author: Blackburn, Judge. McMureay, Presiding Judge,

text:
    A95A2136.
    WHITLEY v. GWINNETT COUNTY et al.
    (470 SE2d 724)
   Blackburn, Judge.

In this wrongful death case, Mary Whitley appeals the grant of Gwinnett County, Georgia’s (the County) motion for partial summary judgment and jury verdicts for the County and Roger Dewitt, a Gwinnett County police officer. She enumerates 11 errors.

This case arose after Officer Dewitt’s patrol car collided broadside with a car driven by Mary Whitley’s husband, James Whitley, who suffered fatal injuries. At the time of the collision, Officer Dewitt was on routine patrol, delivering some papers. As he traveled down a state highway, approaching an intersection just before a bridge over Interstate Highway 985, James Whitley exited 1-985. The intersection was part of a typical interstate interchange insofar as it had entrance ramps and exit ramps separated by a bridge over the interstate. Officer Dewitt testified that he applied maximum braking when he realized James Whitley failed to stop at the stop sign at the end of the exit ramp and was entering the intersection. Officer Dewitt was unable to avoid the collision.

In April 1991, Whitley filed a complaint individually and as administratrix of James Whitley’s estate alleging negligence against Officer Dewitt and joint and several liability against the County under a respondeat superior theory. Whitley filed an amended complaint in September 1993, alleging that the Gwinnett County Department of Transportation (County DOT) negligently failed to maintain the intersection where the collision occurred.

The County moved for partial summary judgment on this claim, arguing that (1) the intersection where the fatal collision occurred was part of the state highway system and was not under the County’s control; (2) the amendment was time barred and (3) Whitley’s failure to attach the requisite affidavit to a professional malpractice claim was fatal. The trial court granted the motion and also granted the defendants’ motion to bifurcate the trial’s liability and damages phases. The jury returned a verdict in favor of Officer Dewitt and the County.

1. Whitley first contends the trial court erred in granting partial summary judgment to the County as to her negligent maintenance claim, arguing in pertinent part that her claim against the County for negligent maintenance is not a professional malpractice claim requiring an affidavit.

“[T]he relevant inquiry is whether £a particular claim is grounded upon “professional malpractice,” that is, an act or omission caused by a “professional” which constitutes malpractice.’ [Cit.]” Adams v. Coweta County, 208 Ga. App. 334, 335 (2) (430 SE2d 599) (1993). In the present case, the amended complaint alleged that the County DOT breached its primary responsibility to initiate a formal request for a traffic signal to the Georgia DOT when it knew or should have known that the intersection at issue presented an unreasonable risk to drivers.

It is undisputed that to acquire a traffic control device, the County DOT was required to apply to the Georgia DOT for a permit. The application process required the County DOT’s engineers to prepare a traffic control study justifying the necessity of the traffic control device. These engineers were also required to submit a proposal for the signal’s design to accompany the application. This evidence demonstrates that the process of applying for a traffic control signal permit required “the exercise of professional skill and judgment” by agents recognized as professionals under Georgia law. Id. Furthermore, the fact that an expert witness would be required to prove the claim against the County DOT is further proof that Whitley’s allegations are not of simple negligence. Id. at 336. Notwithstanding Whitley’s argument that the need for the traffic control device was patently obvious, the rule remains that “[e]ven in cases of ‘clear and palpable’ professional negligence it is still necessary that the plaintiff file an expert affidavit contemporaneously with the filing of the complaint.” (Punctuation omitted.) Id. Consequently, the trial court properly granted summary judgment on this claim.

2. Whitley argues that the trial court erred in bifurcating the issues of liability and damages because there was but one issue to be tried, damages were merely the measure of relief flowing from that issue, and there was no dispute about causation or other issues which might confuse the jury about damages.

We disagree. Courts are authorized to bifurcate issues to further convenience or avoid prejudice. OCGA § 9-11-42 (b). The decision to bifurcate is reviewed for clear and manifest abuse of discretion. Sol lek v. Laseter, 124 Ga. App. 131, 132 (183 SE2d 86) (1971). Whitley has not shown how bifurcation prejudiced her. Inasmuch as we have upheld the bifurcation of the liability and damages issues in other vehicle collision cases, we find the trial court did not abuse its discretion in the case sub judice. Parks v. Consolidated Freightways, 187 Ga. App. 576, 577 (1) (370 SE2d 827) (1988); Cline v. Kehs, 146 Ga. App. 350 (1) (246 SE2d 329) (1978).

3. Whitley argues that the trial court erred in granting defendants’ motion in limine on the admissibility of similar accidents at the intersection. She maintains the evidence was relevant to the issues of the dangerousness of the intersection, whether Officer Dewitt knew or should have known of the danger, and how the collision occurred.

Generally, evidence of similar accidents is not admissible to prove negligence. Bassham v. Diamond, 148 Ga. App. 620, 621 (1) (252 SE2d 23) (1979). Although evidence of similar collisions has been admitted in the past to show the Georgia DOT’s knowledge of the need for traffic control devices, see Dept. of Transp. v. Brown, 218 Ga. App. 178, 183 (4) (460 SE2d 812) (1995), the decision to exclude evidence is reviewed for abuse of the trial court’s discretion. Id. at 183. See also Gary v. E. Frank Miller Constr. Co., 208 Ga. App. 73, 74 (1) (430 SE2d 182) (1993).

The trial court excluded the evidence as immaterial because Officer Dewitt denied any knowledge of the dangers of the intersection and no other evidence imputed knowledge to him. Had the motion in limine been denied, Whitley would have introduced a post-accident traffic study, eleven accident reports from the same intersection, and testimony by five witnesses on the visual obstruction caused by the bridge rail.

The evidence showed that Officer Dewitt had been a traffic officer in the county for 18 years and had served on a special accident investigation unit for years; however, none of the excluded reports linked Officer Dewitt to any of the accidents at the intersection. Thus, we cannot say the court abused its discretion in excluding them as irrelevant. Moreover, the relevance of the traffic study, which was conducted after the accident, is at best tenuous. Further, the additional evidence of visual obstruction would have been cumulative because Officer Dewitt’s supervisor in the accident investigation unit and the state trooper who investigated this collision both testified about the visual obstruction caused by the bridge rails just before the intersection. Under these circumstances we cannot say that the trial court abused its discretion in excluding this evidence.

The dissent would find that evidence of similar side-impact collisions at the intersection where the collision occurred was relevant to impeach Officer Dewitt’s testimony and to show that Dewitt knew or should have known of hazardous conditions at the intersection before he collided with the decedent’s car. Although Dewitt denied knowledge of the similar collisions, the dissent questions Dewitt’s unchallenged veracity based on evidence of Dewitt’s history as an officer with Gwinnett County Traffic Control. Credibility is resolved at the trial court, and this Court has no authority to do so. During the hearing on the motion in limine, the trial court asked plaintiff’s counsel if there was any evidence to dispute the defendants’ contention that Dewitt had no knowledge of the additional collisions, plaintiff’s counsel merely responded: “All the evidence about Officer Dewitt’s knowledge and notice would be circumstantial evidence.” Plaintiff’s counsel did not tender any evidence of the other collisions or attempt to make an offer of proof with regard to the circumstantial evidence at the pretrial hearing. Near the end of the defendants’ case at trial, plaintiff’s counsel made what he termed an “offer of proof,” of the documents ruled inadmissible at the pretrial motion hearing. Counsel neither detailed these documents for the trial court, nor did he question the veracity of Officer Dewitt. For the first time, plaintiff tendered the accident reports of the other collisions. Plaintiff did not impeach Dewitt at trial because he did not testify as to his knowledge of the other collisions at trial as the trial court had previously ruled such evidence inadmissible.

This Court has held many times that issues not properly raised in the trial court will not be considered on appeal. See City of Dalton v. Smith, 210 Ga. App. 858 (1) (437 SE2d 827) (1993). “In order to raise on appeal contentions concerning admissibility of evidence the specific ground of objection must be made at the time the evidence is offered, and a failure to do so will be considered as a waiver.” (Punctuation and emphasis omitted.) Hunter v. State, 202 Ga. App. 195, 197 (413 SE2d 526) (1991). In the present case, plaintiff’s counsel failed to present evidence with regard to Dewitt’s knowledge of previous collisions at the intersection involved. Therefore, as plaintiff did not make the trial court aware of her impeachment argument, it was waived.

4. Whitley maintains that defendants’ counsel opened the door on the issue of the relative dangerousness of the intersection by asking the state trooper who investigated the accident whether the intersection at issue was any worse than other obstructions he sometimes saw on the roadway. Whitley argues that she was entitled to introduce the accident reports to counter the trooper’s negative response.

The question at issue was asked in the context of whether the vision problem at the intersection was any worse than any other similarly situated intersection. Presumably, however, a “similarly situated intersection” would contain the same visual obstructions as the present intersection, and therefore, the officer’s statement would be true. Its relevance is lessened even more by the fact that it did not contemplate whether the other intersections had signals. Whitley has cited no authority on point requiring the admission of this evidence. The authority Whitley relies on allows the admission of otherwise excluded evidence for impeachment purposes. See, e.g., Patterson v. Lauderback, 211 Ga. App. 891, 892 (440 SE2d 673) (1994) (admission of insurance when a party with insurance claimed he could not pay medical bills). However, the admission of the accident reports would not have impeached the trooper’s response because the trooper did not deny that other accidents had occurred at the intersection at issue or that there was no vision problem there. In fact, he testified that he knew the intersection was dangerous prior to the collision at issue. Compare id. This testimony cannot be rebutted solely by evidence of other collisions at this intersection. Indeed, even if other evidence could establish that the opinion was likely incorrect, it does not rebut the fact that it is the officer’s opinion. Therefore, it could not be rebuttal evidence. The continued exclusion of this evidence was not harmful error.

5. Whitley contends that the trial court erred in permitting defendants’ accident reconstructionist to introduce evidence of two computer runs and corresponding Mylar slides simulating the accident at different speeds which were not provided to her until trial despite pretrial discovery requests for all computer simulations the expert conducted.

“In the absence of a deliberate withholding for improper purposes, it is the general rule that ‘(w)hen a party proffers at trial evidence which should have been disclosed during discovery, exclusion of the proffered evidence is not an authorized sanction. The proper sanction is to order a postponement or mistrial.’ [Cits.]” Wilson v. Southern R. Co., 208 Ga. App. 598, 602 (3), 603 (431 SE2d 383) (1993).

There is no evidence that the exhibits at issue were deliberately withheld for improper purposes. It is undisputed that they were the same as other exhibits properly provided during discovery except that the expert entered different speeds of Officer Dewitt’s car into the computer calculations. After Whitley objected, the court gave her time to review the exhibits with the witness overnight before cross-examining him. Inasmuch as this solution comports with the rule in Wilson, the trial court did not abuse its discretion in declining to exclude the exhibits. Id. at 604.

6. Whitley maintains that the trial court erred in limiting her cross-examination of the director of the County DOT regarding his failure to bring his investigative file of the collision to trial.

This file, which Whitley subpoenaed, was the subject of a successful motion to quash. As a result, the County’s counsel instructed the director not to bring the file to trial. Because this fact does not tend to prove a matter in dispute, the trial court did not abuse its discretion in limiting the cross-examination on this point. Ga. Kraft Co. v. Laborers’ Intl. Union &c., 170 Ga. App. 581, 582-583 (1) (317 SE2d 602) (1984).

7. Whitley argues that the trial court improperly charged the jury on comparative negligence by failing to compare her husband’s negligence to that of all of the alleged tortfeasors, including the County DOT.

The charge as given mirrors the correct rule of law as set out in Union Camp Corp. v. Helmy, 258 Ga. 263, 268 (367 SE2d 796) (1988). Furthermore, the requested charge does not apply to the facts in the case. It instructs the jury to “compare any negligence of the plaintiff to the combined negligence of all persons you find may have contributed to the . . . collision, whether or not they are parties to this lawsuit.” In Division 1, however, we accepted Whitley’s argument that the new cause of action in the amended complaint should relate back because the amended cause of action was asserted against the same party, i.e., the County’s police department and the County’s DOT. She cannot have it both ways. Moreover, because Whitley fails to articulate or cite the specific evidence adduced at trial which would support the charge, we affirm. See Valdez v. Power Indus. Consultants, 215 Ga. App. 444, 447 (451 SE2d 87) (1994).

8. Whitley argues that the trial court erred in refusing to charge on last clear chance.

“[T]he last clear chance doctrine has no application unless the defendant knew of the plaintiff’s perilous situation and had opportunity to take evasive action to avoid injuring him.” Simpson v. Reed, 186 Ga. App. 297, 298 (4) (367 SE2d 563) (1988); Harrison v. Feather, 178 Ga. App. 35, 36 (342 SE2d 1) (1986).

In the present case the evidence indicates that from the time Dewitt knew the decedent’s car was not going to stop until the accident occurred no more than two or three seconds elapsed. Dewitt was unable to avoid the collision on the left due to a guard rail and bridge abutment, and he was unable to maneuver to the right because Whitley’s car was in the right lane. Therefore, Dewitt applied maximum braking and went into a controlled skid.

In order to justify a charge on last clear chance, there must be evidence to support the fact that the defendant had the opportunity to take evasive action to avoid the collision. Stallings v. Cuttino, 205 Ga. App. 581, 583 (422 SE2d 921) (1992). Because there was no such evidence in the present case, the trial court did not err in not charging on last clear chance.

9. Whitley argues that the trial court erred in refusing to give her proximate cause charge. The charge she requested included the sentence: “The proximate cause is the dominant cause of the event which produces injury.” We do not approve of that language. See Locke v. Vonalt, 189 Ga. App. 783, 788 (377 SE2d 696) (1989). Because that portion of the request is inapt, denial was not error. Mattox v. MARTA, 200 Ga. App. 697, 699 (4) (409 SE2d 267) (1991). Moreover, the charge given was a correct statement of the law. Id.

10. Whitley asserts that the trial court erred in denying her motion for mistrial based on improper references in opening and closing arguments to Officer Dewitt’s unblemished record and fine reputation.

Pretermitting the propriety of these statements, because the record shows that Whitley failed to contemporaneously object to them, her argument is waived on appeal. Chandler v. State, 204 Ga. App. 816, 818 (1), 819 (421 SE2d 288) (1992); Keri v. State, 179 Ga. App. 664, 669-670 (6) (347 SE2d 236) (1986); Favors v. State, 145 Ga. App. 864, 865-866 (2) (244 SE2d 902) (1978).

11. Whitley argues that the trial court erred in denying her motion for mistrial based on undue delay.

The record shows that the jury began deliberating on a Thursday, but due to an illness in the judge’s family, it was released after a half day on Friday when a substitute judge could not answer a question the jury submitted. After the jury reconvened on the following Wednesday, Whitley and defendants unsuccessfully moved for a mistrial due to undue delay.

A denial of a motion for mistrial is reviewed for abuse of discretion. Tuggle v. State, 211 Ga. App. 854, 855 (2) (a) (440 SE2d 740) (1994). Whitley cites no authority requiring a different disposition of her motion, and we have found none. Nor did the mere delay cause such prejudice as to require reversal. Under these circumstances, reversal is not warranted. Accord, Bronner v. Williams, 147 Ga. 389 (94 SE 250) (1917) (no reversal when judge left county during overnight recess in capital case with sequestered jury); Ideal Pool Corp. v. Champion, 157 Ga. App. 380, 385 (6) (277 SE2d 753) (1981) (no reversal when judge left bench while counsel stated objections to jury charge).

Judgment affirmed.

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

McMureay, Presiding Judge,

dissenting.

I respectfully dissent as it is my view that the trial court erred in refusing to give Whitley’s request to charge on last clear chance. I also believe the trial court erred in excluding evidence of similar side-impact collisions at the intersection, testimony from several other accident victims regarding visibility problems at the intersection and proof that the County had rated the intersection as one of its most dangerous intersections.

1. Although I agree with the majority the last clear chance doctrine has no application unless the defendant knew of the plaintiff’s perilous situation and had an opportunity to take evasive action, Simpson v. Reed, 186 Ga. App. 297, 298 (4) (367 SE2d 563), I cannot go along with the majority’s conclusion that there was no evidence to support a charge on last clear chance. Specifically, I strongly disagree with the majority’s factual finding that Officer Dewitt was unable to do anything but brake to avoid the collision. I have studied Officer Dewitt’s testimony, a diagram of the accident scene, photographs of the wrecked vehicles and a report concerning the relative positions of the vehicles at the time of the collision and I find no proof which demands a finding, as stated by the majority, that “Dewitt was unable to avoid the collision on the left due to a guard rail and bridge abutment, and he was unable to maneuver to the right because Whitley’s car was in the right lane.” While this logic is appropriate for jurors, I do not think it suitable for an appellate court upon judicial review.

“It is well established that a charge is proper if there is any evidence, however slight, on which to predicate it. Cale v. Jones, 176 Ga. App. 865, 868 (4) (338 SE2d 68) (1985).” Beal v. Braunecker, 185 Ga. App. 429, 433 (4) (364 SE2d 308). In the case sub judice, the evidence reveals that, after slowing at a traffic light just before approaching the subject intersection, Officer Dewitt accelerated to at least 50 miles per hour and then entered the bridge that went over the intersecting highway. Officer Dewitt testified that he observed James Allen Whitley’s car stopped some 50 to 80 feet from the intersection as he started over the bridge. Whitley’s car then proceeded into the intersection at about five to seven miles per hour, when Officer Dewitt’s patrol car was about 130 to 150 feet away. Officer Dewitt explained that when he saw Whitley’s car it was too late to take evasive action.

The evidence in this case bears no significant difference from the circumstances in Simpson v. Reed, 186 Ga. App. 297, supra, where this Court held that a charge on last clear chance was authorized by evidence indicating “that [the defendant], though 25 yards distant and aware of [the plaintiff’s] presence crossing the road on the diagonal, nevertheless failed to take advantage of the distance to avoid injuring appellee by taking evasive action.” Id. at 298 (4). I believe the above proof, along with the fact that Officer Dewitt could have turned left or right to avoid the collision (albeit a hard choice), authorizes a charge on liability based on last clear chance.

2. Mary Whitley argues that evidence of similar side-impact collisions at the intersection was not only relevant to prove the generally hazardous conditions at the intersection, but was also relevant to show that Officer Dewitt knew or should have known of hazardous conditions at the intersection before he accelerated into James Allen Whitley’s car. I agree and would reverse.

Although evidence of similar accidents is generally not admissible to prove negligence, Bassham v. Diamond, 148 Ga. App. 620, 621 (1) (252 SE2d 23), such evidence may be admissible if it tends to shed some light upon a fact in issue. See Dept. of Transp. v. Brown, 218 Ga. App. 178, 183 (4) (460 SE2d 812). And while I agree with the majority that the relevancy of other occurrences generally lies within the sound discretion of the trial court, I cannot go along with a holding which affirms the exclusion of evidence which I view as probative to key issues that were before the jury. See Norfolk Southern R. Co. v. Thompson, 208 Ga. App. 240, 247 (7) (430 SE2d 371); Reed v. Heffernan, 171 Ga. App. 83, 84 (1) (a) (318 SE2d 700). I think the majority’s view disregards the old maxims that “ ‘[e]very fact or circumstance serving to elucidate or throw light upon the issue being tried, constitutes proper evidence in the case.’ Sample v. Lipscomb, 18 Ga. 687. ‘Where the competency of evidence is doubtful, it should go to the jury, that they may consider how far its force is impaired by surrounding incidents.’ Augusta Factory v. Barnes, 72 Ga. 217 (5 a) (52 Am. R. 838); and the converse of this rule has been stated thus: ‘It is relevant to put in evidence any circumstances which tend to make the propositions at issue either more or less probable.’ Todd v. Ger man American Insurance Co., [2 Ga. App. 789, 790 (4) (59 SE 94)]. ‘Evidence which is only indirectly relevant to the issue on trial, but which tends somewhat to illustrate it and to aid the jury in arriving at the truth of the matter, should be admitted . . . The rule in this State is to admit evidence^ even if it] is of doubtful relevancy.’ Talbotton Railroad Co. v. Gibson, 106 Ga. 229, 236 (32 S. E. 151); Dalton v. Drake, 75 Ga. 115; Savannah, F. & W. Ry. Co. v. Flannagan, 82 Ga. 579 (9 S. E. 471, 14 Am. St. R. 183).” A. A. A. Hwy. Express v. Hagler, 72 Ga. App. 519, 520 (1) (34 SE2d 462).

In the case sub judice, Mary Whitley proffered, in pertinent part, multiple accident reports showing side-impact collisions at the subject intersection and testimony from several witnesses of these collisions concerning a visibility obstruction (a bridge guardrail) that caused the similar collisions. The majority concludes that this evidence was immaterial because Officer Dewitt denied prior knowledge of a dangerous condition at the intersection and the proffered evidence did nothing to refute Officer Dewitt’s claim of ignorance, i.e., the reports did not indicate that the officer investigated or was otherwise involved in the prior occurrences. This conclusion, however, fails to take into account proof that Officer Dewitt may not have been completely candid about his knowledge of prior collisions at the intersection in question.

Officer Dewitt had been a traffic control officer in Gwinnett County for 18 years before the collision, he had served on the County’s special accident investigation unit for several years and, in this capacity, he had worked with the County’s chief traffic control engineer, who admitted that he was familiar (before the fatal collision) with visibility problems at the intersection. While this evidence alone may not discredit Officer Dewitt’s claim that he had no prior knowledge of visibility problems at the intersection, when taken with proof that a long list of police accident reports existed involving similar collisions at the subject intersection (all which appear to have been compiled by the very accident investigation unit where Officer Dewitt was assigned before the fatal collision), the veracity of Officer Dewitt’s claim of prior ignorance of the visibility hazard at the intersection becomes an issue for the jury. Assuming the contrary, however, I believe the proffered accident reports would have been dN rectly relevant to Mary Whitley’s claim that Officer Dewitt should have known (as a long-time Gwinnett County officer, specializing in traffic control) about the dangers associated with accelerating toward a blind intersection, without pause. Under these circumstances, I do not agree that the trial court was correct in determining that the excluded evidence was immaterial.

3.1 also think the trial court erred in excluding Whitley’s proffer of testimony from several witnesses concerning a visibility obstruction at the intersection that was caused by a nearby guardrail. I believe this evidence was relevant to rebut the defense’s claim that James Allen Whitley’s negligence was the sole proximate cause of his fatal injuries. Specifically, James Allen Whitley’s perspective of the oncoming hazard posed by Officer Dewitt’s accelerating patrol car was relevant to issues of contributory negligence and to the defense of comparative fault. See Charles R. Adams Ill’s and Cynthia Trimboli Adams’ Georgia Law of Torts (1989), §§ 16-1 and 16-4, and §§ 17-1 and 17-2. The majority holds, however, that any error in this regard was harmless because Officer Dewitt’s supervisor in the accident investigation unit and the state trooper who investigated the collision testified about the guardrail obstruction. I cannot go along with this harmless error tact. Neither the trooper that investigated the collision, nor Dewitt’s supervisor in the accident investigation unit had experienced a collision due to the guardrail obstruction at the intersection. Witnesses proffered by Mary Whitley had. Only they would have been able to convey the full extent and consequences of the visibility obstruction that was presented to James Allen Whitley moments before the collision.

Decided March 15, 1996

Reconsideration denied March 29, 1996

James L. Ford, Terry D. Jackson, for appellant.

Boyce, Ekonomou & Atkinson, Peter F. Boyce, William M. Coo lidge III, for appellees.

When determinations of negligence and comparative fault may have been based upon the testimony of the only surviving eyewitness, Officer Dewitt, whom Mary Whitley was erroneously precluded from impeaching, an appellate court should not second guess the fact-finding process, but should reverse and remand for a new trial wherein determinations of negligence and comparative fault may be reached by a jury that is properly allowed to resolve the credibility of the witness. Dept. of Transp. v. Adams, 193 Ga. App. 866 (1), 867 (389 SE2d 343).

4. Finally, I agree with Mary Whitley’s contention that the excluded evidence regarding prior similar collisions at the intersection, as well as proof that the County had rated the intersection as one of its most dangerous intersections, was relevant to rebut an investigating police officer’s testimony that the intersection was no more dangerous than any other similarly situated intersection. “ Tt is error requiring the grant of a new trial to deny a party the right to cross-examine witnesses as to vital issues concerning which they have testified upon direct examination.’ Harrison v. Regents &c. of Ga., 99 Ga. App. 762 (1) (109 SE2d 854) (1959).” Dept. of Transp. v. Adams, 193 Ga. App. 866 (1), supra.

       The testimony was as follows: “Q. So you’ve seen probably a lot of both Gwinnett County and a lot of surrounding counties? A. Yes, sir. Q. Have you seen other intersections similar to State Highway 20 and 985 where there are some obstructions either created by shrubbery or created by bridge railings before? A. Yes, sir. Q. And in any of those situations where there may be obstructions, again whether they are created by shrubbery or bridge railings or anything else, is it generally the case that if you move up a little bit or move back a little bit you can see plainly? A. In my experience traveling through them, yes, sir. Q. Was this particular intersection on that night any worse than any of those other type of obstructions that you sometimes see on the roadway? A. No, sir, not in my opinion.”

       There is no transcript of the hearing in which the motion was decided. However, in deciding to limit Whitley’s cross-examination regarding why the director did not bring the file, the court stated that it recollected it had granted the motion to quash. In the absence of a transcript, we must assume this recollection was correct. See Arrington v. Hand, 193 Ga. App. 457, 458-459 (388 SE2d 52) (1989).

       In opening, counsel stated his client had an unblemished record. In closing, counsel stated he respected his client.


source: Caselaw Access Project

author: McMurray, Presiding Judge. Andrews, Judge,

license: Public Domain

text:
    A95A2152.
    DEPARTMENT OF TRANSPORTATION v. DAVISON INVESTMENT COMPANY, INC. et al.
    (470 SE2d 900)
   McMurray, Presiding Judge.

The Department of Transportation (DOT) condemned 6.164 acres from a tract of approximately 134 acres owned by condemnee Davison Investment Company, Inc. The condemnor paid $24,300 into the registry of the superior court as the estimated just and adequate compensation for the property condemned. Condemnee Davison Investment Company, Inc. filed its answer and appeal of the amount of compensation. The motion to intervene as additional condemnees of Mayes Davison and Agnes Davison Ray was granted, and following discovery, the case was tried before a jury which returned a verdict awarding the condemnees the sum of $316,000. The judgment followed the verdict, and condemnor appeals. Held:

1. Condemnor’s first enumeration of error complains that the testimony of condemnees’ expert witness should have been excluded at least insofar as it reflected an incorrect method of evaluating just and adequate compensation for the property actually taken. In argument, condemnor seems to concede that this witness complied with earlier case law concerning appropriate appraisal methodology, but complains that unrealistic numbers are submitted to the courts even after the recent decision of Dunaway v. Columbia County, 213 Ga. App. 840 (447 SE2d 31). The “new danger” perceived by condemnor lies in the need to appraise the land actually condemned as a separate entity, yet the supporting argument that the “appraisal method unjustly multiplied the value of the condemned property out of proportion to the value of Condemnees’ total property prior to taking” is little more than a restatement of the pro rata method disapproved in Bland v. Bulloch County, 205 Ga. App. 317 (422 SE2d 223). The present case well demonstrates the inadequacy of a pro rata evaluation since the land taken was part of a small fraction of the property identified as being best suited for commercial purposes while the bulk of the acreage had no potential beyond its use as pasture or farmland. This enumeration of error lacks merit.

2. Condemnor also enumerates as error the refusal of the trial court to prohibit condemnees’ expert’s testimony regarding unsubstantiated and speculative uses for the land actually taken. At the time of the taking the land was being used as farmland. But condemnees’ expert determined that the highest and best use of that portion of the property actually taken was commercial and based his estimate of its value on that potential. “ ‘(T)he fact that the property is merely adaptable to a different use is not in itself a sufficient showing in law to consider such different use as a basis for compensation. It must be shown that such use of the property is so reasonably probable as to have an effect on the present value of the land. (Cit.)’ (Emphasis supplied.) Dept. of Transp. v. Great Southern Enterprises, [137 Ga. App. 710, 713 (225 SE2d 80)].” Colonial Pipeline Co. v. Williams, 206 Ga. App. 303, 304 (425 SE2d 380).

Condemnor maintains that condemnees’ expert did not lay a sufficient foundation to establish that the projected commercial use for the land was reasonably probable. But, while testifying as to the pattern of commercial development in the area, the expert opined that commercial development would have advanced towards the farm if the property had been for sale. The condemned land was within the city limits of Royston and thus had services available from that entity including utilities, fire protection, and police protection. There was substantial nearby commercial development and a lengthy frontage on Georgia Highway 17, a road on which there was already much commercial development.

“[I]t is within the trial court’s discretion to determine whether the evidence shows that the subject property is reasonably suited for a use different from its existing use, and it may admit or exclude evidence of value for such other use. Its ruling admitting or excluding such evidence will not be reversed unless there was a manifest abuse of its discretion. Dept. of Transp. v. Great Southern Enterprises, 137 Ga. App. 710, 713 (2)[, supra].” Colonial Pipeline Co. v. Williams, 206 Ga. App. 303, 304, supra. Under the circumstances of the case sub judice, we find no manifest abuse of discretion in the trial court’s admission of valuation testimony reflecting the condemned land’s enhanced value based on its potential for commercial development. See Dept. of Transp. v. Benton, 214 Ga. App. 221 (1), 222 (447 SE2d 159).

3. Condemnor contends that the trial court erred in charging the jury that “while fair market value is ordinarily the same as actual value, there may be circumstances in which it may not be the same and under those circumstances your measure of damages would be actual value. It is up to you to determine whether such circumstances exist.” While slight evidence that the property taken was unique may have authorized such a charge, we agree with condemnor’s contention that no such evidence was presented at trial. Condemnees have failed to show any reason that the actual value of the property to them would not be the same as market value. See “the three recognized tests for determining whether property is unique, pursuant to Department of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541 (309 SE2d 816) (1983). . . .” MARTA v. Funk, 206 Ga. App. 868, 873 (2) (c) (426 SE2d 623). Nonetheless, there was no evidence of value at trial other than “fair market value,” that is, no evidence of an actual value different from market value to which the jury might have applied these instructions. Under these circumstances no harm has been shown to result from this error and reversal on this basis is not required.

4. Mayes Davison operated a cattle farm on the 134 acres owned by condemnee and lived in a home on a contiguous one-acre tract owned by Agnes Davison Ray. Over condemnor’s objections the condemnees’ expert witness was permitted to testify as to a $25,000 diminution in value of the residential tract which resulted as a consequence of the taking of a portion of the cattle farm. Mayes Davison later testified that this loss of value was $50,000. “[Cjonsequential damages cannot be awarded in an eminent domain case to contiguous tracts of land which have different ownership from the tract in which the taking occurs.” Ga. Power Co. v. Bray, 232 Ga. 558, 560 (207 SE2d 442). See also Southwire Co. v. Dept. of Transp., 147 Ga. App. 606 (249 SE2d 650).

Condemnees argue that admission of the evidence of diminution in value of the residential tract was proper because there was a “unity” of ownership among the contiguous parcels in that condemnee Mayes Davison leases the property being condemned, lives in the home on the residential tract, and owns a part of condemnee Davison Investment Company, Inc., which in turn holds a security deed on the residential tract. Nonetheless, we find no support in the cases for condemnees’ proposition but conclude that anything other than identical ownership interest is different ownership under the applicable rule. The trial court erred in admitting this evidence.

Nonetheless, under the evidence presented at trial this error could have added no more than $50,000 to the amount of the verdict in favor of condemnees. Therefore, the judgment will be affirmed on condition that condemnees write off $50,000, plus accrued interest, from the amount of the judgment within ten days of the receipt of the remittitur of this Court in the trial court; otherwise the judgment is reversed.

Judgment affirmed on condition; otherwise reversed.

Birdsong, P. J., Pope, P. J., Johnson, Blackburn and Ruffin, JJ, concur. Beasley, C. J., and Smith, J., concur in the judgment only. Andrews, J., dissents.

Andrews, Judge,

dissenting.

I disagree with the majority’s conclusion in Division 3 that the jury charge on actual value was harmless error under the circumstances.

The trial court’s charge allowing the jury to consider awarding actual value instead of fair market value without any evidence to support a finding that fair market value was not the proper measure of damages was clear error. State Hwy. Dept. v. Thomas, 106 Ga. App. 849, 852-854 (128 SE2d 520) (1962); State Hwy. Dept. v. Stewart, 104 Ga. App. 178, 182-183 (121 SE2d 278) (1961). Nevertheless, under some circumstances this error has been found harmless. In Ga. Power Co. v. Bishop, 162 Ga. App. 122, 126 (290 SE2d 328) (1982), we found a similar charge given without supporting evidence was harmless because, “as there was no evidence of unique value, [the jury] could not make such an award and the verdict shows that it was within the range of the testimony.” In Dept. of Transp. v. 19.646 Acres of Land, 178 Ga. App. 287, 288 (342 SE2d 760) (1986), we again noted that, even if there was no evidence supporting such a charge, “the verdict was well within the range of evidence of fair market value and DOT has not carried its burden of demonstrating not only error but harm.”

Decided March 15, 1996

Reconsideration denied March 29, 1996

Michael J. Bowers, Attorney General, McClure, Ramsay & Dickerson, John A. Dickerson, Luther H. Beck, Jr., for appellant.

In the present case, it cannot be established that the $316,000 jury verdict was within the range of the admissible evidence of fair market value. The highest admissible fair market value testimony was given by the condemnees’ expert appraiser, who testified that the total value of the land taken and consequential damages based on the value of the remainder was $308,500. As the majority correctly points out in Division 4, testimony was erroneously admitted showing the value of consequential damages to a contiguous tract of land in the amount of $50,000. The majority affirms on the condition that $50,000 be written off the verdict.

Nevertheless, since a general verdict was rendered, it is impossible to determine whether the jury included all, part, or none of the inadmissible $50,000 in the $316,000 verdict. Since it is possible the $316,000 general verdict included none of the erroneous damages, it cannot be established that the verdict reached by the jury on the admissible evidence of fair market value was within the range of the highest value evidence of $308,500. Accordingly, it cannot be stated with any degree of probability that the error was harmless in this case. The DOT was entitled to a new trial. Simply concluding that the error was harmless because there was no evidence of actual value, as the majority does, leaves to pure speculation whether or not the charge was harmful.

Andrew J. Hill, Jr., for appellees.


author: Ruffin, Judge.

text:
    A95A2179.
    WELLS et al. v. LANDMARK AMERICAN CORPORATION.
    (470 SE2d 711)
   Ruffin, Judge.

Geri Wells sued Landmark American Corporation (“Landmark”) for the wrongful death of her 11-year-old son, Christopher, who drowned in floodwaters flowing from a creek located near Landmark’s property. Accompanied by two friends, Christopher entered part of the approximately 800 acres Landmark owned and began walking along a dirt road into woods on the property. Christopher had been in this area on one other occasion. Eventually the dirt road forked, and at that point, the boys could see the creek. After exploring the left fork, the boys took the right fork where the road became covered with water. Christopher took off his shirt, and although he could not swim, he started playing in the water which came three to four inches above his knee. He then slipped, went under the water, and apparently drowned in a current from the creek. Mrs. Wells sued Landmark for its failure to maintain an adequate gate around the property and post any warning or trespass signs. The trial court granted summary judgment to Landmark, and Wells appeals. Because we find that the record does not support Wells’ claim for attractive nuisance or simple negligence, we affirm.

1. Wells contends the trial court erred in finding that no material issue of fact existed with respect to the applicability of the attractive nuisance doctrine. We disagree.

Under the attractive nuisance doctrine, a landowner may be liable for physical harm to trespassing children caused by an artificial condition upon its land if certain conditions are met. The theory “expressly imposes liability only for physical harm to trespassing children which is ‘caused by an artificial condition upon the land. [Cit.] The theory clearly does not apply to natural water conditions which exist on private property. See generally Wren v. Harrison, 165 Ga. App. 847, 848 (303 SE2d 67) (1983) (distinguishing between natural ponds or water hazards and an unfenced swimming pool in a residential area).” ( Emphasis in original.) Biggs v. Brannon Square Assoc., 174 Ga. App. 13, 14-16 (1) (329 SE2d 239) (1985). We have held this to be true in the case of a nine-year-old who drowned in a pond on property with no warning sign and unrestricted access from the adjacent road. Fickling v. City Council of Augusta, 110 Ga. App. 330 (138 SE2d 437) (1964). Thus, the doctrine did not apply in this case because the creek was not an artificial condition upon Landmark’s property. Wells also argues that the dirt path upon which the boys traveled, described by Christopher’s companions as a dirt trail and dirt road, was part of the attractive nuisance because it led to the water. A dirt trail or road, however, is likewise a natural condition to which the doctrine would not apply. Biggs, supra. For the foregoing reasons, the court did not err in granting summary judgment on Wells’ attractive nuisance claim.

2. Wells also contends the trial court erred in granting summary judgment on her simple negligence claim. Citing Biggs, supra, Wells argues that because the area where Christopher drowned was used by neighborhood residents for hunting and for riding motorcycles and go-carts, Landmark impliedly consented to the property’s use as a recreational area; thus, her son was a licensee rather than a trespasser and a material issue of fact exists with respect to Landmark’s duty. We disagree.

We first note that it is unclear from the deposition testimony Wells cites whether some part of Landmark’s property or the neighboring ball fields were used as a recreation area. Construing the evidence most favorably for Wells and assuming that the dirt road upon which the boys walked was used in this fashion, we cannot say as we did in Biggs that the evidence of record shows that “the [area and] path had been so long used by the public as a [recreation area] that the owner must have known that it was so used and have impliedly consented to its use.” (Citations and punctuation omitted; emphasis supplied.) Id. at 15. This is particularly true given the testimony of Landmark’s corporate representative, William Merrill, that he did not know children played in the area and that the company had called the police to remove trespassers from its property. See also Fickling, supra (fact that owner knows children are accustomed to play at the place of danger gives rise to no implied invitation).

However, even if Christopher was a licensee, summary judgment was still proper. Wells argues that “[b]y removing a gate, taking down all posted warning signs in the area, and leaving a dirt roadway, a question of fact arises as to whether [Landmark] . . . acted negligently. . . .” As the trial court noted in its order, there is no evidence that Landmark removed any existing signs or any portion of the gate which formerly stood at the entrance the boys used. Moreover, as Wells concedes, the alleged deficiencies raise the question of negligence and “[a] licensee cannot recover by showing that the defendant was merely negligent, but must show that the defendant wilfully and wantonly injured him. . . . An owner owes to a licensee no duty as to the condition of the premises save that he should not knowingly let him run upon a hidden peril or wilfully cause him harm.” (Citations and punctuation omitted.) Harrison, supra at 848. There is no evidence Landmark was aware of any hidden peril nor that it knowingly let the boys encounter such peril. Indeed, Wells concedes that Landmark’s duty arises from the foreseeability of an injury occurring on its premises. There is no evidence that Landmark was aware that the dirt road was subject to flooding when it rained or when the creek overflowed, of the creek’s propensities, or that children played in the area. Cf. Wade v. Mitchell, 206 Ga. App. 265 (424 SE2d 810) (1992) (because owner was aware that potentially dangerous act was performed on his property he could foresee injury). “A warning by [Landmark] [that the road was subject to flooding] would not have apprised [Christopher] of anything he [could not see]. . . . [Landmark] was not under any duty, with respect to [a] licensee, to keep the premises up to any particular standard of safety. Under the law [the decedent] took the premises as he found them. No dangerous act was being [committed] by [Landmark].” (Citation and punctuation omitted.) Biggs, supra at 18. For the foregoing reasons, the trial court did not err in granting summary judgment on Wells’ negligence claim.

Decided March 14, 1996

Reconsideration denied March 29, 1996

Raiford, Dixon & Thackston, Sheldon K. Fram, for appellants.

Long, Weinberg, Ansley & Wheeler, James H. Fisher II, Laura S. Jones, Christopher J. Graddock, Levine & Block, Stephen H. Block, for appellee.

Finally, Wells contends that the trial court erred in granting summary judgment on her negligence claim because Landmark’s property contained mantraps and pitfalls. However, Wells did not raise the mantrap/pitfall argument below simply by citing a case which recites the proposition that a landowner should not knowingly let a licensee run upon a hidden peril. Thus, she cannot raise it on appeal. Furthermore, the evidence does not show that Landmark maintained “a dangerous instrumentality ... or recklessly expose[d] a licensee to a dangerous and deceptive situation amounting to a hidden peril in the nature of a mantrap, pitfall or the like, with the knowledge that children are in the habit of [playing] there for amusement. . . .” Clinton v. Gunn-Willis Lumber Co., 77 Ga. App. 643, 648-649 (49 SE2d 143) (1948).

Accordingly, the trial court did not err in granting summary judgment to Landmark.

Judgment affirmed.

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


author: Per curiam. McMurray, Presiding Judge, Andrews, Judge,

text:
    A95A2199, A95A2200.
    WALKER v. STURBRIDGE PARTNERS, LTD. et al.; and vice versa.
    (470 SE2d 738)
   Per curiam.

After plaintiff Kathy Ann Walker was raped at her apartment, she sued the apartment owners, defendant Sturbridge Partners, Ltd., the operating managers, defendant The Horn Blow Partnership, d/b/ a The Horn Harlow Companies (collectively “Sturbridge”) and the alleged rapist, a fellow tenant at her complex. Plaintiff alleged, inter alia, negligence and breach of contract because a rear kitchen window, through which the assailant gained entry, was not secured despite plaintiff’s prior oral requests. The Sturbridge defendants denied the material allegations and jointly moved for partial summary judgment as to: 1) its alleged failure to act premised on the existence of prior crimes; 2) its alleged failure to act to correct loitering on its premises in the three days preceding the rape; and 3) its alleged breach of the lease.

Only the following chronology is undisputed: On May 2, 1992, plaintiff entered into a written lease agreement with Sturbridge Apartments. At approximately 12:30 a.m. on May 9, 1992, plaintiff was awakened by an intruder who raped and sodomized her. The assailant, allegedly defendant William Derace Brant, was a fellow resident who gained access to plaintiff’s ground-floor apartment through the rear kitchen window.

In support of their motion for partial summary judgment, the Sturbridge defendants submitted documentary evidence that plaintiff had inspected the premises before she moved in and failed to note the alleged absence of a lock on the rear kitchen window. Chris Williams, the Sturbridge maintenance man, deposed that “the main locking mechanism on the rear kitchen window was functional and in proper working order prior to [plaintiff’s] occupation of the apartment[; . . . that the] rear kitchen window was also equipped with thumb screw locks . . .[; and that it] was the policy of the apartment complex to put thumb screw locks on the windows in all ground floor apartments in addition to the main center locks. . . .” Gerald Gilbert, a Gwinnett County Deputy Sheriff who assisted in the investigation of plaintiff’s rape, deposed that the rapist “gained entrance to [plaintiff’s] apartment through the rear kitchen window[; . . . and that he and another officer] checked the window locking mechanism on the rear window and found it to be functioning properly.”

In opposition, plaintiff showed that Paragraph 2 of the Rules and Regulations under defendant’s lease agreement authorizes requests for maintenance to be “made by phone or in writing. . . .” Plaintiff, who had lived at that apartment for only a few days, explained she did not itemize any problems with the window locks on the move-in inventory sheet because she “didn’t check them . . .” when she first moved in. Consequently, she did not discover any immediate problem until she opened the window. She could not turn the latch and “couldn’t lock . . .” the kitchen window after it had been opened. Plaintiff further testified that prior to the rape, she had twice orally instructed Sturbridge, through Lisa England, to “see that my lock on my window also needs to be fixed.”

Steven Smith testified that the latch was not functioning properly and that he was unable to lock the window. He believed the problem was caused by the window having once been painted shut. Steven Smith also testified that he did not observe any thumbscrew locks on the window and had not removed any when opening the window. Mary Ann Wheat, a resident at the time of the attack on plaintiff, deposed that, “prior to May 9,1992, [she] had complained several times to Lisa England about the kitchen window latch which was broken in [her own] apartment.”

The Sturbridge motion for partial summary judgment further argued that there was no liability for plaintiff’s injuries since there had been no substantially similar occurrences on the property. Specifically, Sturbridge argued that from October 23, 1990, when Sturbridge began owning and managing the premises, until May 9, 1992, there had never been a rape or sexual assault committed on the premises. Therefore, because the independent, intervening, criminal act of defendant Brant was unforeseeable, there was no breach of any duty to protect plaintiff Walker.

In opposing the motion, plaintiff presented two types of circumstances purporting to evince recent criminal activity in the apartment complex. First, she showed that three prior burglaries occurred in March and April 1992. These were daytime burglaries, all of which happened when no one was home. Second, she submitted evidence of a purported sexual assault, involving another female tenant. Mary Ann Wheat deposed that she had complained to Lisa England several times about three men, including defendant William Derace Brant, who would congregate around the “[d]umpster closest to [her] apartment . . . and [make] obscene gestures and obscene remarks . . to her. She specifically deposed that late at night on May 6, 7 and 8, 1992, these men accosted her in the parking lot near her apartment and that she became frightened for her personal safety. Although this tenant testified that she complained to Sturbridge management and its security officer, there is no evidence of record that she ever filed a police incident report. Plaintiff Walker also presented the affidavit of Darrell Tidwell, a certified crime prevention practitioner, who offered 15 reasons why Sturbridge was negligent in failing to take steps and measures reasonably calculated to prevent rape and sexual assault.

The trial court granted the Sturbridge defendants’ motion for partial summary judgment in part, as to “Count I, for the . . .alleged negligence in failing to act despite . . . notice regarding prior crimes . . .; Count I, for . . . alleged negligence in failing to act regarding the three men . . . loitering on the premises . . .; [and] Count II, the . . . alleged breach of . . . certain lease provisions.” The trial court denied summary judgment as to any negligence “in allegedly failing to repair the kitchen window . . . [and whether plaintiff] is entitled to punitive damages regarding Defendants’ alleged negligence in failing to repair.” In Case No. A95A2199, plaintiff Walker appeals from the partial grant of summary judgment in both tort and contract. In Case No. A95A2200, the Sturbridge defendants cross-appeal from the denial of their motion for summary judgment as to tort liability for failing to fix the window and any liability for punitive damages. Held-.

Case No. A95A2199

1. In her second enumeration of error, plaintiff Walker contends the trial court erred in its determination that, as a matter of law, the prior burglaries were not sufficiently similar to provide notice of a problem to Sturbridge. We agree that evidence of three daytime apartment burglaries in March and April 1992, all of which happened when no one was home, were of sufficient similarity as to have put Sturbridge on notice.

“ ‘[I]n order to prove that the owner had advance notice of the danger of such an assault, evidence is admissible to show a pattern of prior substantially similar criminal assaults on the premises creating a known dangerous condition for which the owner may be held liable.’ Reid v. Augusta-Richmond County Coliseum Auth., 203 Ga. App. 235, 237 (1) (416 SE2d 776) (1992); Grandma’s Biscuits v. Baisden, 192 Ga. App. 816, 817 (1) (386 SE2d 415) (1989).” Woods v. Kim, 207 Ga. App. 910 (429 SE2d 262) (1993). “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another. . . .” OCGA § 16-7-1 (a). In our view, the three prior daytime burglaries were sufficiently similar to put the landlord on notice that its tenants may be subjected to an unreasonable risk of harm from the criminal acts of third persons. “In this sense, substantially similar does not mean identical, and it is not a question whether a [sexual assault resulted from any previous burglary], but whether the prior crimes should have put an ordinarily prudent person on notice that the [landlord’s tenants] were facing increased risks. All that is required is that the prior (incident) be sufficient to attract the [landlord’s] attention to the dangerous condition which resulted in the litigated (incident).’ Pembrook Mgmt. v. Cosaboon, 157 Ga. App. 675, 677 (278 SE2d 100).” (Emphasis supplied.) Matt v. Days Inns of America, 212 Ga. App. 792, 794 (443 SE2d 290), aff’d sub nom., Days Inns of America v. Matt, 265 Ga. 235 (454 SE2d 507). In Days Inns, the Supreme Court of Georgia concluded that a single “prior robbery committed by force create[d] a triable issue as to whether [the occupier of land] had a duty [under OCGA § 51-3-1] to exercise ordinary care to guard its patrons against the risks posed by similar criminal activity[, citing Lau’s Corp. v. Haskins, 261 Ga. 491, 493 (1) (405 SE2d 474)].” 265 Ga. 235, 236, supra. Consequently, in the case sub judice, we do not recognize any attempted distinction of the three prior burglaries as crimes against property but not brutal sexual assaults. This analysis suggests that the landlord could lawfully safeguard its tenants from burglars who commit only thefts differently from those burglars who commit crimes against the person. Such reasoning was previously considered by the whole court and rejected. Matt v. Days Inns of America, 212 Ga. App. 792, 795, supra. Compare Savannah College of Art &c. v. Roe, 261 Ga. 764, 765 (2) (409 SE2d 848), where evidence that the college “had received reports of two instances of 'peeping toms’ at a dormitory, [as well as] the removal from the dorm of a vagrant and an intoxicated person, of a student surprising a burglar, and of the occurrence of petty thefts [was] irrelevant because none of [those] incidents [was] substantially similar to the sexual assaults . . .” in that case. Since plaintiff’s evidence in the case sub judice is more than sufficient to create a triable issue as to defendants’ appreciation of the foreseeable risks posed by burglars to its tenants, we reverse in part the grant of partial summary judgment as to the defendant landlord and its agents sounding in tort.

2. Evidence of cat-calling and other boorish behavior by tenants and others gathered on the premises is not good evidence to put the landlord on notice of criminal activity creating an unreasonable risk of harm to tenants. “[W]ithout foreseeability that a criminal act will occur, no duty on the part of the proprietor to exercise ordinary care to prevent that act arises.” Days Inns of America v. Matt, 265 Ga. 235, 236, supra. Summary judgment was correctly granted in part as to any alleged breach of a duty care owed to plaintiff with respect to these circumstances. Nor does such evidence demonstrate any breach of defendants’ duties under the lease. Consequently, we further affirm in part the partial grant of summary judgment as to any contention that defendants breached the lease agreement. Savannah College of Art &c. v. Roe, 261 Ga. 764 (1), supra.

Case No. A95A2200

3. In their cross-appeal, the Sturbridge defendants contend they were entitled to summary judgment on the issue of the failure to repair the lock because the lock functioned as designed and used.

OCGA § 44-7-14 provides, “[T]he landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.” “ ‘(T)he purpose for having secure locks on the [windows and] door to the plaintiff[’s] apartment was to prevent unauthorized entry thereto and the accompanying wrongful criminal acts.’ Warner [v. Arnold, 133 Ga. App. 174, 179 (210 SE2d 350)].” Demarest v. Moore, 201 Ga. App. 90, 92 (2) (410 SE2d 191) (1991). It is uncontroverted that the rapist in the case sub judice entered via the ground level kitchen window. Generally, an independent, intervening criminal act by a third party breaks the chain of causation unless the intervening act is a reasonably foreseeable consequence of a defendant’s negligent act. Demarest v. Moore, 201 Ga. App. 90, 92 (2), supra.

In this case, the evidence whether plaintiff Walker provided notice to the Sturbridge defendants that her window lock needed repair, and whether the kitchen window lock was functioning properly prior to the perpetrator’s entry was conflicting. Construing that conflicting evidence in the light most favorable to plaintiff Walker, we conclude that triable issues of material fact remain for jury resolution as to whether defendants received adequate notice of the faulty window lock. Consequently, summary judgment was properly denied to the Sturbridge defendants as to this theory of liability. Summary judgment is appropriate only in plain and indisputable cases, and this is not such a case. See Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 295 (322 SE2d 737) (1984) (questions of negligence, contributory negligence, proximate cause, and the exercise of ordinary care are normally reserved for jury determination); and Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (1) (392 SE2d 535) (1990) (summary judgment rulings based on undisputed facts, not weighing of evidence or witness credibility).

4. The Sturbridge defendants nevertheless contend they were entitled to summary judgment on Walker’s claim for punitive damages. In the opinion of the court, this contention has merit.

“ ‘Under OCGA § 51-12-5.1 (b), which is applicable in the instant case, it remains the rule that something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. There is general agreement that, because it lacks this element, mere negligence is not enough.’ (Citations and punctuation omitted.) Ivey v. Golden Key Realty, 200 Ga. App. 545 (1) (408 SE2d 811).” Roseberry v. Brooks, 218 Ga. App. 202, 209 (4) (461 SE2d 262).

Having reviewed the record and transcript, we do not find sufficient evidence that the Sturbridge defendants showed the requisite degree of wilful misconduct, malice, wantonness, oppression or otherwise evinced that entire want of care as to authorize the imposition of punitive damages under OCGA § 51-12-5.1 (b). Accordingly, we reverse the trial court’s denial of summary judgment on this issue.

Judgment affirmed in part and reversed in part in Case No. A95A2199.

McMurray, P. J, Pope, P. J., and Johnson, J, concur. Beasley, C. J., Blackburn, Smith and Ruffin, JJ., concur in the judgment only. Birdsong, P. J., and Andrews, J, concur in part and dissent in part. Judgment affirmed in part and reversed in part in the cross-appeal, Case No. A95A2200. Beasley, C. J, Birdsong, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur. McMurray, P. J., and Pope, P. J., concur in part and dissent in part.

McMurray, Presiding Judge,

concurring in part and dissenting in part.

I fully concur in Case No. A95A2199 and all that is said therein, and the partial reversal of summary judgment because the three prior daytime burglaries were sufficiently similar for purposes of putting the landlord on notice. In Case No. A95A2200, I fully concur with Division 3 and all that is said therein, that the conflicting evidence requires jury resolution as to the landlord’s culpability, if any, for the alleged failure to act on plaintiff’s oral notices regarding the kitchen window through which plaintiff’s assailant gained unlawful entry. But I further conclude from that same evidence that the jury would be authorized to award punitive damages and so I respectfully dissent from Division 4.

“ ‘Under OCGA § 51-12-5.1 (b), which is applicable in the instant case, it remains the rule that something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. There is.general agreement that, because it lacks this element, mere negligence is not enough.’ (Citations and punctuation omitted.) Ivey v. Golden Key Realty, 200 Ga. App. 545 (1) (408 SE2d 811).” Roseberry v. Brooks, 218 Ga. App. 202, 209 (4) (461 SE2d 262). In the case sub judice, both plaintiff and Mary Ann Wheat testified that defendants failed to repair broken latches on kitchen windows, after the tenants had complained. Specifically, that evidence shows that the landlord failed to heed plaintiff’s first and second complaints. “ ‘(T)he purpose for having secure locks on the [windows and] door to the plaintiff’s [ground-floor] apartment was to prevent [exactly this type of] unauthorized entry thereto and the accompanying wrongful criminal acts.’ Warner [v. Arnold, 133 Ga. App. 174, 179 (210 SE2d 350)].” Demarest v. Moore, 201 Ga. App. 90, 92 (2) (410 SE2d 191). In my view, the trial court correctly perceived that the landlord’s dilatory response to plaintiff’s request to secure the ground-floor window, a matter directly affecting the safety of the premises, is sufficiently outrageous to create a jury question as to whether defendants exhibited that entire want of care as would authorize punitive damages. As my colleagues in the majority would nevertheless reverse that correct determination, I respectfully dissent from Division 4 in the cross-appeal, Case No. A95A2200.

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

Andrews, Judge,

concurring in part and dissenting in part.

In Case No. A95A2199,1 respectfully dissent from Division 1 because Walker’s evidence of criminal activity or prior substantially similar crime is insufficient to place Sturbridge on notice of an alleged crime problem. Compare Matt v. Days Inns of America, 212 Ga. App. 792 (443 SE2d 290) (1994) (internal security audit detailing deficiencies, substantial amount of crime in the adjacent area and two robberies by force in the same parking lot where Matt was robbed provided notice to Days Inn). In Days Inns of America v. Matt, 265 Ga. 235 (454 SE2d 507) (1995), the Supreme Court determined that a prior robbery by force which occurred without a weapon in the same parking lot was substantially similar to the armed robbery at issue, so as to create a triable issue. Matt, 265 Ga. at 236. Thus, the court retained the “substantially similar” analysis implicit in Savannah College of Art &c. v. Roe, 261 Ga. 764, 765 (2) (409 SE2d 848) (1991).

In this case, the majority’s reasoning effectively overrules Savannah College, supra, where the Supreme Court determined that petty thefts inside the dormitory and an interrupted burglary were not substantially similar to the sexual assaults at issue. By glossing over the key factual distinctions between Walker’s situation and these two Supreme Court cases, the majority has opted to create new law out of whole cloth. In Days Inns v. Matt, the Supreme Court made clear that a proprietor’s superior knowledge was crucial to foreseeability.

In this case, Walker has not offered any evidence that Sturbridge knew about the alleged burglaries. I cannot accept Walker’s leap in logic that a few daytime burglaries occurring in the prior 18 months, all of which happened when the tenant was not at home, placed Sturbridge on notice of a crime problem. Stealing a credit card in the daytime, when its owner is away, is hardly analogous to entering at night when the tenant is home and raping her. Nor can I agree with the majority’s flawed analysis that the commission of one daytime burglary is sufficient to make the rape of Walker reasonably foreseeable and to create a triable issue as to whether Sturbridge had a duty under OCGA § 51-3-1 to exercise ordinary care to guard its tenants against the risks of similar criminal activity. See Savannah College, 261 Ga. at 765 (2).

Decided March 15, 1996

Reconsiderations denied March 29, 1996

Simmons, "Warren, Szczecko & McFee, Joseph Szczecko, for appellant.

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, for appellees.

Dennis, Curry, Porter & Gray, R. Clay Porter, Goldner, Sommers, Scrudder & Bass, Henry E. Scrudder, Jr., Christopher D. Pixley, amici curiae.

In my view, Walker failed to satisfy her evidentiary burden of showing that Sturbridge had knowledge of an unreasonable risk to her safety because she offered: 1) no evidence of any nighttime crimes of any kind whatsoever, and 2) no evidence of a prior documented sexual assault or similar crime occurring inside any apartment or anywhere else on Sturbridge’s premises.

By holding the landlord liable on Walker’s sparse evidence of any prior criminal activity, the majority makes property owners and property management companies the insurers of their tenants’ safety. I cannot conceive of what steps Sturbridge could reasonably have undertaken to protect Walker inside her own apartment from her intoxicated neighbor who had been locked out by his wife following a domestic dispute.

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

       After the neighbor raped Walker, police discovered that he had 16 prior arrests in Florida, including burglary, battery, trespassing, prowling, and shoplifting. He subsequently became the prime suspect for at least one of the Sturbridge apartment burglaries.


author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A95A2334.
    McDANIEL v. THE STATE.
    (470 SE2d 719)
   Andrews, Judge.

David Allen McDaniel, convicted of obstruction of an officer, appeals, contending the trial court erred by forcing him to waive his demand for trial and granting the State’s motion in limine. We affirm.

McDaniel was charged, via accusation, with obstruction of a law enforcement officer in that he refused “to obey the lawful commands of Officer W. C. Pearson.” He filed a demand for trial pursuant to OCGA § 17-7-170 (a), and the case was called for trial on January 30, 1995, during the next succeeding regular term of court. On January 31, 1995, a mistrial was declared because the jury could not reach a verdict. The next day, the case was again called for trial, but defense counsel announced that he was not ready because he just learned at 8:30 that morning, via a message on his telephone answering machine, that the case was being called for trial. Defense counsel explained that he was surprised by this last minute notice because he was advised (apparently by the trial court) after the mistrial that he would have at least 24-hour notice before the case would be called for trial; that he did not have time to collect or prepare evidence that was uncovered during the first trial, and that he would not have time to issue subpoenas for certain witnesses who were released after the first trial. The trial court responded by offering defense counsel a continuance until the next day, which defense counsel declined, explaining that he would need more time to prepare. The trial court gave defense counsel an option. He could either go forward with trial or ask for a continuance. Defense counsel opted for a continuance, after which he affirmed (in open court) that McDaniel waived his demand for trial.

On March 13, 1995, the second jury trial began. Viewed in favor of the verdict, the evidence revealed that McDaniel contacted police authorities about 1:00 a.m. on November 3, 1994, complaining about violations of a recently enacted noise abatement ordinance aimed at ongoing noise from a food storage facility near the McDaniels’ home. Gwinnett Officer William C. Pearson responded to the call and found McDaniel standing in the driveway outside his home. Officer Pearson lowered the patrol car’s window, and McDaniel gave him a copy of the ordinance, complaining that the nearby food storage facility was not in compliance. Officer Pearson was familiar with the ordinance and residents’ complaints about late night noise at the food storage facility.

He advised McDaniel that he could not issue a citation because there was no one at the food storage facility to accept service. Officer Pearson explained that he would report the matter to other law enforcement authorities in an effort to resolve the problem during normal business hours. Stymied and irate, McDaniel asked Officer Pearson to call the food storage facility’s emergency number. He wanted the nuisance abated and the proprietor charged for violating the ordinance. Officer Pearson refused, explaining that violation of the noise ordinance was not an emergency. McDaniel then indignantly asked for Officer Pearson’s name and badge number, in response to which the officer ordered McDaniel to produce some identification. McDaniel advised Officer Pearson that “he didn’t have any [and that] he’d have to go get his mother.” Officer Pearson responded, “ ‘Sure, fine.’ ” McDaniel went into the house, and moments later, an elderly woman emerged and approached the patrol car where Officer Pearson was still seated. McDaniel remained on “the stoop towards the house.” The following testimony memorializes the events which ensued:

“[STATE’S ATTORNEY]. Q. Okay. And [did McDaniel] remain [at the stoop] when she came to your car? [OFFICER PEARSON]. A. For a little while. . . . Q. Okay. And what did she say when she came out to your car? A. She came out and . . . walked up to my window and my window was all the way down. She walked up to my car. I said, ‘How are you doing? I’m Officer Pearson. Can I help you?’ She said, ‘Well, what’s the problem with the noise thing?’ I said, ‘Ms. McDaniel, . . . there’s no way I can enforce this ordinance at this time of day. There’s no one there.’ And she again asked me, as [did] her son, about the emergency number. I explained to her the same thing I explained to him, that’s not what that number is designed for. Our dispatchers will not call that number unless there is a valid emergency, an alarm or a break-in or a fire. That’s their requirements. We cannot make them contact. We do not keep phones in the cars. Q. Okay. Was [McDaniel] listening to this? A. He heard part of it because he had started walking towards the car by that time. Q. And what did he say when he walked back to the car? A. He told his mother to make sure I go over there and do something and to make sure she got my name and badge number. Q. Okay. What did you say? A. I just continued to talk to his mother. I was continuing trying — I could — I can understand her problem. I sympathize with her. I did not hear [the noise that was allegedly emanating from] the trucks [at the food storage facility] from my personal experience, but I can understand. If it was a violation, that I would do whatever I could. But if there was no one there, I couldn’t do anything. Q. Could you hear the trucks from where you were in front of their house? A. Not from my observation. . . . Q. Did . . . you hear Mrs. McDaniel say anything to [McDaniel]? A. She turned around and told him that she was handling it, to go back in the house. Q. Okay. Did he? A. He did the first time, yes. Q. And did he come back? A. Yes, ma’am. Q. What did he do when he came back? A. He came back out and he still was yelling at his mom, T want his name and badge number. Make sure he doesn’t leave before he does something about those trucks.’ And she turned around to him again and told him, ‘David, go in the house before you get in trouble.’ Q. Then what happened? A. He just kept standing outside and just kept going on and I was talking to her and I said, ‘Mrs. McDaniel, excuse me,’ and I stepped out of my [patrol] car. Q. Did you knock her over? A. I did not knock her over. She’s an elderly lady, I could see that. There is no way in the world I’m going to jump out of that car and knock anyone over. Because there was no need for me to get out of the car in that area. If I wanted to be out of the car, I’d got out of the car when I arrived on the scene. I never got out of the car on purpose. Q. Okay. So why did you get out of the car then? A. To talk to [McDaniel], to explain to him that he needs to calm down, go in the house, and let his mother handle the situation. Q. Why did you prefer the mother to handle the situation [rather than] him? A. Because, obviously, she was civil about the situation. Q. Okay. Did you notice anything going on around and about the neighbors’ houses as [McDaniel] continued to stand out front and yell towards you? A. I saw one house directly across the street from the McDaniel’s residence, . . . the lights come on toward the front of the house. . . . Q. Well, did that . . . lead you to believe anything when you saw the neighbor[’s] lights go on? A. Yes, ma’am. I just felt the neighbors were maybe being disturbed, that they were taking notice of the incident. Q. And what did you ... do when you got out of the car? A. I went over to [McDaniel] and I told him, I said, ‘Sir, I’ve asked you several times to go in the house and let your mother deal with this situation. If you say another word, I’ll arrest you for disorderly conduct.’ Q. And what did he do then? A. He came over toward me with a flashlight, turned it on in his face and said, ‘One more word,’ as if to mock me. Q. And what did you do then? A. I arrested him for disorderly conduct. . . . Q. . . . Okay. . . . And what did he do in response to your physically placing him under arrest? A. He said he wasn’t going anywhere [and] a struggle ensued. We struggled for at least two to three minutes, me trying to get him under control. Q. Now [defense counsel] said ... in his opening statement that you seized [McDaniel] or you grabbed him first. Is that right? A. Yes, ma’am. Q. Okay. Why did you seize or grab him? A. Well, I grab everybody I arrest.”

Then, McDaniel’s mother went to assist her son after her pleas for the men to stop fighting were not heeded. Neighbors responded to the elderly woman’s call for help. In the meantime, Officer Pearson managed to activate the emergency signal on his portable radio. Other officers appeared and calmed the disruption. By then, McDaniel was in police custody, his mother had bloodied Officer Pearson’s nose, and the elderly woman was on the ground, complaining of injuries. She was later taken (via ambulance) to a hospital where she was treated and released.

McDaniel was found guilty of obstruction of a law enforcement officer in that he refused “to obey the lawful commands of Officer W. C. Pearson.”

1. McDaniel claims the trial court erred in forcing him to waive his demand for trial.

This Court is a court for the correction of legal errors and has no jurisdiction to address issues that are raised for the first time on appeal. Thomason v. State, 215 Ga. App. 189, 190 (4) (450 SE2d 283). A motion for discharge and acquittal is the remedy for the claim that the court forced McDaniel to waive his demand for trial. McDaniel, however, did not file a motion for discharge and acquittal below. Accordingly, this enumeration presents nothing for our review. See Pope v. State, 214 Ga. App. 458, 459 (1) (448 SE2d 54).

2. Prior to trial, the court considered and granted the motion in limine of the State to preclude introduction of, or reference to, nine different categories of documents, all of which involved internal affairs investigations of Officer Pearson, his personnel evaluations, internal department memorandums, training evaluations and other similar matters.

In granting the motion, the court held that “[a]t this point in time I don’t see how the officer’s internal records and assessment or the performance would be relevant to the trial of this case. ... I don’t know what will come up in the trial or what you propose to show by some of these witnesses later. I’ll just have to reserve my ruling at the time the thing comes up. But at this point in time I don’t believe the internal records assessing the officer would be admissible in court. . . . [Tifhis credibility comes into play, if you have some evidence regarding his credibility, I’m not denying that. But I say that the internal records that you have they would not be admissible.” (Emphasis supplied.)

As acknowledged by the dissent, “[w]hen the defense seeks to discover the personnel files of an investigating law enforcement officer, some showing of need must be made.” Cargill v. State, 255 Ga. 616, 638 (23) (a) (340 SE2d 891) (1986). The “need” which must be shown is also subject to the general rules of evidence, including a showing of relevancy. Durden v. State, 187 Ga. App. 154, 158 (3) (369 SE2d 764) (1988); Lockwood v. State, 184 Ga. App. 262, 263 (2), 264 (361 SE2d 195) (1987).

In order to impeach a witness and thereby attack his credibility, one may disprove “the facts testified to by him.” OCGA § 24-9-82. No attempt was made by McDaniel to so impeach Pearson. Neither was any showing made that any of the documents disallowed contained any contradictory statements “previously made by [Pearson] as to matters relevant to his testimony and to the case.” OCGA § 24-9-83; Jones v. State, 257 Ga. 753, 759 (1) (a) (363 SE2d 529) (1988); Campbell v. Cozad, 207 Ga. App. 175, 176 (2), 178 (427 SE2d 515) (1993).

There is no contention that Officer Pearson had ever been convicted of a crime involving moral turpitude, Vincent v. State, 264 Ga. 234 (442 SE2d 748) (1994), leaving for consideration impeachment by “evidence as to his general bad character.” OCGA § 24-9-84.

The latter category is the only one arguably applicable to the documentary evidence subject to the court’s ruling. Even so considering it, however, the proffered information was, at best, “related solely to specific bad acts and not to the general bad character of the [witness].” Heaton v. State, 214 Ga. App. 460, 461 (2) (448 SE2d 49) (1994). Such specific bad acts are not admissible as impeachment. Wetta v. State, 217 Ga. App. 128, 130 (3) (456 SE2d 696) (1995); Heaton, supra; Davis v. State, 209 Ga. App. 187, 190 (5) (433 SE2d 366) (1993).

Therefore, the proffered evidence was not admissible and McDaniel was not deprived, on this basis, of a full and sifting cross-examination. There was no error.

Judgment affirmed.

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

McMurray, Presiding Judge,

dissenting.

I, respectfully, dissent as I believe the trial court erred in granting the State’s motion in limine, thereby preventing defendant from introducing evidence that Officer Pearson abused his authority during other incidents while performing his law enforcement duties.

The trial court refused to allow at least a dozen internal affairs’ complaints against Officer Pearson indicating prior incidents where the officer was unable to exercise restraint while performing his duties. One of these reports reflects an incident at Shallowford Hospital in 1991 where Officer Pearson threatened to arrest an emergency room physician for obstruction of an officer because the doctor “didn’t act as the officer thought he should. . . .” Defense counsel offered this proof not just for impeachment purposes (as inferred by the majority), but also to show “a pattern of conduct by the officer.” It is my view, that the proffered evidence was relevant to defendant’s sole defense, i.e., that defendant did not obstruct Officer Pearson, but that the officer overreacted by exiting the patrol car, confronting defendant and threatening defendant with arrest if he uttered “another word.”

While specific acts are generally not admissible to prove reputation or character, such evidence is admissible to prove habit, course of conduct or bent of mind. Milton v. State, 245 Ga. 20, 24-26 (262 SE2d 789); Little v. State, 164 Ga. 509, 510 (1) (139 SE 37). See Stripling v. Godfrey, 143 Ga. App. 742 (2) (240 SE2d 145); Sams v. Gay, 161 Ga. App. 31, 32 (1), 33 (288 SE2d 822). The rationale is that “[h]abit in the usual sense is more probative of the doing of a particular act out of habit than is character, because habit is more specific.” (Footnote omitted.) Thomas F. Green, Jr., Georgia Law of Evidence (4th ed.), p. 136, § 67. In the case sub judice, I believe the evidence underlying prior complaints against Officer Pearson, particularly the incident at Shallowford Hospital, was relevant because it tended to support defendant’s claim that Officer Pearson was prone to overreact to volatile situations and abuse his police authority. See Milton v. State, 245 Ga. 20, 25, supra; Gibson v. State, 176 Ga. 384 (3) (168 SE 47). I believe that holding otherwise is contrary to the well-worn principle that “ ‘[t]his court stands pledged, by its past history, for the abolition, to the extent of its power, of all exclusionary rules which shut out facts from the jury which may serve, directly or remotely, to reflect light upon the transaction upon which they are called upon to pass.’ Baker v. State, [142 Ga. 619, 623 (83 SE 531)].” Milton v. State, 245 Ga. 20, 25, supra.

Decided March 15, 1996

Reconsideration denied March 29, 1996.

Clifford H. Hardwick, for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Rosanna M. Szabo, Assistant Solicitors, for appellee.

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

       “The Georgia Supreme Court held in Cargill v. State, 255 Ga. 616, 638 (23a) (340 SE2d 891) (1986), that when the defense seeks to discover the personnel file of a law enforcement officer, some showing of need must be made.” Houston v. State, 217 Ga. App. 279, 280 (2), 281 (456 SE2d 766). In the case sub judice, defendant did not seek examination or disclosure of Officer Pearson’s personnel file, he sought to introduce evidence collected during an independent investigation by defense counsel. These circumstances distinguish the case sub judice from cases where the defense was unable to point to specific proof casting doubt upon the officer’s credibility. See Durden v. State, 187 Ga. App. 154, 158 (3) (369 SE2d 764); Lockwood v. State, 184 Ga. App. 262 (361 SE2d 195), rev’d on other grounds, 257 Ga. 796 (364 SE2d 574); Taylor v. State, 172 Ga. App. 827 (1) (324 SE2d 788); and Jinks v. State, 155 Ga. App. 925 (2) (274 SE2d 46).