author: Beasley, Judge. McMUKRAY, Presiding Judge,

text:
    A97A0245.
    ALLEN et al. v. KING PLOW COMPANY et al.
    (490 SE2d 457)
   Beasley, Judge.

Deborah Carey Allen, as surviving spouse and as administratrix of the estate of her deceased husband, filed this action for damages arising from his death. As amended, the complaint alleges negligence by defendants King Plow Company (“King Plow”) and Georgia Power Company.

Johnny Allen was electrocuted when he attempted to use an aluminum ladder to aid in painting a wall sign in close proximity to an electrical power line. Allen was employed by Hartley, an independent contractor hired to remodel the premises of defendant King Plow. Mrs. Allen’s claim against Georgia Power Company remains pending in the trial court, and she appeals the grant of summary judgment in favor of King Plow.

1. Mrs. Allen maintains that Hartley is strictly liable for her husband’s death under the High-voltage Safety Act, OCGA § 46-3-30 et, seq., and that defendant King Plow is liable for Hartley’s tort under the provisions of OCGA § 51-2-5 (5).

OCGA § 51-2-5 provides that: “An employer is liable for the negligence of a contractor: ... (5) [i]f the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference. . .

The issue of whether King Plow, as the employer of the independent contractor who hired decedent Allen, could be liable under OCGA § 51-2-5 (5) is not foreclosed by the decision of the administrative law judge (“ALJ”) in the preceding workers’ compensation proceeding in which benefits were awarded against Hartley as the employer.

Kang Plow filed a motion for summary judgment which contended that all the evidence showed as a matter of law that it was not negligent nor did it create a nuisance, and that even if it was negligent, Allen was contributorily negligent and/or assumed the risk of injury. The trial court initially denied the motion, with no explanation other than that there were disputed issues of material fact.

Over a year later, King Plow filed a motion for reconsideration of the denial, which was in effect a renewed motion for summary judgment because it was based at least in part on additional evidence which had been garnered in the interim. In the motion, defendant King Plow reiterated its four grounds in summary fashion and added no new ones. The trial court granted summary judgment “for the reasons set forth in King Plow Company’s Motion.”

Thus, the question of whether the workers’ compensation proceeding conclusively established King Plow’s nonliability so as to preclude litigation of the question in this suit was neither raised by the motion nor ruled on by the trial court. While it is true that, in its argument on the four bases it urged as warranting summary judgment, King Plow pointed out that the workers’ compensation judge had found Hartley to be an independent contractor, the fact was presented as evidence to persuade the trial court that there was no dispute of material fact on that issue. It was not presented as a ground for summary judgment; in other words, the defense of “res judicata, collateral estoppel and estoppel by judgment” set forth in King Plow’s answer was not pursued as a ground for summary judgment. Compare McFadden Business Publications v. Guidry, 177 Ga. App. 885, 887 (1) (a) (341 SE2d 294) (1986) (res judicata ground not in answer but in motion for summary judgment and ruled on by trial judge).

Nevertheless, “a grant of summary judgment must be affirmed if it is right for any reason.” Controlled Blasting v. Ranger Ins. Co., 225 Ga. App. 373, 376 (2) (484 SE2d 47) (1997). If any one of the three preclusive threshold doctrines govern, the judgment should be affirmed and the four grounds urged in favor of summary judgment by King Plow would be superfluous and moot. But none of the three doctrines cited as the thirteenth defense in the answer apply.

Under the doctrine of res judicata, “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and. their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” OCGA § 9-12-40; Boozer v. Higdon, 252 Ga. 276, 277-278 (1) (313 SE2d 100) (1984); Sumner v Sumner, 186 Ga. 390, hn. 2 (197 SE 833) (1938). The ALJ in the workers’ compensation proceeding had no jurisdiction over King Plow, as she correctly ruled after finding that King Plow had fewer than three employees at the time of the accident and thus was not subject to the Workers’ Compensation Act. So no issue of its relationship with Allen or liability for his injury was or could have been adjudicated. King Plow was not a proper party in that proceeding. In addition, res judicata does not apply where the causes of action are different, as here. Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 866 (1) (463 SE2d 5) (1995); Boozer, supra. See Bradley v. British Fitting Group, PLC, 221 Ga. App. 621, 622-623 (2) (472 SE2d 146) (1996).

The doctrine of estoppel by judgment, on the other hand, “has reference to previous litigation between the same parties, based upon a different cause of action. . . . [T]here is an estoppel by judgment only as to such matters within the scope of the previous pleadings as necessarily had to be adjudicated in order for the previous judgment to be rendered, or as to such matters within the scope of the pleadings as might or might not have been adjudicated, but which are shown by aliunde proof to have been actually litigated and determined. [Cits.]” Sumner, supra at 390-391, hn. 2; McFadden Business Publications, supra at 887 (1) (b). Obviously that does not apply, because although the workers’ compensation proceeding was “a different cause of action” from this tort suit, King Plow was not a proper party in the previous litigation and the issue of its liability for Allen’s injuries was not adjudicated.

Neither was King Plow in privity to Hartley, as it was not “so connected with [the workers’ compensation award against Hartley] as to have such an identity of interest that [Hartley] represented the same legal right.” (Citations and punctuation omitted.) Miller v. Steelmaster Material Handling Corp., 223 Ga. App. 532, 535 (3) (478 SE2d 601) (1996); Fleeman v. Dept. of Human Resources, 208 Ga. App. 97, 98 (430 SE2d 135) (1993). “ ‘(A)n agency or master-servant relationship (does not) ipso facto (constitute) privity for purposes of res judicata or estoppel by judgment.’ [Cit.]” Norris v. Atlanta & West Point R. Co., 254 Ga. 684, 685 (333 SE2d 835) (1985).

“Under both [res judicata and estoppel by judgment], in order for the former decision to be conclusive, it must have been based, not merely on purely technical grounds, but at least in part on the merits where under the pleadings they were or could have been involved.” Sumner, supra at 391, hn. 2; OCGA § 9-12-42.

The third doctrine advanced in the answer was collateral estoppel. In our law, that is just another name for estoppel by judgment. Boozer, supra at 278 (1); see Steelmaster Material Handling Corp., supra at 535 (3). Bradley, supra at 623 (2), points out: “[cjollateral estoppel, which precludes the re-adjudication of an issue, requires in part that the same issue was actually litigated and decided in the previous action.”

2. Moreover, this case involves King Plow’s liability under OCGA §§ 46-3-31 to 46-3-33 (1982) and OCGA § 51-2-5 (5), not under the Workers’ Compensation Act. The first statute relates to the fulfillment of King Plow’s duties, if any, in accordance with the pre-1992 law governing work carried out near high-voltage lines. OCGA §§ 46-3-30 to 46-3-39 (1982) (prior to the effectiveness of Ga. L. 1992, p. 2141 et seq.). Violation would constitute negligence per se. Savannah Elec. &c. Co. v. Holton, 127 Ga. App. 447, 450 (193 SE2d 866) (1972). Whether King Plow was a ‘[p]erson responsible for the work to be done’ ” within the meaning of OCGA § 46-3-30 (2) was not adjudicated on the merits by the ALJ. As defined, this included at the time “a person, or his agent, who employs and carries on his payroll any person who physically operates, erects, handles, stores, or transports any tools, machinery, equipment, supplies, materials, or apparatus . . . under, over, by, or near high-voltage lines.” Id. Decedent Allen, who was paid by King Plow, was moving an aluminum ladder to continue painting a sign when it contacted an electric wire and he was electrocuted. The ladder had been borrowed from one of King Plow’s tenants.

Even though the ALJ, in dicta, stated that King Plow was the statutory employer of Allen by virtue of OCGA § 34-9-8, the ALJ found that King Plow was not an employer subject to the Workers’ Compensation Act. The ALJ also found that Hartley was covered by the Act, failed to insure his liability, and was an independent contractor in his relationship with King Plow. Even if the ALJ would have had jurisdiction of King Plow to decide the issues, it is clear that the issues of fact now sought to be litigated have not previously been adjudicated. “ ‘[E]stoppel by judgment applies as between the same parties upon any cause of action to matters which were directly decided in the former suit.’ [Cit.]” Woods v. Delta Air Lines, 237 Ga. 332, 333 (227 SE2d 376) (1976).

3. Even if the record shows without dispute of material facts that King Plow was not a “ ‘[pjerson responsible for the work to be done’ ” in this instance, as defined in OCGA § 46-3-30 (2), there is still the issue of whether, as employer of independent contractor Hartley, King Plow “retain[ed] the right to direct or control the time and manner of executing the work or interfere^] and assumed] control so as to create the relation of master and servant or so that an injury result[ed] which is traceable to [its] interference.” (Emphasis supplied.) OCGA § 51-2-5 (5). This Code section sets forth exceptions to the general rule of nonliability of employers for the torts of independent contractors. See Finley v. Lehman, 218 Ga. App. 789, 791 (2) (463 SE2d 709) (1995). There are conflicts in the evidence on these issues.

4. King Plow argues that the undisputed evidence on its affirmative defenses of contributory negligence and assumption of the risk exonerates it from liability from all asserted causes of action. Even under the High-voltage Safety Act, such defenses are available. See Callaway v. Crown Crafts, 223 Ga. App. 297, 299 (2) (477 SE2d 435) (1996). But the evidence is in dispute on these issues.

King Plow points to the testimony of Hartley, who deposed that he warned decedent Allen about the risks of the electric wires. Hartley equivocates in his deposition and states he cannot remember exactly what he told decedent Allen or what Allen may have been aware of. In an affidavit, Hartley testified that he did not talk to Allen about the electric wires. He explained in a second affidavit that in his deposition he had responded to this particular question without thinking, that he had emphasized that he could not remember exactly what was said, that he had intended to testify only that (as with all workers) he had simply told Allen to be careful, and that he did not recall mentioning the electric wires.

The rule in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986) — that a party/witness’ testimony is to be construed against him when self-contradictory — does not apply to the testimony of a third-party witness. Stinson v. Lumpkin Lumber Co., 217 Ga. App. 880, 883 (1) (460 SE2d 846) (1995) (physical precedent only); English v. Crenshaw Supply Co., 193 Ga. App. 354, 359 (2) (387 SE2d 628) (1989); see also Miller v. Douglas, 235 Ga. 222, 223 (219 SE2d 144) (1975). Hartley’s testimony raises an issue of fact on the issues of assumption of risk and contributory negligence. Other evidence is also inconclusive on these issues, for decedent Allen had been at that site for only a few hours prior to the accident. He was hired as an unskilled laborer and was illiterate. Questions of contributory negligence and assumption of the risk are ordinarily for the jury to resolve, and summary judgment is appropriate only where the evidence is plain, palpable, and undisputed. Callaway, supra at 299; Stegall v. Central Ga. Elec. Membership Corp., 221 Ga. App. 187, 190 (2) (470 SE2d 782) (1996).

Based on the evidence of record, summary judgment was premature. King Plow has not demonstrated “that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to [Allen], warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Mrs. Allen is entitled to a jury trial.

Judgment reversed.

Birdsong, P. J., Smith, Ruffin and Eldridge, JJ, concur. Andrews, C. J., and McMurray, P. J, dissent.

McMUKRAY, Presiding Judge,

dissenting.

Plaintiff Deborah Carey Allen’s brief attacking the grant of summary judgment in favor of defendant King Plow Company states a single two-part theory. Plaintiff maintains that Hartley is strictly liable for her husband’s death under the High-voltage Safety Act, OCGA § 46-3-30 et seq., and that.defendant King Plow is liable for Hartley’s tort under the provisions of OCGA § 51-2-5 (5).

Since there is no support for the second part of this hypothesis that defendant King Plow is liable for any tort of Hartley’s, I would affirm. OCGA § 51-2-5 provides that: “An employer is liable for the negligence of a contractor: ... (5) [i]f the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference. . . .” This statutory language has been construed to identify two alternative sets of circumstances to which it may be applied. Intl. Agricultural Corp. v. Suber, 24 Ga. App. 445, 451 (101 SE 300). The first alternative is where the employer’s interference and assumption of control create the relation of master and servant. Yet, this first alternative is clearly not applicable in the case sub judice since it was resolved in a workers’ compensation proceeding and becomes established as a matter of collateral estoppel that Hartley was an independent contractor and was not a servant of defendant King Plow Company. McFadden Business Publications v. Guidry, 177 Ga. App. 885, 887 (1) (341 SE2d 294).

I believe that the majority has erred in holding that King Plow did not assert the affirmative defense of collateral estoppel, also known as estoppel by judgment. The original answer of King Plow states as its thirteenth defense that: “This defendant hereby pleads the doctrine of res judicata, collateral estoppel and estoppel by judgment with respect to all matters which have previously been resolved in the worker’s compensation claim which has been filed as a result of the incident forming the subject matter of this litigation. . . .” The judgment in the workers’ compensation case is included in the evidence in the case and shows that the determination by the ALJ that Hartley was an independent contractor was necessary to the conclusion that King Plow was not liable for workers’ compensation benefits and thus was not dicta as asserted by the majority.

When King Plow moved for summary judgment, one of its four contentions was that it owed no duty to plaintiff’s decedent to protect against the negligence of Hartley. This position was predicated on the supposition that Hartley was an independent contractor, a matter which had been resolved in the workers’ compensation claim, and upon the rule that one who contracts with an independent contractor is not responsible for torts committed by the independent contractor. King Plow’s position in this regard was reiterated in its motion for reconsideration of the denial of summary judgment. Thus, the majority is mistaken in concluding that the judgment in the workers’ compensation proceeding was neither raised nor ruled on by the superior court. There was no waiver of the affirmative defense of collateral estoppel.

Decided July 16, 1997

Reconsideration denied July 31, 1997

James B. Pilcher, Christopher J. McFadden, for appellants.

Long, Weinberg, Ansley & Wheeler, Alan L. Newman, Michele L. Davis, KariA. Mercer, Frederick N. Sager, Jr., for appellees.

The remaining alternative in which an employer is liable for the negligence of a contractor is where an injury results which is traceable to the employer’s interference. In the case sub judice there is no such causal connection, between any conduct of defendant King Plow and the death of plaintiff’s husband. Therefore, this second alternative is inapplicable, and any attempt to hold defendant King Plow liable for a tort of the independent contractor Hartley should be unsuccessful. For the preceding reasons, I respectfully dissent.


source: Caselaw Access Project

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

license: Public Domain

text:
    A97A0289.
    DENT et al. v. MEMORIAL HOSPITAL OF ADEL, INC.
    (490 SE2d 509)
   Beasley, Judge.

The Dents as parents, and the father as the estate administrator, sued Memorial Hospital of Adel, Inc. (“hospital”) and others for the wrongful death of their 15-month-old son.

At about 10:30 p.m. on November 21, 1987, Mark Alan Dent stopped breathing. His parents successfully administered CPR at home and rushed Mark to the hospital’s emergency room. Dr. Howard McMahan concluded that Mark had suffered an apneic event, decided that Mark should be admitted to the hospital for observation and ordered his placement on a pediatric apnea monitor. The monitor was to be set so an alarm would sound, alerting the nurses, if Mark stopped breathing for ten seconds.

At about 4:30 a.m., Mark’s mother awakened and discovered her son was not breathing. After noticing he appeared extremely blue, she ran to the nurse’s station for assistance. When the nursing staff responded, Mark was already in a cyanotic state, indicative of oxygen deprivation for several minutes, not a few seconds. Mark never resumed normal, unassisted breathing and died four days later.

The evidence conflicted as to whether the alarm failed to sound, whether the attending nurse failed to turn the alarm switch to the “on” position, and whether the hospital’s crash cart lacked several essential items. There was opinion evidence that the nursing staff’s response to Mark’s emergency was inadequate. After a lengthy trial, the jury found for the hospital. Following denial of their motion for new trial, the Dents appealed and enumerate two errors.

1. The Dents contend the trial court committed reversible error by using a charge on professional negligence which confused and misled the jury into believing it could disregard the issue of ordinary negligence. The complaint and the pre-trial order, which formed the basis for the claim and the issues, the closing arguments of both counsel, the judge’s whole charge to the jury, and the history of the jury’s deliberations and question and the judge’s reply, show that no reversible error occurred as enumerated.

It is evident that the jury understood that it should consider two theories of negligence, ordinary and professional. Whether the jury found no breach of the duty of ordinary care by the nurses and no breach of their professional duty of care or lack of proximate cause, which of course we do not know, the charge as given did not mislead or confuse. Even if the charge could have been made clearer or reworded, that is not the issue.

The jury had the complaint with them for their deliberations. It contained alternate theories in separate counts. As related to the hospital, the plaintiffs alleged undifferentiated negligence in paragraphs 13, 26 and 28.

Plaintiffs outlined their contentions about the events in the pretrial order. They listed two theories of liability, i.e., “ordinary negligence” and “medical (nursing) malpractice or professional negligence including the breach of a duty. . . .” The “specifications of negligence” were not separated into two categories, one ordinary and one professional, and are not listed in the record. Defendant’s contentions were outlined as not breaching any duty of care owed and allegedly violated.

The verdict form agreed upon by the parties does not distinguish between the two theories. It simply lists as possible verdicts one in favor of the plaintiffs as parents for the wrongful death (value of life), one in favor of the father as administrator of the child’s estate (pain and suffering, medical and burial expenses), and one in favor of the hospital. It was in fact the form used, except it omitted pain and suffering as an item of damages for the administrator.

While we recognize that the jury is not instructed on the law by the lawyers but by the judge, the arguments of counsel illuminate the issue as to whether the jury was misled or confused by the judge’s instructions. The arguments of counsel made clear that the two theories were advanced by plaintiffs, thereby contributing to the jury’s understanding. Defendant, who gave the first closing argument, told the jury at the outset that “[n]umber one, you have to decide if there was a breach of a duty. In other words, did either the applicable standard of care that was applicable to nurses, whether that was breached, or whether ordinary — what a reasonable person under those same or similar circumstances, that was breached. So, the first inquiry you have to make is on any allegation that they make, that they contend entitles them to recover, you have to make that initial threshold determination. Was there a breach of duty and was that duty either ordinary negligence or was it standard of care.” Defendant discussed in particular medical malpractice, as related to the nurses’ training and to the care given, and, in so doing, focused on the expert testimony.

Plaintiffs also discussed the two theories of ordinary negligence and professional negligence and said that the jury would not have to find professional negligence but only ordinary negligence by way of the fact that the alarm was, or alarms were, not on. Plaintiffs argued that experts are necessary to prove professional negligence. Their counsel guided the jury’s thinking: “If you get beyond ordinary negligence, then you do have to go to the issue of professional negligence. And in that regard, that is where you consider the standard of care exercised by nurses, nurses’ aides under like or similar circumstances.”

And later: “I mean, it doesn’t take a rocket scientist here, ladies and gentlemen. We are talking about ordinary negligence. . . .” Still later: “It (the hospital) was a place where they were charged with exercising professional judgment and doing things to take care of him. And not only did they not exercise professional judgment, as you’ve heard from the experts, they didn’t exercise ordinary care in the instance of either turning on the alarm, turning on alarm number two, or just setting it.” (Counsel then tied the alarm apparatus into professional negligence.)

At the end of the argument about liability, before going on to the issue of damages, counsel said: “If you find that the hospital is liable, . . . and by liability now, I mean that they committed an act of negligence [or] professional negligence, and that that negligence [or] professional negligence, proximately caused the death.”

Thereafter, the court charged the jury. It first charged, in a clear fashion, ordinary negligence: “Ordinary negligence means the absence of or the failure to use that degree of care which is used by ordinarily careful persons under the same or similar circumstances. I charge you that in order that a party may be liable in negligence, it is not necessary that it should have contemplated or been able to participate — excuse me, strike that, have been able to anticipate the particular consequences which ensued or the precise injuries sustained by the plaintiff. It is sufficient, if, by the exercise of reasonable care, the defendant might have foreseen that some injury would result from its acts or omission, or that consequences of a generally injurious nature might have been expected.”

Later, and separate from the charge on ordinary negligence, the court charged at some length on the theory of professional negligence. In the midst of the charge on professional negligence, and having already covered the subject of ordinary negligence in an earlier part of the charge, the court charged what appellants now contest: “if you find from the evidence in this case that the defendants did not commit any acts of professional negligence or malpractice, a verdict in the plaintiffs’ favor would be unlawful. . . .” It is obvious that the court was speaking about a verdict. based on the theory of professional negligence. That is what the court was focusing on. It had just said that the plaintiffs did not have to prove “all the grounds of negligence” to win, making the point that any of the numerous acts of negligence that were charged would be a sufficient basis for recovery (assuming proximate cause). Its exact instruction was: “I charge you it is not necessary in order to give the plaintiffs the right to recover, that all the grounds of negligence alleged by the plaintiffs be proved. It would be sufficient for that purpose if any one or more of the grounds of negligence set out in the complaint or alleged by the plaintiff be sustained by the evidence.” Appellants concede that the court charged that it was not necessary that all grounds of negligence be proven for plaintiffs to recover.

It is clear that in the instructions regarding damages the court embraced both ordinary negligence and professional negligence. It spoke of “tortious act” and “a tort, here negligence” without excluding ordinary negligence. The same is true when it focused on the hospital corporation, which the judge instructed would be liable “for the negligence of its agents and/or employees, if any you should find, if at the time of the negligent acts, the employees were acting within the scope and authority of their employment.” This was, again, not narrowed to “professional negligence” nor in any way excluded ordinary negligence. If anything, it favored ordinary negligence because the qualifier “professional” was not used. Neither was the term “malpractice” used.

During the charge conference plaintiffs objected to a portion of defendant’s request number 20, but it was out of context then and the court agreed not to give that part of the charge. Defendant was more interested in the part saying the hospital did not have to prove what did cause the injury anyway, and plaintiffs had no objection to it. Although the court agreed not to give the beginning of that requested charge, it did so. But in the context of the entire charge on professional negligence, and in the broader context of the entire charge as given, which included a clear charge on ordinary negligence, and in the additional circumstances already related, it does not stand to reason that the jury was confused or misled.

“It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. [Cits.]” Williams v. State, 249 Ga. 822, 825 (3) (295 SE2d 293) (1982). Challenged segments cannot be considered in isolation to ascertain whether the charge is accurate and fair and worked no prejudice to the complaining party. Riceman v. State, 166 Ga. App. 825, 827 (2) (305 SE2d 595) (1983). Even a misstatement of the law does not constitute reversible error if the charge “ ‘conveys correctly the intent of the law and is so framed as to be applied with understanding to the fact situation.’ ” Ga. Kraft Co. v. Laborers’ Intl. Union &c., 170 Ga. App. 581, 584 (3) (317 SE2d 602) (1984).

In addition, never did the jury complain of the charge. It started deliberating but apparently was too tired and wanted to think about it, so the jurors were sent home about 5:20 p.m. When deliberations resumed at 9:00 the next morning, the jurors took a vote first thing and it was 9 to 3. Right after lunch it was 10 to 2, the foreman explaining that this change occurred after one part in the case was clarified. During the morning deliberations the jury asked (as paraphrased by the judge when reporting this to counsel afterwards) whether “if they found a verdict for the plaintiffs, could the hospital do anything to any of the nurses in terms of reprimanding or firing or — that type of thing.” The judge instructed that the verdict would not affect what action the hospital took, if any.

After lunch from noon to 1:00, the jury continued deliberating until the court intervened at 2:25 p.m. to inquire as to progress and to give Georgia’s version of the Allen charge. The jury then reached a unanimous verdict for defendant hospital in half an hour. The jury simply did not find liability on the part of the hospital, whether from lack of proof of proximate cause or lack of preponderating proof of negligence. In appellants’ argument section of their brief on appeal, no identification is made of those acts which they claim could constitute ordinary negligence. The only clue is in the “Statement of Facts” section, where at page 4 appellants assert that the act of ordinary negligence which could have formed a basis for liability was the failure of the nurses to turn the alarm switch to the “on” position. Thus they apparently concede that all of the other alleged acts required medical expert testimony to enlighten the jury as to whether the professional standard of care was met or breached.

As to the issue of fact on whether the alarm was turned to the “on” position, there was a great deal of conflicting evidence about it, and the jury could not have missed it. It does not stand to reason that, had the jury found as fact that the alarm was not put into the “on” position, it would have found for defendant because it understood that it would have to consider this an act of professional negligence in order to return a verdict for plaintiffs. That is what we must conclude when we decide that the charge constituted reversible error because it misled and confused the jury.

This cannot be the case, for the reason that even in the professional negligence charge, the court instructed that there can be medical negligence without expert testimony if “the alleged negligence, . . . although connected with medicine, were of such a nature that it would be a matter of common knowledge- and observation that such injury would not have occurred if the medical service had been performed with ordinary skill and care.” So plaintiffs were not deprived of a verdict based on the alleged failure to turn the alarm to the “on” position even if the jury had only considered medical negligence as a theory of recovery. Thus, assuming arguendo that the complained-of wording in the charge was error, the record does not show it was reversible error; harm, as well as error, is required. “ ‘[A]n error in charge without a showing of prejudice does not constitute reversible error. (Cit.)’” Monroe v. Southern R. Co., 210 Ga. App. 597, 598-599 (2) (436 SE2d 568) (1993).

This is not a case where the questionable jury charge is shown to have “actually induced” an award prohibited by law, as found in Foskey v. Foskey, 257 Ga. 736, 737 (2) (363 SE2d 547) (1988). Nor does this case involve a jury charge that improperly allowed an award based on an irrelevant legal theory, as in Jones v. Davis, 183 Ga. App. 401, 402 (1) (359 SE2d 187) (1987).

2. The remaining issue is whether the trial court erred in refusing to exclude evidence relating to the “locality rule” in that it was not relevant to the issues in the action.

The Dents moved in limine to exclude evidence as to the adequacy of the hospital’s facility and equipment. During the hearing on this motion, the Dents stipulated that recovery was sought on the hospital’s failure to exercise ordinary or professional care and not on a failure to provide equipment or facilities. The trial court deferred ruling on that motion and the Dents made a continuing objection and objected during the trial.

The “locality rule” requires that hospitals exercise the duty of ordinary care of furnishing equipment and facilities reasonably suited to the uses intended and in general use by hospitals in the area. Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173 (1) (355 SE2d 104) (1987). Where, as here, plaintiffs are not questioning the adequacy of a hospital’s services, equipment, or facilities, evidence of local standards and the “locality rule” do not apply. Gusky v. Candler Gen. Hosp., 192 Ga. App. 521, 522 (1) (385 SE2d 698) (1989).

No reversible error appears with respect to the “locality rule.” No mention was ever made to the jury of that legal principle or its meaning or effect. To say that evidence as to size itself involves the locality rule confuses the mere relevancy of such evidence to that rule with the applicability of the rule in a given case. The latter was not involved, but that did not render the evidence inadmissible for other purposes. Since the locality rule was not introduced, the jury could not have mistaken the standard of care by which the defendants’ acts or omission were to be measured.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., and Ruffin, J., concur. McMurray, P. J., Eldridge, J., and Senior Appellate Judge Harold R. Banke dissent.

Eldridge, Judge,

dissenting.

I fully agree and concur with the entire dissent of Senior Appellate Judge Harold R. Banke but feel it necessary to address an issue raised by the majority that the appellants failed to adequately set forth their objection to the charge by the trial court to preserve such issue. While I believe, along with the dissent of Senior Judge Banke, that a proper objection by appellants was timely made in the trial court, the case sub judice comes within the rare exception of OCGA § 5-5-24 (c), “Notwithstanding any other provision of this Code section, the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.” Clearly, when the trial court charges upon only one theory of liability as the exclusive means to recover when the evidence tendered, argued, and submitted charges raise two theories of liability and when objection is timely made but the trial court refuses to correct the charge given after the error has been objected to on the record, such circumstances clearly and palpably fall within the exception of OCGA § 5-5-24 (c). This Court recently in Drug Emporium v. Peaks, 227 Ga. App. 121 (488 SE2d 500) (1997), held that failure to charge on the standard of proof for punitive damages, even without written request to charge submitted or specific objection made, constituted reversible error as “plain error” under OCGA § 5-5-24 (c); the case sub judice is factually more compelling. The case sub judice is even more egregious and within OCGA § 5-5-24 (c) than Drug Emporium, Presiding Judge Birdsong in a well reasoned and compelling opinion held, “However, pretermitting whether appellant adequately preserved this question on appeal by taking a timely, adequate exception to the trial court’s charge [that professional malpractice was the exclusive basis for liability] rather than [the two theories of liability, ordinary negligence and professional malpractice,] and by sufficiently arguing this particular issue in its appellate brief, is the issue whether this was an error of such nature and magnitude as to constitute a plain error of which an appellate court can take notice sua sponte. It clearly is such. It is a general appellate rule that in ‘exceptional circumstances . . . appellate courts may, on their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.’ Kearney v. State, 184 Ga. App. 64, 66 (360 SE2d 633) [(1987)]. Recently our Supreme Court, after holding that both errors not raised and errors not timely raised generally are waived, stated: ‘In the future, however, except in cases of “plain error,” enumerations of error not timely raised and/or argued shall be waived....’ Lynd v. State, 262 Ga. 58, 60-61 (8) (414 SE2d 5) [(1992)]. ‘ “Plain error” is that which is “so clearly erroneous as to result in a likelihood of a grave miscarriage of justice” or which “seriously affects the fairness, integrity or public reputation of a judicial proceeding.” ’... Id. at 61, n. 2. Inherent in this holding is that ‘plain error’ is not so waived.” (Emphasis supplied.) Drug Emporium, supra at 125. See also Agnew v. State, 267 Ga. 589, 591 (2) (481 SE2d 516) (1997); Foskey v. Foskey, 257 Ga. 736, 737 (2) (363 SE2d 547) (1988).

“When an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record[, which as to this error it does not,] that the error is harmless.” (Punctuation omitted.) Foskey v. Foskey, supra at 737. “We are unable to say that the erroneous charge, as vague as it was, could not have misled the jury.” Dept. of Transp. v. Davison Investment Co., 267 Ga. 568, 570 (481 SE2d 522) (1997). The trial court’s error in charging the jury that precluded a consideration of ordinary negligence and restricted the jury to a consideration of hospital malpractice and failing to correct such charge when brought to the court’s attention, even if imperfectly done, is such “plain error” and “substantial error” that reversal is mandated. See Drug Emporium, supra. When the plaintiffs received an adverse verdict on a close evidentiary case, it cannot be said that there was no harm in the charge that eliminated their best theory of recovery and the minds of the jury were not prejudiced thereby in their deliberations.

Judge Harold R. Banke,

dissenting.

The majority goes to unnecessary and extraordinary lengths to deny the obvious: the trial court erred in its instruction to the jury and this error was presumptively harmful. See Clements v. Clements, 247 Ga. 787, 789 (2) (279 SE2d 698) (1981). The proper approach is to acknowledge the error, admit that it was presumptively harmful, then decide whether in light of the entire record, the error was rendered harmless. Foskey v. Foskey, 257 Ga. 736, 737 (2) (363 SE2d 547) (1988); Jones v. Davis, 183 Ga. App. 401, 402 (1) (359 SE2d 187) (1987).

Here, the Dents alleged acts of professional negligence (e.g., failure to administer to Mark’s needs such as charting his condition at appropriate intervals) as well as acts of ordinary negligence (e.g., the failure to operate the monitor properly). The Dents offered some evidence in support of both types of negligence.

During the charge conference, the trial court agreed that the charge at issue failed to allow for the Dents’ recovery for ordinary negligence. Despite the fact that the trial court agreed not to give the disputed charge, which the Hospital had withdrawn, it gave the charge anyway. The jury was instructed: “I charge you that if you find from the evidence in this case that the defendants did not commit any acts of professional negligence or malpractice, a verdict in plaintiffs’ favor would be unlawful, even if the defendants have not accounted for the injury in question. In other words, the law does not require the defendants to prove to you what may have caused the injury in question.” The Dents objected to the charge as being erroneous. Although in another charge the jury was advised that a verdict could be based on negligence, the charge at issue instructed the jury that it would be unlawful to find for the Dents unless it found professional negligence. After noting the Dents’ objection, the trial court concluded, “I think they [the jurors] can take the whole charge as it is and figure it out.”

Courts should not give conflicting rules of law and leave the jury to choose between them. Johnson v. State, 148 Ga. App. 702, 704 (2) (252 SE2d 205) (1979). “ ‘ “[W]here an erroneous statement is made it is not cured by a correct statement in another portion of the charge unless the jury’s attention is called to the correction by A retraction of the erroneous statement or in some other manner.” ’ ” Id. In this case, the charge contained two distinct and conflicting propositions as to whether the jury could render a verdict based on ordinary negligence absent a finding of professional malpractice. See Clements, 247 Ga. at 789 (2). This was plainly error. Nowhere in the court’s instruction was the jury expressly advised that it could find liability based on either the theory of ordinary negligence or professional negligence.

“ ‘A charge containing two distinct propositions conflicting the one with the other is calculated to leave the jury in such a confused condition of mind that they cannot render an intelligible verdict, and requires the grant of a new trial.’ [Cits.]” Clements, 247 Ga. at 789. In view of the evidence showing that the Hospital was responsible for acts of ordinary negligence, a charge which barred recovery except for professional negligence was prejudicial, fundamentally unfair, and not adjusted to the evidence. Hollywood Baptist Church v. State Hwy. Dept., 114 Ga. App. 98, 100 (3) (150 SE2d 271) (1966). See Lehman v. Zucherman, 198 Ga. App. 202, 206 (7) (400 SE2d 704) (1990) (reversible error committed where inapplicable instruction could have misled jury). Notwithstanding the majority’s contention to the contrary, inasmuch as the jury found for the Hospital, it cannot be said that the error was rendered harmless by the jury’s verdict. Foskey, 257 Ga. at 737 (2). See Hopkins v. First Union Bank of Savannah, 193 Ga. App. 109, 112 (2) (387 SE2d 144) (1989).

In its strained attempt to find harmless error, the majority purportedly relies on the charge as a whole, the complaint, the pre-trial order, closing arguments of counsel, and the history of jury deliberations. Yet the trial consumed about a week, more than 30 witnesses testified, and the transcript and record exceed 1,800 pages. My review of the record directs me to the inescapable conclusion that the Dents were deprived of a fair trial.

In light of the confusing charge, I cannot agree that the instruction as a whole eliminated the possibility of confusing and misleading a jury of ordinary capacity and understanding. McDevitt & Street Co. v. K-C Air Conditioning Svc., 203 Ga. App. 640, 647 (10) (418 SE2d 87) (1992). As noted above, the jury could have dutifully believed that it could not lawfully find for the Dents unless it found the Hospital committed both ordinary negligence and also professional negligence. See Lehman v. Zucherman, 198 Ga. App. at 206 (7); compare Macon-Bibb County Hosp. Auth. v. Whipple, 182 Ga. App. 195, 196 (2) (355 SE2d 83) (1987) (applicable law must be stated accurately and fairly so as to work no prejudice).

Moreover, the court’s instruction as a whole was disjointed and lengthy, containing more than 37 separate charges with the erroneous instruction buried in the midst. Even assuming arguendo that the jury had copies of the complaint and pre-trial order, I do not see how they eliminated the harm, particularly because only the trial court’s instruction supplied the applicable law. Neither the complaint nor the pre-trial order instructs the jury that the Dents could recover on either theory of negligence and need not prove both theories in the conjunctive.

Nor did I find closing arguments particularly enlightening. The majority offered a truncated version of part of one closing, supposedly to illustrate how the argument clarified the two theories for the jury. Notwithstanding the majority’s edited rendition, what counsel actually argued was: “If you find that the hospital is liable you are required, there’s no choice, if you find that they are liable, you are required and you find — and by liability now, I mean that they committed an act of negligence, professional negligence and that that negligence, professional negligence proximately caused the death.” Where two commas appear in the transcript between negligence and professional negligence, indicating the conjunctive, the majority, without any authorization, rewrites the statement in the disjunctive, supplying two “[or]’s” where none appears. The majority’s gratuitous insertion of the two “or’s” into counsel’s remarks illustrates the inherent lack of clarity. This need to edit attests to the indispensable obligation of the trial court to provide proper clear instruction, which the trial court failed to fulfill.

Decided July 16, 1997

Reconsideration denied July 31, 1997

Gray & Hedrick, William E. Gray II, Law Office of David W. M. Boone, Robert G. Ballard, for appellants.

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., Thomas A. Graham, for appellee.

Nor does the history of jury deliberations demonstrate that the jury understood the instructions as a whole. On the first day of deliberation, the foreperson informed the court that the jury wanted to be permitted to “go home and think about it and pray about it” overnight. After the jury had deliberated for a while, the foreperson advised the court that “[w]e are at a deadlock . . . and I don’t see any way this is going to be broken.” In response, the trial court felt compelled to employ an Allen charge to avert a deadlock. The need for an Allen charge arguably shows the jury was experiencing difficulty and may well have been confused.

When the Dents pointed out the conflicting charge, it was incumbent upon the trial court to clarify the instruction. By leaving it to the jury to “figure it out,” the court abrogated its role of providing proper legal instruction. See Johnson, 148 Ga. App. at 704 (2). The charge was plainly error and my review of the record persuades me that the error requires the grant of a new trial. Foskey, 257 Ga. at 737 (2). For these reasons, I must respectfully dissent.

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

       Summary judgment was reversed in Dent v. Mem. Hosp. of Adel, 200 Ga. App. 499 (408 SE2d 473) (1991), which recites in detail a factual account of the action.


author: Andrews, Chief Judge.

text:
    A97A0443.
    GRANGE MUTUAL CASUALTY COMPANY v. DeMOONIE.
    (490 SE2d 451)
   Andrews, Chief Judge.

Grange Mutual Casualty Company (Grange) appeals from the judgment entered on the jury’s verdict in favor of DeMoonie, the named insured under a homeowners insurance policy issued by Grange. Grange denied coverage, contending that DeMoonie was required to reside in the insured premises and did not at the time of the intentionally set fire, which substantially damaged the house, and that the property had been vacant for more than 30 days, precluding coverage under the policy.

1. Although Grange’s brief specifies seven enumerations of error while only two argument headings are contained in the brief, we exercise our discretion to consider the two main arguments presented, to the degree that we discern the enumerated errors discussed. Finch v. Brown, 216 Ga. App. 451, 452 (454 SE2d 807) (1995); McHaffie v. Decatur Fed. Sav. &c. Assn., 214 Ga. App. 368, 369 (448 SE2d 36) (1994).

2. Grange complains of the denial of its motion for summary judgment on the issues of the residency and vacancy clauses. The trial court denied the motion, and immediate review was denied by this Court. The same grounds were raised by motions for directed verdict at trial, which were also denied. “ ‘After verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case.’ (Citations and punctuation omitted.) Brown Realty Assoc. v. Thomas, 193 Ga. App. 847 (1) (389 SE2d 505) (1989).” Dept. of Transp. v. Brown, 218 Ga. App. 178, 179 (1) (460 SE2d 812) (1995). We do, however, consider the denial of the motions for directed verdict. OCGA § 9-11-50 (a).

3. The standard for review of denial of a motion for directed verdict requires Grange to show that there was no conflict in the evidence as to any material issue and “the evidence introduced, with all reasonable deductions therefrom,” demanded the verdict sought. OCGA § 9-11-50; Pendley v. Pendley, 251 Ga. 30 (1) (302 SE2d 554) (1983). Construing the evidence in favor of DeMoonie, the party opposing the motion for directed verdict, Mattox v. MARTA, 200 Ga. App. 697 (1) (409 SE2d 267) (1991), it was that DeMoonie had previously lived for a number of years with her former husband in the Dunbar Road residence shown on the declarations page of the policy. After divorcing him, however, she moved from Dunbar Road and began renting the house. In 1993, the Jordans rented the house for a number of months until they moved out around the third week of October 1993. DeMoonie then attempted to rent the house “to sell.” The Campbells were going to sign papers on the house on December 9, 1993, but the house burned on December 8, 1993. At that time, DeMoonie was living in a house she owned on Carolina Avenue.

(a) “ An insurance contract is governed by the ordinary rules of construction and should be construed to ascertain the intention of the parties. [Cits.] In discovering the intent of the parties, the whole instrument should be considered together, along with the surrounding circumstances. [Cit.]’ Progressive Preferred Ins. Co. v. Brown, 261 Ga. 837, 838 (1) (413 SE2d 430) (1992).” Nat. Union Fire Ins. Co. &c. v. Prestige Helicopters, 217 Ga. App. 375, 376 (457 SE2d 587) (1995). A contract of insurance should be construed by the court where the language is undisputed but the meaning of that language is in dispute. OCGA § 13-2-1; Enterprise Financial Corp. v. Ross White Enterprises, 212 Ga. App. 318, 319 (1) (441 SE2d 805) (1994).

The motion for directed verdict regarding residency was premised primarily on the definitions section of the policy. That section is, in pertinent part, as follows: “6. ‘Insured premises’ means (a) the residence premises; (b) any other premises acquired by you during the term of this policy which you intend to use as a residence premises; (c) the part of any other premises where you reside and which is shown in the Declarations; (d) part of a premises not owned by an insured person where the insured person may be temporarily residing. ... 10. ‘Residence premises’ means the one or two family dwelling where you reside, including the building, the grounds and other structures on the grounds and which is described in the Declarations.”

Considering the entire contract, we note the declarations page which shows the “Named Insured and Address Jennie C DeMoonie 501 Dunbar Road . . . ,” and states that “[t]hese declarations with policy provisions, applications, forms, and endorsements, if any, are issued to form and complete the above numbered policy.” Immediately following is this paragraph: “The premises covered by this policy is located at the above address. Rating information-dwelling number 0, the owner occupied primary residence. . . .” (Emphasis supplied.)

“The declaration page of the policy of insurance constitutes a part thereof and the provisions therein must be construed with the remainder of the insurance contract. [Cits.]” McGee v. Southern Gen. Ins. Co., 194 Ga. App. 783, 784 (391 SE2d 669) (1990).

The trial court, in denying the motion for directed verdict, relied upon Hill v. Nationwide &c. Ins. Co., 214 Ga. App. 715 (448 SE2d 747) (1994) and found an ambiguity in the Grange policy based on the policy’s exclusions section. That section provides that “[w~\e do not cover loss resulting directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. ... 5. Freezing of plumbing, heating or air conditioning systems or domestic appliances, or by discharge, leakage or overflow from the system or appliance caused by freezing while the building is vacant or unoccupied unless you take precautions to: (a) shut off the water supply and drain the systems and appliances; or (b) maintain heat in the building. . . . Under Dwelling and Other Structures Coverages, we do not cover loss resulting directly from:... 4. vandalism or malicious mischief, including intentionally set fires, if the dwelling has been vacant for more than 30 consecutive days immediately preceding the loss.” (Emphasis in original.)

Such exclusions from coverage do not negate the requirement that the insured reside in the insured premises.

First, the definition of “residence premises” in the policy at issue in Hill is different from that of the Grange policy. The Grange language is much more similar to and, we conclude, controlled by Epps v. Nicholson, 187 Ga. App. 246 (370 SE2d 13) (1988). There, as here, the definition of residence premises required residence by the insured and listing of the premises on the declarations page.

We also disapprove of the strained reading of the exclusions provisions in Hill to create an “exception to the exclusions” which provides coverage for rental property not otherwise provided by the policy. Such a reading “ignores the whole for an overly strict consideration of each part standing alone.” Edwards v. Atlantic Ins. Co., 203 Ga. App. 608, 609 (1) (417 SE2d 410) (1992).

“ When the language of an insurance policy defining the extent of the insurer’s liability is unambiguous and capable of but one reasonable construction, the courts must expound the contract as made by the parties. Courts have no more right by strained construction to make an insurance policy more beneficial by extending the coverage contracted for than they would have to increase the amount of coverage.’ . . . [Cit.]” Southern Fire &c. Co. v. Jamerson, 223 Ga. App. 582, 583 (1) (479 SE2d 404) (1996). Under Georgia law, an insurance company may, by contract, limit the risks against which it insures, so long as the terms of the policy are not contrary to Georgia law. Capitol Indem. Corp. v. L. Carter Post 4472 VFW, 225 Ga. App. 354, 355 (484 SE2d 52) (1997).

Looking at the policy as a whole, we conclude that it is governed by Epps, supra, rather than Hill and that the definition of “residence premises” is in no way ambiguous, nor does it conflict with the exclusions section. Compare Roland v. Ga. Farm Bureau Mut. Ins. Co., 265 Ga. 776, 777 (1) (462 SE2d 623) (1995) with Ga. Farm Bureau Mut. Ins. Co. v. Kephart, 211 Ga. App. 423, 424 (1) (439 SE2d 682) (1993).

Decided July 16, 1997

Reconsideration denied July 31, 1997

Simpson, Gray & Cross, Ralph F. Simpson, Melanie BarbeeCross, for appellant.

Williams, Sammons & Sammons, Walter G. Sammons, Jr., for appellee.

Therefore, Grange was entitled to a directed verdict based on the residency requirement of the policy.

(b) Also included as a basis for the motion for directed verdict was the intentionally set fire exclusion referenced above, which states: “[w]e do not cover loss resulting directly or indirectly by . . . vandalism or malicious mischief, including intentionally set fires, if the dwelling has been vacant for more than 30 consecutive days immediately preceding the loss.”

Having concluded that Grange was entitled to a directed verdict premised on the residency requirement, we need not address Grange’s alternative basis premised on this clause. OCGA § 5-6-34 (d).

Judgment reversed.

Beasley, J., concurs. Smith, J., concurs in the judgment only.

       Although Grange contended that DeMoonie was responsible for the arson, it was unable to prove these allegations. No one had been charged with the arson at the time of trial.

       No argument is presented regarding the third enumeration, and it is deemed abandoned. Court of Appeals Rule 27 (c) (2).


author: Pope, Presiding Judge. Blackburn, Judge,

text:
    A97A0542.
    OWENS v. GATEWAY MANAGEMENT COMPANY et al.
    (490 SE2d 501)
   Pope, Presiding Judge.

Plaintiff Owens leased an apartment in a complex from defendant Gateway Management Company, Inc. At all times relevant, Gateway served as the managing agent for the complex’s owner, defendant 2929 Panthersville Associates, which is a Georgia limited partnership. After two unknown gunmen kicked down the front door to the apartment and held plaintiff captive for fifteen minutes, plaintiff brought a personal injury suit against Gateway and Panthersville claiming they were liable to her due to their negligence in failing to maintain adequate security at the complex. She appeals from the trial court’s' grant of summary judgment to Gateway and Panthersville. Concluding that Gateway and Panthersville were entitled to summary judgment, we affirm.

A review of the record in this case demonstrates that the damages plaintiff seeks to recover from Gateway and Panthersville in her personal injury suit are all based on the alleged emotional distress plaintiff claims she suffered following her confrontation with the gunmen. In Georgia, however, it is well established that where a claim is premised on ordinary negligence, as is the case here, in order to recover emotional distress damages a plaintiff must generally show that he or she suffered actual physical injury resulting from some impact. Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992); OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 665-666 (386 SE2d 146) (1989); Posey v. Medical Center-West, 184 Ga. App. 404, 405 (361 SE2d 505) (1987). In this case, plaintiff cannot make such a showing because it is undisputed that the gunmen never touched her in any fashion during their confrontation. And coñtrary to plaintiff’s contention, the pecuniary loss rule is not applicable under the facts of this case because the only pecuniary loss plaintiff complains of on appeal is that incurred due to medical bills and lost time from work she allegedly incurred because of emotional distress following the incident in question. As such, we conclude that that pecuniary loss is not of the same type as that referred to in OB-GYN Assoc. of Albany because it is itself a form of emotional distress damage as opposed to pecuniary loss occurring “as [the] result of a tort involving an injury to the person even though this injury may not be physical [such as an injury to reputation].” 259 Ga. at 667 (2) (B). To hold otherwise would be to allow bootstrapping of an extreme nature.

In the absence of any alleged damage to plaintiff resulting from her encounter with the gunmen other than alleged emotional distress damage, based on the above, we conclude that the trial court properly granted summary judgment to Gateway and Panthersville as to plaintiff’s personal injury claim against them.

Judgment affirmed.

Johnson, J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I fully concur with the majority’s conclusion. This Court is constrained to follow our Supreme Court’s rulings which require the majority’s holding. I specially concur, however, as I can see no logical basis to follow the impact rule under the facts of this case. There is a conflict between the present application of the physical impact rule which limits recovery on the one hand, and the law which permits recovery, on the other hand, by the victim for intentional criminal acts when applied to cases involving a landlord’s liability for negligently failing to prevent the criminal act. Our Supreme Court’s holdings do not currently provide for an exception to the physical impact rule; however, such exception could easily be adopted without harming the basic purpose of the rule.

Under the present application of the physical impact rule, the plaintiff herein is barred from recovering from the defendants (landlord) by the fact that there was no physical impact or injury resulting to her from the criminal act, notwithstanding that she could recover from the perpetrators. See Carroll v. Rock, 220 Ga. App. 260, 262 (469 SE2d 391) (1996) (recovery for negligent infliction of emotional distress allowed only where there has been some impact on plaintiff that results in physical injury; for recovery for intentional infliction of emotional distress no impact is required but defendant’s conduct must be outrageous or egregious).

A landlord’s liability to its tenants for the independent criminal acts of third parties is based upon its failure to prevent such conduct, without regard to the nature of the crime committed, as long as the criminal act is actionable in tort. An exception to the physical impact or injury rule should exist as to those cases wherein the criminal’s conduct is otherwise actionable by the victim against the criminal. It is simply illogical to permit a landlord to escape liability to a tenant for some independent criminal acts by a third party based solely on the impact rule, but not for others, i.e., for criminal assault, when the victim could recover from either such criminal and the landlord is equally guilty of failing to prevent either crime.

In the present case, it is undisputed that the plaintiff suffered at the hands of two armed criminals that viciously broke into her apartment. She is not claiming emotional injuries resulting from the anguish caused when a loved one is harmed, as in the cases cited by the majority. The criminals’ actions in the present case would support a cause of action against the landlord if the criminals had pushed the plaintiff, or harmed her in any physical way, during the time they were present in her apartment. See Cooperwood v. Auld, 175 Ga. App. 694, 695 (334 SE2d 22) (1985) (court reversed grant of summary judgment to landlord where plaintiff raped in apartment and issues of fact remained as to whether landlord had assumed duty to provide security).

None of the cases relied upon by the majority involve a similar factual situation, and the exception to the impact rule endorsed herein would not change the result in such cases. In Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992), the plaintiffs sought to recover damages for the defendants’ alleged conduct in damaging part of a private burial ground in which some of the plaintiffs’ ancestors were buried. In OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663 (386 SE2d 146) (1989), the plaintiffs sought to recover damages for the defendants’ allegedly negligent delivery of their infant daughter which resulted in the baby’s death. In Posey v. Medical Center-West, 184 Ga. App. 404 (361 SE2d 505) (1987), the plaintiffs sought to recover damages for the defendants’ allegedly negligent treatment of their daughter.

Decided July 16, 1997

Reconsideration denied July 31, 1997

Fine & Block, Kenneth I. Sokolov, Michael Sard, for appellant.

Hamilton, Westby, Marshall & Antonowich, David C. Marshall, Robert C. Buck, for appellees.

A review of the record indicates that, like in Cooperwood, supra, issues of fact remain as to whether the defendants undertook the duty to provide security and whether that duty was performed in a non-negligent manner.

       Plaintiff also sued four individuals alleged to be Panthersville’s general partners. She later stipulated, however, to their summary dismissal from the suit, and they are not party to this appeal.


author: Smith, Judge. McMukray, Presiding Judge,

text:
    A97A0645.
    HEAD v. CSX TRANSPORTATION, INC.
    (490 SE2d 497)
   Smith, Judge.

This appeal presents the issue of whether a trial judge, who did not preside at trial, was authorized to overturn the predecessor judge’s grant of a new trial on the issue of damages only. Because the parties have never disputed that the issue of comparative negligence was involved in this case, we conclude that the first trial court abused its discretion and that the successor court was authorized to reinstate the jury’s award.

John Head sought damages under the Federal Employers’ Liability Act (FELA), 45 USC § 51 et seq., from CSX Transportation, Inc. for damages he sustained when an air hose struck his head. CSX denied liability and affirmatively alleged contributory and comparative negligence. The case proceeded to trial, and a jury awarded Head $8,000 in damages. Head filed a motion for new trial on the issue of damages only pursuant to OCGA § 51-12-12 or, in the alternative, for new trial. The basis of his motion for new trial on damages only was that the jury’s award was inconsistent with the preponderance of the evidence. The trial court granted Head’s motion on the issue of damages only. CSX moved for reconsideration, which was denied. After a new trial judge was assigned to the case, CSX again filed a motion for reconsideration, which the successor court granted. Concluding that the issue of comparative negligence was contested at trial and the grant of Head’s motion for new trial was therefore improper, the court reinstated the jury verdict. This appeal by Head ensued.

1. It is true that OCGA § 5-5-50, cited by Head and also by the dissent, provides that “[t]he first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.” In addition, as argued by Head, a trial court’s grant or denial of a motion for new trial generally is discretionary and will not be disturbed if any evidence supports that decision. Professional Consulting Svcs. v. Ibrahim, 206 Ga. App. 663, 665 (1) (426 SE2d 376) (1992). But Head ignores the well-settled case law that a trial court’s discretion is not unfettered and that this general discretion reserved to the trial court is limited in damages cases involving comparative negligence. As stated in Beringause v. Fogleman Truck Lines, 209 Ga. App. 470, 472-473 (3) (433 SE2d 398) (1993), “where comparative negligence is involved under the pleadings and the evidence, a verdict for damages for personal injuries cannot properly be set aside on the ground that the verdict is inadequate.” (Citations and punctuation omitted.) See also Mansfield v. Pizza Hut &c., 202 Ga. App. 601, 602 (415 SE2d 51) (1992); Palo v. Meisenheimer, 199 Ga. App. 24, 25 (3) (403 SE2d 881) (1991); Stroud v. Woodruff, 183 Ga. App. 628, 630 (5) (359 SE2d 680) (1987).

CSX raised comparative negligence as an affirmative defense, evidence was presented in support of this defense, the jury was charged on the principle, and the parties have not disputed the presence of comparative negligence as an issue in the case. Under the rule that a damages verdict may not be set aside where comparative negligence is involved, the trial court was not authorized to grant a new trial on the issue of damages. The fact that cases such as Beringause and other cases cited above approve the presiding judge’s denial of a new trial (as opposed to disapproving the presiding judge’s grant of the motion here) does not render those cases inapt, contrary to Head’s argument. The rule is not so narrowly drawn. In fact, it appears that the principle that a new trial on damages alone is not authorized in cases involving comparative negligence was stated as long ago as Flanders v. Meath, 27 Ga. 358 (1859). In that case, the Supreme Court reversed the trial court’s grant of a motion for new trial where it was clear that the plaintiff contributed to her own injury.

We note Head’s argument that the successor trial court failed to exercise its discretion or to inquire into the first trial court’s discretion because the successor court did not have available the trial transcript for its review. Head further argues that the successor court should not have reinstated the jury’s verdict because the first court heard the testimony and observed the witnesses. The fact that the successor court did not preside over the trial is not relevant here; the issues raised by the parties’ post-trial motions did not involve assessment of the credibility and demeanor of witnesses. And unlike Seaboard Coast Line R. v. Towns, 156 Ga. App. 24 (274 SE2d 74) (1980), cited by Head, which does not address comparative negligence or otherwise indicate that the plaintiff was contributorily negligent, the issue of comparative negligence is involved in this case. In addition, lack of a transcript for the successor court’s review does not change the result here, because the fact that this case involves comparative negligence issues has not been disputed below or on appeal.

With regard to the issue of whether the successor trial judge was authorized to revisit the first judge’s grant of a new trial, Throgmorton v. Trammell, 90 Ga. App. 433 (83 SE2d 256) (1954) shows that a judge who did not preside over a trial may entertain a motion for new trial. Id. at 434-435. It is true, as argued by Head, that the scope of the successor judge’s discretion is less extensive than that of the judge who presided at trial, because the presiding judge “heard and observed the witnesses and . . . in a sense, is to be considered as the thirteenth member of the jury.” Id. at 435. But as observed above, witness credibility and demeanor are not at issue here with regard to Head’s motion. The issue here was the grant of a new trial on the issue of damages, and it involved comparative negligence, a question of law. Under the rule of Beringause, supra, the original trial court simply was not authorized to grant a new trial on this issue.

2. Head also argues that CSX is estopped by laches from challenging the original trial court’s order granting a new trial. This argument has no merit because “laches is not a remedy for delay during litigation, but is an affirmative defense asserting an inequitable delay in instituting a proceeding. OCGA §§ 9-9-3; 9-11-8 (c).” (Emphasis supplied.) Stuckey v. Storms, 265 Ga. 491 (1), 492 (458 SE2d 344) (1995). Moreover, even if this were not the rule, the record belies any contention that CSX unfairly delayed action in response to the grant of a new trial; it filed its motion for reconsideration within a month of the trial court’s grant of Head’s motion. After a new trial judge was assigned to the case, CSX filed another motion for reconsideration.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J, and Ruffin, J., concur. McMurray, P. J., Beasley and Eldridge, JJ, dissent.

McMukray, Presiding Judge,

dissenting.

There is a line of cases stating that where comparative negligence is involved under the pleadings and evidence, it is improper for a trial court to grant a new trial on the basis that the jury verdict for damages for personal injuries is inadequate. The order of the second trial judge granting the supplemental motion for reconsideration and reinstating the jury verdict was explicitly predicated on this rule.

Recent decisions following this rule include Beringause v. Fogleman Truck Lines, 209 Ga. App. 470, 472 (433 SE2d 398); Palo v. Meisenheimer, 199 Ga. App. 24 (403 SE2d 881); and Stroud v. Woodruff, 183 Ga. App. 628 (359 SE2d 680). However, each of these cases, and many others, merely approved of a trial court’s denial of a motion for new trial. Insofar as I am able to determine, at least since the adoption of the proposition that the first grant of a motion for new trial will not be disturbed by an appellate court as now contained in OCGA § 5-5-50, the above rule has not been applied by an appellate court to overturn a grant of a motion for new trial.

Indeed, I am aware of only one case where this rule may have been applied for this purpose. In Flanders v. Meath, 27 Ga. 358 (1859), the jury awarded an adolescent plaintiff $50 for injuries she received from the dray of defendant, the child’s representative moved for a new trial maintaining that the damages as found in the verdict were inadequate, and the motion for new trial was granted. The Supreme Court reversed the grant of that plaintiff’s motion for new trial, noting that there was evidence of the child’s own negligence in running in front of the dray. That decision states both a rule of law substantially the same as our current rule of comparative negligence along with a conclusion that the fault for the child’s injuries was wholly upon the child and that the small verdict to which the defendant acquiesced was more than to what the child was entitled. Nonetheless, whatever the true holding of that case, it should not be viewed as controlling in the present appeal since it preceded the 1895 statutory enactment of the earliest versions of the concept now contained in OCGA § 5-5-50, and also predates the decision of Sparks v. Noyes, 64 Ga. 437 (1879) which is attributed by some as the source from which the statutory provision is derived.

Plaintiff argues that the decision on a motion seeking a first grant of a new trial is discretionary and that while the appellate courts may find no abuse of discretion in the denial of a motion for new trial grounded on inadequate damages when comparative negligence is an issue, such is not authority for the proposition that this result is required. I agree. The overall scheme provides a wide range of discretion to the trial court to grant a motion for new trial based on factual issues. See OCGA § 5-5-50, which provides the first grant of a new trial shall not be disturbed by an appellate court unless the law and facts require the verdict returned by the jury. The proper amount of damages is a factual issue. Atlanta Transit System v. Robinson, 134 Ga. App. 170, 171 (1) (213 SE2d 547).

Application of the proper rule is somewhat complicated by the fact that this is a FELA case. The revised OCGA § 51-12-12 has been held inapplicable to FELA cases, and a federally mandated standard of review for the amount of damages in FELA cases remains applicable. In FELA cases the jury determination of damages is inviolate absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial. Central of Ga. R. Co. v. Carter, 212 Ga. App. 528, 530 (3) (442 SE2d 269). Nonetheless, this FELA standard of review has been held to be consistent with the former Georgia standard as stated in OCGA § 51-12-12 prior to the 1987 revision of that statute. CSX Transp. v. Snead, 219 Ga. App. 491, 495-496 (4) (465 SE2d 690).

In Blanchard v. Westview Cemetery, 133 Ga. App. 262, 263-264 (1) (211 SE2d 135), this Court held that even where the evidence may demand a finding that defendant is liable to plaintiff, a verdict in the amount found by the jury is not demanded and the trial court has the discretion to grant a new trial even though the jury verdict does not suggest bias and prejudice on the part of the jury. The significance of this decision is that it clearly shows that the discretion attributed to the trial court under the language now stated in OCGA § 5-5-50 prevails over the language in the former OCGA § 51-12-12 which would require preserving a jury verdict in the absence of an inference of mistake or bias. Since the FELA standard of review stands in the shoes of the former Georgia standard, it too should yield to the grant of discretion in OCGA § 5-5-50.

And no reason has been stated in any previous case to curtail the trial court’s discretion in the particular instance of comparative negligence cases involving allegedly inadequate damage awards. Therefore, I would hold that a grant of a new trial was not precluded simply on this basis. In my view, the second trial judge relied on an erroneous interpretation of Georgia law. Therefore, I respectfully dissent.

Decided July 16, 1997

Reconsideration denied July 31, 1997

Taylor, Harp & Collier, John A. Harp, Jefferson C. Collier, for appellant.

Casey, Gilson & Williams, Robert E. Casey, Jr., James E. Gilson, Matthew P. Stone, Sandra Gray, for appellee.

I am authorized to state that Judge Beasley and Judge Eldridge join in this dissent.

       We note that after the trial judge granted Head’s motion, CSX moved for reconsideration on the ground that OCGA § 5Í-12-12 is not applicable in a FELA case under the authority of Central of Ga. R. Co. v. Carter, 212 Ga. App. 528 (442 SE2d 269) (1994). That case recites the general rule concerning the jury’s damages award in a FELA case: “[T]he jury’s determination of the amount of damages to be awarded is inviolate, absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial.” (Citation and punctuation omitted.) Id. at 530 (3). Apparently in response to this motion, the original trial court entered another order reciting that the jury’s verdict “is inconsistent with the preponderance of the evidence, that it would be a denial of justice to permit it to stand, and that the verdict is shockingly inadequate so as to raise an irresistible inference that an improper cause or mistake invaded the trial.”

       Evidence was presented that Head, the train’s conductor, set the train in motion and then leaned in toward the moving engine to place a “chock” at the wheel of the car. He was injured when an airbrake hose between the engine and car automatically disconnected and the hose struck his head. The jury was charged that should it find that Head contributed to his own injury, it must reduce its award of damages by an amount equal to the percentage of fault or contributory negligence chargeable to Head.


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    A97A0753, A97A0754.
    FORD et al. v. SAINT FRANCIS HOSPITAL, INC.; and vice versa.
    (490 SE2d 415)
   Beasley, Judge.

Ford entered Saint Francis Hospital for heart surgery, including a double bypass graft and an aortic valve replacement. During surgery he contracted a nosocomial (i.e., acquired in the hospital) staphylococcus infection of the aortic valve which required a second operation to replace the valve and to insert a pacemaker, which resulted in numerous other negative consequences. Ford and his wife sued the hospital, alleging several claims but not including professional malpractice.

The complaint’s basic contention is that Saint Francis maintained a dirty environment in and around its operating rooms. The first count was for simple negligence based on a failure to provide clean and sterile facilities and equipment, failure to inform Ford of the risk of acquiring nosocomial staphylococcus, maintaining inadequate infection control procedures and negligently administering the procedures it had, and “failure to exercise due care in the face of factual and medical circumstances” which revealed an unreasonably high incidence of staphylococcus among patients.

The second count alleged premises liability in that the hospital failed to keep its premises safe from defects, in this case bacteria, and failed to warn Ford of the dangerous conditions. The third count was failure to warn of the hazard of infection attendant to undergoing surgery in the hospital. The complaint also asserted a claim under the Georgia Fair Business Practices Act (“FBPA”), OCGA § 10-1-390 et seq., based on misrepresentation to the public and referring physicians of the quality of the hospital’s services and facilities. Subsequently abandoned was another claim for breach of contract based on a failure to provide sanitary facilities. Finally, the complaint asserted that punitive damages were appropriate because the hospital’s tortious acts were done with a wanton and reckless disregard of Ford’s health.

The complaint was served on the hospital on November 1, 1995. The hospital did not answer, and 48 days later, on December 19, the court entered default against the hospital with damages to be proved at trial. On December 28, Saint Francis filed a motion to “Open Default or in the Alternative to Set Aside Judgment.” It was accompanied by payment of costs, a verified answer, an announcement that Saint Francis was ready to proceed with trial, and affidavits seeking to explain the failure to timely answer. The answer denied liability on all counts and raised as a defense that the complaint was subject to dismissal because an affidavit setting forth at least one act of professional malpractice was required by OCGA § 9-11-9.1 but not contemporaneously filed. The answer also asserted the defense of assumption of the risk.

After hearings on the motion to open default, the court opened the default on February 23, 1996, and accepted the answer as timely filed. On March 21, the hospital filed a motion to dismiss based on a failure to comply with OCGA § 9-11-9.1. The court did not enter a written order denying the motion to dismiss but orally denied it prior to trial, which began on April 15.

After a week of trial and approximately three hours of deliberation on the theories of ordinary negligence, premises liability, and failure to warn, the jury returned a verdict in favor of the hospital which was made the judgment of the court. The Fords’ motion for new trial was denied, and the Fords appealed (Case No. A97A0753). The hospital filed a cross-appeal (Case No. A97A0754).

Case No. A97A0753

1. The Fords first enumerate error in the court’s opening the default. OCGA § 9-11-55 (b) allows the court to open a default before final judgment in certain circumstances. “[A] default may be opened if the [hospital] satisfied the four conditions and one of the three grounds for opening a default. The four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed to trial, and (4) setting up a meritorious defense. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) a proper case. [Cit.] Whether to open the default on one of the three grounds rests within the discretion of the trial judge. [Cit.]” Bryant v. Haynie, 216 Ga. App. 430, 431 (1) (454 SE2d 533) (1995). If the four conditions are not met, the court cannot exercise its discretion to open the default. C. W. Matthews Contracting Co. v. Walker, 197 Ga. App. 345, 346 (1) (398 SE2d 297) (1990).

The Fords assert that the hospital did not set forth a meritorious defense. “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.” Coleman v. Dairyland Ins. Co., 130 Ga. App. 228, 229 (202 SE2d 698) (1973). The latter is a mere conclusion. Ga. Hwy. Express Co. v. Do-All Chemical Co., 118 Ga. App. 736, 737 (165 SE2d 429) (1968). The verified answer was accompanied by the affidavit of the hospital’s Director of Infection Control, a registered nurse, who averred that the hospital infection control practices met the requisite standards of care. The answer also set forth the defense of assumption of the risk based upon Ford’s signing a consent form in compliance with OCGA § 31-9-6.1. As it turned out, the meritorious nature of the hospital’s defense was confirmed by the verdict. Although these defenses were not set out in great factual detail, they are sufficient to satisfy OCGA § 9-11-55 (b). See Pinehurst Baptist Church v. Murray, 215 Ga. App. 259, 261-262 (1) (450 SE2d 307) (1994).

The Fords insist the court nonetheless abused its discretion because of the absence of a valid ground for excusing tardiness. The affidavit of the hospital’s risk management officer showed it was his duty to forward the complaint to counsel and the hospital’s insurer. He averred he received the complaint on November 1, 1995, but did not know exactly why it was not answered. On learning of the default, he contacted the hospital’s attorneys; they had no knowledge of the complaint. The affiant considered it possible he had overlooked the complaint as the hospital had seven similar nosocomial infection cases at the same time. When the complaint arrived, he believed the hospital’s standard procedure would result in an answer being filed in this case, as in the others which preceded it.

The court’s order opening the default states no basis. At the hearing the day before entry of the order, the court stated it would open the default because there were nine similar cases, the court saw no reason this case should not be tried as the others, this was a significant case, and considering the possible prejudices involved, plaintiffs would be less harmed by opening than defendant would be by denying the motion. Although the court should specify the ground and underlying facts on which it exercises its discretion, we will presume it was based on the “proper case” ground, the broadest of the three. See Miller v. Tranakos, 198 Ga. App. 668, 670 (1) (402 SE2d 772) (1991); Colonial Penn Life Ins. Co. v. Market Planners Ins. Agency, 209 Ga. App. 562, 563 (434 SE2d 124) (1993). We will not interfere unless the court’s discretion was manifestly abused. Miller, supra.

“ ‘The rule permitting opening of default is remedial in nature and should be liberally applied, for default judgment is a drastic sanction that should be invoked only in extreme situations. Whenever possible cases should be decided on their merits for default judgment is not favored in law. Generally, a default should be set aside where the defendant acts with reasonable promptness and alleges a meritorious defense. In determining whether a situation is extreme, among the factors which may be considered, but which will not standing alone authorize the opening of default pursuant to OCGA § 9-11-55 (b), are: whether and how the opposing party will be prejudiced by opening the default; whether the opposing party elected not to raise the default issue until after the time under OCGA § 9-11-55 (a) had expired for the defaulting party to open default as a matter of right; and whether the defaulting party acted promptly to open the default upon learning no answer had been either filed or timely filed. Further, any additional delay occasioned by a failure to file promptly for opening default upon its discovery can be considered in determining whether defendants’ neglect was excusable.’ . . . [Cit.] Nevertheless, the facts in each case are different and the court must look at each case in the light of the facts peculiar thereto. [Cit.] In determining whether to open or to decline to open default, a trial judge ‘is always required to exercise a legal discretion, and in order to do that, some facts must be proven before him which warrant the exercise of legal discretion.’ . . . [Cit.]” Ryles v. First Oglethorpe Co., 213 Ga. App. 327, 328-329 (1) (444 SE2d 578) (1994). See also Strickland v. Galloway, 111 Ga. App. 683, 685 (143 SE2d 3) (1965) (construe OCGA § 9-11-55 (b) liberally to promote justice and the establishment of the truth).

The Fords do not show they faced prejudice by the opening of default. Further, they did not seek default until the time for opening as a matter of right under OCGA § 9-11-55 (a) had passed. The hospital acted promptly when it learned of the default, filing its motion to open nine days after default had been entered. No particular delay was caused; to the contrary, the case was tried less than six months after the complaint was filed. In permitting the dispute to be resolved on its merits through a rigorous test to find the truth, the court did not abuse its discretion.

2. The Fords contend the court erroneously denied their motion for directed verdict on negligence per se, which motion was based solely upon a finding by the state’s Department of Human Resources (“DHR”) that the hospital was not in compliance with federal regulations governing infection control. See OCGA § 51-1-6; 42 CFR 482.42 (a); Cardin v. Telfair Acres of Lowndes County, 195 Ga. App. 449, 451 (2) (393 SE2d 731) (1990). The hospital does not contest that the regulations intended to protect Ford from the type of harm he suffered, see Horney v. Panter, 204 Ga. App. 474, 476 (2) (420 SE2d 8) (1992), but rather that when Ford’s operation was performed, DHR had found the hospital in compliance with relevant regulations.

The report of a violation is dated January 15, 1993. DHR made a further study and, on July 23, 1993, found the hospital was not in compliance. On October 21, 1993, DHR informed the hospital that, based on a further visit, the hospital was then in compliance. Ford’s operation was performed on November 1, 1993. As there was evidence the DHR had most recently determined that the hospital was in compliance, and the Fords presented no evidence of what the applicable state and federal infection control regulations were, the court properly denied the motion for directed verdict.

3. The Fords contend the court erred in directing verdicts for the hospital on the Fords’ claims of fraud, violations of the Georgia Fair Business Practices Act, and punitive damages, but it did not err. The Fords based punitive damages on the fraud and FBPA claims, founded in part on representations made to the general public about the quality of the hospital’s facilities and service. Fraud and the FBPA require reliance on the misrepresentations. See Gary v. E. Frank Miller Constr. Co., 208 Ga. App. 73, 75 (2) (430 SE2d 182) (1993); Lynas v. Williams, 216 Ga. App. 434, 437 (3) (b) (454 SE2d 570) (1995).

Both Mr. and Mrs. Ford testified that the surgeon decided where to perform the surgery, without their participation in the selection. The Fords chose the surgeon because of his reputation, and the surgeon designated Saint Francis, where he performs all his surgery. There is no evidence supporting a supposition that Dr. Brewer relied upon, or even knew of, any public assurances by the hospital about its level of care. He did not even rely on, or know of, the hospital’s reported infection rates but kept, and relied on, his own data.

The Fords also assert the hospital had a duty to reveal it was in violation of state and federal regulations, because of a confidential relationship between the Fords and the hospital. See OCGA § 23-2-53. First, they contend such a relationship existed because the hospital exerted “a controlling influence” over their will in choosing to use Saint Francis’ facilities. See OCGA § 23-2-58. As noted above, the hospital did not “influence” them to use Saint Francis; the surgeon chose the hospital. Second, as stated in Division 2, DHR had informed the hospital it was in compliance prior to Ford’s surgery.

4. The Fords enumerate as error the court’s refusal to give requested charges on agency, assumption of risk limitation, negligence per se, presumption of continuance, and presumption from failure to produce evidence. As to all but the charge on presumption of continuance, the objection was simply by reference to the number of the charge. This is insufficient to meet the requirements of OCGA § 5-5-24 (a). Lissmore v. Kincade, 188 Ga. App. 548, 551 (4) (373 SE2d 819) (1988). The omission of these charges is not harmful error as a matter of law so as to require consideration under OCGA § 5-5-24 (c).

As to the requested charge on presumption of continuance, the Fords contend it is authorized by OCGA § 24-4-21, which refers to presumptions of law. Such a presumption grounded on the DHR finding of a violation of federal and state regulations disappeared with DHR’s later finding the hospital in compliance, before Mr. Ford’s surgery. Moreover, the jury heard ample evidence about the hospital’s condition during the period in which it was found in violation, continuing through the time of the surgery, so any error in failing to give this charge was harmless.

5. The next question is whether the court was required to strike prospective juror Garrard for cause under OCGA § 15-12-135, because she: (1) is retired from a health care facility affiliated with Saint Francis, (2) her daughter is an employee at the same facility, (3) Garrard volunteered at Saint Francis, (4) she had received a letter the President of Saint Francis had sent to staff and volunteers informing them of this and similar lawsuits and expressing the opinion that all claims would be dismissed, and (5) her husband had made a financial contribution to Saint Francis.

Relation to an employee of the defendant corporation does not render her incompetent to be a juror. Pheil v. Southern Bell Tel. &c. Co., 201 Ga. App. 846 (1) (412 SE2d 609) (1991). None of the cited characteristics suggests she had any financial interest in the outcome of the case, and the court found she could be fair and impartial in accordance with her testimony. The court did not abuse its discretion in refusing to excuse her. Id.

6. The Fords contend it was error to deny their motion for new trial. As there was some evidence to support the verdict, this enumeration fails. Lofty v. Fuller, 223 Ga. App. 95, 97 (2) (477 SE2d 30) (1996).

Case No. A97A0754

7. The hospital contends the court erred in denying its motion to dismiss the complaint for failure to comply with OCGA § 9-11-9.1 and in denying its motion for directed verdict based on lack of proximate cause. Our affirmance in Case No. A97A0753 moots the cross-appeal. See Saunders v. Padovani, 258 Ga. 866 (375 SE2d 853) (1989); Holmes v. Univ. Health Svcs., 205 Ga. App. 602 (423 SE2d 281) (1992); Bryson v. Button Gwinnett Savings Bank, 205 Ga. App. 668, 669 (1) (423 SE2d 691) (1992).

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., and Smith, J., concur. McMurray, P. J., Ruffin and Eldridge, JJ, dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent because, in my view, the trial court erred in directing a verdict for the Hospital on the Fords’ fraud and Georgia Fair Business Practices Act claims. I also believe the trial court erred in excluding the possibility of recovery on the Fords’ negligence per se claim. Although the trial court denied the Fords’ motion for directed verdict with regard to this claim, the trial court’s ruling excluding recovery based on negligence per se was the same as if the trial court had directed a verdict for the Hospital on the Fords’ negligence per se claim. “ ‘A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict.’ Carver v. Jones, 166 Ga. App. 197, 199 (3) (303 SE2d 529) (1983). Even ‘slight’ evidence was regarded as sufficient to prevent the devastations of a directed verdict, in Worth v. Ga. Farm &c. Ins. Co., [174 Ga. App. 194 (330 SE2d 1)]. Where there is ‘some evidence,’ or ‘any evidence’ supporting the respondent’s assertions, disputed issues are created which are for jury resolution. United Fed. Savings &c. Assn. v. Connell, 166 Ga. App. 329, 330 (1) (304 SE2d 131) (1983).” Grabowski v. Radiology Assoc., P.A., 181 Ga. App. 298, 301 (3) (352 SE2d 185).

Negligence Per Se. The majority excludes any possibility that the Hospital was not in compliance with state and federal infection control regulations at the time of Mr. Ford’s surgery on November 1, 1993, because a month and a half before the surgery (September 15, 1993) the Hospital passed DHR’s surprise infection control inspection. This inspection, however, was not a final testimonial of the Hospital’s inspection control practices; it was simply to ensure the Hospital’s compliance with a plan that was specifically designed to correct the Hospital’s already determined inadequate infection control practices. Just because the Hospital passed this surprise inspection (a month and a half before Mr. Ford’s surgery) does not mean, as a matter of law, the Hospital was in compliance with the applicable state and federal infection control regulations at the time of Mr. Ford’s surgery. In my view, proof that the Hospital was under DHR scrutiny shortly before Mr. Ford’s surgery for regulatory infection control violations, that Mr. Ford contracted a serious infection the applicable regulations were designed to prevent, and that several other patients at the Hospital had been similarly infected raises genuine issues of material fact as to the Hospital’s compliance with the applicable state and federal infection control regulations. I therefore believe the trial court erred in excluding the possibility of recovery on the Fords’ negligence per se claim.

Decided July 11, 1997

Reconsideration denied July 31, 1997

Pope, McGlamry, Kilpatrick & Morrison, Charles N. Pope, Paul Kilpatrick, Jr., William U. Norwood III, Teresa P. Majors, Samuel W. Oates, Jr., for appellants.

Allen & Peters, Paul E. Weathington, Gary R. McCain, Michael D. Flint, Hatcher, Stubbs, Land, Hollis & Rothschild, James E. Humes II, Robert C. Martin, Jr., for appelleé.

Fraud and Fair Business Practices Act.' Affirming the trial court’s directed verdict on these claims, the majority reasons only that the essential element of the Fords’ reliance on the Hospital’s quality assurances is missing because Mr. Ford’s physician, not the Fords, chose the venue of Mr. Ford’s surgery. This logic may appear wide but, in my view, is not very deep. For instance, the jury may well have concluded that the Hospital’s public assurances regarding its high quality of care influenced Mr. Ford’s physician (his agent) as well as the Fords’ decision to proceed with surgery at the Hospital. I believe the jury should have been given a chance to measure these alleged reliances.

I am authorized to state that Judge Ruffin and Judge Eldridge join in this dissent.

       The court stated “the record is replete with what the court has done on that matter and I have no more to say about that,” but the record here does not show any written disposition of the motion.

       The complaint was amended at trial to add this count.