author: Pope, Presiding Judge.

text:
    A95A1585.
    JORDAN et al. v. GEORGIA POWER COMPANY et al.
    (466 SE2d 601)
   Pope, Presiding Judge.

On July 24, 1991, Larry and Nancy Jordan filed a complaint in Douglas County against Georgia Power Company and Oglethorpe Power Corporation (“Oglethorpe”) for damages arising from electromagnetic radiation on their property. The case was tried to a jury, and the jury returned a defendants’ verdict on causation; this appeal followed.

The complaint alleged that since 1972 Larry Jordan had owned and resided on property onto which Nancy Jordan and her children moved in 1983. According to the complaint, in 1973 Oglethorpe and Georgia Power installed power lines on an easement next to the Jordans’ property, and those power lines began emitting unreasonably dangerous levels of electromagnetic radiation onto the property. The complaint claimed that as a result of the electromagnetic fields (“EMFs”), the property had been rendered unsafe and Nancy Jordan had developed non-Hodgkin’s lymphoma. The complaint set forth counts for injunctive relief, trespass, nuisance, negligence, inherently dangerous activity, negligent misrepresentation, battery and punitive damages.

Oglethorpe and Georgia Power answered the complaint and filed a motion for bifurcation. The court granted the motion to bifurcate the trial on the issues of liability and damages.

Oglethorpe and Georgia Power filed a motion for summary judgment, setting forth a variety of arguments. Subsequently, the Jordans dismissed the claim for fraud, all claims of their minor children, and all claims for future medical monitoring for Larry Jordan. On December 28, 1993, the court granted summary judgment on the Jordans’ trespass claim and concluded that the case would be tried according to a negligence standard, not according to the standard for ultrahazardous activities. In the pretrial order, filed several days before trial, the Jordans reiterated their claims for compensatory and punitive damages on theories of trespass, nuisance, battery, negligence, and strict liability.

From April 19 until May 5, 1994, evidence was presented to a jury. Seventeen witnesses, including Larry and Nancy Jordan, testified. Larry Jordan testified that when he bought the property in 1972, he was aware of the easement which Georgia Power had on the property. He stated that he did not recall power lines being built on the property until 1973. Mr. Jordan testified that he and Nancy Jordan were married in 1983 and that she then moved into his house. Nancy Jordan was diagnosed with breast cancer in 1985 and with a second cancer, the subject of this lawsuit, in 1989. In 1990 the Jordans moved; they had a difficult time selling the house. Larry Jordan testified that eventually the bank foreclosed on the house, because he could no longer make payments.

The Jordans called several expert witnesses. Dr. Peter Wright, a cancer specialist, testified that Mrs. Jordan’s disease developed because of her exposure to electromagnetic radiation generated through power lines. Wright testified that electromagnetic radiation caused non-Hodgkin’s lymphoma and that this conclusion was supported by various studies.

Oglethorpe and Georgia Power called as witnesses Dr. James Bland and Dr. Saul Rosenberg, who testified that electromagnetic radiation did not cause Mrs. Jordan’s disease. These doctors testified that magnetic fields from power lines were not the cause of lymphomas in general, or of non-Hodgkin’s lymphoma in particular.

After the conclusion of the evidence, but before the jury returned its verdict, the court directed a verdict against the Jordans on the battery and punitive damages claims. The jury then returned its verdiet, finding that the magnetic fields from the transmission lines were not the proximate cause of Mrs. Jordan’s non-Hodgkin’s lymphoma. After the return of the verdict on causation, the court directed a verdict against the Jordans on their nuisance claim. The court then entered judgment in favor of Oglethorpe and Georgia Power and against the Jordans.

At the outset, we note that while we are unable to find Georgia cases addressing the viability of a claim for EMF exposure, the issue of injury allegedly caused by EMFs has arisen in several contexts in other states. See generally San Diego Gas &c. Co. v. Superior Court of Orange County, 36 Cal. App. 4th 1461, 38 Cal. Rptr. 2d 811, rehearing granted 41 Cal. Rptr. 2d 220 (895 P2d 56) (1995); Borenkind v. Consolidated Edison Corp., 164 Misc. 2d 808 (626 NYS2d 414) (1995); Chappell v. Va. Elec. &c. Co., 250 Va. 169 (458 SE2d 282) (1995); Linnebur v. Pub. Svc. Comm. of Colorado, 716 P2d 1120 (Colo. 1986); see also Orr and Boswell, “The Use and Abuse of Scientific Evidence: A Case Study in Electromagnetic Field Litigation,” Ga. Bar Journal, Vol. I, Issue 1, 1995. We recognize that in rendering this decision, we are necessarily limited by the present state of scientific knowledge.

1. The Jordans argue that the court erred by permitting expert witnesses called by Oglethorpe and Georgia Power to testify concerning hearsay opinions of unidentified non-testifying witnesses. Before trial the Jordans filed a motion in limine to exclude testimony as to a “consensus in the scientific community,” which motion the court denied. Here, citing Brown v. State, 206 Ga. App. 800 (427 SE2d 9) (1992), and Martin v. Reed, 200 Ga. App. 775 (409 SE2d 874) (1991), they contend that an expert witness may not act as a surrogate for a non-testifying expert.

The specific testimony to which the Jordans object was that of Drs. James Bland and Saul Rosenberg. Dr. Rosenberg, a physician and professor of radiation oncology at Stanford University, testified that the scientific medical community did not consider magnetic fields from power lines a cause of lymphomas in general, or of non-Hodgkin’s lymphoma in particular. Similarly, Dr. Bland, a medical doctor with a specialty in radiation oncology, testified that “the medical oncology community in this area and in Georgia does not feel that EMF is a causative factor for non-Hodgkin’s lymphoma.” Both doctors also testified that in their opinions, Mrs. Jordan’s disease was not caused by the magnetic fields from the power lines.

In Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587 (4) (452 SE2d 159) (1994), this Court addressed a somewhat similar issue regarding causation. There, citing Daubert v. Merrell Dow Pharmaceuticals, 509 U. S--(113 SC 2786, 125 LE2d 469) (1993), Orkin argued that the expert testimony relied upon by McIntosh regarding the long-term effects of pesticide exposure was “outside the mainstream of scientific thought” and was inadmissible.

In resolving the question of whether the scientific testimony regarding causation was admissible, the Orkin court stated: “[w]e first note that Daubert involves the application of Federal Rule of Evidence 702, which has not been adopted in Georgia. The applicable law in Georgia is OCGA § 24-9-67, which provides: ‘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.’ Provided an expert witness is properly qualified in the field in which he offers testimony [cits.], and the facts relied upon are within the bounds of the evidence, whether there is sufficient knowledge upon which to base an opinion or whether it is based upon hearsay goes to the weight and credibility of the testimony, not its admissibility. [Cits.]” Orkin, 215 Ga. App. at 592.

“With respect to a particular scientific procedure or technique, the trial court makes a determination ‘whether the procedure or technique in question has reached a scientific stage of verifiable certainty,’ based upon evidence, expert testimony, treatises, or the rationale of cases in other jurisdictions. Harper v. State, 249 Ga. 519, 525 (1) (292 SE2d 389) (1982).” Orkin, 215 Ga. App. at 593. In making its determination, the court may rely on evidence “presented to it at trial by the parties; in this regard expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions. The significant point is that the trial court makes this determination based on the evidence available to [it] rather than by simply calculating the consensus in the scientific community.” (Citations and punctuation omitted.) Harper, 249 Ga. at 525.

Contrary to the assertions of Oglethorpe and Georgia Power, Harper did not hold that an expert witness may, in the presence of the jury, testify as these witnesses did regarding a perceived consensus in the scientific community. Though it was proper for the court to allow the doctors’ testimony regarding their own opinions of the cause of Mrs. Jordan’s illness, the court committed reversible error in admitting this “consensus” testimony. “An expert may give an opinion upon the facts testified to by other witnesses, but not upon their opinions. A witness’ opinion must be his own and he cannot act as a mere conduit for the opinions of others.” (Citations and punctuation omitted.) In the Interest of A. S. M., 214 Ga. App. 668, 671 (1) (448 SE2d 703) (1994). Neither Dr. Bland nor Dr. Rosenberg clearly identified the “community” of experts for which he was speaking, nor did either doctor precisely explain the method by which he ascertained the “consensus.” See generally Manley v. State, 206 Ga. App. 281 (424 SE2d 818) (1992).

We cannot hold that the error was harmless. Contrary to Oglethorpe and Georgia Power’s contentions, the Jordans’ experts’ use of treatises differs from the testimony the court allowed here. Similarly, despite Oglethorpe and Georgia Power’s arguments to the contrary, we have not found any instances in which the Jordans’ experts were allowed to testify regarding a “consensus” of opinion.

Because of our conclusion, we will address only the remaining enumerations which will assist the trial court in the retrial.

2. The Jordans claim that the court erred in granting summary judgment on their trespass claim. They argue that the court invaded the province of the jury, resolved factual disputes based on inadmissible non-record evidence and erred by ruling that there must be physical damage to land to constitute a trespass.

In their motion for summary judgment, Oglethorpe and Georgia Power argued that EMFs are not tangible matter and that their alleged presence on the Jordans’ property could not constitute a trespass. In response, the Jordans filed the affidavit of Roy Martin, a licensed professional electrical engineer, in which he stated that electromagnetic radiation from power lines is tangible. Martin further stated that a magnetic field could be detected and measured by appropriate measuring devices and that such fields obeyed physical laws.

In its order granting the motion, the court concluded that although the Jordans claimed that there was a detectible entry on their property by the EMFs, these fields were not tangible as defined by law for the purpose of trespass determinations. The court stated: “in Georgia a physical invasion of some kind is required in order to state a cause of action for trespass. There has been no physical injury to the real estate alleged. There has been no physical entry alleged. The plaintiffs allege there is a detectible entry by non-tangible magnetic fields. However, such fields are not tangible as that term is defined by law for the purpose of trespass determinations.”

OCGA § 1-3-3 (20) provides: “ ‘[trespass’ means any misfeasance, transgression, or offense which damages another’s health, reputation, or property.” With respect to injuries to real estate, OCGA § 51-9-1 defines the cause of action for interference with enjoyment of property, stating: “[t]he right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie.”

Although arguably the Jordans’ trespass action could present a jury question, we conclude that for policy reasons the trial court’s grant of summary judgment was proper. The scientific evidence regarding whether EMFs cause harm of any kind is inconclusive; the invasive quality of these electric fields cannot presently constitute a trespass. See generally Borenkind v. Consolidated Edison Corp., 164 Misc. 2d 808, 810 (626 NYS2d 414) (1995). In reaching this conclusion, we do not close the door on the possibility that science may advance to a point at which damage from EMFs is legally cognizable and a trespass action may lie.

3. The Jordans claim that the court erred by granting a directed verdict on the nuisance and property damage claims. In their motion for directed verdict, Oglethorpe and Georgia Power argued that there was neither proof of injury or damage to the property, nor was there evidence of any interference with its use and enjoyment. In directing the verdict, the court concluded that there were no measurable damages or injury and that there was no nuisance.

Here, the Jordans argue that the court’s conclusion that there was no evidence of property damage ignored the fact that the trial was bifurcated as to damages and causation. They contend that because of the bifurcation, evidence of nominal damages was sufficient to preserve this claim.

OCGA § 41-1-1 defines a nuisance as “anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary, reasonable man.” Moreover, “while a physical invasion is generally necessary, noise, odors and smoke which impair the landowners’ enjoyment of his property are also actionable nuisances, if, and only if, a partial condemnation of the property results. [Cit.]” Dept. of Transp. v. Bonnett, 257 Ga. 189, 190 (1) (358 SE2d 245) (1987); see also Hoffman v. Atlanta Gas Light Co., 206 Ga. App. 727 (426 SE2d 387) (1992) (hydrocarbon contamination of ground constitutes nuisance and continuing trespass).

Here, the trial court properly directed a verdict on the nuisance claim. Again, for the reasons outlined in Division 2 above, the present state of science does not authorize recovery based on these facts.

4. Greystone Power Company (“Greystone”) is the electrical membership cooperative serving Douglas County. Greystone receives all of its power from defendant Oglethorpe and is a member of Oglethorpe. The jury was qualified as to Oglethorpe, but the Jordans claim that the court erred in refusing to qualify the jury as to Grey-stone.

Citing Thompson v. Sawnee Elec. Membership Corp., 157 Ga. App. 561 (278 SE2d 143) (1981), the Jordans argue that the court should have disqualified for cause 27 of the 36-person jury pool who were members of Greystone. In Lowman v. State, 197 Ga. App. 556, 557 (2) (398 SE2d 832) (1990), the court stated: “[t]he provisions governing the organization of and membership in an electric membership corporation are codified at OCGA § 46-3-170 et seq. OCGA § 46-3-260 makes membership in the electric membership corporation mandatory for those who receive or have agreed to receive electric service from the corporation. Members of the corporation have the right to vote (OCGA § 46-3-266), to bring derivative actions (OCGA § 46-3-272), and to remove directors and certain officers and agents (OCGA §§ 46-3-295 and 46-3-302 (b), respectively). Although OCGA § 46-3-340 (a) provides that electric membership corporations are operated without profit to their members, subsection (c) of that provision mandates that the bylaws of the corporation ‘contain provisions, consistent with subsection (a) of this Code section, for accounting for, allocating, assigning and disposing of its revenues and assets and may establish classes of members for such purposes.’ A mechanism is also provided for returning revenues upon the death of a member (OCGA § 46-3-341).”

The Lowman court continued: “[b]ased on factors such as the foregoing this court previously has determined that ‘the members of an electric membership corporation are in the same position as the stockholders of a corporation or the policyholders of a mutual insurance company as regards their right to share in the net earnings of the business.’ Thompson[, 157 Ga. App. at 562-563]. Thus, the court in Thompson concluded that the ‘members of an electric membership corporation are disqualified from service as jurors in the trial of a case in which damages are sought from the corporation.’ ” Lowman v. State, 197 Ga. App. at 557. See generally OCGA § 15-12-135.

Since the decision in Thompson, the previous statute (Code Ann. § 34B-117) governing EMC surplus revenues has been changed. OCGA § 46-3-340 (c) now provides that the bylaws of each EMC govern the disposition of the revenues of EMCs. Thus, upon retrial, if the Jordans again argue that Greystone members should be disqualified from the jury, they should present evidence that Greystone’s bylaws vest in its members a right to share in its surplus revenues, or that Greystone’s members have a right under Oglethorpe’s bylaws to share in Oglethorpe’s surplus revenues. If the Jordans present such evidence, the court would be obligated to disqualify such Greystone members as jurors.

Judgment reversed.

Beasley, C. J, and Ruffin, J., concur.

Decided November 30, 1995

Reconsideration denied December 20, 1995

Doffermyre, Shields, Canfield & Knowles, Robert E. Shields, for appellants.

Troutman Sanders, Robert L. Pennington, Scott A. Farrow, Sutherland, Asbill & Brennan, James A. Orr, for appellees.

       Although the Jordans contend that Greystone Power Company falls within the provisions of the electric membership corporation (EMC) act, we note that it does not comply with OCGA § 46-3-220 which requires that a company formed thereunder include the words “electric membership corporation” or an abbreviation thereof in its name.


source: Caselaw Access Project

author: Blackburn, Judge. Smith, Judge, Andrews, Judge,

license: Public Domain

text:
    A95A1654.
    J. H. HARVEY COMPANY v. EDWARDS et al.
    (466 SE2d 246)
   Blackburn, Judge.

Upon the grant of its application for discretionary appeal, J. H. Harvey Company appeals the trial court’s order denying its motion for summary judgment in the underlying slip and fall action.

While shopping for groceries, Alverna Edwards slipped and fell when she stepped on some green beans on the floor of a grocery store operated by J. H. Harvey Company (the store). Edwards and her husband sued the store for injuries she sustained in the fall claiming that the green beans on the floor were a hazardous condition which the store negligently allowed to exist, and that her injuries resulting from the fall were proximately caused by the store’s failure to keep the premises safe.

Edwards testified at her deposition that she entered the store, got a shopping cart, picked up several items at the front of the store, and pushed the cart down the produce aisle up to a display of green beans on a table in the aisle. She testified that she saw a store employee standing there displaying or working with the beans. Edwards further testified that she does not look at the floor when she is using a shopping cart, but that if she had looked at the floor she could have seen the beans. Edwards was also asked by defense counsel during her deposition if she was distracted by anything in the produce section. She replied: “No; except the beans. I was looking at the beans.”

After her deposition, Edwards filed an affidavit in opposition to summary judgment in which she stated: “I entered [the store] and proceeded to the produce section. My attention was directed to a display stand, located in the center of the aisle, where a store employee was prepping string beans which had been placed on the stand. This gentleman and I exchanged greetings, after which the employee stated: ‘These are mighty pretty beans!’ I nodded my head in agreement, and thereafter responded: T think I’ll have a look at them.’ As I stepped forward, I slipped on several beans which were lying on the floor.”

“Where the party upon whom the burden of proof at trial does not lie, makes a motion for summary judgment, all of the evidence adduced on said motion, including the testimony of the party opposing the motion, is construed most strongly against the movant.” Sheriff’s Best Buy v. Davis, 215 Ga. App. 290, 291 (450 SE2d 319) (1994). So construing Edwards’ deposition and affidavit, the testimony in both is consistent with the fact that at the exact moment she slipped Edwards was looking at the green bean display. Edwards deposed that a store employee was working with the beans at the time she fell, however, she was not questioned as to whether the employee said anything to her before her fall. Therefore, the averments in her affidavit were merely further explanation of the circumstances surrounding her fall which were not elicited during her deposition.

“In Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994), our Supreme Court held that the plaintiff’s explanation as to why he was not looking where he was going as he approached the check-out counter, that being, that he was looking at the cashier to tell him he was ready to check out, created a fact issue for jury determination. ‘This testimony is some evidence that Barentine exercised reasonable care for his own safety in approaching the check-out counter.’ ” Sheriff’s Best Buy, supra at 291. In Sheriff’s Best Buy, a store employee greeted the plaintiff who fell as she responded to the greeting. Id. at 290. We applied the Supreme Court’s analysis from Barentine, supra, and determined that an even stronger case was made for finding that some evidence of reasonable care on the plaintiff’s part existed where communication was generated by the store employee, rather than by the plaintiff, as in Barentine. Id. at 291.

“Looking continuously, without intermission, for defects in a floor is not required in all circumstances. What is ‘a reasonable lookout’ depends on all the circumstances at the time and place. Moreover, appellant, as the movant for summary judgment, had the burden of showing that there was no diversion attributable to it which . . . caused [Edwards’] attention to be drawn away from the [floor]. Where a proprietor owes a duty to its invitees to keep the premises in a safe condition for their passage, the setting up of a distraction, by a sign or conduct, which will so divert the customer’s attention as to be the proximate cause of his injury in colliding with what might otherwise be a patent and even safe appurtenance, may constitute actionable negligence on the part of the defendant.” (Citations and punctuation omitted; emphasis supplied.) Food Giant v. Cooke, 186 Ga. App. 253, 257 (366 SE2d 781) (1988).

In the present case, our previous decision in Sheriff’s Best Buy, and the Supreme Court’s analysis in Barentine, preclude summary judgment for the defendant herein. The trial court’s denial of the defendant’s motion for summary judgment is affirmed.

Judgment affirmed.

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

Smith, Judge,

concurring specially.

While I concur in the majority opinion, I cannot agree with all that is said with respect to the Georgia Supreme Court’s opinion in Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) (1994). See separate opinion in Baker v. Winn Dixie Stores, 219 Ga. App. 513 (465 SE2d 710) (1995).

Andrews, Judge,

dissenting.

In order to recover on this claim, Edwards must show that J. H. Harvey Company (the store) had actual or constructive knowledge of the hazard created by the green beans on which she slipped and that she was without knowledge of the hazard or for some reason attributable to the store she was prevented from discovering the hazard. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). In other words, even if it is assumed that the store had actual or constructive knowledge of the hazard, the store would still be entitled to summary judgment if Edwards knew about the hazard or should have discovered and avoided it, unless the store somehow prevented her from discovering it. Id.; Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991). In assessing whether or not Edwards knew about or should have discovered and avoided the hazard created by the green beans on the floor, the rules set forth in Alterman Foods, supra, are applicable and require that Edwards must “exercise ordinary care for [her] own safety, and must by the same degree of care avoid the effect of the [store’s] negligence after it becomes apparent to [her] or in the exercise of ordinary care [she] should have learned of it. [She] must make use of all [her] senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to [her].” (Citations and punctuation omitted.) Alterman Foods, supra at 623.

Edwards testified at her deposition that she entered the store, got a shopping cart, picked up several items at the front of the store, and pushed the cart down the produce aisle up to a display of green beans on a table in the aisle. She testified that she saw a store employee standing there displaying or working with the beans. Defense counsel asked Edwards to recount the circumstances of the fall.

“Q: I want you to tell me all you remember about the fall and what you fell on. A: I walked up there and slipped on some beans, and I fell. Q: Now you say ‘some beans.’ Was it several beans? A: It was more than one. . . . Q: Did you see these beans before you fell? A: No; I did not. Q: Why didn’t you see them before you fell? A: Well, I had items in my buggy and I was looking at the beans. I was not looking on the floor.”

Edwards testified that she saw the beans on the floor after she fell. She was then asked if she could have seen the beans if she had looked down at the floor.

“Q: If you had been looking down at the floor when you fell, could you have seen the beans? A: Not with the items in my buggy, I could not have. Q: Let’s take the buggy out of it. If you had been looking down at the floor, could you have seen the beans when you fell? A: I don’t think so because I was viewing the beans. Q: ... If you had been looking at the floor instead of looking at the beans, could you have seen the beans? A: If they had been down there, I guess I could have.”

Edwards further testified that she does not look at the floor when she is using a shopping cart, but that if she had looked at the floor she could have seen the beans. Edwards was also asked by defense counsel during her deposition if she was distracted by anything in the produce section. She replied: “No; except the beans. I was looking at the beans.”

According to Edwards’ deposition testimony, the green beans were visible on the floor of the store and she could have seen them if she had looked. But she did not look because the shopping cart blocked her view and she was distracted by the green beans on the display. After her deposition, Edwards filed an affidavit in opposition to summary judgment in which she stated that: “I entered [the store] and proceeded to the produce section. My attention was directed to a display stand, located in the center of the aisle, where a store employee was prepping string beans which had been placed on the stand. This gentleman and I exchanged greetings, after which the employee stated: ‘These are mighty pretty beans!’ I nodded my head in agreement, and thereafter responded: T think I’ll have a look at them.’ As I stepped forward, I slipped on several beans which were lying on the floor.”

To the extent Edwards’ affidavit attempts to establish that she failed to see the beans on the floor because she was distracted by the actions or comments of a store employee, the affidavit should not be considered because it contradicts her earlier deposition testimony and falls under the contradictory testimony rule set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). In describing the circumstances of the fall during her deposition, Edwards made no mention of being distracted by a comment made by the store employee, but gave other reasons for the fall. When asked why she did not see the beans on the floor, she explained that she had items in her shopping buggy and that she was looking at the beans and not at the floor. When specifically asked if she was distracted by anything she stated: “No; except the beans. I was looking at the beans.” Four months after giving this deposition testimony, and in response to the store’s motion for summary judgment, Edwards filed an affidavit stating that the employee working at the bean display greeted her and commented, “These are mighty pretty beans.” Relying solely on this affidavit, Edwards now seeks to avoid summary judgment by claiming that her fall was caused when she was distracted by the comment made by the store employee. Although Edwards never deposed whether or not the store employee said anything to her prior to her fall, her deposition testimony as a whole was clearly contrary to her subsequent claim in the affidavit that a comment made by the store employee distracted her. “Any contradictory testimony or statements by [Edwards], as to these admitted factual matters, and for which no reasonable explanation for inconsistencies was given, would have to be construed against [her] pursuant to the rule of Prophecy Corp., [supra].” (Citations and punctuation omitted.) Saffar v. Chrysler First Business Credit Corp., 215 Ga. App. 239, 241 (450 SE2d 267) (1994). Since Edwards testified in her deposition that the display of beans was all that distracted her, any statement in her affidavit to the contrary, for which she offered no explanation, must be eliminated from consideration on the motion for summary judgment. Freeman v. Oak Grove Animal Clinic, P.C., 214 Ga. App. 362, 363 (448 SE2d 28) (1994); Prophecy Corp., supra.

As the record stands after the elimination of any additional distraction theory advanced in the affidavit, Edwards’ only claim is that she was not able to see and avoid the otherwise plainly visible beans because: (1) she was prevented from seeing the floor by her cart and the items in it, and (2) the beans displayed on the stand in the produce section distracted her attention. The fact that the shopping cart obscured her vision of the floor did not relieve Edwards of the duty to look where she was going before she pushed the cart forward into a position that obscured the otherwise visible hazard. Minor v. Super Discount Markets, 211 Ga. App. 123, 124 (438 SE2d 384) (1993). Moreover, Edwards cannot claim that her duty to exercise ordinary care to avoid a plainly visible hazard was diminished because she was looking at items she wanted to purchase. Her attention to the green beans displayed on a stand in the produce section was not a distraction induced by the store, but was a self-induced distraction which provided no excuse for failing to exercise ordinary care to watch where she was stepping and avoid a plainly visible hazard on the floor. Piggly Wiggly Southern v. Weathers, 216 Ga. App. 12, 14 (453 SE2d 74) (1994).

Decided December 5, 1995

Reconsideration denied December 20, 1995.

Young, Thagard, Hoffman, Scott & Smith, James Thagard, J. Holder Smith, Jr., for appellant.

Dorough & Sizemore, Kermit S. Dorough, Jr., Jones & Jones, L. Earl Jones, Stefanie J. Abbott, for appellees.

Edwards’ failure to exercise ordinary care for her own safety to avoid stepping on the plainly visible green beans was, as a matter of law, the proximate cause of her slip and fall and resulting injuries. Jester v. Ingles Market, 206 Ga. App. 327, 329 (425 SE2d 323) (1992); Winn Dixie Stores v. Carroll, 212 Ga. App. 234 (441 SE2d 432) (1994). Nothing in Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994), relied upon by the majority, requires a different conclusion. The trial court erred by denying the store’s motion for summary judgment.

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

       Mrs. Edwards’ husband was joined as a party plaintiff in the action by court order on the basis that he was entitled to assert a loss of consortium claim.


author: Ruffin, Judge.

text:
    A95A1673.
    DINER ONE, INC. et al. v. BANK SOUTH, N. A.
    (466 SE2d 234)
   Ruffin, Judge.

Bank South, N. A. sued Diner One, Inc., Kathleen Hall, Michael C. Hall, and Henry Hart for unpaid rent and the removal of fixtures based on a commercial lease agreement the defendants originally entered into with Mike Casteel. Diner One actually leased the property, and Kathleen Hall, Michael C. Hall, and Henry Hart (“guarantors”) individually guaranteed payment under the lease. Bank South acquired the property when Casteel defaulted on the terms of a security deed and the bank purchased the property at a foreclosure sale. After the foreclosure sale, Diner One took the position that it became a tenant at sufferance, its rights and obligations under the lease terminated by operation of law. Diner One notified the bank of its intention to vacate the property at the end of the following month and paid rent for the current month and the next month. Bank South responded by advising Diner One that prior to the foreclosure, Casteel assigned the lease to the bank as collateral for a separate personal loan to Casteel, and the bank demanded that Diner One continue paying rent. Diner One ceased paying rent, vacated the property, and Bank South filed the instant action. Both sides moved for summary judgment. The trial court granted summary judgment to Bank South and entered judgment against the defendants for past due rent in the amount of $24,888.08. This appeal followed. We find that Diner One gave Bank South proper notice of termination under OCGA § 44-7-7. Therefore, the trial court erred in granting summary judgment to the bank and in entering judgment in its favor.

Relying on a passage in Wright v. Home &c. Ins. Co., 155 Ga. App. 241 (1) (270 SE2d 400) (1980), the trial court held that the foreclosure did not terminate the lease because the lease predated Casteel’s assignment to the bank. In Wright, the court stated that “ ‘(w)here the lease antedates the mortgage (or deed to secure debt), a sale of the demised premises on foreclosure will not operate to terminate the lease.’ ” (Emphasis supplied.) Id. at 242. The court also held that the foreclosure did not affect Diner One’s obligation to pay rent. The lease defined “landlord” as “first party, his heirs, representatives, assignees and successors in title to the premises.” Thus, the court concluded that the foreclosure merely had the effect of replacing Bank South for Casteel as landlord and thereafter, that Bank South ratified the lease by demanding rent from Diner One in accordance with the lease.

In their sole enumeration of error, Diner One and the guarantors (collectively “Diner One”) contend the trial court erred in failing to find that the foreclosure terminated the lease.

It is well settled that “[w]hen a lessee leases property subsequent to the execution of a deed to secure debt and the grantee of such deed exercises the power of sale, the lessee becomes a tenant at sufferance. . . . [Cit.]” Id. In the instant case, the lease also provided, in pertinent part, that “[t]enant’s rights shall be subject to any bona fide mortgage or deed to secure debt which is now, or may hereafter be, placed upon the Premises by Landlord.” Therefore, Diner One leased the property from Casteel subject to an existing deed to secure debt and became a tenant at sufferance when Bank South purchased the property at the foreclosure sale. The trial court erred in ignoring the deed to secure debt which was superior to the lease and in relying on a passage from Wright which is not applicable to this case inasmuch as the lease did not antedate the deed to secure debt and the assignment of the lease was merely an assignment of “a chose in action in the event of a default.” Wright, supra. See also Lunsford v. Income Properties, 254 Ga. 55 (325 SE2d 590) (1985). However, our analysis does not end here because Bank South’s actions subsequent to the foreclosure demonstrated its desire that Diner One continue its tenancy. Indeed, it appears that Bank South’s demand for rent converted the tenancy at sufferance into a tenancy at will.

“A [tenant] at sufferance is . . . one [who] comes into possession of land by lawful title, but keeps it afterwards without any title at all. ... A tenant at will is always in by right, evidenced by permission, express or implied, of the landlord. ... It takes very little to convert a tenancy at sufferance into a tenancy at will. Receipt of rent, demand for rent, or anything that indicates the permission of the landlord for the tenant to remain in possession will have this effect.” (Citations and punctuation omitted.) Willis v. Harrell, 118 Ga. 906, 909 (3, 4) (45 SE 794) (1903). However, only “[t]hirty days notice by the tenant is necessary to terminate a tenancy at will. [Cit.]” Plank v. Bourdon, 173 Ga. App. 391, 394 (3) (326 SE2d 571) (1985). Accordingly, we find that a tenancy at will was created and that Diner One’s notice to Bank South of its intention to vacate the property constituted proper notice of termination in accordance with OCGA § 44-7-7. Therefore, the trial court erred in granting summary judgment and entering judgment in favor of Bank South.

Decided December 5, 1995

Reconsideration denied December 20, 1995

Donaldson, Hall, Martin, Garvey & Bell, George P. Donaldson III, for appellants.

Martin, Snow, Grant & Napier, Edward J. Harrell, Lisa M. Edwards, for appellee.

Judgment reversed.

Beasley, C. J., and Pope, P. J., concur.


text:
    A95A1747.
    WATSON et al. v. CITY OF ATLANTA.
    (466 SE2d 229)
   Ruffin, Judge.

William L. Watson and six other individuals (“the plaintiffs”) own apartment units (“multi-family units”) located in College Park, Georgia. These multi-family units are located near the William B. Hartsfield Atlanta International Airport which is owned and operated by the city of Atlanta (“the city”). In 1984, the city developed the Aircraft Noise Exposure Maps & Noise Compatibility Program (“the program”) to reduce land uses around the airport which were not compatible with the noise generated by the airport. As part of the program, the city purchased single-family residential property near the airport. The program did not provide for the purchase of multifamily units such as those owned by the plaintiffs. When the city refused to buy plaintiffs’ units, they brought the instant action for nuisance resulting from the noise and inverse condemnation.

The case was first tried on April 18, 1994. At the conclusion of the plaintiffs’ evidence, the court granted the city’s motion for directed verdict on plaintiffs’ nuisance claims. The jury deliberated on the remaining claims but was unable to reach a verdict. Accordingly, a mistrial was declared. At the conclusion of the second case, the jury returned a verdict in favor of the city. Plaintiffs appeal the court’s denial of their motions for new trial and judgment notwithstanding the verdict. We affirm in part, reverse in part, and remand in part.

1. Plaintiffs alleged that the city’s acquisition of single-family units as opposed to multi-family units such as plaintiffs’ was arbitrary, capricious, irrational, and bore no direct relation to the goals of the program; accordingly, plaintiffs alleged the program violated the equal protection clause of the Fourteenth Amendment of the United States Constitution. They now appeal the grant of summary judgment to the city on that issue.

With respect to the distinction between single- and multi-family units, the program states in part as follows: “Multi-family-residential was not included as a noise sensitive land use. People who own and reside in single-family residences in the Atlanta Airport Environs have tended to be more sensitive to aircraft noise levels than those who live in apartments or other rental multi-family residences. The high apartment occupancy rates (96 to 98 percent) in the Airport Environs indicate that there is a strong rental market in the area. Typically, homeowners demand more use and enjoyment from their property than people who are renting. This stands to reason since they have invested a considerable amount of time and money in their homes and do not have the flexibility of choice that a renter has in moving away from a noisy area.”

Plaintiffs argue that a fundamental right was affected by the city’s classification. They contend that the city bought only single-family residences which it ultimately burned and razed along with the surrounding foliage. This action created a “wasteland” surrounding the multi-family units as well as increased noise because the former homes and foliage had absorbed some of the noise from the airport. As a result, plaintiffs contend they have been forced to lower rental rates, have experienced lower occupancy in the units, and have been unable to sell the property.

Plaintiffs also argue that they are similarly situated to the owners of single-family residences, but as a result of the city’s classification, they have been forced to shoulder the problems with a noisy wasteland. This situation, they argue, is violative of the equal protection clause which is “intended to prevent extraordinary benefits or burdens from flowing to any one group.” Bickford v. Nolen, 240 Ga. 255 (240 SE2d 24) (1977).

“When assessing equal protection challenges, a classification is tested under a standard of strict judicial scrutiny if it either operates to the disadvantage of a suspect class or interferes with the exercise of a fundamental right. [Cit.]; Ambles v. State, 259 Ga. 406, 407, 383 SE2d 555, 557 (1989).” Provident Mut. Life Ins. Co. &c. v. City of Atlanta, 864 FSupp. 1274, 1291 (N. D. Ga. 1994). If the classification affects neither a suspect class nor a fundamental right, then it must bear a rational relationship to a legitimate state purpose. See Horton v. State Employees Retirement System, 262 Ga. 458 (2) (421 SE2d 703) (1992); Provident, supra.

Pretermitting whether plaintiffs have been deprived of a fundamental right by virtue of the classification’s impact on their ability to use or dispose of the property, we find that the court erred in holding that the classification bore a rational relationship to the goal of reducing land uses which are incompatible with the noise generated by the airport. We acknowledge that generally if there is any set of facts upon which a court could sustain a distinction between two entities, the classification will withstand an equal protection challenge. Smith v. Cobb County-Kennestone Hosp. Auth., 262 Ga. 566 (1) (b) (423 SE2d 235) (1992). In this case, however, there are no actual “facts” which support the distinction between single-family units and multifamily units in fulfilling the goal of reducing land uses which are not compatible with the noise generated by the airport. Rather, the program simply sets forth the unsupported conclusion that multi-family units are less affected by and thus more compatible with the noise generated by the airport. In fact, the FAA’s “Noise/Land Use Compatibility Guidelines,” which makes no distinction between single- and multi-family residences, belies this conclusion. The city provides no competent evidence in the form of verifiable apartment occupancy rates or verifiable statistics to prove that single-family homeowners are more affected by the noise than are multi-family renters. Nor does the city provide competent evidence to prove any impact on the community which would result from the inclusion of multi-family residences in the program. The defect in the classification is that it draws a line between otherwise identical groups — residences in the vicinity of the airport — without an objective basis for doing so. As Justice Blackmun stated in a separate, concurring opinion in Logan v. Zimmerman Brush Co., 455 U. S. 422 (102 SC 1148, 71 LE2d 265) (1982), the connection between the means of achieving the goal and the end “must have some objective basis.” Id. at 442. Moreover, the plaintiffs presented evidence that the classification and the ensuing acquisition and subsequent destruction of single-family residences actually resulted in increased noise for the multi-family units. Thus, there was an insubstantial relationship between the classification and the goal of reducing noncompatible land use. Accordingly, the trial court erred in finding that the classification bore a rational relationship to the goal of reducing noncompatible land use by buying those properties most affected and in granting the city summary judgment on plaintiffs’ equal protection claim. We therefore remand for a new trial on this issue. Because several of the issues enumerated as error by plaintiffs are likely to arise again in the retrial, we now address them.

2. The plaintiffs contend that the court erred in charging the jury on former 49 USC § 2107 (now 49 USC § 47506) in this case, arguing that the charge was an incorrect statement of law. In addition, they contend that the application of the statute results in a waiver of their eminent domain rights under Art. I, Sec. III, Par. I of the Georgia Constitution and that the federal statute cannot preempt these state law remedies to recover for the nuisance resulting from the noise. Although there is some confusion in the record regarding the numbering of the charges, it appears that following the court’s instructions to the jury, plaintiffs objected to the court’s charge on the statute. The city does not dispute this in its brief.

49 USC § 2107 provides that no person “who acquires property or an interest therein after February 1980, in an area surrounding an airport for which a noise exposure map has been submitted . . . may recover damages for noise attributable to the airport . . .’’if the airport has complied with certain requirements, including publishing the map on at least three occasions in a newspaper of general circulation in the county. Thus, the charge to the jury was a correct statement of the law. However, the trial court never ruled on the applicability of the charge to this particular case. The record shows that the city argued in its motion for summary judgment that it was immune from damages for noise under the statute. Plaintiffs’ response to the motion included the argument that the statute did not preempt their state eminent domain rights. The court denied the motion, finding that issues of fact remained as to the applicability of the statute. Our review of the record and transcript does not show that the question of the applicability of the federal law was ever resolved by the court. Thus, we remand this issue to the trial court for a determination of the applicability of the statute to this inverse condemnation action.

3. The plaintiffs contend that the trial court erred in excluding plaintiffs’ Exhibits 3 and 19-A. Plaintiffs’ Exhibit 19-A was a land use compatibility guideline which shows which land uses are compatible with the noise generated by the airport. The record shows that the trial court originally denied the city’s motion in limine to exclude Exhibit 19-A on grounds that OCGA § 24-3-37 was inapplicable to the evidence in question. However, after hearing argument on the provisions of 49 USC § 2106, the Aviation Safety Noise Abatement Act of 1979 (“Noise Abatement Act”), in effect at the time of trial, the court granted the city’s motion in limine.

The Noise Abatement Act “was designed to assist airports and surrounding communities in developing and instituting programs to reduce existing noncompatible land uses. ... In furtherance of this goal, airport owners are to prepare noise impact maps and noise compatibility programs to guide them in addressing noncompatibility problems. Recognizing that the threat of having those maps and programs used as evidence against airport owners might deter owners from pursuing the established goal, the Act provides the following prohibition: ‘No part of any noise exposure map or related information described in section 2103 of this title . . . and no part of the list of land uses . . . which are normally compatible with various exposures of individuals to noise shall be admitted as evidence, or used for any other purpose, in any suit or action seeking damages or other relief for the noise that results from the operation of an airport.’ 49 USC App. § 2106. [Cit.]” Provident, supra at 1293.

However, “aside from the full faith and credit clause of the Constitution, Congress would have no power to prescribe rules of evidence for State courts. [Cits.]” Edmonds v. State, 201 Ga. 108, 129 (6) (39 SE2d 24) (1946). Thus, the federal statute at issue here “would not apply as a rule of evidence in a State court. ...” Id. See also Atlanta Joint Terminals v. Knight, 98 Ga. App. 482 (3) (106 SE2d 417) (1958), in which we held that the admissibility of evidence is a procedural question and thus governed by Georgia’s rules and procedures rather than federal law. Because Georgia law has no prohibition against the admissibility of evidence such as that contained in Plaintiffs’ Exhibit 19-A, the trial court erred in excluding the exhibit.

Likewise, plaintiffs argue that the court erred in finding that 49 USC § 2106 barred the admission of plaintiffs’ Exhibit 3. However, the transcript does not show the reason for the court’s exclusion of that exhibit. Moreover, we do not find nor do plaintiffs present any evidence that they objected to the exclusion of the exhibit. Accordingly, this part of the enumeration presents nothing for our review. See Southeastern Ambulance Corp. v. Freeman, 185 Ga. App. 119 (4) (363 SE2d 571) (1987).

4. The plaintiffs contend the court erred in allowing the city’s airport noise expert, Andrew Bell, to testify about several exhibits he designed because Bell’s testimony was based on facts not in evidence. We disagree.

Bell testified that the exhibits were prepared from flight progress strips and tower activity reports he received from the airport tower, documents which were not admitted into evidence. After reviewing the documents and aerial photographs, Bell entered the information into a computer and generated the exhibits. Bell testified that the information he received from the tower was “the most accurate, best available information as to how the airport operates and what the traffic is.” The manager of the control tower testified that the air traffic controllers were required to generate and maintain daily tower activity reports and flight strips and that there are 1,800 to 2,000 flight operations each day at the airport. Given the sheer volume of documents upon which Bell’s testimony was based, the trial court did not err in allowing his testimony.

“The ‘Summary of Voluminous Records Rule,’ an exception to the best evidence rule . . . has been stated as follows: ‘Where a fact could be ascertained only by the inspection of a large number of documents made up of very numerous detailed statements ... , it is obvious that it would often be practically out of the question to . . . (require) . . . the production of the entire mass of documents and entries to be perused by the jury or read aloud to them. The convenience of trials demands that other evidence be allowed to be offered, in the shape of the testimony of a competent witness who has perused the entire mass and will state summarily the net result. Such a practice is well established to be proper.’ [Cit.] All that is necessary in such a case is that the documents themselves be available to the court and to opposing counsel. [Cits.]” (Emphasis omitted.) First Nat. Bank of Atlanta v. First Nat. Bank of Tucker, 158 Ga. App. 843, 844 (282 SE2d 353) (1981). Because Bell personally reviewed the documents and the documents could be made available, if necessary, this enumeration is without merit.

5. In their seventh enumeration of error, the plaintiffs contend the court erred in granting the city of College Park’s motion for summary judgment. Citing OCGA § 9-11-54 (b), the trial court entered a final judgment in favor of College Park on December 17, 1992. Under OCGA § 5-6-38 (a) the plaintiffs were required to file their appeal of that judgment within 30 days of its entry. Because they did not do so we have no jurisdiction to consider this appeal. See Parks v. Atlanta Pub. School System &c., 168 Ga. App. 572 (2) (309 SE2d 645) (1983). We deny College Park’s motion for a frivolous appeal penalty to be assessed against plaintiffs.

6. The plaintiffs contend the trial court erred in granting the city’s motion for directed verdict on their nuisance claim in the first trial. In its brief, the city contends that it moved for a directed verdict on three grounds. However, the record does not contain a transcript of “the arguments and evidence [the city] presented to the trial court in support of its . . . motion nor does it contain the court’s ruling thereon. . . . Under these circumstances, we must rely on the presumption in favor of the regularity of all proceedings in a court of competent jurisdiction, assume that the evidence was sufficient to support the trial court’s ruling and affirm the judgment.” (Citations and punctuation omitted.) City of Atlanta v. Starke, 192 Ga. App. 267, 268 (1) (c) (384 SE2d 419) (1989).

Decided December 5, 1995

Reconsideration denied December 20, 1995

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, David P. Thatcher, for appellants.

Charles F. Hicks, Clifford E. Hardwick IV, for appellee.

Judgment affirmed in part and reversed and remanded in part.

Beasley, C. J., concurs in judgment only. Pope, P. J., concurs.

       See in this regard Clark v. State, 219 Ga. 680 (135 SE2d 270) (1964); Woodside v. City of Atlanta, 214 Ga. 75, 83 (3) (103 SE2d 108) (1958).

         Because the charge to the jury in the retrial will depend on the course of this case on remand and retrial, we will not address herein the jury charges plaintiffs complain of in their eighth enumeration of error.


author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A95A1748.
    NORTHERN TELECOM, INC. v. WILKERSON.
    (466 SE2d 221)
   Andrews, Judge.

We granted Northern Telecom’s petition for interlocutory appeal to determine whether the trial court erred in denying its motion for judgment notwithstanding the verdict. We hold that it did and reverse.

Harold Wilkerson sued his employer Northern Telecom for malicious arrest. The case was tried to a jury, which awarded Wilkerson general damages of $80,000; special damages of $223,000; and punitive damages of $3,000,000. Northern Telecom filed a motion for j.n.o.v., or in the alternative for a new trial. On December 5, 1994, the trial court entered an order denying the motion for j.n.o.v. and conditionally granting the motion for new trial on the issue of punitive damages. Noting that it believed the jury award to be the result of “excessive passion,” the court conditioned its grant of a new trial on the amount of punitive damages, upon Wilkerson’s acceptance, within 30 days, of $500,000 as an appropriate amount of punitive damages. On January 4, 1995, the court clarified its earlier order stating that both parties were to agree to the election of $500,000 within 30 days. On February 7, 1995, the court entered a third order which found that the time period for accepting the amount had expired with no acceptance by the parties. Accordingly, the court found that the motion for j.n.o.v. was denied and that the alternative motion for new trial was granted as to the issue of the amount of punitive damages.

1. Northern Telecom argues that the trial court erred in denying its motion for j.n.o.v. because Wilkerson was unable to prove malice and lack of probable cause. In deciding whether the court should have granted Northern Telecom’s motion for j.n.o.v., “[t]he primary question for determination is whether the evidence introduced, with all reasonable deductions . . . demanded a verdict for the defendant, as the standards for granting a motion for judgment n.o.v. are the same as those governing direction of a verdict. The motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a ‘one way’ verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.” (Citations and punctuation omitted.) Famiglietti v. Brevard Med. Investors, 197 Ga. App. 164 (1) (397 SE2d 720) (1990).

The evidence at trial, taken in the light most favorable to the jury’s verdict, was as follows. Wilkerson began working for Northern Telecom on January 5, 1981, as a system tester in the test shop. On or around April 1989, Wilkerson went on disability leave for physical and mental stress. He was also going for counseling during this period and checking in periodically with Claire McCall, an occupational nurse in charge of administering the short-term disability plan for Northern Telecom.

On May 19, 1989, Wilkerson went to see McCall and was extremely agitated. He expressed a great deal of hostility and anger toward the company and employees, and, at one point, asked McCall if she knew that he owned a machine gun. Although he felt as though he had not really improved during his time off, Wilkerson returned to work on May 30, 1989. A few days after he returned, Wilkerson had an altercation at work with one of his co-workers, Todd Edwards. As a result of this incident, both Wilkerson and Edwards were reassigned. Wilkerson became extremely upset when Wes Weston, his section manager, told him of the reassignment. Dwight Clay, the manufacturing supervisor, testified that Wilkerson was crying and visibly trembling and even hit the door of one of the stockrooms with his fist. Clay further testified that Wilkerson said he was going to crack, threatened to get revenge and that he might get Wes Weston’s wife while Wes was at work. Wilkerson admitted to telling Clay he had a gun in his truck, but he said that the reference was made in the context of shooting himself. Wilkerson also testified that he told Clay he was going to get a hat that said “Communications Workers of America” on it and would “get a union in here with bells and whistles.”

Wilkerson then went to see nurse McCall. McCall testified that Wilkerson was very agitated and kept talking about having an arsenal and knowing where other employees lived and what to do with it. Me-Call further testified that, at one point, Wilkerson told her that he felt homicidal.

After talking to Wilkerson, Clay became concerned about the situation and talked to two other managers about what action to take. One of them suggested he go to Nigel Taylor, the general manager from Canada who was currently at the plant for an operations review. After hearing Clay’s report, Taylor called in Don Kellett, the managér responsible for security at the plant. Clay was asked if he felt that Wilkerson was a threat and he replied yes, he did. It was determined that the safest course of action would be to keep Wilkerson off Northern Telecom property for the time being. Taylor sent Clay and Kellett to the police station to report these facts to the police. Clay signed an affidavit in which he described Wilkerson’s threats, specifically those against Wes Weston and his wife. The police issued an arrest warrant for simple assault. On June 7, 1989, Wilkerson was arrested. On October 19, 1989, Northern Telecom dropped the charges against him.

Northern Telecom argues that its motion for j.n.o.v. was improperly denied since there was no evidence of malice or lack of probable cause upon which to maintain the action. Citing Mayor &c. of Savannah v. Wilson, 214 Ga. App. 170 (4) (447 SE2d 124) (1994), Northern Telecom contends that the circumstantial evidence presented by Wilkerson at trial was insufficient to withstand its motion for j.n.o.v., in light of the direct evidence Northern Telecom presented with regard to the lack of malice. In Mayor &c. of Savannah, supra, the court stated that in order to maintain an action for malicious arrest, lack of probable cause and “some evidence of the animus required by OCGA §§ 51-7-2 and 51-7-3 must be shown.” “Lack of probable cause is defined in OCGA § 51-7-43 as existing when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused. Unless the facts regarding probable cause are undisputed, it is a question for the jury. However, where there is no evidence of malice other than such inference as may be drawn from proof of the want of probable cause, and that proof shows some circumstances pointing to the guilt of the accused, although insufficient to exclude every other reasonable hypothesis, the essential ingredient of malice is not so established as to entitle the plaintiff in an action for false arrest to recover.” (Citations and punctuation omitted.) Mayor &c. of Savannah, supra at 173.

Wilkerson argues that the reason for the arrest was that Northern Telecom had learned that Wilkerson stated he was going to wear a “Communications Workers of America” hat to work and that he was threatening to bring the union to the company. Wilkerson also states that he was arrested simply to keep him off company property. He contends that in light of the stringent standard for granting a motion for j.n.o.v., the decision of the trial court should stand.

Here, even viewing the evidence in the light most favorable to the verdict, it is clear that Northern Telecom had probable cause to go to the police about this situation. Nurse McCall’s testimony is uncontroverted as to her reports to management about Wilkerson’s threats and the danger he posed to others and himself. Wilkerson admitted being very upset after learning of his reassignment. He admitted talking about a gun. Northern Telecom had a duty to Wilkerson and its other employees to report this to the police. Further, the decision to issue an arrest warrant for simple assault, rather than another violation more in keeping with the circumstances, was made by the police and the magistrate, and Dwight Clay and Northern Telecom were not parties to this decision. In any event, it has no bearing on the fact that, given Wilkerson’s fragile emotional state, Northern Telecom was justified and had probable cause to go to the police and swear out a warrant.

In addition, we find Wilkerson was unable to show any malice on the part of Northern Telecom. The sole basis for Wilkerson’s contention that Northern Telecom acted with malice in causing him to be arrested is his claim that Northern Telecom did not want him attempting to bring the union into the plant. However, Clay’s uncontroverted testimony was that during the meeting with Nigel Taylor, no one mentioned any threat by Wilkerson to bring in the union. The only evidence adduced at trial on this issue was Wes Weston’s testimony that Northern Telecom had a plan for countering union activity, Barbara Wilkerson’s testimony that union participation was discouraged, and Wilkerson’s own testimony as to how the company reacted to union activity. There was absolutely no testimony or other evidence introduced at trial that linked Wilkerson’s threat to “wear a C.W.A. hat to work” to Northern Telecom’s decision to report Wilkerson’s behavior and threats to the police.

Further, Wilkerson sued Clay individually and as an agent of Northern Telecom for falsely and maliciously swearing out the warrant. However, the jury found in favor of Clay and awarded damages only against Northern Telecom. Since Clay, with verification from nurse McCall, provided all of the information upon which Taylor based his decision to go to the police and it was Clay who swore out the affidavit in support of the warrant, it is difficult to reconcile the jury’s finding that Clay was not liable of falsely and maliciously swearing out a warrant but Northern Telecom was.

In addition, even discounting the testimony of Dwight Clay, there was still the unequivocal and uncontroverted testimony of nurse McCall and even Wilkerson himself which showed that Wilkerson was in a very agitated and violent state of mind. Northern Telecom would not have been justified in ignoring these signs of emotional instability and threatened physical violence.

Therefore, because Wilkerson introduced no evidence that Northern Telecom acted with malice or lack of probable cause when they had him arrested, he was unable to prove liability in his claim of malicious arrest. Accordingly, the trial court erred in denying Northern Telecom’s motion for j.n.o.v. on the issue of liability.

2. Because we find that the trial court erred in denying Northern Telecom’s motion for j.n.o.v. on the issue of liability, we need not address the following enumerations of error.

Judgment reversed.

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

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the majority’s judgment reversing the trial court’s denial of defendant’s motion for judgment notwithstanding the verdict in plaintiff Harold Wilkerson’s successful action for malicious arrest against his former employer. “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” OCGA § 24-9-80. In addition to the facts recited by the majority, I note that plaintiff was informed by the personnel manager, Wes Weston, that plaintiff would be demoted and have his pay reduced after an altercation with his co-employee, Todd Edwards. This disciplinary action was taken despite Wes Weston’s belief that “Todd had provoked [plaintiff], and he instigated it[.]” Plaintiff’s outrage at this perceived injustice reflects on the meaning to be attached to any words he subsequently uttered in anger to (or in the presence of) co-defendant Dwight Clay. At trial, plaintiff denied threatening anyone. The jury was thus authorized to believe that any mention of the gun in plaintiff’s truck was a histrionic reference to suicide, not terroristic threats directed at anyone else.

Dwight Clay’s testimony before the magistrate resulted in the issuance of a warrant for plaintiff’s arrest for a simple assault committed against Wes Weston. According to the facts recited in the warrant, Dwight Clay told the magistrate that plaintiff said to him (Dwight Clay) that he (plaintiff) “had a gun in his truck and had [a] good mind to get it [and] use it[; that] revenge was his and that in 6 hours, days or months he would use it[; that] he knew where Wes Weston lived [and] might ‘get his wife’ while Wes was at work.” This warrant is thus based solely upon plaintiff’s conversation with Dwight Clay and not upon any word or act committed in the presence of the purported victim, Wes Weston. In my view, this evidence utterly fails, as a matter of law, to establish probable cause to believe that Wes Weston was placed in a reasonable apprehension of receiving any imminent bodily injury, based upon plaintiffs apparent present capacity to inflict such injury. See, e.g., Johnson v. State, 158 Ga. App. 432, 433 (280 SE2d 856); OCGA § 16-5-20 (a) (2). The magistrate in the case sub judice erred in issuing a warrant for simple assault based upon this evidence, and the erroneous issuance of that warrant eliminates it as a prima facie case of probable cause. The total lack of probable cause is a circumstance from which the jury may infer malice. OCGA § 51-7-44; Auld v. Colonial Stores, 76 Ga. App. 329, 337 (3) (45 SE2d 827).

Moreover, the absence of probable cause is not the only evidence of malice in the case sub judice. Although Dwight Clay denied that the anti-union sentiments of Northern Telecom, Inc. played any role in his decision to seek a warrant, this presented a credibility question for the jury. Plaintiff and his wife presented uncontradicted evidence of Northern Telecom’s strong anti-union corporate culture. Northern Telecom made it “very adamant they did not want a union.” When he was a supervisor, plaintiff was expected to be a snitch with respect to pro-union employees. In my view, this is sufficient independent evidence of malice to support the jury’s determination that plaintiff’s arrest was ordered by defendant’s agents with that “general disregard of the right and consideration of mankind, or a portion of society,” directed against the plaintiff. Auld v. Colonial Stores, 76 Ga. App. 329, 337 (3), supra. Certainly, we cannot hold this evidence of Northern Telecom’s corporate culture is wholly irrelevant, as a matter of law, to its collective decision in swearing out an arrest warrant for perceived threats uttered outside the presence of the purported victims. It is an old and sound rule that this Court will not speculate as to what evidence the jury chose to believe. See generally Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510). “A jury should not be precluded from putting two and two together[.]” Southern R. Co. v. Newman, 187 Ga. 132 (1), 133 (199 SE 753). Moreover, in determining whether that independent evidence of malice afforded a sufficient nexus to the issuance of an arrest warrant without probable cause, “ ‘[a] jury in arriving at a conclusion upon disputed issues of fact may believe a part of the testimony of a witness or witnesses, and reject another part thereof, it being their duty to ascertain the truth of the case from the opinion they entertain of all the evidence submitted for their consideration.’ Sappington v. Bell, 115 Ga. 856 (1) (42 SE 233).” Reaves v. Columbus Elec. &c. Co., 32 Ga. App. 140, 151 (122 SE 824). It is my view, however, that the majority strays from the relevant and permissible appellate inquiry and improperly speculates on which type of evidence of malice the jury in the case sub judice found credible. “The Court of Appeals shall be a court of review. . . .” Art. VI, Sec. V, Par. III, Ga. Const. of 1983. “ ‘This court has repeatedly ruled that in the absence of legal error, it has no jurisdiction to interfere with a verdict supported by some evidence, although the verdict was against the preponderance of the evidence. The decisions ... to the contrary . . were rendered prior to the constitutional amendment restricting the jurisdiction of [the Supreme Court of Georgia] and this court to the decision of errors of law and equity, and are not now in point.’ Wilson v. Barnard, 10 Ga. App. 98 (8) (72 SE 943).” Black v. Duncan, 79 Ga. App. 342 (53 SE2d 726). Since, in the case sub judice, there is evidence of malice beyond the total lack of probable cause, the juxtaposition of “direct” versus “circumstantial” evidence of malice arising solely from the absence of probable cause is simply inapposite and the majority’s reliance on Mayor &c. of Savannah v. Wilson, 214 Ga. App. 170, 172 (4) (447 SE2d 124) is misplaced. We are unauthorized to disturb this verdict on the grounds urged by defendant, and so I respectfully dissent from the judgment of reversal as the trial court was correct and should be affirmed.

Decided December 4, 1995

Reconsideration denied December 20, 1995

Long, Aldridge & Norman, Phillip A. Bradley, Harold N. Hill, Jr., R. Daniel Beale, for appellant.

Smith, Howard & Ajax, Bruce H. Beerman, Thomas & McDonald, Diana Y. McDonald-Burks, Walter H. Hotz, for appellee.

I am authorized to state that Presiding Judge Pope, Judge Blackburn, and Judge Ruffin join in this dissent.

       This seemingly contradictory verdict, together with the trial judge’s finding that the award for punitive damages was the result of excessive passion, would seem to indicate that the jury did not follow instructions as charged when reaching its verdict.


author: McMurray, Presiding Judge. Andrews, Judge,

text:
    A95A1771.
    METROMEDIA STEAKHOUSES COMPANY, L. P. v. RAY.
    (466 SE2d 618)
   McMurray, Presiding Judge.

Reverend Frank Ray (plaintiff) brought this tort action seeking to recover for personal injuries received when he slipped and fell while an invitee of defendant Metromedia Steakhouses Company, L. P. (“Metromedia”). The evidence adduced at trial showed that plaintiff slipped and broke his leg while walking up a yellow, sloping wheelchair ramp leading to Metromedia’s Ponderosa Steakhouse in Macon, Georgia. At the time, it was raining and the ramp was wet. There is no railing to this short ramp, nor is there any warning sign indicating that the ramp can become slippery when wet. Plaintiff had previously traversed this ramp as many as “50, 100 [times], or better.” But he had never done so in the rain. Robin William Lyons, Jr., a former general manager of Metromedia’s Ponderosa Steakhouse in Macon, Georgia, testified that his then-subordinate, Ken “Vaughn[,] and several other employees did indicate to me that someone fell on the premises before Mr. Ray did.” Plaintiff’s Exhibit 1 is the incident report of this prior injury, as made out by Ken Vaughn on February 2, 1992. This report recites that “Customer alleges as she was leaving unit she slipped on handicapped ramp and twisted her leg[,] falling to ground.” This report specifically identified the “parking lot handicapped access ramp with yellow paint” as the object or substance which directly injured the customer. The victim of that prior fall, Juanita Zodun, affirmed that “when [she] fell it had been raining[.]”

The trial court’s charge to the jury included an instruction that “[e]very person has a duty to use ordinary care for his . . . own safety. If you should determine from the evidence that Plaintiff failed to use ordinary care and that this failure was the sole proximate cause of Plaintiff’s injuries, then the Plaintiff could not recover from the Defendant.” The jury nevertheless “found for the Plaintiff in the sum of $40,000.” Defendant appeals from the judgment entered on this verdict. Held:

1. “Once a case has been submitted to the jury and a judgment rendered on its verdict, the denial of a summary judgment motion is a moot issue. White v. Lance H. Herndon, Inc., 203 Ga. App. 580 (1) (417 SE2d 383).” R. T. Patterson Funeral Home v. Head, 215 Ga. App. 578, 581 (1) (a) (451 SE2d 812) (physical precedent). Consequently, the issue raised in Metromedia’s first enumeration is moot and presents nothing for decision on appeal.

2. In related enumerations, Metromedia contends the trial court erred in denying its motion for directed verdict. Metromedia argues first that plaintiff failed to exercise ordinary care for his own safety. Metromedia further argues that the evidence failed to show that it had superior knowledge of the hazard posed by the wet ramp. We disagree.

“A directed verdict is proper only ‘(i)f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict(.)’ OCGA § 9-11-50 (a).” Vickery Ins. Agency v. Chambers, 215 Ga. App. 48, 50 (449 SE2d 885). “In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the ‘any evidence’ test. [Cit.]” Southern R. Co. v. Lawson, 256 Ga. 798, 799 (1) (a) (353 SE2d 491). In our view, the evidence authorized the jury’s verdict in favor of plaintiff based on the knowledge of Metromedia that the yellow painted ramp was slippery when wet and the absence of such knowledge on the part of plaintiff. This is sufficient evidence to go to the jury and to authorize plaintiff’s recovery under the authority of Alterman Foods v. Ligon, 246 Ga. 620, 621 (272 SE2d 327). See, e.g., Martin v. Sears, Roebuck & Co., 253 Ga. 337, 338 (320 SE2d 174). Since as the dissent concedes, plaintiff had never previously traversed this ramp in the rain, we do not agree that the hazard of a wet ramp was, as a matter of law, “a longstanding, patently open and obvious condition which could have been discovered through the exercise of ordinary care.” (Dissent, post). Any reliance upon Sullivan v. Quisc, Inc., 207 Ga. App. 114, 115 (427 SE2d 86) is misplaced. In Quise, there was no invisible slippery hazard posed by rain. Rather, that plaintiff “assumed she slipped on the sloped threshold of the door where she fell.” Id. Moreover, in Quise, it was undisputed that “several ‘Watch Your Step’ signs were posted in the restaurant, including one posted to the right of the door opening where [that] plaintiff fell.” Id. Unlike the case sub judice, in Quise, that plaintiff was warned of the very danger to which she attributed her fall but failed to heed that warning. Consequently, her failure to exercise ordinary care for her own behalf was the legal cause of her injuries. In the case sub judice, Metromedia does not present evidence that it had a railing on the ramp or a warning that the slope was slippery when wet. Furthermore, the hazard posed by accumulated water is completely distinguishable from the invisible danger posed by a slippery incline where water cannot accumulate. Consequently, cases such as Layne v. Food Giant, 186 Ga. App. 71 (366 SE2d 402), are inapposite and the dissent’s reliance thereon is misplaced. Since the hazard of the wet, sloping ramp is not open and obvious, this case falls within the general rule that the question whether plaintiff failed to exercise ordinary care is to be resolved by the jury and not by the courts. Whitley v. Hulon, 194 Ga. App. 363, 364 (390 SE2d 598). The jury’s verdict resolved that issue, as well as credibility issues posed by the self-serving and impeached testimony of Metromedia’s manager, Ken Vaughn, against Metromedia and in favor of plaintiff. In our view, we are not authorized to disturb the judgment entered on that verdict for any grounds alleged in Metromedia’s motion for directed verdict. The trial court correctly denied Metromedia’s motion for directed verdict.

Judgment affirmed.

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

Andrews, Judge,

dissenting.

I respectfully dissent because the alleged hazard was a longstanding, patently open and obvious condition which could have been discovered through the exercise of ordinary care. Sullivan v. Quisc, Inc., 207 Ga. App. 114, 115 (427 SE2d 86) (1993). Theoretically, the sole basis for imposing liability on Metromedia would be its superior knowledge of the allegedly hazardous condition. Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (422 SE2d 305) (1992). However, Ray was under an equal duty to use his sight to discover any defects or dangers. Rose v. Kennesaw House, 203 Ga. App. 648, 649 (417 SE2d 379) (1992). Because the condition was open and obvious, Ray in effect had equal knowledge of the hazard. Froman v. George L. Smith &c. Auth., 197 Ga. App. 338, 339 (398 SE2d 413) (1990). Ray even admitted that the ramp was easy to see. Moreover, the evidence showed that Ray had previously traversed the two or three feet long yellow-painted concrete ramp as many as 200 times before, although never in the rain.

The fact that Ray’s injury occurred in the rain, however, is immaterial. It is common knowledge that in rainy conditions, water will accumulate on surfaces, particularly those exposed to the elements. See Layne v. Food Giant, 186 Ga. App. 71 (366 SE2d 402) (1988). Metromedia owed Ray a duty no greater than to protect him from an unreasonable risk of harm. Id. We have held that “ ‘ “[t]he risk of harm imposed by some accumulation of water on the floor of business premises during rainy days is not unusual or unreasonable in itself, but is one to which all who go out on a rainy day may be exposed and which all may expect to anticipate.” ’ ” Id. This common sense rule applies equally to exterior surfaces, whether they are flat or sloping. See Bowman v. Richardson, 176 Ga. App. 864 (338 SE2d 297) (1985) (requiring plaintiffs to show lack of knowledge of foreign substances “such as water on a ramp” to recover).

The majority opinion neglects the issues of breach of duty and causation and ignores the fact that hundreds of invitees used the ramp without falling. Ray presented no evidence that the ramp when wet created an increased risk to invitees. He offered only disputed evidence that on another rainy day one elderly woman fell, but he failed to show her fall was actually caused by any action of Metromedia. By refusing to hold Ray to his burden of proof, the majority, in effect, overlooks the elementary rule that landowners are not the insurers of their invitees’ safety and blurs the distinction between negligence and strict liability. Westbrook v. M & M Supermarkets, 203 Ga. App. 345, 346 (416 SE2d 857) (1992).

Furthermore, the majority fails to address just what Metromedia could have done in this case to avoid liability. Instead, it simply asserts that Metromedia failed to present evidence that it had a railing on the ramp or a warning sign. However, Ray did not allege that the ramp was in any way defective. He never argued that the slope was excessive or that handrails or a warning more extensive than the yellow paint already covering the ramp was required. Moreover, the ramp was only two or three feet long with a slope wide enough to allow wheelchair access from the parking lot up to the sidewalk in front of the restaurant which was no more than five or six inches higher. The functional equivalent of such ramps is at most urban intersections. What steps are required to preclude proprietor liability under the majority’s reasoning — a forest of handrails at every corner and a thicket of warning signs near every dip and pitch, on surfaces where common sense clearly shows they are slippery when wet? Metromedia should not face liability for failing to warn of the obvious. Studestill v. Smith, 219 Ga. App. 251 (464 SE2d 843) (1995) (noting that as “a matter of common knowledge” materials are more slippery when wet). Because Ray simply failed to exercise ordinary care for his own safety by observing what was patently obvious, his recovery should be barred. Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994); Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (422 SE2d 305) (1992).

Decided December 5, 1995

Reconsideration denied December 20, 1995

Smith, Gambrell & Russell, David A. Handley, Dana M. Rich-ens, for appellant.

Edwards & Youmas, Lonzy F. Edwards, for appellee.

I am authorized to state that Presiding Judge Birdsong, Judge Johnson and Judge Smith join in this dissent.

       The majority makes much of the fact that the incident report of this fall states that the ramp caused the fall. However, at trial the woman who actually fell denied falling on the ramp and on deposition denied the ramp had anything to do with her fall. She also testified that her daughter provided the information in the report.