party claim against Apex, and Apex’s fourth-party claim against C-LI. At the close of all the evidence, both Apex and C-LI moved for a directed verdict, urging that implied warranties had been effectively disclaimed by language which appeared on the face of Apex’s sales invoices to Benbow. In the alternative, Apex and C-LI moved for a partial directed verdict, urging that, if implied warranties had not been effectively disclaimed, then other language which appeared on the face of the sales invoices did effectively limit Benbow’s remedy for breach of warranties to the refund of the purchase price or the replacement of the goods. The trial court denied Apex and¡ C-LI’s motions for a directed verdict or, in the alternative, for a partial directed verdict. The jury returned a verdict in favor of Manalpan and against Benbow on the counterclaim. A verdict in favor of Benbow and against Apex was returned in the third-party action. A verdict in favor of Apex and against C-LI was returned in the fourth-party action. The trial court entered judgments on the jury’s verdicts.

Both Apex and C-LI moved for judgment notwithstanding the verdicts. The trial court denied the motions insofar as they sought total relief from the judgments entered on the jury’s verdicts, holding that the relevant language which appeared on the sales invoices was not conspicuous, and thus did not constitute an effective disclaimer of implied warranties. The trial court granted the motions, however, insofar as they sought to limit Benbow’s recovery against Apex and Apex’s recovery against C-LI to the purchase price of the piping, holding that other language which appeared in the sales invoices did constitute an effective preclusion to Benbow’s recovery of incidental and consequential damages. In accordance with this ruling, the trial court ordered stricken from the judgments entered against Apex and against C-LI an amount representing the award of consequential and incidental damages. In Case No. 76766, Apex and C-LI appeal from the trial court’s partial denial of their motions for judgment notwithstanding the verdicts. In Case No. 76767, Benbow appeals from the trial court’s partial grant of Apex’s and C-LI’s motions for judgment notwithstanding the verdicts. These appeals are hereby consolidated for disposition in this single opinion.

Case No. 76767

1. Benbow enumerates as error the trial court’s partial grant of Apex’s and C-LI’s motions for judgment notwithstanding the verdicts, urging that the trial court incorrectly held that the limitation of remedies language which appeared on the face of the sales invoices precluded a recovery of incidental and consequential damages. Benbow does not contend that the relevant language itself is not legally sufficient to preclude its recovery of incidental and consequential damages. Benbow urges only that, in order for that limitation of remedies language to be legally effective, it must also be conspicuous.

OCGA § 11-2-719 (1) (a) (3) provides, in pertinent part, that “[t]he agreement may provide for remedies in addition to or in substitution for those provided in this article and may limit or alter the measure of damages recoverable under this article, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts. . . . Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.” (Emphasis supplied.) By its terms, OCGA § 11-2-719 does not explicitly require that, to be effective, a limitation of remedies provision must be conspicuous. Benbow urges, however, that OCGA § 11-2-719 should be interpreted as implicitly imposing such a requirement, just as OCGA § 11-2-316 (3) (a) implicitly requires that a disclaimer of warranties be conspicuous. See Leland Indus, v. Suntek Indus., 184 Ga. App. 635, 637 (2) (362 SE2d 441) (1987).

There is a fundamental difference between the legal effect of a total disclaimer of the existence of any implied warranties and the legal effect of a mere limitation on the available remedies for the breach of implied warranties. A disclaimer is more comprehensive in its legal effect. It leaves the buyer with no remedy for breach of implied warranties, there being no implied warranties for the seller to breach. A limitation of remedies is less comprehensive in its legal effect. The seller’s implied warranties remain in effect but, if breached, the buyer’s recovery is circumscribed. The legislature has addressed the disclaimer of warranties and the limitation of remedies in entirely separate code sections. OCGA § 11-2-316 controls as to the disclaimer of implied warranties. For the more comprehensive legal effect of a seller’s disclaimer of all implied warranties to be effective against a buyer, OCGA § 11-2-316 imposes a requirement of “conspicuousness,” either explicitly or by necessary implication. See Leland Indus, v. Suntek Indus., supra. Subsection (4) of OCGA § 11-2-316 specifically provides, however, that “[rjemedies for breach of warranty can be limited in accordance with the provisions of this article on liquidation or limitation of damages and on contractual modification of remedy (Code Sections 11-2-718 and 11-2-719).” (Emphasis supplied.) Clearly, the legislative intent is that the provisions of OCGA § 11-2-316 have no bearing on the seller’s ability to achieve the less comprehensive legal effect of limiting the remedies which are available to the buyer for breach of implied warranties. It is the separate provisions of OCGA §§ 11-2-718 or 11-2-719 which govern the limitations of remedies. The provisions of OCGA § 11-2-719 are at issue in the present case. Unlike OCGA § 11-2-316, OCGA § 11-2-719 does not impose a “conspicuousness” requirement, either explicitly or by implication. OCGA § 11-2-719 “does not require that a limitation of remedy be conspicuous, and in determining the validity of a limitation under [that statute], ‘conspicuousness is irrelevant.’ ” 5 Anderson, UCC § 2-719:20 (3d ed. 1984). See also Anno., 73 ALR3d 248, § 4 [d], p. 269 (1976).

Fiat Auto U. S. A. v. Hollums, 185 Ga. App. 113 (363 SE2d 312) (1987) and A-larms, Inc. v. Alarms Device Mfg. Co., 165 Ga. App. 382 (300 SE2d 311) (1983) do not compel a contrary holding. The issue of whether there is an implicit “conspicuousness” requirement in OCGA § 11-2-719 was not addressed in either case. When this court noted in both decisions that the limitation of remedies language which was under consideration was conspicuous, it was merely commenting on the particular facts of the case, and was not holding that “conspicuousness” is a requirement under OCGA § 11-2-719. The limitation of remedies language at issue in the present case may or may not be as conspicuous as the limitation of remedies language which was at issue in Fiat Auto U. S. A., supra, or in A-larms, Inc., supra. Whether that limitation of remedies language is or is not conspicuous is, however, ultimately irrelevant to its legal effect. It is the mere existence of the limitation of remedies language, without regard to its “conspicuousness,” which is controlling. Accordingly, the trial court was correct in its partial grant of Apex’s and C-LI’s motions for judgment notwithstanding the verdicts.

Case No. 76766

2. Apex and C-LI enumerate as error the denial of their motions for judgment notwithstanding the verdicts, urging that the trial court incorrectly held that the implied warranties had not been effectively disclaimed.

On the face of the sales invoices, in bold face type and capital letters, the following language appeared: “ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXCLUDED.” The issue to be resolved is whether this language was conspicuous. “In the context of a sale which otherwise comes within the provisions of OCGA §§ 11-2-314 and 11-2-315, implied warranties of merchantability and of fitness for a particular purpose arise by operation of law. [Cit.] These implied warranties can, however, be disclaimed. OCGA § 11-2-316 (2) provides: ‘Subject to subsection (3) of this Code section, to exclude or modify the implied warranty of merchantability or any part of it thé language must mention merchantability and in case of a writing must be conspicuous. . . .’ ” Leland Indus. v. Suntek Indus., supra at 636.

OCGA § 11-1-201 (10) provides, in pertinent part, that “[a] term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. . . . Language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color.” (Emphasis supplied.) Here, the entirety of the disclaimer language appeared in capital letters, in a separate paragraph on the front of the invoice, and in a type style which was otherwise employed on the form only with regard to the limitation of remedies language. See generally Harris v. Sulcus Computer Corp., 175 Ga. App. 140, 142 (332 SE2d 660) (1985); W. Linton Howard, Inc. v. Gibbs Machinery, 169 Ga. App. 627 (1) (314 SE2d 259) (1984). Compare Leland Indus. v. Suntek Indus., supra at 636 (1). The disclaimer language was not in contrasting color but, as OCGA § 11-1-201 (10) provides, contrasting color is but one alternative method by which language in the body of a form can be made “conspicuous.” That the limitation of remedies language, which was not required to be conspicuous, appeared in the immediately preceding paragraph and was also printed in capital letters and in the same type style does not serve to render the disclaimer language any less conspicuous. See generally Corbett v. North Fla. Clarklift, 155 Ga. App. 701 (1) (272 SE2d 563) (1980). It follows that the trial court erred in finding that the disclaimer language did not meet the “conspicuousness” requirement of OCGA § 11-2-316 (2), and that it erred in denying Apex’s and CLI’s motions for judgment notwithstanding the verdicts.

3. All remaining enumerations are moot as a result of our holding in Division 2.

4. Nothing in this consolidated appeal affects the judgment that was entered against Benbow on Manalpan’s counterclaim. Our holdings relate only to the judgment that was entered against Apex on Benbow’s third-party action and to the judgment that was entered against C-LI on Apex’s fourth-party action. For the reasons discussed, the trial court erred insofar as it only partially granted Apex’s and CLI’s motions for judgment notwithstanding the verdicts returned on the third and fourth-party claims.

Judgment reversed in Case No. 76766. Judgment affirmed in Case No. 76767.

Been, P. J., and Sognier, J., concur.

Decided November 21, 1988 —

Rehearing denied December 12, 1988

Malcolm P. Smith, Charles L. Barrett III, for appellants (case no. 76766).

Awtry & Parker, Dana L. Jackel, Barbara H. Martin, for appellees.

Awtry & Parker, Dana L. Jackel, Barbara H. Martin, for appellants (case no. 76767).

Edwards, Friedewald & Grayson, James W. Friedewald, for appellees.


author: Birdsong, Chief Judge. Beasley, Judge,

text:
    77241.
    BROWN v. RFC MANAGEMENT, INC.
    (376 SE2d 691)
   Birdsong, Chief Judge.

Appellant/plaintiff, Wendy Sue Brown, filed this action against her landlord, RFC Management, Inc., following her fall down a flight of steps in the apartment building where she rented an apartment. Brown alleged in her complaint that RFC failed to keep the premises in repair or perform regular maintenance, and as a result there existed hazardous defects in the lighting and carpeting in the common areas in her apartment building. On January 24, 1984, Brown was using the stairway to go to and from her apartment and the basement to use the washer and dryer. She had taken her clothing to the basement and placed them in the washer and returned to her apartment. After a short period of time, she returned to the basement and removed her washing and placed it in the dryer and returned to her apartment. Allowing sufficient time for drying, Brown again returned to the basement, removed her clothing from the dryer, placed them in her laundry basket and started ascending the stairs. On the way up the stairs, she slipped and fell to the bottom of the stairwell and was injured. There was no light illuminating the stairwell, and the carpeting was threadbare and fit loosely to the stairs. Brown could not say what caused her to slip and fall. RFC moved for and was granted summary judgment and Brown brings this appeal. Held:

Appellant has enumerated three errors. Although she stipulated she had knowledge of “the dangerous condition of the lighting and carpet in the stairwell,” she alleges the trial court erred: (1) in making these facts “the determinative factor in granting summary judgment to the Defendant,” (2) “in finding there was no genuine issue of material fact regarding Defendant’s breach of legal duty to Plaintiff,” and (3) “in finding that there was no genuine issue of material fact with regard to the legal and factual cause of Plaintiff’s injury.” In sum, appellant argues it was error to grant summary judgment to her landlord.

Contrary to appellant’s allegations, the trial court made no specific findings as to any determinative fact, or breach of any legal duty, or the legal or factual cause of her fall. The trial court entered the standard statutory wording in granting summary judgment to RFC. Thus, in essence, the only issue before this Court is whether the grant was proper. As in every summary judgment in actions involving.allegations of negligence, we start our analysis from the accepted standard that “[generally, issues of negligence, and in particular the related issues of contributory or comparative negligence, assumption of the risk, lack of ordinary care for one’s own safety and lack of ordinary care in avoiding the consequences of another’s negligence and similar matters are not proper for summary adjudication.” Morris v. Pulliam, 168 Ga. App. 442, 444 (309 SE2d 423). Likewise, in order for a movant defendant to obtain summary judgment in its favor it is necessary that it produce evidence which conclusively negates at least one essential element of the opponent’s case. Vizzini v. Blonder, 165 Ga. App. 840 (303 SE2d 38). Hence, movant must pierce plaintiff’s pleadings to show the court the defendant is entitled to summary judgment as a matter of law, irrespective of any other issues of fact with regard to the other essential elements. Morris, supra at 444; see also Waldrep v. Goodwin, 230 Ga. 1, 2 (195 SE2d 432).

“To state a cause of action for negligence in Georgia, the following elements are essential: ‘(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.’ ” Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693). Appellee landlord owed the legal duty to his tenants to keep the premises in repair. OCGA § 44-7-13. Additionally, the landlord is responsible for damages arising from the failure to keep the premises in repair. OCGA § 44-7-14. However, in order to recover, a tenant is required to show not only that the landlord breached his statutory duty to keep the premises in repair, but that such breach was the proximate cause of her injury. Absent such cause-effect connection, plaintiff’s action would be lacking one essential element. We find the evidence presented to the trial court establishes the absence of a causal relationship between the alleged acts of negligence of the defendant landlord and the injuries incurred by the plaintiff tenant.

Appellant was questioned extensively as to the cause of her fall. “Q. What did you fall on, if anything? A. I don’t know. Q. Did you trip over anything? A. I don’t know. I just lost my footing. . . . Q. What do you remember happening? A. Just going up the stairs. It was dark . . . real dark, and I just remember losing my footing. I remember landing at the bottom of the stairs. . . . One minute, I was going up the stairs. The next minute, I was going down them.”

Our Supreme Court has held that “ ‘proof of nothing more than the occurrence of the fall is insufficient to establish the proprietor’s negligence.’ ” Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327). There must be a causal relationship between the breach of the statutory duty and the plaintiff’s injuries. “ ‘To presume that because a [tenant] falls in [an apartment complex’s common passageway] that the [landlord] has somehow been negligent would make the [landlord] an insurer of his [tenant’s] safety which he is not in this state.’ ” Key v. J. C. Penney Co., 165 Ga. App. 176-177 (299 SE2d 895). See Phelps v. Consolidated Equities Corp., 133 Ga. App. 189 (2) (210 SE2d 337) as to a landlord not being an insurer of a tenant’s safety.

Because the evidence presented to the trial court .established there was no causal connection between appellant’s fall and the alleged failure of the landlord to keep the premises in repair, the trial court did not err in granting summary judgment to appellee. Jenkins v. Storey Trucking Co., 184 Ga. App. 672, 673 (362 SE2d 466); see also Motes v. 6 “S” Co., 186 Ga. App. 67 (366 SE2d 358) and Garnett v. Mathison, 179 Ga. App. 242, 243 (345 SE2d 919).

Judgment affirmed. Been, P. J., Banke, P. J., Sognier and Pope, JJ., concur.

McMurray, P. J., Carley, Benham, and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

Considering the portions of the tenant’s deposition which are quoted in the opinion, a jury could reasonably infer that the tenant lost her footing on the stairs because it was dark. This is enhanced by her response to another question: “Has there been a determination as to what, if anything, you fell on? A. “I don’t know, but it was always poorly lit. The carpet was bad. You know, it did not fit the stairs. And there was also debris.” She explained that the reason she did not know what she stepped on is that it was dark as she was ascending the stairs with her laundry so she could not see what her foot was landing on, and afterwards she was too badly injured to investigate. (There is evidence she had a broken neck, among other injuries.)

She also testified that she did not use the other more distant stairway because it was in as bad condition. The jury could also find that it was the duty of the landlord under OCGA § 44-7-13 to keep the stairway, a common area leading to a laundry facility which was part of the consideration for the rent, lighted. It would be liable for damages. OCGA § 44-7-14. There was evidence that there were light fixtures on the 15 to 20-step stairwell, but they did not have working bulbs in them. The tenant’s deposition and the affidavit of a neighbor both state that each of them had notified the management many times of the deficiency and that it was not corrected despite assurances.

Even as an owner or occupier of land, the landlord owes the duty to the invitee to exercise ordinary care in keeping the premises safe. OCGA § 51-3-1. But where the relationship between plaintiff and defendant is not that of business proprietor and customer but that of tenant and landlord, the contractual relationship and the particular duty placed on the landlord by statute requires further examination when equal knowledge is shown. The landlord is not as easily discharged from liability. See Richardson v. Palmour Court Apts., 170 Ga. App. 204, 206 (316 SE2d 770) (1984); Grier v. Jeffco Mgt. Co., 176 Ga. App. 158, 159 (335 SE2d 408) (1985). A recognition of the distinctions is noted in Lindsey v. Housing Auth. of Atlanta, 181 Ga. App. 814 (354 SE2d 13) (1987), and Smith v. Collins, 182 Ga. App. 564 (356 SE2d 530) (1987). This is more in the nature of an alleged tort arising out of a contract and breach of a duty imposed by statute on the contracting party.

Although the tenant does not know what her foot specifically and directly landed on or missed when she placed it, unbalancing her, this does not exclude all proximate cause of her fall. Since there is some evidence that lack of lighting contributed to her fall, for which lighting the landlord and not the tenant is responsible, summary judgment is premature. Shadowood Assoc. v. Kirk, 170 Ga. App. 209, 210 (2) (316 SE2d 487) (1984). The lack of evidence of what physical object her foot landed on or missed does not foreclose a finding of proximate cause from the evidence of the conditions existing at the location, i.e., unlit stairwell in its attendant circumstances.

Here, the issue of proximate cause is unresolved and is not precluded as a matter of law upon the record to date, just as is the issue of contributory negligence, assumption of risk considering the tenant’s choices, and so on.

This case is sufficiently similar to that presented in Richardson, supra, to be treated the same way. It falls within the category of those in which summary judgment is inappropriate upon an application of the following: “ ‘The trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and indisputable.’ [Cit.]” Manheim Svcs. Corp. v. Connell, 153 Ga. App. 533, 534 (265 SE2d 862) (1980).

I am authorized to state that Judge Carley and Judge Benham join in this dissent.

Decided November 17, 1988 —

Rehearing denied December 12, 1988

Sharon L. Rowen, for appellant.

McLain & Merritt, Albert J. DeCusati, for appellee.


author: Deen, Presiding Judge.

text:
    77482.
    TOWN OF THUNDERBOLT v. RIVER CROSSING APARTMENTS, LTD. TOWN OF THUNDERBOLT v. HENDRIX et al.
    77483.
    (377 SE2d 12)
   Deen, Presiding Judge.

The Town of Thunderbolt notified appellees that they had been underbilled for water and services in the amount of $35,000 and $31,700 respectively because of a miscalculation by the town’s computer, beginning in October of 1983. The town met with appellees on at least two occasions in an effort to work out a repayment schedule. When appellees refused to pay the arrearage, the town threatened to discontinue future water service to appellees’ tenants. On July 2, 1987, appellees filed complaints seeking a declaratory judgment and injunctive relief asking the Court to declare that the town is estopped as a matter of equity and law from asserting any claim for arrearage due to underbilling as a result of its own negligence, mistake, and fraud, and that it be restrained and enjoined temporarily and permanently from discontinuing water and sewer service to appellees’ tenants.

Although the appellate record is silent, the trial court apparently granted a temporary restraining order prohibiting the town from shutting off the water supply to appellees’ tenants and scheduled a hearing on the petitions for declaratory judgment.

On October 20, 1987, the town filed a response to the petitions for declaratory judgment, and a hearing was conducted on November 13, 1987. Appellant filed a motion to dismiss the petitions on December 14, 1987. On January 27, 1988, the trial court entered an order which is not a part of the record on appeal. This order was vacated on February 24, 1988, so the Court could consider Oxford Fin. Cos. v. Dennis, 185 Ga. App. 177 (363 SE2d 614) (1987). On May 16, 1988, it entered an order finding that Oxford was not dispositive of the case, denied appellant’s motion to dismiss the declaratory judgment, denied the motion to open default, and granted plaintiffs’ motion for a default judgment.

1. Appellant first contends that the trial court should have granted its motion to dismiss appellees’ petitions because they showed on their faces that all possible rights had already accrued and all possible obligations had long since attached.

OCGA § 9-4-2 (a) provides: “In cases of actual controversy, the respective superior courts of this state shall have power, upon petition or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed; and the declaration shall have the force and effect of a final judgment or decree. . . .” Under subsection (c): “Relief by declaratory judgment shall be available, notwithstanding the fact that the complaining party has any other adequate legal or equitable remedy or remedies.”

In their petitions appellees alleged that the town was estopped by its own negligence or fraud from claiming that they owed it large sums of money because of a computer error since 1983 which underdetermined the amount of their water bills. Attached to the petitions were letters from the town demanding full payment by July 8, 1987, or water service to appellees’ tenants would be terminated. The appellees sought both equitable and legal relief to protect themselves from a claim that they believed to be either fraudulently or negligently calculated.

A declaratory judgment may not be granted in the absence of a justiciable controversy, Kaylor v. Kaylor, 236 Ga. 777 (225 SE2d 320) (1976). “The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated. As many times pointed out by this court, its purpose is to permit one who is walking in the dark to ascertain where he is and where he is going, to turn on the light before he steps rather than after he has stepped in a hole. 7 Ga. Bar Journal, p. 132. [Cit.]” Rowan v. Herring, 214 Ga. 370, 374 (105 SE2d 29) (1958). Unlike the situation in Oxford Fin. Cos. v. Dennis, 185 Ga. App. 177, supra (a two-judge case, one judge concurring in the judgment only), all possible legal rights had not accrued and all personal obligations had not attached. The complaints do not show on their faces the absence of an actual or judiciable controversy which would render the trial court without jurisdiction to enter a judgment. Kaylor v. Kaylor, supra. Accordingly, this enumeration is without merit.

2. Appellant next claims that the court below erred in granting a. default judgment when no motion for such a judgment was pending before the court and contends that the grant of a default judgment is never proper in a declaratory judgment action.

OCGA § 9-4-5 provides that a proceeding instituted under the Declaratory Judgment Act “shall be filed and served as are other cases in the superior courts of this state.” Under OCGA § 9-11-81 the Civil Practice Act applies to “all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law. . . .” Under the Civil Practice Act, a defendant is required to file an answer within thirty days after the service of the summons and complaint upon him. OCGA § 9-11-12 (a). If an answer is not filed within the required time, “the case shall automatically become in default unless the time for filing the answer has been extended as provided by law.” OCGA § 9-11-55 (a). Therefore, if an answer is not timely filed, it is not necessary for the plaintiff to file a motion to declare the defendant to be in default. “Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damages, are admitted when not denied in the responsive pleading.” OCGA § 9-11-8 (d). ■

Decided November 22, 1988 —

Rehearing denied December 12, 1988

Taggart & Lakin, Thomas R. Taggart, Laura A. Marcantonio, for appellant.

Accordingly, we find that the Declaratory Judgment Act is governed by the practice rules contained in the Civil Practice Act and the defendant was required to file an answer. As it did not file one within the time permitted by law, appellant was automatically in default.

3. The trial court did not abuse its discretion by refusing to open the default as permitted under OCGA § 9-11-55 (b).

Approximately four and one-half months after the complaint was filed, appellant filed a motion to open the default alleging “excusable neglect” and that a “proper case” had been made out to open the default, claiming that OCGA § 9-11-55 (a) did not apply to declaratory judgment petitions, that it entered its appearance and answer to the motion orally at the hearing on the motion, that it relied upon the assurances of the plaintiffs’ attorney that the case would be settled, and that a default judgment could not be had upon a motion for declaratory judgment. The motion was later amended to claim that it also had a “meritorious defense” to the motion, but the defense was not set forth.

Appellant’s “failure to show a meritorious defense is alone fatal to [its] cause. Georgia law requires that facts regarding such a defense be set forth, and a mere statement. . . that the party ‘has a good and meritorious defense to the declaration’ is inadequate. [Cits.] Moreover, this requirement is a condition precedent; in its absence, the trial judge ha[s] no discretion to open the default. [Cits.]” Coleman v. Dairyland Ins. Co., 130 Ga. App. 228, 229-230 (202 SE2d 698) (1973). The trial court had no discretion to open the default and did not err when it denied appellant’s motion.

Judgment affirmed.

Carley and Sognier, JJ., concur.

Lawrence D. Kupferman, for appellee (case no. 77482).

Harold B. Yellin, for appellees (case no. 77483).


text:
    77807.
    ROSSANO v. AMERICAN LEGION POST NO. 29.
    (376 SE2d 698)
   Deen, Presiding Judge.

Anne Rossano brought suit against American Legion Post No. 29 (American Legion) for injuries she sustained when she fell off the side of a ramp located on American Legion’s premises. Mrs. Rossano’s deposition testimony showed that she had visited the American Legion two evenings a week for several years and that she participated in card and bingo games that the American Legion organized. Although there was a stairway which led from appellee’s building to the parking lot, it was Mrs. Rossano’s habit to walk down a ramp located near a convenient exit to the parking lot. This ramp was usually occupied by a car owned by a Mrs. Dilbeck, and Mrs. Rossano was forced to make her way around the parked car before she could reach level ground. On the evening in question, Mrs. Rossano’s foot slipped off the side of the ramp near the bottom, and she fell and fractured her hip. The plaintiff testified that it was a usual night, but that she noticed that it appeared to be somewhat darker than usual just before she fell. After her fall, she noticed that the porch light above the top of the ramp was not lit, although the remaining lights in the area were turned on. She had not noticed a problem with the lighting on her last visit some five days earlier.

In her lawsuit, Mrs. Rossano alleged that the American Legion was negligent in permitting a car to park on the ramp and in letting the light bulb at the top of the ramp burn out. She brings this appeal following the grant of American Legion’s motion for summary judgment.

The trial court held that the plaintiff had made numerous visits to the defendant’s hall over the course of many years, that she had used the ramp to exit the building on many occasions, that she knew that the ramp was usually occupied by a car, that the presence of the car on the ramp necessitated that she use caution in walking down the ramp past it, and that there was an alternative means of exiting the building to the parking lot which she chose not to utilize. The court further found that the plaintiff was aware of the danger when she started down the ramp. Our examination of the record does not indicate that the defendant was aware of the lighting problem.

1. Mrs. Rossano contends that issues of contributory negligence, diligence, proximate cause and comparative negligence are always issues within the province of the trier of fact. While we generally agree with this statement, there is an exception where the facts conclusively show by plain, palpable and undisputed evidence that the defendant was not at fault, such case properly may be resolved as a matter of law through summary judgment. Ellington v. Tolar Constr. Co., 237 Ga. 235, 237 (227 SE2d 336) (1976).

As the evidence in the instant case falls within the above-quoted exception, we find no merit in this enumeration.

2. Mrs. Rossano next contends that the trial court misinterpreted her deposition testimony by assuming that her awareness of the dark occurred prior to her descent of the ramp when, in fact, she stated that she did not know it was dark until she got “right to the edge of the ramp ready to step down” because this act occurred at the bottom of the ramp, after she had committed herself to that course of action in the belief that there was sufficient light.

We must disagree with appellant’s interpretation of this testimony. She was asked: “As you came out and you approached the ramp . . . whatever the lighting conditions were, it didn’t appear dangerous to you, did it? She replied that she “didn’t think about that aspect of it and . . . didn’t anticipate [any] danger.” Then she testified that it didn’t look unusually dark until she got to the edge of the ramp. Further testimony indicates that she walked three or four steps down the ramp before she felt her right foot at the edge of the ramp, her ankle turned, and she felt herself falling off the ramp. “I think what probably happened, my right foot probably slipped off the edge of the ramp . . . when I got almost to the bottom.” From this testimony, her observation of the darkness had to have occurred before she stepped onto the ramp. She fell from the side of the ramp while walking down it and did not fall while stepping down from it.

In her affidavit opposing the defendant’s motion for summary judgment, Mrs. Rossano states, “At no time prior to the beginning of my descent down the ramp did I discover anything to lead me to the conclusion that the descent down the ramp would be unsafe.”

On summary judgment all the evidence must be construed against the movant and in favor of the party opposing the motion. It must be determined if the testimony of a party-witness is contradictory. If it is, the testimony will not be construed against the party-witness if a reasonable explanation is offered for the contradiction. The burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial court. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986). In the instant case, no reasonable explanation for the contradiction was given by Mrs. Rossano, and the trial court did not err in finding that she noticed that the area was darker than usual when she stepped onto the ramp. “[0]ne who chooses to walk in darkness does not exercise ordinary care for [her] safety.” Braun v. Wright, 100 Ga. App. 295, 296 (111 SE2d 100) (1959).

3. Appellant’s final enumeration of error relies upon Showalter v. Villa Prado Assoc., 182 Ga. App. 705 (356 SE2d 895) (1987), and claims that the trial court erred in failing to adhere to the principle that the plaintiff’s knowledge of a hazard must be knowledge of a specific hazard and not merely hazardous conditions in general.

This case, unlike Showalter, does not present a case of a general hazard of which the plaintiff was unaware, but of which the property owner was aware. In that case, the plaintiff was aware of a pool of water, and that walking through water is somewhat dangerous, but there was evidence that he did not know that there was sediment underneath or that the sediment caused a slippery condition. The defendant, apparently, was aware of both facts. The only hazard in the instant case was the edge of the ramp as it rises from the parking lot until it meets the edge of the defendant’s building. This hazard was rendered more dangerous by a burned-out porch light. The hazard was not hidden, but was well-known to Mrs. Rossano, and the trial court found that she observed that the lighting was poor when she stepped onto the ramp. As she was thoroughly familiar with the ramp, her knowledge was equal to or superior to that of the defendant and she cannot recover. Westall v. M & M Supermarkets, 174 Ga. App. 155 (329 SE2d 237) (1985). When a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. Garnett v. Mathison, 179 Ga. App. 242 (345 SE2d 919) (1986); Hadaway v. Cooner Enterprises, 172 Ga. App. 113 (321 SE2d 830) (1984); Cook v. Delite Beauty Supply, 165 Ga. App. 859 (303 SE2d 40) (1983).

Although Mrs. Rossano contends that the placement of a parked car on the ramp created a hazard of which she could not have been aware, the evidence is undisputed that she knew that Mrs. Dilbeck’s automobile was usually parked on the ramp with the permission of American Legion. The plaintiff testified that she did not know if it was parked any differently, on the day that she fell from the ramp, from any other time it was parked there. Her affidavit, however, contradicts her deposition testimony, as she claims that the car was parked so as to force her off the ramp. The conflicting evidence must therefore be construed against her. Prophecy Corp. v. Charles Rossignol, Inc., supra.

Judgment affirmed.

Carley and Sognier, JJ., concur.

Decided November 22, 1988 —

Rehearing denied December 12, 1988

Richard M. Skelly, for appellant.

Brock & Clay, Marjorie M. Rogers, Sam F. Lowe III, for appellee.