author: Smith, Judge.

text:
    A95A0988.
    CLARK, DAVIS & EASLEY INSURANCE AGENCY, INC. v. TILE TECHNOLOGY, INC.
    (459 SE2d 450)
   Smith, Judge.

Tile Technology, Inc., is a small business in Dalton, Georgia. One of its employees was injured after the date on which its workers’ compensation insurance policy, issued by CIGNA, expired without being renewed. As a result, there was no coverage. Tile Technology brought suit against Clark, Davis & Easley Insurance Agency, Inc. (“Easley”), the independent insurance agency through which it had procured the policy, alleging Easley was negligent in failing to notify Tile Technology of the impending expiration of the policy. The case was tried before a jury, which returned a verdict in the form of special interrogatories, finding the stipulated amount of Tile Technology’s damages attributable 40 percent to its own negligence and 60 percent to the negligence of Easley. Easley’s motion for judgment notwithstanding the verdict or a new trial was denied, and this appeal ensued.

Easley contends the trial court erred in failing to grant its motion for directed verdict, both at the close of the plaintiff’s case and at the close of all evidence, because no evidence was presented from which a jury could have concluded that it breached any duty owed to Tile Technology. We agree and reverse.

Under the well-established general rule, Easley, as an independent insurance agency, was acting as Tile Technology’s agent in procuring workers’ compensation coverage. European Bakers v. Holman, 177 Ga. App. 172, 173-174 (2) (338 SE2d 702) (1985). If such an agent is negligent in failing to procure insurance for the principal, the agent may be held liable for any loss that results, to the limits of the policy. Mosely v. Coastal Plains Gin Co., 199 Ga. App. 99, 100 (1) (404 SE2d 123) (1991). But in order for this principle to apply, a duty must exist on the part of the agency toward the principal. Northeastern Ins. Agency v. Courson, 156 Ga. App. 321, 323 (1) (274 SE2d 714) (1980). Here, as in Courson, no such duty was established.

The policy in issue was a “direct bill” policy, meaning that the policy and any notices were sent directly to the insured by the carrier, not through the agency. The evidence was in conflict on the question of whether Tile Technology received' a renewal notice from CIGNA. Tile Technology’s president, John Burrell, testified that none was received, while a CIGNA representative testified that one was mailed to the correct address. It is undisputed, however, that Tile Technology was in possession of, or had access to, the policy issued by CIGNA, which clearly states its term (from February 20, 1991 to February 20, 1992) and indicates the date on which renewal was required. Burrell testified that he relied upon Easley for advice regarding the type and amount of insurance the company needed. This evidence would have been relevant to support a claim that Easley failed to procure the correct insurance in the first instance. But neither that evidence nor the fact that Easley arranged premium financing for the workers’ compensation policy, which Tile Technology relies upon to support its claim of negligence, remedies the essential failure of proof in this case. Tile Technology failed to introduce the slightest evidence of any agreement, either express or implied, obligating Easley to assure the renewal of the policy or notify Tile Technology of its impending expiration. Easley, on the other hand, presented expert testimony establishing that within the insurance industry, it is not considered a “wise practice” for agents to contact insureds directly with regard to “direct bill” policies after issuance.

It is axiomatic that without establishing a duty owed, one cannot recover for a breach of that duty. See generally Armor Elevator v. Hinton, 213 Ga. App. 27, 29 (2) (443 SE2d 670) (1994). Because Tile Technology failed to establish that Easley owed it a duty to send it a renewal notice or otherwise maintain coverage beyond the term of the policy issued, it cannot establish a breach or recover for negligence based upon that breach. The evidence in this case demanded a verdict for Easley, and the trial court erred in denying Easley’s motion for a directed verdict.

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.

Decided July 12, 1995

Kenneth R. Starr, for appellant.

Coppedge, Goddard & Leman, Warren N. Coppedge, Jr., J. Allen Hammontree, for appellee.


source: Caselaw Access Project

author: Blackburn, Judge. McMurray, Presiding Judge,

license: Public Domain

text:
    A95A0114.
    SAILORS et al. v. ESMAIL INTERNATIONAL, INC.
    (459 SE2d 465)
   Blackburn, Judge.

Plaintiffs, Richard and Angela Sailors, appeal from the judgment rendered by the jury in favor of appellee/defendant Esmail International, Inc., d/b/a Executive Inn, d/b/a Executive Inn-Six Flags, d/b/a Budget Inn-Six Flags, d/b/a Red Carpet Inn, and d/b/a T-Bird’s Lounge (Esmail). The Sailorses brought the underlying action to recover damages resulting from injuries Richard Sailors received in an altercation in the parking lot outside T-Bird’s Lounge.

The facts construed in the light most favorable to the jury verdict indicate that on the night of the incident, Sailors and two of his friends visited four bars over the course of several hours. At approximately midnight, they left the Buckhead area in Atlanta and drove to T-Bird’s Lounge on Fulton Industrial Boulevard. After consuming more beer, Sailors and his friends left the lounge between 2:30 and 3:00 a.m. One of Sailors’ friends, Scotty Roberts, urinated in the parking lot which attracted the attention of four passengers in a passing car. The car was driven into the parking lot, and two men got out and began cursing Roberts. Roberts responded with obscenities resulting in a confrontation with the two men. Twice, an independent witness stepped in and persuaded both sides to go their separate ways. However, Roberts made additional obscene comments, after which one of the men opened the car trunk and obtained a pool cue. Sailors, who had been sitting in his truck until this point, joined the group and attempted to defuse the situation but said something derogatory about one of the other men’s girl friends. The man holding the pool cue took a swing at Sailors, who wrestled the pool cue away, and chased the men back to their car. Sailors then broke the driver’s side window of the car with the pool cue. While Sailors fought with one of the girls who exited the car and attempted to take the pool cue from him, one of the men stabbed Sailors with a knife. At the hospital, Sailors’ blood alcohol level was .21, and he was described as combative and hard to restrain by the hospital physician. Expert testimony established that Sailors’ blood alcohol level was .24.

1. On appeal, the Sailorses contend the trial court erred in ex-eluding evidence of police incident reports which the court ruled were not substantially similar to the present incident.

“A proprietor’s duty to invitees is to exercise ordinary care in keeping the premises and approaches safe. The proprietor is not the insurer of the invitee’s safety, but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge. If the proprietor has reason to anticipate a criminal act, he or she then has a duty to exercise ordinary care to guard against injury from dangerous characters.” (Citations and punctuation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (405 SE2d 474) (1991). See also Days Inns of America v. Matt, 265 Ga. 235 (454 SE2d 507) (1995). “In 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 proprietor may be held liable.” (Punctuation omitted.) Hunter v. Rouse-Atlanta, Inc., 211 Ga. App. 131 (1) (438 SE2d 188) (1993). Accord Savannah College of Art &c. v. Roe, 261 Ga. 764 (409 SE2d 848) (1991) (Proprietor’s superior knowledge can be demonstrated by evidence of the occurrence of prior substantially similar incidents).

In the present case, Sailors was stabbed with a knife after joining an ongoing altercation in the parking lot. The trial court determined that all crimes involving fights or personal injury in the parking lot were substantially similar to the present case and were allowed into evidence. The trial court excluded incidents which occurred in the lounge or the hotel. The trial court did not abuse its discretion in excluding such evidence. See Sparks v. Pine Forest Enterprises, 174 Ga. App. 598, 599 (331 SE2d 34) (1985).

The Sailorses assert that because a security guard had been hired, the evidence of “all police incidents” was admissible to show the inadequacy of the security provided. However, “all police incidents” at the inn and lounge were not substantially similar to the mutual combat situation in which the present plaintiff was injured. Furthermore, such a position would place a higher burden on the proprietor who provides some security measures over the proprietor who provides no security. The burden on the proprietor regarding the extent of the security provided is no different than his burden to provide any security as set out in Lau’s Corp., supra.

“The rule remains that the true ground of liability is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm.” (Citation and punctuation omitted.) Howell v. Three Rivers Security, 216 Ga. App. 890, 892 (456 SE2d 278) (1995). In Howell, this Court found that any breach of the premises owner’s duty toward the plaintiff was not the proximate cause of the plaintiff’s injuries due to the plaintiff’s superior knowledge of the risks associated with his conduct. Id. The analysis contained in Howell, supra, is even more persuasive in the present circumstances, because of Sailors’ voluntary participation. In a case of mutual combat, the superior knowledge must always remain with the combatants, as they, by their voluntary participation, have selected the time, date, and place for the altercation. Any injuries to the combatants resulted from their own conduct and under such circumstances, the existence of prior criminal acts on the premises is irrelevant and cannot form a basis for liability on the premises owner.

The dissent fails to distinguish a mutual combat situation from a case involving an innocent bystander in the use of previous criminal activity evidence involving violence on the premises. Mutual combat exists where there is a fight with dangerous or deadly weapons and when both parties are at fault and are willing to fight because of a sudden quarrel. Langford v. State, 212 Ga. 364 (93 SE2d 1) (1956). See OCGA § 16-3-21. In the present case, Sailors voluntarily joined an ongoing altercation and engaged in mutual combat. The proprietor had no duty to protect the plaintiff from himself. In fact, it is the plaintiff who had a duty of ordinary care for his own safety.

As this court has held, in “mutual combat” situations, plaintiff assumed the risk of injury since he “was an active participant in a brawl that left him injured.” Driver v. Leicht, 215 Ga. App. 694 (452 SE2d 165) (1994). In Driver, under comparable circumstances, we held that even if the hosts were negligent and could be liable to an innocent bystander, they would not be liable to an injured guest who was an initiator or active participant in the brawl resulting in the injury. Id. This same principle applies here, to proprietors and their patrons.

2. In their second enumeration of error, the plaintiffs contend that the trial court erred in allowing the investigating police officer to testify as to conversations he had with witnesses at the scene. The plaintiffs assert that such testimony was hearsay.

After plaintiffs’ counsel’s hearsay objection, the investigating officer informed the court that although he interviewed the crowd, he found that Randy Askea, Cindy Cooper, Sherree Newell, and Regina Jackson were the most reliable, as they had witnessed the entire incident. Plaintiffs’ counsel renewed his hearsay objection as. to anything said by Regina Jackson and Cindy Cooper, as they had not testified and were not under subpoena. The judge instructed the officer to convey what the officer had learned other than his conversation with Cooper and Jackson. Thereafter, plaintiffs’ counsel failed to object, on hearsay grounds, to the officer’s testimony. Plaintiffs failed to object to any specific testimony of the officer as hearsay, therefore, we have nothing to review.

3. The plaintiffs contend the trial court erred in refusing to charge the jury regarding the adequacy of security and the proprietor’s duty to perform in a non-negligent manner. Viewing the trial court’s charge as a whole, we find that it accurately set forth the law of the case. The trial court charged on duty of an owner or occupier of land toward an invitee. The trial court charged that a proprietor must exercise ordinary care to protect his customers from criminal acts of which he had reasonable grounds for apprehending.

“It is axiomatic that a jury charge need not be given in the exact language requested if the charge as given clearly covers the circumstances of the case. All that is necessary, provided the requested charge accurately states the relevant principles of law, is that these principles be fairly given to the jury in the general charge. When it can be determined that the charge actually given conveys correctly the intent of the law and is so framed as to be applied with understanding to the fact situation, denial of a request for a specific charge is not reversible error.” (Punctuation omitted.) City of Dalton v. Smith, 210 Ga. App. 858, 859 (3) (437 SE2d 827) (1993). In the present case, the trial court did not err in refusing to give the requested charge as the charge given accurately conveyed the law.

4. The plaintiffs contend that the trial court’s following jury instruction was contrary to the law. The trial court charged: “I charge you that if you find that the defendant was negligent and you further find that an independent criminal act of a third person was intervened between the defendant’s negligence and the plaintiff’s injury which defendant did not have reasonable grounds for contemplating that such criminal act would be committed, and then the law regards that independent criminal act as the proximate cause of the plaintiff’s injury and recovery cannot be had from the defendant.”

The law is clear that “[o]rdinarily, even where the proprietor’s negligence is shown, he would be insulated from liability by the intervention of an illegal act which is the proximate cause of the injury. However, the above rule has been held inapplicable if the defendant (original wrongdoer) had reasonable grounds for apprehending that such criminal act would be committed.” (Citations and punctuation omitted.) McClendon v. C & S Nat. Bank, 155 Ga. App. 755, 756 (272 SE2d 592) (1980). Although stated differently, the trial court’s charge accurately set forth the law. Therefore, the trial court did not err in giving the defendant’s requested charge.

Judgment affirmed. Beasley,

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

McMurray, Presiding Judge,

dissenting.

I am compelled to dissent as the majority focuses upon proximate cause (an issue which was properly before the jury at trial) rather than articulating an answer to the only question raised by the Sailorses in their first enumeration of error, i.e., whether the trial court erred in excluding evidence relevant to the adequacy of security provided by Esmail at its 153-room hotel. To this extent, I believe the trial court erroneously excluded a laundry list of prior criminal acts at Esmail’s place of business, including an armed robbery of a hotel desk clerk, fights in the hotel lobby and lounge, public drunkenness by a person in the hotel parking lot, disorderly conduct and public drunkenness by a person at the hotel’s front desk, and the murder of a hotel desk clerk, the proprietor’s own son.

The proper standard for evaluating whether a prior criminal act is “substantially similar” was recently resolved by a majority of this Court in Matt v. Days Inns of America, 212 Ga. App. 792 (443 SE2d 290), affirmed at 265 Ga. 235 (454 SE2d 507), where Presiding Judge Birdsong restated that “ ‘[a]ll that is required is that the prior (incident) be sufficient to attract the (hotel’s) attention to the dangerous condition which resulted in the litigated (incident).’ Pembrook Mgmt. v. Cossaboon, 157 Ga. App. 675, 677 (278 SE2d 100).” Id. at 794, supra (Pope, C. J., McMurray, P. J., Beasley, P. J., Cooper and Smith, JJ., concurring; with Andrews, Johnson and Blackburn, JJ., dissenting). Accordingly, the trial court in the case sub judice was correct in determining the controlling issue to be whether the prior criminal incidents proffered by plaintiffs were substantially similar to the assault during which Rick Sailors was injured. However, it is my view that the trial court erred in determining that most of the prior violent criminal acts offered into evidence by plaintiffs were not “substantially similar” to the incident involving Rick Sailors because these prior incidents were not committed in the precise manner or location as the assault upon Rick Sailors. “In this sense, substantially similar does not mean identical, and it is not a question whether a weapon was used, but whether the prior crimes should have put an ordinarily prudent person on notice that the hotel’s guests were facing increased risks. ‘All that is required is that the prior [incidents] be sufficient to attract [Esmail’s] attention to the dangerous condition which resulted in the litigated (incident).’ Pembrook Mgmt. u. Cossaboon, 157 Ga. App. 675, 677[, supra].” Matt v. Days Inns of America, 212 Ga. App. 792, 794, supra. In other words, the test is whether the prior criminal activity was “sufficiently substantially similar” to demonstrate Es-mail’s knowledge that conditions on its property subjected invitees to unreasonable risk of criminal attack so that Esmail had reasonable grounds to apprehend that the present criminal act was foreseeable. Id. at 795.

In the case sub judice, the trial court excluded evidence of about 75 separate criminal incidents at Esmail’s hotel during a 44-month period preceding the assault upon Rick Sailors, over 18 of which involved violence or the threat of violence. It is my view, that this volume of prior criminal activity (involving both violent and non-violent acts) was not only relevant to show that Esmail knew or should have known that its patrons were at risk of violent criminal assault, but was also relevant to show the inadequacy of security (one guard stationed in T-Bird’s lounge) provided at Esmail’s place of business. Compare Ritz Carlton Hotel Co. v. Revel, 216 Ga App. 300, 302 (1), 303 (2) (454 SE2d 183), involving unrelated prior criminal incidents which were never pulled together to show a pattern of violent criminal activity on the defendant’s business premises.

Decided July 13, 1995

McKenney & Froelich, William J. McKenney, for appellants.

Gorby & Reeves, Michael J. Gorby, Martha D. Turner, for appellee.


author: Birdsong, Presiding Judge. Smith, Judge,

text:
    A95A0256.
    ELECTRONIC DATA SYSTEMS CORPORATION v. HEINEMANN et al.
    (459 SE2d 457)
   Birdsong, Presiding Judge.

On June 16, 1994, appellant Electronic Data Systems Corporation (EDS) filed suit against its former employees and Mark E. Heinemann, Patricia G. Pelling and their company PowerPlan Consultants, Inc., for breach of employment contracts including solicitation of employees and customers, competition, and use of confidential and proprietary information; misappropriation of corporate opportunities; intentional interference with existing and prospective business relationships; unfair competition; and breach of fiduciary duty.

EDS contends appellees formed PowerPlan Consultants immediately upon their departure from EDS; that appellees admit they are soliciting EDS’s customers so as to sell EDS’s customers a computer software system which is intended to compete directly with the “capital asset tracking” software system which appellees were developing for EDS before they resigned from EDS; that, e.g., on the day after they resigned from EDS, appellees responded on behalf of their new company (PowerPlan) to a request for proposal sent to EDS by one of EDS’s customers which appellees had failed to answer on behalf of EDS before resigning from EDS; and that appellees admit they “target” customers who appellees knew had expressed an interest in EDS’s software system.

Appellees answered and asserted claims for declaratory judgment, injunctions, and other claims. Thirty-four days after the lawsuit was filed, they filed a so-called “Motion for Interim Relief” containing Heinemann’s and Pelling’s affidavits and a “Statement of Material Facts Not in Dispute.” Appellees sought an “interim” declaration that they do not violate their EDS employment contracts and do not misuse trade secrets or violate a duty regarding corporate opportunities. They sought an injunction restraining EDS from invoking their contracts to prevent customers from considering appellees as vendors, contending that unless such relief were granted they would suffer immediate danger of irreparable harm. The legal grounds asserted for this “Motion for Interim Relief” were OCGA §§ 9-4-1 through 9-4-10 (the Declaratory Judgment Act) and OCGA § 9-11-56 of the Civil Practice Act (the summary judgment law).

The motion for interim relief, which appellant EDS calls a “procedural anomaly,” was heard August 18, 1994. On that day, appellees presented to the trial court an order on motion “for declaratory policy on partial summary judgment.” The order as presented states: “This court has considered defendants’ motion for interim relief, and briefs, depositions, affidavits and oral argument in support thereof and opposition thereto. Treating the motion as one for declaratory policy [emphasis supplied] on partial summary judgment, this court hereby ORDERS as follows . . . Covenants Not to Compete 2. The nonsolicitation covenants in Mr. Heinemann’s contract (Section 6) and the nonsolicitation covenants and covenant not to compete in Ms. Pelling’s contract (Section 6) do not include software that would be used for tracking capital assets. 3. Defendant Pelling’s covenant not to compete is void under Georgia law. Trade Secrets 4. There is no evidence that defendant’s capital asset tracking system contains any proprietary software that would constitute trade secrets of plaintiff EDS. 5. Defendants state their intention to continue to develop their capital asset tracking system without use of such trade secrets; if they do so, EDS has no claim against them for violation of EDS trade secrets. SO ORDERED, this 18th day of August, 1994.” From the bench, the trial court struck the word “policy” in the order’s preamble, wrote in the word “judgment,” and signed the order.

Enumerating ten errors, EDS contends the remedy of an “interim declaratory judgment” is alien to Georgia law and is unavailable under the Declaratory Judgment Act, and the procedure for summary judgment was not followed; and that the trial court’s rendition of judgment on this anomalous motion was error for it ignored non-discretionary procedural requirements, ignored the existence of hotly disputed facts, and rendered an advisory opinion. Appellees respond that appellant EDS is a large company headquartered in Texas, formerly headed by H. Ross Perot, and has revenues of $8 billion per year as opposed to appellees’ “fledgling” business. Appellees also allege “intimidation” by EDS in that at Pelling’s deposition, EDS’s lawyer wore a tie figured with razor blades. Held:

1. Appellees contend EDS has the “view” that the trial court “was powerless to do anything on an expedited basis.” This is not true. EDS argued that the procedure invoked by appellees to get “interim declaratory judgment” is improper as it would not terminate the proceedings in final judgment as contemplated by OCGA § 9-4-8; that the preliminary injunction sought by appellees is not designed to preserve the status quo as in the usual procedure but asks the court to terminate the lawsuit; that appellees did not properly move for summary judgment under OCGA § 9-11-56 (c); that the suit had been filed less than two months prior to this motion and discovery, though intensive, was not complete, and the affidavits and evidence show issues of fact “literally abound”; and that the trial court should postpone any summary judgment until further discoyery.

Appellees also contend EDS claimed it could not arrange an examination of the product being developed. This is not true. Appellant’s president stated in affidavit that “due to the time constraints imposed by . . . this expedited hearing on defendants’ motion for interim relief . . . EDS has been unable to retain an expert to perform the necessary technical analysis on defendants’ PowerPlan product. Although [appellees say it] was developed ‘from scratch’ without use of any confidential, proprietary, or [trade secrets], EDS believes the circumstantial evidence suggests otherwise. [Affidavit cit.] . . . EDS requests sufficient time to develop direct evidence on these issues.”

It is also not true, as appellees assert, that in EDS’s view there was no procedural vehicle to bring the matter to a head before trial. EDS plainly acknowledged that summary judgment may be appropriate if proper procedure is followed.

2. Assuming, as has been held, that a trial court may sua sponte grant summary judgment even where no such motion is pending, it may do so only “ ‘provided the grant is proper in all other respects’ [cit.],” including procedural notice and opportunity to respond. Spivey v. Safeway Ins. Co., 210 Ga. App. 775 (1) (437 SE2d 641). What appellees asked for in their motion for “interim relief’ was not an injunction to maintain the status quo while the issues were discovered and tried, but a court order phrased by appellees as a “declaratory policy on partial summary judgment” (emphasis supplied), which would prevent EDS from pursuing its lawsuit altogether, without even giving EDS the rights and notices of a summary judgment proceeding.

3. At the outset of the hearing on appellees’ motion, the trial court inquired whether appellees’ attorney was “trying to get the injunction.” That attorney responded: “In the nature of an injunction, yes, sir.” He then stated that appellees “need the guidance of this court on the issue whether EDS can hold this lawsuit they’ve filed against Mark and Pat over their heads and effectively drive them out of business before the case comes up for trial. So it’s a motion for interim relief.” He then instructed the trial court on appellees’ “capital asset tracking” system as being a sophisticated system to account for assets of a public utility for shareholder reports, general accounting, budgeting, compliance with Federal Energy Regulatory Commission annual reports, work management, tax returns, SEC filings, and other matters. He then argued that EDS’s mere filing of this lawsuit would put appellees out of business if “interim relief” were not granted because utility companies would not deal with appellees under shadow of a lawsuit; that EDS’s superior financial position enables it to delay any resolution; and that appellees were asking “for an early declaratory judgment probably in the nature of a partial summary judgment and we [followed] the summary judgment proceedings. . . . We’re asking for an early declaratory judgment . . . that the covenants not to compete do not prohibit [appellees] from developing and selling a capital asset tracking system.”

These representations operated unfairly to gain an advantage to which appellees were not entitled. The trial court in a case involving restrictive covenants is without authority to adjudicate with finality contested issues of fact on an interlocutory basis. The trial court may resolve, on an interlocutory basis, questions of law (Uni-Worth Enterprises v. Wilson, 244 Ga. 636, 640 (261 SE2d 572)) but not questions of disputed fact, of which many remain in this case.

4. The trial court erred in holding that the covenants in appellees’ contracts “do not include software that would be used for tracking capital assets.” This is a disputed issue. Contrary to paragraph 2 of the order signed by the trial court, the covenant not to compete in Heinemann’s contract includes “computer software for use primarily in the public utility industry to develop utility rate structures . . . financial forecasts” and other specifically named functions which may in fact include a capital asset tracking system; this description on its face would seem to include appellees’ product as described by appellees’ attorney. At least a factual question exists on the point, as made out by affidavits already filed.

5. The trial court erred in ruling, as to the appropriation of trade secrets, that there was “no evidence that defendants’ capital asset tracking system contains any proprietary software that would constitute trade secrets.” This is a disputed question of fact.

6. The trial court erred in declaring that if defendants “continue to develop their capital asset tracking system without use of such trade secrets . . . EDS has no claim against them for violation of . . . trade secrets.” This is an advisory opinion based on an erroneous and premature conclusion that appellees’ product contains no trade secrets, and it is an improper attempt to preclude future causes of action.

7. Even assuming appellees properly moved to enjoin enforcement of these restrictive covenants, the trial court’s rulings as to the factual scope of the covenants not to compete and the issue of trade secrets were improper attempts to issue summary judgment on disputed issues of material fact. The trial court has authority to convert an application for interlocutory injunction to a motion for summary judgment, but it cannot do so without complying with OCGA § 9-11-56 (c) and without an opportunity for a hearing on summary judgment. Charming Shoppes v. Black, 252 Ga. 207 (312 SE2d 604). The transcript of the hearing on appellee’s “motion for interim relief’ shows that there was no opportunity for a summary judgment hearing in this case, and no application of summary judgment standards. The issues whether appellees’ software violates the nonsolicitation clauses in their covenants not to compete or contains trade secrets are in strong factual dispute. If appellees believed they were entitled to declaratory relief and summary judgment, they should have filed those proceedings in accordance with established procedure and conducted the hearing with full notice to EDS of a motion for summary judgment.

8. Pelling’s covenant not to compete by soliciting current customers of EDS is not void and unenforceable as a matter of law. This issue is to be determined in a specific factual situation and according to the nature of the contract terms; the question whether the covenant is reasonable involves an examination of time limits, territorial limits, and restricted scope of activity. Annis v. Tomberlin &c. Assoc., 195 Ga. App. 27, 30 (392 SE2d 717). Pelling’s covenant not to compete is not unreasonable as a matter of law as to duration (18 months), as to territorial limitations (designated locations where EDS’s competitors are located), and as to activity (rendering the same services she rendered EDS). See W. R. Grace & Co. v. Mouyal, 262 Ga. 464 (422 SE2d 529). Her participation in Heinemann’s alleged violation of his covenant not to compete may also be actionable.

9. The anomalous procedure pursued by appellees 34 days after EDS filed its lawsuit seems plainly designed to thwart discovery and interrupt the orderly process of litigation while obtaining a “court order,” which appellees could show to prospective customers, stating appellees’ product does not contain trade secrets. The result of this procedure by appellees, in addition to any actual damage to EDS, is an excess expense upon EDS of appellate cost and excess litigation in this court. Such tactics violate the orderly court process and are not justified by the relative corporate wealth of EDS or the style of its attorneys’ neckties.

Judgment reversed.

Pope, P. J., Andrews, Johnson and Blackburn, JJ., concur. McMurray, P. J., concurs in judgment only. Beas ley, C. J., Smith and Ruffin, JJ., dissent.

Smith, Judge,

dissenting.

I must respectfully dissent because of the procedural implications of the majority opinion, particularly with regard to the function of partial summary judgment and the trial court’s discretion to govern discovery under OCGA § 9-11-56 (f).

First, it is beyond question that all parties treated the appellees’ motion as one for partial summary judgment. Although the style of the motion itself is unusual, “[w]e have long ago departed that realm of law where runes and sigils supplant reason and substance.” Tuggle v. Tuggle, 251 Ga. 845 (310 SE2d 224) (1984). Appellees filed a statement of material facts “in support of their Motion for Summary Judgment” as required by Uniform Superior Court Rule 6.5 and relied upon OCGA § 9-11-56. EDS acknowledged in its briefs that the motion was one for summary judgment and filed the appropriate responses. EDS and appellees repeatedly referred to summary judgment before and at the hearing. While EDS contended a motion for partial summary judgment was inappropriate, it cannot contend it was unaware of the nature of the motion until the time of the hearing. As the majority opinion acknowledges, EDS is incorrect in its assertion because partial summary judgment can be appropriate in a declaratory judgment action.

The majority opinion places great reliance on a typographical error of one word in the proposed order presented after the hearing. The motions and briefs, however, clearly recognize the relief sought and granted. By correcting an obvious typographical error, the trial court did not grant relief other than that sought by the parties. Moreover, it is clear from the transcript that both parties understood that this was a mere correction of a scrivener’s error. Appellant did not object at the time and raised none of the arguments made in the majority opinion with respect to this minor error, either at the hearing or in its brief on appeal.

Contrary to the majority’s assertion, this limited ruling does not dispose of the entire case. It reserves ruling on many other allegations made by EDS. It appears that the trial court confined its ruling to three limited, simple issues appropriate for partial summary judgment: 1. Did the noncompetition agreements executed by appellees with their previous employer, EMA, contemplate or include the development of a capital asset tracking (“CAT”) system? 2. Was the Pelling noncompetition agreement void? and 3. Did EDS present any evidence that its proprietary software was used in appellees’ CAT system?

It appears from the record that the contents and scope of CAT systems are governed strictly by federal regulation. Whether data available to appellees during their time at EDS could be used in a CAT system is irrelevant to whether the CAT software itself was contemplated by the noncompetition agreement, or whether EDS’s software was used by appellees. The officer who negotiated and signed the noncompetition agreement on behalf of EMA testified unequivocally that the agreement did not contemplate including a CAT system. The affidavit of an attorney who did not testify that he drafted these particular agreements is merely a legal opinion as to the meaning of the language and cannot contradict the testimony of the parties to the agreement. It also appears that neither EMA nor EDS had a CAT system at that time.

Moreover, the determination that EDS had failed to bring forward evidence of its claim that appellees used its proprietary software is within the trial court’s exercise of its discretion to limit the evidence presented under OCGA § 9-11-56 (f). In my view, this is crucial to the analysis of the trial court’s actions governing discovery on this issue. Because EDS was the original plaintiff and initiated this action, it should have had some evidence before filing in order to proceed in good faith. Yet the uncontradicted evidence is that EDS repeatedly refused opportunities to examine the software to see if it used EDS material or data, refused to mediate the dispute, failed to conduct discovery that would have resolved this issue, and failed to hire an expert in a timely manner to examine the software. These actions or refusals to act began shortly after appellees formed their company and before suit was filed. The grant or denial of a continuance under OCGA § 9-11-56 (f) is a matter within the discretion of the trial judge, and this court will not interfere with the exercise of that discretion unless clearly abused. Wilson v. Tara Ford, Inc., 200 Ga. App. 98, 101-102 (3) (406 SE2d 807) (1991).

If the trial court’s discretion is limited in the manner suggested by the majority opinion, it is possible that a party could avoid the application of OCGA § 9-11-56 (f) by refusing to conduct discovery and then contending that partial summary judgment cannot be granted because there is a dispute as to some easily settled fact. The wholly conclusory affidavit of EDS’s president demonstrates this as he speculates on matters that could have been easily determined by an early examination of the allegedly offending software. This issue amounts to a discovery dispute and is clearly a matter for exercise of the trial court’s discretion under OCGA § 9-11-56 (f).

It also appears that the trial court did not err in its ruling on the Pelling noncompetition agreement. The agreement forbids working within a 25-mile radius of 12 cities throughout the United States, although Pelling never worked in most of those cities. It also forbids the provision of services which Pelling never performed and solicitation of 100 listed customers, many of them individuals for whom Pelling never performed work. While the agreement appears at first glance to be limited to “the services that Employee performs for Company (as set forth in Section 6.1 (a)),” an examination of Section 6.1 (a) shows that it defines those services in a circular fashion as “any of the products and services that the Company provides to its Customers.” Several leading cases have made clear that such agreements must be analyzed in terms of work the particular employee has done for the employer, not the scope of the employer’s business. Agreements forbidding more are void for overbreadth. See, e.g., Wiley v. Royal Cup, 258 Ga. 357, 358-359 (1) (370 SE2d 744) (1988) (overbreadth of territorial list); Singer v. Habif, Arogeti & Wynne, P.C., 250 Ga. 376, 377 (1) (297 SE2d 473) (1982) (overbreadth of client list).

Decided July 13, 1995.

King & Croft, F. Carlton King, Jr., Terrence L. Croft, Thomas A. Croft, for appellant.

Smith, Gambrell & Russell, Thomas W. Rhodes, William W. Maycock, Robert P. Brown, Jason S. Bell, for appellees.

In virtually every lawsuit, the parties disagree on the speed with which it should be resolved. This conflict is as old as the litigation process itself, and trial courts must have some means available to resolve it. This is particularly true when the party seeking to delay resolution is the party that initiated the action. The trial court has discretion to narrow issues for trial and to regulate discovery to move the case forward, and we should not lightly interfere in sucia matters. For these reasons, I respectfully dissent.

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


author: Beasley, Chief Judge. Blackburn, Judge,

text:
    A95A0287.
    DEPARTMENT OF HUMAN RESOURCES et al. v. OFFUTT.
    (459 SE2d 597)
   Beasley, Chief Judge.

We granted the discretionary application of the Department of Human Resources (DHR) to consider the trial court’s refusal to issue an income-deduction order for child support under OCGA § 19-6-32.

The appellee, Stanley Phillip Offutt, and Karen Worley Offutt were divorced on October 3, 1986. In the final judgment and decree, the mother was awarded physical custody of the couple’s two minor children and the father was ordered to pay child support. In August 1990, the mother sought assistance from the Child Support Recovery Unit in collecting child support and, in doing so, assigned her right to child support to DHR. This service is provided even when the children do not receive public assistance. OCGA § 19-11-6 (c). Since that time, the father has paid child support to the Unit.

On May 10, 1994, DHR petitioned for the issuance of an income-deduction order based on an alleged arrearage of $74 through March 31, 1994. In denying the request, the court noted that the father had an excellent history of making payments and had not been the subject of any court-related proceeding concerning child support since the original divorce decree was entered. The court concluded that under these circumstances, OCGA § 19-6-32 does not mandate the entry of an income-deduction order.

OCGA § 19-6-32 (a) (1) provides, as relevant here: “After July 1, 1989, upon the application to the child support (IV-D) agency, and upon the entry of a judgment establishing, enforcing, or modifying a child support obligation . . ., the court . . . shall enter a separate order for income deduction if one has not been entered.” That section is not applicable here, however, because there is no such judgment. The only judgment is that of October 3, 1986. Thus, subsection (2) of the statute applies: “For all child support orders . . . prior to July 1, 1989, an order for income deduction may be issued without need for any amendment to the order involved or any further action by the court or entity that issued it, provided that an opportunity for a hearing before a court, a referee of the court, or an administrative hearing officer is afforded.”

It is a matter of the plain language in the statute, read in context. This case involves an order for child support entered prior to July 1, 1989, as part of the final judgment and decree which ended the marriage, divided the property, and established the legal rights and obligations of child custody and child support. By their express terms, subsection (a) (1) of OCGA § 19-6-32 applies to judgments or orders for child support entered after July 1, 1989, and subsection (a) (2) of OCGA § 19-6-32 applies to such orders entered before July 1, 1989. In concert with the watershed date, this new section and two other related and new sections, along with the rest of the substantial changes introduced by the statute, became effective July 1. Ga. L. 1989, pp. 861, 878, § 8. We must abide by the plain language and not construe it otherwise. Housing Auth. of Savannah v. Greene, 259 Ga. 435, 438 (4) (383 SE2d 867) (1989).

This view of the plain language is confirmed by a consideration of the context, the nature of the change, and the significance of the distinction between “before” and “after” in applying the rules of construction in OCGA §§ 1-3-1, 1-3-2, and 1-3-5.

By this Act, the legislature extensively revised the statutes relating to the enforcement of child and spousal support obligations and other aspects of the law of family dissolution. Ga. L. 1989, p. 861. This was apparently in response to the risk of losing substantial federal funds. Notably, this included the establishment of presumptive guidelines for the computation of child support, whereas heretofore the amount of the award was left entirely to the discretion of the factfinder. Ga. L. 1989, pp. 861, 862, § 1; OCGA § 19-6-15. This is part of the reform and transition in which the law governing the dissolution of marriage has been since about 1970, as the primary part of the process has shifted in focus from the grounds for divorce to the “incidents” of dissolution which “now constitute the overwhelming mass of family law litigation, and pose the problems of great consequence for public policy because they shape the future for the former partners and their children.” Marygold S. Melli, Preface, pp. xvii-xix, Tentative Draft No. 1, The American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations. One aspect of the “incident” of future support requirements is enforcement.

Prior to 1989, there was no statutory provision for court-directed income deduction which would immediately capture the support payments at the source, i.e., the obligor’s employer or other payor of periodic amounts. The support orders could not utilize this method of assuring payment, and there was no mechanism to do so. True, there was garnishment, but a one-month delinquency first had to occur before this separate enforcement proceeding could be instituted. OCGA § 18-4-130 et seq., particularly OCGA § 18-4-132. When support was ordered, the obligor had an opportunity to comply voluntarily before court enforcement could be implemented.

Beginning in 1985, the most that the court ordering or modifying child support could do, and was actually required to do, was to warn the obligor in the support order that garnishment was an available remedy of enforcement. Ga. L. 1985, pp. 785, 791; OCGA § 19-6-30 (a). It constituted merely a threat. The legislature specifically provided that this was retroactive in that all orders entered or modified prior to July 1, 1985, were to be construed to contain this warning. OCGA § 19-6-30 (b).

Four years later more powerful authority was given to the support-ordering courts by way of the income-deduction provision. Ga. L. 1989, p. 861. It does not depend upon voluntary compliance.

The new procedure was added by way of three Code sections introduced into the law in the 1989 Act and an addition to OCGA § 19-6-30. The addition provided that “All Title IV-D (child support recovery) cases involving orders of support of a child or spouse entered or modified prior to July 1, 1989, or thereafter shall be subject to income deduction as defined in Code Sections 19-6-31, 19-6-32, and 19-6-33. All other orders are expressly excluded from the application of these provisions.” Thus, Title IV-D cases were put in two categories, to be treated differently, one mandatorily and one employing the court’s discretion and opportunity for hearing. As noted in a review of the Act, “Title IV-D cases are those for which applications for support services have been made voluntarily or by law to the Department of Human Resources Child Support Division.”

Offutt paid child support from 1986 without garnishment or other court enforcement and in 1990, due to the application for assistance in recovery brought by the obligee mother, he paid through the DHR Child Support Recovery Unit, the Title IV-D agency. OCGA §§ 19-11-6 (c), 19-6-31 (7). On behalf of the children, the agency applied to the court for an income deduction order in May 1994. Offutt’s support order was entered before July 1, 1989, so his order is governed by OCGA § 19-6-32 (a) (2).

Under OCGA § 19-6-32 (a) (1), when any court order or judgment entered on or after July 1, 1989, establishes support obligations for the first time, or enforces existing obligations, or modifies such obligations, the court “shall” order income deduction pursuant to the procedure established in 1989 if the child support recovery agency seeks such. The obligor cannot prevent it, but he or she can take it into account and argue accordingly at the hearing pursuant to which the court establishes, enforces, or modifies the obligation of support. Thus there is an opportunity to be heard on any matter which will affect the amount and the potential for income deduction. See Ga. Dept. of Human Resources v. Pernice, 260 Ga. 732, 733 (399 SE2d 65) (1991), an illustrative case, where the obligor had been held in contempt in 1989, presumably after July 1, due to failure to pay any support.

On the other hand, the person whose obligation was set and not brought to court for enforcement or modification before income deduction was possible, that is, before July 1, 1989, did not have a similar opportunity to be heard. This the legislature recognized, and in order to afford due process it provided that opportunity by way of subsection (a) (2). As a matter at least of public policy, if not constitutional due process, it equalized the positions of both the pre-July 1, 1989 obligor and the post-July 1, 1989 obligor. Both would be heard by a court which had at its potential beck and call the income-deduction method of enforcement. The legislature did not provide for retro-activity, as it did with the garnishment warning mandated in OCGA § 19-6-30 (b).

There appears to be yet another reason the legislature distinguished between the two categories of instances, a reason which is demonstrated by this case. Where a government agency has already been marshalled to intervene with assistance in support collection, and the court is resorted to for the establishment, enforcement, or modification of a support obligation, the legislature has refused to “wait and see” if the government agency seeks it and to allow the obligor to avoid income deduction upon rosy promises of payment. Instead, having provided this particular enforcement mechanism beginning July 1, 1989, it compels the courts to use it, as a matter of uniform efficiency. But when the court order with respect to support preceded July 1, 1989, so that a history of the degree and nature of compliance had been created, the court could retain its traditional discretion with respect to enforcing its orders in a manner it deemed appropriate to the circumstances.

That is what the court below did in this case. No one on this Court faults its judgment in declining to subject the support obligor and his employment compensation payor to the permanent administration of income deduction when $74 was the alleged arrearage. The question before us is merely whether the court was authorized to use its judgment. Because the order which appellee Offutt was required to obey was entered before the advent of statutorily mandated income deduction, the court was so authorized and the law does not require reversal of its order.

To the extent that Dept. of Human Resources v. Brandenburg, 211 Ga. App. 715 (440 SE2d 498) (1994), conflicts with this analysis, it is overruled. It does not appear that there was any court order “enforcing” or “modifying” the 1986 child support order on or after July 1, 1989, although DHR unsuccessfully sought modification at the same time it requested income deduction. If this is the fact, then OCGA § 19-6-32 (a) (2) and not OCGA § 19-6-32 (a) (1) applied.

Judgment affirmed.

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

Blackburn, Judge,

dissenting.

I respectfully dissent to the majority opinion, overruling Dept. of Human Resources v. Brandenburg, 211 Ga. App. 715 (440 SE2d 498) (1994). In denying DHR’s request for an income-deduction order, the trial court noted that Offutt had an excellent history of making child support payments and had not been the subject of any court-related proceeding concerning child support since the original divorce decree was entered. The court concluded that under these circumstances, OCGA § 19-6-32 does not mandate the entry of an income-deduction order.

OCGA § 19-11-6 (c) provides in part, “[t]he department shall accept applications for child support enforcement services from any proper party or person notwithstanding the fact that the child or children do not receive public assistance. When made, this application to the department shall constitute an assignment of the right to support to the department.” (Emphasis supplied.)

“OCGA § 19-6-32 (a) (1) provides that after a child-support agency has obtained a judgment establishing, enforcing, or modifying a child support obligation, the court shall enter a separate order for income deduction if one has not been entered.” (Punctuation omitted; emphasis supplied.) Ga. Dept. of Human Resources v. Pernice, 260 Ga. 732, 733 (399 SE2d 65) (1991). The statute mandates the entry of income-deduction orders. Id. While the rationale and ruling of the trial court do not seem inappropriate, the relevant statutes do not permit the ruling to stand. The trial court does however have discretion, upon a showing of good cause, to determine when the income-deduction order becomes effective under OCGA § 19-6-32 (c). Dept. of Human Resources v. Brandenburg, supra. In Brandenburg, this court held that the issuance of an income-deduction order was mandatory where Ms. Brandenburg received public assistance and a judgment had been entered in 1986 ordering Mr. Brandenburg to provide child support.

The majority maintains that OCGA § 19-6-32 (a) (2) governs whether an income-deduction order should issue in this case. However, such an application would render meaningless the specific limiting language contained in OCGA § 19-6-32 (a) (1) and violate a cardinal rule of statutory construction. Subsection (a) (1) is applicable when an application has been made to a child support agency, as in this case, and a judgment has been entered establishing, enforcing, or modifying a child support obligation. The meaning of the limiting language is that subsection (a) (1) applies to actions which involve requests made to child support agencies for financial assistance or assistance in enforcing child support obligations after July 1, 1989, the effective date of the statute, and a judgment has been entered establishing, modifying, or enforcing the child support obligation. In contrast, OCGA § 19-6-32 (a) (2) applies to actions involving other child support orders and spousal orders prior to July 1, 1989. If the legislature intended otherwise, it need not have provided any limiting terms at all in the statute. See Intl. Indem. Co. v. Enfinger, 170 Ga. App. 443 (317 SE2d 841) (1984) (dissenting opinion). “Where there is an apparent conflict between different sections of the same statute, the duty of a court is to reconcile them, if possible, so as to make them consistent and harmonious with one another.” (Punctuation omitted.) Bd. of Trustees of the Policemen’s Pension Fund of Atlanta v. Christy, 246 Ga. 553 (272 SE2d 288) (1980).

Decided July 13, 1995

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Kevin M. O’Connor, Assistant Attorneys General, for appellants.

Stanley P. Offutt, pro se.

I am constrained to conclude that the trial court erred in refusing to enter an income-deduction order in this case for the reasons stated.

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

       F. Cullen, Note, 6 Ga. State Univ. L. Rev. 227 (1989). The note provides legislative history and an analysis of the Act.

       To meet federal requirements, this provision had to be expanded statewide to all child support determinations by 1994.

      F. Cullen, Note, supra at 230.


author: Pope, Presiding Judge.

text:
    A95A0361.
    TESTON et al. v. COLLINS et al.
    (459 SE2d 452)
   Pope, Presiding Judge.

Plaintiffs Tony Teston and his son Joseph Teston sued defendants, Bleckley County School District; Bleckley County Board of Education; each of the individual members of the Board of Education; the Superintendent of the Bleckley County School Board (Donald Turknett); the Principal of Bleckley County High School (Billy Fair-cloth); and a teacher at the high school (Dwayne Collins), in their official capacities, for injuries Joseph suffered while attending Bleckley County High School. In their complaint, plaintiffs also asserted that Turknett, Faircloth and Collins were liable to them in their individual capacities. Plaintiffs appeal from the trial court’s dismissal of their lawsuit. We affirm.

On March 1, 1993, Joseph was attending a transportation/shop class under the direction and supervision of Collins. Sometime between 12:00 p.m. and 12:30 p.m., a former student of the high school, Jason Allen, entered the classroom to deliver a tow bar to Collins. Allen and Joseph engaged in a conversation, after which Allen struck Joseph in the chest and back with a rubber mallet. Collins then directed Allen to leave. Within the hour, Collins reported the incident to Principal Faircloth. Faircloth summoned Joseph to his office to check on his condition. Subsequently Joseph’s mother was called. After meeting with Faircloth and Joseph, and seeing that her son was in pain and having difficulty breathing, Joseph’s mother elected to take him to a doctor. A few hours after his doctor treated him, Joseph was admitted to the hospital. It is undisputed, however, that Joseph did not suffer any permanent injuries.

Defendants answered plaintiffs’ complaint denying liability and asserted numerous defenses. They also filed a third-party complaint against Allen, but Allen is not a party to this appeal. Subsequently, defendants filed two motions to dismiss. In their first motion, defendants argued that the doctrine of sovereign immunity barred plaintiffs’ claims against the school district, and that the doctrine of official immunity barred plaintiffs’ claims against each of the officials and employees of the school district in their official capacities. In their second motion to dismiss, defendants argued that plaintiffs had failed to state a claim against Turknett, Faircloth and Collins in their individual capacities. On August 9, 1994, the trial court granted both motions to dismiss.

1. On appeal, plaintiffs contend that the trial court erred in finding that their suit against the school officials and employees in their official capacities was barred by the doctrine of official immunity. We reject this contention. Official immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice or corruption. See Hennessy v. Webb, 245 Ga. 329, 330-331 (264 SE2d 878) (1980). In other words, public agents can only be sued in their official capacities if they (1) negligently perform a ministerial duty, or (2) act with actual malice or actual intent to cause injury while performing a discretionary function. See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d) (as amended 1991).

“A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” (Citations and punctuation omitted.) Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). Although plaintiffs argue that defendant school officials and employees negligently performed a ministerial duty allegedly imposed on them by OCGA § 20-2-1180 and by the Bleckley County School Board’s adoption of that Code section as School Board policy, we cannot agree. As the trial court noted, that Code section and the School Board’s policy did not impart a ministerial duty on any of the individual defendants in this case. Instead, the Code section and policy imposed a duty on third-party visitors, and gave school principals discretionary authority to control visitors. See OCGA § 20-2-1180. Additionally, it is clear in this case that the decisions made by Faircloth and Collins with regard to reporting the incident and seeking medical care for Joseph were purely discretionary because they entailed examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed. The manner in which Collins supervised his classroom also was discretionary in nature. See Doe v. Howell, 212 Ga. App. 305, 306 (441 SE2d 767)

Decided July 13, 1995.

Genelle Jennings, for appellants.

Drew, Eckl & Farnham, Theodore Freeman, Nena K. Puckett, Smith & Harrington, John P. Harrington, Harben & Hartley, Phillip L. Hartley, for appellees.

(1994) . Consequently, absent any allegation that the individual school officials and employees exercised their discretion with actual malice or actual intent to cause injury to Joseph, we hold that they were all cloaked with official immunity.

2. We also hold that the Bleckley County School District was immune from suit in this case under the doctrine of sovereign immunity because neither the Georgia Tort Claims Act (OCGA § 50-21-21 et seq.), nor any other act of the General Assembly has waived such immunity. Ga. Const, of 1983, Art. I, Sec. II, Par. IX (a), (e) (as amended 1991); see OCGA § 50-21-22 (5). Moreover, in Coffee County School District v. Snipes, 216 Ga. App. 293, 294 (454 SE2d 149)

(1995) , we specifically held that the 1991 amendment to the Georgia Constitution of 1983 extending sovereign immunity “to the state and all of its departments and agencies” included county-wide school districts. Additionally, we note that plaintiffs have not enumerated as error or contested the trial court’s dismissal of the School District in this case, thus any such assertion is deemed abandoned. See Court of Appeals Rule 27 (a), (c).

3. We find no error in the trial court’s dismissal of plaintiffs’ suit against Turknett, Faircloth and Collins in their individual capacities. As the trial court noted, merely naming a defendant individually in a complaint is not conclusive as to the capacity in which that defendant is sued. Instead, the reason for the lawsuit is the determinative factor as to a defendant’s capacity. Peele v. Dobbs, 196 Ga. App. 684 (396 SE2d 600) (1990). In this case, plaintiffs’ complaint against Turknett, Faircloth and Collins is clearly based on the positions these defendants held and the duties imposed upon them as a result of their positions. Consequently, plaintiffs have sued these defendants only in their official capacities. See Hennessy, 245 Ga. at 331-332.

In light of the above, we conclude that the trial court did not err in dismissing plaintiffs’ lawsuit with regard to all the defendants named therein.

Judgment affirmed.

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

       Plaintiffs voluntarily dismissed the Bleckley County Board of Education from the lawsuit, thus it was not a party to either of the motions to dismiss.


author: Ruffin, Judge. Beasley, Chief Judge,

text:
    A95A0456.
    ROBINSON v. THE STATE.
    (459 SE2d 588)
   Ruffin, Judge.

John Robinson was indicted for aggravated assault but was convicted of criminal damage to property in the first degree as a lesser included offense. He appeals from the judgment entered on his conviction and sentence and the denial of his motion for new trial.

The pertinent evidence adduced at trial is as follows: As the victim was driving home from a nightclub in the early morning hours, he noticed two men in a blue Maxima following him to his apartment complex. When the victim reached the complex, he eluded the car and eventually returned to the nightclub. Robinson admitted being a passenger in a blue Maxima which went to the apartment complex at the approximate time described by the victim but denied following the victim. Robinson and the driver of the Maxima testified that the driver spotted two young women in the nightclub parking lot whom he thought he knew and that they followed the women to the complex. When they realized that the women were already accompanied by two men, they returned to the nightclub.

When the victim returned to the nightclub, he noticed the blue Maxima with the two men parked in the parking lot. He pulled up to the car and facing the passenger side, asked Robinson and the driver if he knew them. The victim testified that Robinson answered, “What’s up?” in an aggressive tone. Robinson then got out of the Maxima revealing a gun at his side. He pointed the weapon downward and shot the victim’s left rear tire. The victim denied ever threatening Robinson, and the driver of the Maxima testified that the victim approached them in a calm manner.

Robinson, however, testified that he told the victim that he did not know him and that the victim then wanted to know why they followed him. The victim became agitated, cursed at Robinson, and called him names. Robinson conceded that the victim remained in his car at all times, the car never got any closer, and the victim did not threaten him. Yet Robinson testified that he began to feel his life was in danger. He then retrieved his .357 magnum from under the passenger seat and got out of the car. He testified that the victim continued to argue with him even though the victim could see he had a weapon. Robinson admits then shooting the victim’s left rear tire, contending that he did so because he felt his life was threatened. He stated that he intended to damage the tire but denied intending to scare the vietim. Robinson and the driver then fled. Minutes later, they were arrested and brought back to the parking lot where the victim identified them.

1. Robinson enumerates as error the trial court’s refusal to give his requested charge on criminal trespass as a lesser included offense of aggravated assault.

OCGA § 16-1-6 sets forth the standards for determining whether an offense is included in another as a matter of fact or as a matter of law. The standards are alternative and not conjunctive. As a matter of fact, a crime is included in another if “[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged.” OCGA § 16-1-6 (1). A crime is included within another crime as a matter of law if “[ijt differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” OCGA § 16-1-6 (2). See generally Teasley v. State, 207 Ga. App. 719 (2) (429 SE2d 127) (1993).

“A person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon . . . which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” (Emphasis supplied.) OCGA § 16-5-21 (a) (2). Criminal trespass is committed when one “intentionally damages any property of another without his consent and the damage thereto is $500.00 or less or [when he] knowingly and maliciously interferes with the possession or use of the property of another person without his consent.” (Emphasis supplied.) OCGA § 16-7-21 (a). “Hence, the difference between the offenses does not lie in the degree of culpability required to establish the commission of each crime. . . Stroud v. State, 200 Ga. App. 387, 390 (1) (408 SE2d 175) (1991). Rather, these offenses differ in the classification of the interests that each statute seeks to protect — the person placed in reasonable apprehension of receiving serious bodily injury in the case of aggravated assault and the property of another in the case of criminal trespass. See id. Thus, criminal trespass is not a lesser included offense as a matter of law.

Furthermore, inasmuch as the indictment alleged Robinson “did unlawfully commit an assault upon the [victim] by shooting at, toward and in the direction of [the victim], a deadly weapon” and therefore did not require the State to prove Robinson interfered with the victim’s property, criminal trespass is not a lesser included offense as a matter of fact. See id. Accordingly, the trial court did not err in refusing to charge the jury on criminal trespass.

2. Robinson also contends the evidence was insufficient to support a conviction because the evidence did not show that he shot a deadly weapon at, toward, and in the victim’s direction as alleged in the indictment. This contention is without merit as the evidence showed, and Robinson does not dispute, that he fired a .357 magnum and hit the rear tire on the driver’s side of the victim’s car as the victim sat in the driver’s seat. The real problem with the conviction, however, is that although the evidence established the commission of criminal damage to property in the first degree beyond a reasonable doubt, that offense was neither charged in the indictment nor is it a lesser included offense of aggravated assault for the same reasons discussed in Division 1 — criminal damage to property in the first degree involves the deliberate and unauthorized interference with property. See OCGA § 16-7-22 (a) (1). Nonetheless, inasmuch as Robinson submitted a jury charge on criminal damage to property in the first degree, he induced the resulting conviction. Accordingly, the judgment entered on the conviction need not be reversed. See Griffith v. State, 188 Ga. App. 789 (374 SE2d 359) (1988).

Judgment affirmed.

Pope, P. J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I agree that the conviction should be affirmed, but I do not concur fully in the analysis.

Robinson enumerates as error the court’s refusal to charge any of his requested charges on criminal trespass. He sought, in the alternative, a charge on OCGA § 16-7-21 (a), a charge on OCGA § 16-7-21 (a) and (b) (1), or a charge on OCGA § 16-7-21 (a) and all of (b). Subsection (a) provides that “A person commits the offense of criminal trespass when he intentionally damages any property of another without his consent and the damage thereto is $500.00 or less, or knowingly and maliciously interferes with the possession or use of the property of another person without his consent.”

He also requested a charge on OCGA § 16-7-22 (a) (1), one of the two manners of committing criminal damage to property in the first degree. The court gave this charge. The court also told the jury it was a lesser included offense of aggravated assault and that it could find defendant guilty of this lesser charge if it found him not guilty of aggravated assault but guilty beyond a reasonable doubt of criminal damage to property in the first degree. As stated in the majority opinion, he was convicted of this latter charge.

The question is whether Robinson was entitled to a charge on criminal trespass, in one of the forms submitted, as a lesser included offense of criminal damage to property in the first degree. He claims that the jury was deprived of the opportunity to consider his defense that, at the most, he intentionally shot the tire (valued at less than $500) without the owner’s consent or, by shooting the tire, knowingly and maliciously interfered with the possession or use of the tire without the owner’s consent. He contends that his actions in the circumstances, plus the testimony of the victim that he was not “scared” and afterward complained that the tire was “busted,” would entitle the jury to find him guilty only of criminal trespass.

Decided July 13, 1995.

Travis T. Vance III, for appellant.

Lewis R. Slaton, District Attorney, Penny A. Penn, Rebecca A. Keel, Assistant District Attorneys, for appellee.

Although I agree that criminal trespass is not a lesser included offense of aggravated assault, it is a lesser included offense of criminal damage to property in the first degree. In the Interest of G. G., 177 Ga. App. 639, 640 (3) (341 SE2d 13) (1986). If a person intentionally damages another’s property without his consent but does not do so in a way which endangers human life, the elements of criminal trespass will be present whereas those of criminal damage to property in the first degree will be wanting in some respect.

The prohibition against aggravated assault does indeed, as the majority states, protect the person whereas the prohibition against criminal trespass protects property. In this case, however, first degree criminal damage to property was introduced, and that prohibition embraces both. It is the human life aspect which raises the property crime to first degree. Compare OCGA § 16-7-23 (a). The Supreme Court of Georgia, in Waugh v. State, 263 Ga. 692 (437 SE2d 297) (1993), expressly did not hold that OCGA § 16-7-21 (a) cannot be a lesser included offense of OCGA § 16-7-22 (a) (1). It held that it was not included as a matter of fact in Waugh’s case.

That is the situation here. The evidence showed aggravated assault on Andre Hasting by shooting a .357 magnum gun at a parked car in which he was the driver, or it showed interfering with the car in a manner which endangered human life, each with the requisite intent, or it showed no crime. Regardless of which version of the event was believed by the jury, the State’s or defendant’s, it did not constitute mere criminal trespass. Compare Anglin v. State, 182 Ga. App. 635, 637 (2) (356 SE2d 564) (1987), and authorities cited therein.


author:
Pope, Presiding Judge.
      Beasley, Chief Judge,

text:
    A95A0461.
    DOZIER v. THE STATE.
    (459 SE2d 463)
   Pope, Presiding Judge.

Defendant Antonio Dozier was convicted of armed robbery and appeals.

1. Defendant challenges the sufficiency of the evidence to support his armed robbery conviction. We find the evidence sufficient under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defendant also contends that the trial court erred in giving the jury the Allen or “dynamite” charge. However, our review of the record and transcript reveals that the jury had already reached its guilty verdict as to defendant Dozier when the Allen charge was given and that the jury’s deliberations after the charge concerned one of the co-defendants. It follows that this enumeration is without merit.

3. Defendant also argues, for the first time on appeal, that he was denied effective assistance of trial counsel, and the State has filed a motion for remand so that a hearing can be held on this issue. “ ‘In order to preserve the issue of trial counsel’s effectiveness for appellate review, “a claim of ineffective assistance of counsel (must) be determined by means of an evidentiary hearing at the earliest practicable moment.” (Cit.)’ Duitsman v. State, 212 Ga. App. 348, 350 (4) (441 SE2d 888) (1994). ‘Where the issue of ineffectiveness of counsel is raised for the first time on appeal, the case must be remanded to the trial court for an evidentiary hearing on the claim. (Cits.)’ Turner v. State, 210 Ga. App. 328, 329-330 (3) (436 SE2d 66) (1993).” Kennedy v. State, 217 Ga. App. 18, 19 (2) (456 SE2d 288).

The record in this case shows that new counsel filed a notice of appeal within 30 days of the entry of judgment; no motion for new trial was filed. “[U]nder our prior decisions, counsel’s election does not effect a procedural bar as to the asserted ineffective assistance claim, and we therefore remand the case for an evidentiary hearing on that issue. King v. State, 208 Ga. App. 77 (2) (430 SE2d 640) (1993).” Id. We would further note that the Supreme Court case of Bailey v. State, 264 Ga. 300 (443 SE2d 836) (1994) does not require a denial of the motion to remand because in that case a motion for new trial was filed, but appellate counsel withdrew the motion and filed an appeal in which the only issue raised was trial counsel’s ineffectiveness. The Supreme Court held that under these circumstances, appellate counsel should have amended the already filed motion for new trial instead of raising the issue of trial counsel’s ineffectiveness for the first time on appeal. In the case at hand, however, a motion for new trial was never filed below; remanding the case for a hearing on trial counsel’s ineffectiveness is thus both proper and necessary. If the court finds defendant was denied effective assistance of counsel, he will be entitled to a new trial. If the court finds adversely to defendant, he will be entitled to appeal that order within 30 days.

Judgment affirmed and case remanded with direction.

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

Beasley, Chief Judge,

dissenting.

The court should deny the State’s motion to remand this case to the trial court for a hearing on appellant’s ineffective assistance of counsel claim in this direct appeal from the conviction.

No one disputes that this claim is governed by the principle applied by the Supreme Court of Georgia in Bailey v. State, 264 Ga. 300 (443 SE2d 836) (1994), when it ruled as follows: “It is axiomatic that a claim of ineffectiveness of trial counsel must be asserted at ‘the earliest practicable moment.’ Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986). In [Bailey], appellant through his new counsel had the opportunity to raise a claim of ineffectiveness of trial counsel prior to this appeal in an amendment to the motion for new trial, but failed to do so. As such, his challenge to the effectiveness of his trial counsel is procedurally barred, and no remand is required. Owens v. State, 263 Ga. 99 (3) (428 SE2d 793) (1993).”

In Bailey, trial counsel filed a motion for new trial but new counsel withdrew it and filed a notice of appeal. Here, in Dozier’s case, judgment was entered on September 2. Appellant and new counsel had the same amount of time, 30 days, to explore the basis for a new trial as for a direct appeal. OCGA §§ 5-5-40 (a), 5-6-38 (a). New counsel chose not to seek a new trial from the trial court but instead filed a detailed notice of appeal, on September 29. The very first “error” enumerated is that “[a]ppellant was denied his rights afforded under the Sixth Amendment to the U. S. Constitution due to ineffective assistance of counsel.”

The rule requiring timely raising of such a claim should apply in this case equally to its application in Bailey and Owens. Procedurally, it makes no difference whether defendant by new counsel fails to raise the claim by an amendment to an existing motion for new trial or whether he forgoes a motion for new trial altogether; in both instances, the prompt and full opportunity to raise the issue and be heard on it by the trial court is disregarded, and the action taken is a direct appeal from the trial court’s judgment. It is inconsistent to hold that the claim is saved when defendant by new counsel opts not to file a motion for new trial in the first place whereas a defendant in Bailey’s and Owens’ position is barred. What was held in Owens should apply here: “[A]s the appellant had the opportunity, before this appeal and through his present counsel, to challenge the effectiveness of trial counsel and failed to do so, . . . any such challenge [is] procedurally barred, and no remand is required.” Owens, supra at 102 (3).

Moreover, the basis for the “enumeration of error” contending there was ineffective assistance of counsel, which of course does not point to any legal error made by the trial court, is that counsel did not investigate so as to produce two alibi witnesses (unnamed) for defendant. Appellant has failed to make any record in this regard or even assert that this alleged ineffectiveness was unknown to appellant or counsel at the time the direct appeal to this court rather than a motion to the trial court for new trial was filed. There is not even a representation that current counsel investigated and found any substance with respect to alibi or determined why trial counsel did not pursue alibi. This basis for the claim existed long before the notice of appeal was filed. Nor is there any explanation of why this Court is better suited to hear this complaint, rather than the trial court which had jurisdiction until the notice of appeal was filed.

Charges of ineffective assistance are serious, involving the professionalism of trial counsel; they are time-consuming, usually requiring the presence of trial counsel as a witness in a hearing to defend his or her performance; they are generally ineffectual under the standard of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Constitutional ineffectiveness does not exist unless a deficiency in the representation by trial counsel materially affects the outcome of the proceeding. Hammond v. State, 260 Ga. 591, 599 (398 SE2d 168) (1990).

Asserting the charge on appeal for the first time, foregoing the ample opportunity to do so in the trial court and to ask there for a hearing when memories are fresh and the case is still within the breast of the trial court, provides nothing for us to review in a direct appeal. To remand the case, however, permits an elongation of the process and allows a stalling of the final disposition of the case.

Furthermore, appellant does not seek a remand but rather a review and decision of the errors enumerated. Appellant, represented by new counsel, chose not to file a motion for new trial wherein he could make the accusation against trial counsel and the bold assertion now contained in the first enumeration of error; instead of obtaining a ruling on this issue, he chose not to make it an issue but to appeal directly and raise it here.

The recent panel decision in Kennedy v. State, 217 Ga. App. 18 (456 SE2d 288) (1995) illustrates another problem of remand when the claim is not made below despite opportunity therefor. That problem is piecemeal criminal appeals. One enumeration of error is ruled on, and the claim of ineffectiveness (which is not an enumeration of trial court error) is remanded even though it could easily have been raised by motion for new trial. Now there will be a much delayed hearing on the question and, not unlikely, another appeal. This procedure should not be condoned. King v. State, 208 Ga. App. 77, 81 (430 SE2d 640) (1993) (Beasley, P. J., concurring specially).

I am authorized to state that Judge Andrews, Judge Johnson and Judge Ruffin join in this dissent.

Decided July 13, 1995.

Cummins, Booth & Kneidel, Michael H. Booth, for appellant.

Peter J. Skandalakis, District Attorney, Dennis T. Blackmon, Assistant District Attorney, for appellee.


text:
    A95A0561.
    YORK v. WINN-DIXIE ATLANTA, INC. et al.
    (459 SE2d 470)
   Beasley, Chief Judge.

Jimmy York appeals the trial court’s order granting the motion for summary judgment of defendants Winn-Dixie Atlanta, Inc., and Southeast Dix Properties, Inc. York seeks to recover damages for the physical injuries he sustained as a result of the defendants’ alleged negligence.

York was instructed by his employer to make deliveries on a certain route for another driver. He attempted to make a delivery to the Winn-Dixie warehouse, but the fish were rejected because they were not sufficiently packed in ice. At approximately 5:45 p.m., York’s supervisor called the Winn-Dixie warehouse and obtained permission to have the fish redelivered. York was instructed to ice the fish and redeliver it immediately.

Upon their attempt to redeliver the fish, York and his fellow employee were kept waiting at the Winn-Dixie gate for one and one-half to two hours. Thereafter, he was instructed by a warehouse supervisor to unload his delivery at the banana dock. Both York and his fellow employee objected, as the height of the truck bed was seven to ten feet lower than the dock platform. During the earlier delivery attempt, York was sent to the main dock which was the appropriate height for his delivery truck. They complained to the warehouse supervisor about the potential danger of the dock height and the water standing on the corrugated metal dock lip. York deposed that the warehouse supervisor said, “I don’t want to talk to you. . . . Just get the damn fish off the truck and leave.” The warehouse supervisor also informed York that the main warehouse was closed so there was no other place to unload. While unloading, York’s foot slipped, and he fell between the dock and the truck bed, injuring his knee when it struck the metal dock plate. After a few minutes, York and his coworker finished unloading the fish.

On appeal, York contends the court erred on the issue of assumption of the risk. “The general rule is that where one voluntarily and knowingly takes a risk involving imminent danger he is precluded from recovery by reason of another’s negligence. The defense of assumption of risk requires: (1) that the plaintiff had some actual knowledge of the danger; (2) that he understood and appreciated the risk therefrom, and (3) that he voluntarily exposed himself to such risk. Stated another way: The doctrine of the assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury.” (Citations and punctuation omitted; emphasis supplied.) General Tel. Co. of the Southeast v. Hiers, 179 Ga. App. 105, 106 (2) (345 SE2d 652) (1986).

Exposure to the known risk must be voluntary, Rainey v. City of East Point, 173 Ga. App. 893, 895 (328 SE2d 567) (1985), the result of a deliberate choice. Haynes v. Hoffman, 164 Ga. App. 236, 237 (296 SE2d 216) (1982). As noted in the Hiers case, supra at 107 (2), “The Supreme Court [in Osburn v. Pilgrim, 246 Ga. 688, 695 (273 SE2d 118) (1980)] incorporated the meaning ascribed by Prosser [in the 4th edition]: ‘ “In its simplest and primary sense, assumption of risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.” [Cit.]’ ” Prosser and Keeton point out that consent is ordinarily “implied from the conduct of the plaintiff under the circumstances.” Prosser and Keaton on Torts (5th ed.), p. 484; see Harper, James and Gray, The Law of Torts, Vol. 4, Ch. XXI.

This court has explained it similarly: “Assumption of risk . . . assumes that the actor, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.” Whitehead v. Seymour, 120 Ga. App. 25, 28 (169 SE2d 369) (1969); Myers v. Boleman, 151 Ga. App. 506, 509 (3) (260 SE2d 359) (1979).

It cannot be concluded as a matter of law, based on the undisputed evidence of record thus far, that the circumstances presented a practical choice. The question is whether the undisputed circumstances are such that the deliveryman was not so restricted that he was not coerced into unloading the fish and thus can be charged as a matter of law with assumption of the known risk. An employee’s “freedom of choice [can be] restricted by the circumstances under which he works and the coercion of seeking to remain employed.” Kitchens v. Winter Co. Builders, 161 Ga. App. 701, 703 (289 SE2d 807) (1982). One of the circumstances is that York’s alternative was to return to his employer’s premises with the undelivered fish (a perishable product requiring special care and undelayed consumption) after having spent several hours trying to deliver it to the customer, who wanted it. Another circumstance was that by the time Winn-Dixie permitted the deliveryman to unload the fish, he had been working at least nine hours. He had taken the fish back to his employer because it was not sufficiently iced to suit the customer. His employer had called Winn-Dixie and then instructed him to re-ice it and deliver it immediately. He and a co-worker had cut the bands off the boxes, iced it, and put the fifty 50-pound boxes of fish on two pallets back on the truck.

There is evidence of coercion not only by the Winn-Dixie warehouse supervisor but also by his employer’s order to deliver the fish. Coercion which prevents the application of the assumption of risk defense need not come solely from defendant, as it did in Paulding Mem. Med. Center v. Messaadi, 212 Ga. App. 759 (442 SE2d 875) (1994). The deliveryman York was presented with a Hobson’s choice of facing the slippery high platform forced on him by the customer/ defendant or facing his employer with the undelivered fish. We were inclined to agree with the employee in Stodghill v. Fiat-Allis Constr. Machinery, 163 Ga. App. 811, 813 (295 SE2d 183) (1982), “that because [the employee] was acting under orders from his employer, his conduct cannot be characterized as unreasonable as a matter of law.”

Winn-Dixie and Southeast Dix have not shown as a matter of law that the deliveryman York assumed the risk of injury. Giving him the benefit of all reasonable doubts and favorable inferences as the respondent in their effort to obtain summary judgment, the conclusion is inevitable that the evidence is not indisputable, plain and palpable that he voluntarily consented to relieve those who, because they were in control of the premises, owed a duty of care towards him. Kitchens, supra at 702-703 (1). Jury issues remain. Compare Tennison v. Lowndes-Echols Assn. for Retarded Citizens, 209 Ga. App. 343 (433 SE2d 344) (1993).

The judgment of the trial court must be reversed.

Judgment reversed.

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

Blackburn, Judge,

respectfully dissenting.

I respectfully dissent, because this case is distinguishable from Kitchens v. Winter Co. Builders, 161 Ga. App. 701 (289 SE2d 807) (1982), wherein we recognized that an employee’s “freedom of choice [can be] restricted by the circumstances under which he works and the coercion of seeking to remain employed.” Id. at 703. In the present case, York complained to the warehouse supervisor regarding the specific hazard which caused his injury. Yet, despite the hazards, York proceeded to unload the fish. York’s contention that he was coerced by the warehouse supervisor’s order is without merit. The warehouse supervisor was not York’s employer or even an agent of York’s employer. York’s freedom of choice was not so restricted by the circumstances or by the warehouse supervisor’s order that it can be said that he did not voluntarily choose an obviously perilous course of conduct.

Decided July 13, 1995

Furlong & Franco, Walter W. Furlong, Randie H. Siegel, for appellant.

Fain, Major & Wiley, Gene A. Major, Darryl G. Haynes, for appellees.

“Although issues of negligence . . . and assumption of the risk are ordinarily not susceptible to summary adjudication [,] where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion the issue of assumption of risk may be determined on summary judgment. The business invitee on private premises assumes the risk of danger of which he knows and fully comprehends, or which is sufficiently obvious.” (Citations and punctuation omitted.) Tennison v. Lowndes-Echols Assn. for Retarded Citizens, 209 Ga. App. 343, 344 (433 SE2d 344) (1993).

The trial court correctly granted defendants’ motion for summary judgment.

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

       This is not to be confused with avoidance of consequences, a defense which is found in the first sentence of OCGA § 51-11-7 and which is somewhat similar to contributory negligence. See Prosser and Keeton on Torts (5th ed.), pp. 458-461.


text:
    A95A0634.
    CHARLTON v. THE STATE.
    (459 SE2d 455)
   Pope, Presiding Judge.

A jury convicted defendant Keith Charlton of driving under the influence of alcohol to the extent that it was less safe for him to drive. During trial, the trial court suppressed the results of a state-administered breath test on the ground that the arresting officer had failed to advise defendant of his right to have an additional test administered by a qualified person of his own choosing. But the trial court subsequently allowed the State to introduce the breath test results to rebut the testimony of defendant’s expert witness. Contending that this was error, defendant appeals his conviction following the denial of his motion for a new trial. We affirm.

Construed in a light most favorable to the verdict, the evidence demonstrates that at approximately 3:00 p.m. on January 20, 1993, Officer J. G. Fouchia of the Gwinnett County Police Department was monitoring traffic. According to Fouchia, defendant was speeding when he approached and passed Fouchia’s police car. Fouchia turned on his blue lights and began following defendant. During this time he observed defendant throw a plastic cup, which contained ice and a clear liquid, out of the car. Then defendant pulled over. Upon walking up to defendant’s car, Fouchia detected the smell of alcohol. Consequently, Fouchia asked defendant how much he had had to drink. Defendant told Fouchia that he had quite a bit of beer to drink while helping friends move, but that he had stopped drinking around 1:30 p.m. Fouchia conducted a field sobriety test by having defendant breathe into an alco-sensor, which indicated the presence of alcohol on defendant’s breath. Fouchia also noticed that defendant was unsteady, slurred his speech and had glassy eyes. After placing defendant under arrest, Fouchia read defendant the Georgia Implied Consent Warning from a card that the State Patrol had given him. Thereafter, defendant submitted to a breath test on the Intoximeter 3000. The results of the test showed that defendant had an alcohol concentration of .08 grams.

At trial it was determined that the implied consent warning Fouchia read to defendant was inadequate because it did not advise defendant that he had a right to have an additional test administered by a qualified person of his own choosing. See State v. Causey, 215 Ga. App. 85 (449 SE2d 639) (1994). Consequently, the trial court suppressed the intoximeter test results. After doing so, the trial court specifically advised defense counsel that the test results might later be admitted if defendant opened the door in some way.

Defendant took the stand and testified that between 9:30 a.m. and 11:15 a.m. on the date in question, he had helped a friend move some furniture. Defendant stated that during this period he drank four beers. Based on defendant’s testimony, defendant’s expert witness, Dr. Woodford, opined that at the time of his arrest defendant would not have been under the influence of alcohol to the extent that it was less safe for him to drive. Woodford further testified that defendant would only have had a trace of alcohol in his body at the time of his arrest, and that this trace would not have been above the .05 levél.

The trial court allowed the State to introduce the intoximeter test results into evidence to rebut Woodford’s testimony. During this rebuttal, the State called its own expert witness, forensic chemist James Panter. Panter testified that if defendant’s testimony were true, defendant would only have had an alcohol concentration of .01 or .02 at the time of his arrest. Panter further noted that in order for defendant to have registered .08 on the intoximeter, he would have had to consume seven or eight beers on the morning of his arrest, rather than four beers.

Defendant contends that based on our holding in Causey, the trial court erred in allowing the State to introduce the intoximeter results for any purpose. Additionally, defendant contends that the test results did not rebut Woodford’s testimony because the intoximeter measures breath alcohol levels, and Woodford’s testimony concerned blood alcohol levels. We reject both of these contentions.

The “[a]dmission of evidence rests in the trial court’s sound discretion, and evidence should be admitted if it is admissible for any legitimate purpose.” (Citation and punctuation omitted.) Krebsbach v. State, 209 Ga. App. 474 (433 SE2d 649) (1993). Impeachment and rebuttal of a defendant’s testimony, and that of an expert’s opinion based thereon, is a legitimate purpose. The right to impeach a defendant/witness, as set forth in OCGA § 24-9-82, is one of the cornerstones of the adversarial process. Even evidence which violates constitutional standards of due process, such as unlawfully obtained confessions, may be admitted for impeachment purposes. See Harris v. New York, 401 U. S. 222 (91 SC 643, 28 LE2d 1) (1971). In this case, the intoximeter results were admissible as the basis for Panter’s testimony to the effect that defendant was not telling the truth about the amount of beer he had consumed on the date and time in question. Consequently, because Woodford’s expert opinion was based on defendant’s testimony, the trial court did not err in allowing the State to rebut Woodford’s opinion by introducing the breath test results. It also is clear that Panter’s testimony brought into question Wood-ford’s opinion that defendant’s alcohol concentration would not have been over .05 at the time of his arrest. Thus, Panter’s testimony also rebutted any presumption in favor of defendant regarding his sobriety. See OCGA § 40-6-392 (b) (1). The mere fact that Woodford’s testimony related to blood alcohol levels while Panter’s testimony related to breath alcohol is of no significance. Both blood and breath are used to determine “alcohol concentration,” which was the basis for both experts’ opinions. See OCGA § 40-1-1 (1). Therefore, we hold that the trial court did not abuse its discretion in this case.

In light of the above evidence, we also hold that a rational jury could have concluded beyond a reasonable doubt that defendant was guilty of the crime for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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

Decided July 13, 1995.

Spruell & Dubuc, Billy L. Spruell, Melinda D. Taylor, for appellant.

Gerald N. Blaney, Jr., Solicitor, for appellee.