text:
    A97A0047.
    MOHAMMED v. THE STATE.
    (486 SE2d 652)
   McMurray, Presiding Judge.

Defendant Rashad Mohammed, also known as Darius Rhodes, was charged in Indictment Z-68513 with a single count of burglary. He entered a guilty plea on February 9, 1995, but “no adjudication of guilt . . .” was made thereon. Rather, defendant was treated as a first offender on March 9, 1995, and sentenced to three years, to “be served on probation,” plus 40 hours of community service and a $10 probation fee.

On May 2, 1995, defendant’s probation officer submitted her “AFFIDAVIT AND WARRANT FOR ARREST OF PROBATIONER,” alleging that defendant failed to report; failed to complete community service hours; and failed to respond to letters and messages to report. The arrest order entered by the trial court on May 8, 1996, expressly provided that defendant’s sentence was tolled under the provisions of OCGA § 42-8-36 (a). On October 5, 1995, after a hearing, it was determined that defendant had failed to report as directed. But neither defendant’s probation nor his status as a non-adjudicated first offender was revoked for this technical violation. Rather, defendant was continued on probation, “with the added conditions: enter and complete the diversion center program and must remain in jail pending bedspace. One missed report, payment or one positive substance abuse urine specimen will be cause for a warrant to be issued.” Defendant spent from September 9, 1995 through November 5, 1995, in the custody of the Fulton County Sheriff.

On January 12, 1996, defendant was again arrested. In a “stipulated case,” he was found to have “failed the diversion center program. . . .” The trial court concluded that it no longer had the authority to “simply continue [first offenders] on probation and modify [with additional conditions of probation]; that [it had] to resentence in order to modify.” Defendant was accordingly resentenced under Indictment Z-68513 to three years, provided that “upon service of one (1) year . . ., the remainder of two (2) years may be served on probation. . . .” Defendant’s application for discretionary appeal was granted and a timely notice of appeal was filed. Held:

In three related enumerations of error, defendant contends the trial court misinterpreted OCGA § 42-8-60 (b) to mandate resentencing for his failure to complete the diversion center program and erroneously concluded that conditions to a first offender’s probation cannot be changed or added to without first revoking that first offender status and resentencing for probation violations. We hold that OCGA § 42-8-60 (b), in conjunction with OCGA § 42-8-38 (c), authorizes the trial court to add to or modify conditions of first offender probation. The trial court further has a discretion to continue a first offender on probation despite technical violations of the conditions of probation (short of conviction for another crime or a determination of initial ineligibility), without first revoking first offender status, entering an adjudication of guilt, and resentencing for the underlying offense. Accordingly, we vacate the judgment (resentencing order) and remand the case sub judice for reconsideration of the revocation petition in light of this opinion.

“Upon a verdict or plea of guilty or a plea of nolo contendere, but before any adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt. . . [d]efer further proceeding and place the defendant on probation as provided by law; or . . . [sjentence the defendant to a term of confinement as provided by law.” (Emphasis supplied.) OCGA § 42-8-60 (a) (1), (2). Probation is otherwise provided for by law under OCGA § 42-8-20 et seq. Upon a finding that any probationer has violated his probation in a material respect (OCGA § 42-8-38 (a)), “the court may revoke, modify, or continue the probation.” OCGA § 42-8-38 (c). With respect to first offender probationers specifically, the law provides: “Upon violation by the defendant of the terms of probation, upon a conviction for another crime during the period of probation, or upon the court determining that the defendant is or was not eligible for sentencing under this article [(Article 3, Probation of First Offenders)], the court may enter an adjudication of guilt and proceed as otherwise provided by law.” (Emphasis supplied.) OCGA § 42-8-60 (b). When a first offender probationer violates the terms of his probation and an adjudication of guilt is entered under OCGA § 42-8-60 (b), “ ‘the defendant is subject to receive any sentence permitted by law’ including a sentence greater than the period to be served on probation which was originally imposed under the first offender law. State v. Wiley, 233 Ga. 316, 318 (210 SE2d 790) (1974).” Austin v. State, 162 Ga. App. 709, 710 (293 SE2d 10).

The State agrees that the question for decision becomes whether an adjudication of guilt is mandatory upon a violation by the defendant of the terms of probation. We conclude an adjudication of guilt is not mandatory for technical violations of probation.

In construing statutes, the term “ ‘May’ ordinarily denotes permission and not command. However, where the word as used concerns the public interest or affects the rights of third persons, it shall be construed to mean ‘must’ or ‘shall.’ ” OCGA § 1-3-3 (10). See also Birdsong & Sledge v. Brooks, 7 Ga. 88, 89 (1). “ ‘In the construction of statutes, may is held to mean shall in two cases, viz., where the thing to be done “is for the sake of justice, or for the public benefit.” ’ Weems v. Farrell, 33 Ga. 413, 419.” Jennings v. Suggs, 180 Ga. 141 (1), 142 (178 SE 282).

Decided May 8, 1997.

Before Judge Langham.

Alicia C. Head, for appellant.

Lewis R. Slaton, District Attorney, Gina C. Marshall, Kirby Clements, Jr., Assistant District Attorneys, for appellee.

In our view, the Code sections under review give the trial court plenary remedial authority to modify the conditions of probation where the rehabilitative goal of first offender treatment will be furthered consistent with the sake of justice, and the public interest or the rights of third persons have not been prejudiced. Where the proven violation of probation involves defendant’s commission of another crime, the public interest and the rights of third persons each demand the term “may” be interpreted as the mandatory “shall,” requiring revocation of first offender status, entering an adjudication of guilt, and resentencing on the underlying offense. Similarly, where it is established that defendant was ineligible for first offender treatment, the public interest demands that defendant be adjudicated and sentenced as any other felon. See Johns v. State, 223 Ga. App. 553, 554 (2) (479 SE2d 388). OCGA § 42-8-60 (b). But lesser technical violations such as failure to report, or, in this instance, failure to complete a remedial special condition through the diversion center program, do not necessarily affect the public interest or the rights of third persons. With respect to such technical violations of the conditions of probation (not involving a new crime or initial ineligibility), we conclude the term “may” as used in OCGA § 42-8-60 (b) is permissive and not mandatory. Consequently, the trial court in the case sub judice was authorized, in its discretion, to continue defendant on first offender probation while adding successful completion of the diversion center program as a condition of the continued first offender program. When defendant subsequently stipulated to a technical violation of the terms and conditions of probation for failing to complete that diversion center program, an adjudication of guilt and resentencing on the underlying offense was not mandated by OCGA § 42-8-60 (b). Rather, the trial court was authorized to continue defendant on first offender probation, under such additional and special terms and conditions as would, in the court’s judgment, promote rehabilitation for the sake of justice. We vacate the judgment and remand the case sub judice for further proceedings in which the trial court should consider the facts and circumstances of the case sub judice in light of this opinion.

Judgment vacated and case remanded with direction.

Beasley and Smith, JJ., concur.


source: Caselaw Access Project

author: McMURRAY, Presiding Judge.

license: Public Domain

text:
    A97A0995, A97A1335.
    DENNIS v. THE STATE (two cases).
    (486 SE2d 656)
   McMURRAY, Presiding Judge.

A jury convicted Alfred Dennis on two counts of aggravated assault and one count of misdemeanor shoplifting. In a bench trial immediately following the jury verdict, the court, without the intervention of a jury, convicted him of possession of a firearm by a convicted felon. In Case No. A97A1335, Dennis appeals his convictions. He contends the trial court erred in limiting his examination of a police officer and preventing him from commenting on the State’s failure to call that officer as a witness. In Case No. A97A0995, Dennis appeals the trial court’s denial of his appeal bond. Held:

Case No. A97A1335

The evidence at Dennis’ jury trial showed that on December 29, 1995, a Wal-Mart employee saw Dennis remove a rifle scope mount from a closed package, place the mount in his pants, and walk out of the store. After several store employees stopped Dennis and took him to a back room to discuss the apparent shoplifting, he pulled a pistol from his pocket, chambered a round, and pointed the pistol at the employees in a threatening manner. He then fled the store, and again pointed the pistol at another employee who attempted to stop him in the parking lot. Dennis testified and claimed he had purchased the gun mount at Wal-Mart earlier, had returned to the store to exchange it, and had left when he discovered that Wal-Mart did not have what he needed. Although Dennis admitted he carried a pistol into the store, he denied pointing the pistol at anyone and insisted that it remained locked in his shoulder holster during the entire encounter with Wal-Mart employees. After the jury returned its guilty verdicts on the aggravated assault and shoplifting charges, the court conducted a bench trial on the charge of possession of a firearm by a convicted felon. The court heard evidence of Dennis’ felony record and found him guilty on this charge.

1. In his first enumeration, Dennis claims the court erred in granting the State’s motion in limine to prevent him from examining a detective regarding the charges that were originally filed against Dennis. This detective, who was never called as a witness by either party, apparently charged Dennis with “pointing a pistol” rather than the more serious offense of aggravated assault. This enumeration is without merit.

Insofar as Dennis claims he should have been allowed to cross-examine the witness on this issue, we know of no rule which required the State to call this detective as a witness. See Lucear v. State, 221 Ga. 572, 573 (3) (146 SE2d 316) (1965). Dennis did not call the detective as a witness and made no effort to proffer the testimony he claims was erroneously excluded. In fact, Dennis’ attorney admitted at the hearing on the motion for new trial that he had not spoken with the detective and did not know to what facts the detective could testify. Therefore, Dennis cannot show any harm resulting from the trial court’s exclusion of this testimony. Hight v. State, 221 Ga. App. 574, 575 (4), 576 (472 SE2d 113) (1996); Wright v. State, 216 Ga. App. 486 (2) (455 SE2d 88) (1995).

Addressing the merits, Dennis’ own testimony shows the detective was not a witness to the incident, but rather was the officer to whom Dennis surrendered. The trial court ruled as irrelevant the reasons the detective originally charged Dennis with the lesser offense of pointing a pistol. Considering the overwhelming evidence against Dennis, including Dennis’ testimony that he never pointed a pistol at anyone, the trial court’s ruling was not clearly erroneous. See Belt v. State, 225 Ga. App. 813, 815 (3) (485 SE2d 39) (1997) (reasons an officer charged defendant with certain crimes irrelevant).

2. Dennis further argues that his counsel should have been allowed to comment, in closing argument, on the failure of the State to call this same detective as a witness. As Dennis correctly notes, after the trial court entered judgment in this case, the Supreme Court of Georgia held that defense counsel may comment on the State’s failure to present certain witnesses. Morgan v. State, 267 Ga. 203 (476 SE2d 747) (1996). But even under Morgan, the trial court did not commit reversible error by limiting Dennis’ argument because Dennis produced no evidence that the missing witness had “knowledge of material and relevant facts.” Id. at 205 (3), 206.

Although the detective interviewed the victims and showed the witnesses a photographic lineup, no testimony at trial indicated he would have impeached the State’s witnesses had he testified. Dennis claims he could have argued that the detective charged him with the lesser offense of pointing a pistol, which might have led the jury to find him guilty of that crime instead of aggravated assault. But considering that Dennis denied pointing a pistol at anyone, and the trial court properly excluded evidence that the detective charged him with this lesser crime, this argument was not relevant and not supported by evidence at trial. Because no showing was made that this missing witness had information relevant to the facts of this case, the trial court did not abuse its discretion in prohibiting this line of argument. See Lucear v. State, supra at 573-574 (cited with approval in Morgan v. State, supra). See also Kendrick v. State, 224 Ga. App. 72, 74 (6), 75 (479 SE2d 464) (1996).

Decided May 8, 1997.

Before Judge Mallis.

John C. Tyler, for appellant.

J. Tom Morgan, District Attorney, Niria L. Dominguez, Desiree S. Peagler, Assistant District Attorneys, for appellee.

Case No. A97A0995

3. Dennis appeals the court’s denial of his motion for bond pending his appeal. “Because we have decided the main appeal, the appeal from the denial of bond pending post-trial relief is moot. [Cit.]” Fenimore v. State, 218 Ga. App. 735, 739 (463 SE2d 55) (1995).

Judgment affirmed in Case No. A97A1335. Appeal dismissed in Case No. A97A0995.

Beasley and Smith, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A97A1129.
    HOPE v. THE STATE.
    (486 SE2d 658)
   McMurray, Presiding Judge.

Arondel Hope, also known as Rady Williams, appeals pro se the criminal convictions rendered against him by a jury in Clayton County State Court. Based on incidents which occurred at that part of Hartsfield International Airport which lies in Clayton County, the jury convicted him on two counts of criminal trespass (OCGA § 16-7-21 (b) (2)), two counts of misdemeanor obstruction of a law enforcement officer (OCGA § 16-10-24 (a)), and one count of disorderly conduct by use of “fighting words” (OCGA § 16-11-39 (a) (3)). Held:

1. In his first enumeration, Hope claims the State Court of Clayton County had no jurisdiction over these offenses. Because these offenses occurred at the airport, which is owned and operated by the City of Atlanta, Hope contends the Atlanta City Court had sole jurisdiction of the matters. This enumeration is without merit. The Solicitor-General filed these accusations against Hope charging misdemeanor violations of state law. Evidence at trial showed the offenses took place at that part of the airport within Clayton County. The trial court properly took jurisdiction pursuant to OCGA § 15-7-4, which states in relevant part: “Each state court shall have jurisdiction, within the territorial limits of the county or counties for which it was created, and concurrent with the superior courts, over the following matters: (1) the trial of criminal cases below the grade of felony. . . .” Hope’s vague references to the City of Atlanta’s “home rule” powers have no impact on this case. See OCGA § 36-35-6 (a) (6), holding that home rule powers do not affect the jurisdiction of courts.

Decided May 8, 1997.

Before Judge Cowen.

Arondel Hope, pro se.

In conjunction with this enumeration of error, Hope argues that City of Atlanta police officers had no authority to arrest him for these offenses. This Court rejected a similar contention in Hope v. State, 193 Ga. App. 202, 203 (1), 204 (b) (387 SE2d 414) (1989), in which Hope argued Atlanta detectives had no authority to arrest him for criminal trespass at the Atlanta airport. See also State v. Giangregorio, 181 Ga. App. 324, 325 (352 SE2d 193) (1986) (physical precedent only).

2. Hope also contends his trial attorney provided ineffective assistance. To sustain that claim, Hope was required to 1) overcome the strong presumption that his appointed counsel provided reasonably effective assistance and 2) show a “reasonable probability” that the attorney’s errors changed the outcome of the case. Stanley v. State, 222 Ga. App. 750, 751 (476 SE2d 58) (1996).

At his motion for new trial hearing, Hope argued his attorney had failed to procure certain airport lease documents and subpoena certain airport officials; he claimed these documents and witnesses would have shown he had authority to be at the airport. He also claimed the attorney failed to challenge the authority of the officers to arrest him. The appointed attorney testified that he did obtain the requested documents and found nothing in them to support Hope’s defense. The requested witnesses, according to the attorney, would only have damaged Hope’s position. The attorney was not ineffective for failing to present the desired evidence. Contrary to appellant’s arguments, the attorney did not abandon Hope, but rather acted within his authority by making tactical and trial strategy decisions after consulting with his client. See Reddin v. State, 223 Ga. App. 148, 151 (3) (476 SE2d 882) (1996). As we held in Division 1, any challenge to the officers’ authority to arrest would have been fruitless. Therefore, the trial court’s determination that Hope’s trial counsel was reasonably effective was not clearly erroneous. Id.

3. Hope’s final enumeration claims the trial court was “biased” against him. By failing to make any argument or cite any authority in support of this claim, Hope abandoned it. Court of Appeals Rule 27 (c) (2). The remaining arguments raised in Hope’s brief were not enumerated as error and will not be considered. See Strickland v. State, 221 Ga. App. 120, 121 (1) (470 SE2d 508) (1996).

Judgment affirmed.

Beasley and Smith, JJ, concur.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.


author: Beasley, Judge.

text:
    A97A0234.
    RILEY v. TAYLOR ORCHARDS et al.
    (486 SE2d 617)
   Beasley, Judge.

After sustaining an on-the-job injury in February 1995, Riley sought workers’ compensation benefits from Taylor Orchards and Liberty Mutual Insurance Company.

Taylor Orchards, a farming operation, employed Riley as a farm laborer. Although OCGA § 34-9-2 (a) exempts farm laborers and their employers from the Workers’ Compensation Act, OCGA § 34-9-2.3 states that such employers may elect to provide workers’ compensation coverage to farm laborers “by giving written notice to the board in such manner and form as provided by rule of the board.” The questions are whether Taylor Orchards made this election and whether coverage under Taylor Orchards’ workers’ compensation policy with Liberty Mutual was terminated before Riley’s injury.

The ALJ answered these questions in the negative and denied Riley’s claim. With additional findings and conclusions, the appellate division adopted the ALJ’s award. The superior court affirmed. This Court granted Riley’s application for discretionary appeal.

Under OCGA § 34-9-2.3, the employer of farm laborers is deemed an employer for the purposes of the act, and each individual employed as a farm laborer is deemed an employee for the purposes of the act “[u]pon the filing of the notice with the board.” Prior Board Rules 2.3 and 61 (b) (23), in effect in 1995, required farm labor employers electing coverage to file a Form WC-30 with the insurer, if there was an insurer, or with the board if there was not an insurer. Rule 61 (b) (23) stated that coverage would become effective 30 days from filing.

Although Taylor Orchards obtained workers’ compensation insurance coverage effective May 17, 1992, through an assigned risk policy issued by Liberty, there is no evidence that Taylor Orchards ever filed a Form WC-30 with either Liberty Mutual or the board.

An employee of Liberty Mutual testified that a “Workers’ Compensation Renewal Proposal” dated February 10,1994, was mailed to Taylor Orchards stating that the policy then in effect would expire on May 17,1994, and that coverage would terminate on that date unless an $11,512 premium payment on a renewal policy was received before that date. The renewal policy did not take effect because the premium was not paid. As a result, Liberty Mutual notified the National Council on Compensation Insurance (NCCI) and the board that the coverage provided by this policy had been “terminated/can-celled.”

Wainwright, the owner of Taylor Orchards, testified that he thought the workers’ compensation policy remained in effect by reason of his $3,984 check to Liberty Mutual in April 1994, which he understood to be a quarterly payment on the renewal premium. Taylor Orchards’ bookkeeper testified that its practice was to pay half of a premium at the inception of a policy and the other half in two quarterly installments. Consistent with this testimony, Wainwright acknowledged that the $3,984 check was in fact a payment on the existing workers’ compensation policy rather than for the future renewal policy. Wainwright’s insurance agent testified that he thought the policy remained in effect because he had not received a notice of cancellation, and he had previous policies in which such a notice was sent if the premium was not paid.

1. Riley first contends that the denial of his claim was error because there was no evidence establishing that Taylor Orchards did not file a Form WC-30 electing to be covered by the Workers’ Compensation Act. But “ ‘(t)he burden is upon the claimant to establish every fact necessary to uphold an award of compensation, including the jurisdiction of the board.’ [Cits.]” Hopkins v. Martin, 185 Ga. App. 752, 753 (365 SE2d 544) (1988).

Riley was required to prove a positive, that Taylor Orchards had filed a Form WC-30 electing coverage under the act; Taylor Orchards was not required to prove a negative, that it did not file such a form. Although it is undisputed that Taylor Orchards purchased workers’ compensation insurance, the lack of evidence that it filed the required notice left the employer in exempt status with respect to the act and thus not subject to the board’s jurisdiction.

2. Riley also asserts error because of Liberty Mutual’s failure to provide Taylor Orchards with notice that the policy had been can-celled. It is necessary to address this issue, because Liberty Mutual would be liable under the policy if it remained in effect, even though Taylor Orchards had not elected coverage under the act.

The notification procedures which an insurer must follow in effecting a termination, cancellation, or nonrenewal of a policy are governed by statute. OCGA § 33-24-47 applies to workers’ compensation insurers. It does not require notice to the insured when the insurer has offered to renew a policy and coverage has terminated because of nonpayment of the renewal premium. Nonetheless, Riley argues that Liberty Mutual is estopped from claiming termination because its customary practice was to follow a renewal notice with a cancellation notice if the renewal premium was not received on the due date. Cf. State Farm &c. Ins. Co. v. Drury, 222 Ga. App. 196, 198 (1) (474 SE2d 64) (1996) (physical precedent only) and cits. Based on the record, the ALJ was authorized to find that Liberty Mutual’s practice was to send a notice of cancellation when the insured failed to make a premium payment in order to maintain coverage under an existing policy, as in Drury, not when the insured failed to pay in response to a renewal proposal.

Decided April 15, 1997

Reconsideration denied May 9, 1997.

Before Judge Smith.

Edwards & Youmas, LaTonya N. Wiley, for appellant.

Rothschild & Morgan, Teri Y. Callahan, Byrd, Anthony & Davis, Lovick P. Anthony, Jr., for appellees.

Although Wheeler v. Standard Guaranty Ins. Co., 168 Ga. App. 565, 569 (309 SE2d 805) (1983), involved a Code section not applicable to workers’ compensation insurers, the following observation from that case is apt: “[W]here the insurance company manifests its willingness to renew ...[,] it does not cancel the policy, but subsequently, in effect, the insured cancels the policy by his inaction or his failure to accept the insurer’s offer.”

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

       OCGA § 34-9-2.3 then states: “[a]n employer of farm laborers who has filed a notice pursuant to this Code section shall not discontinue the provision of workers’ compensation insurance coverage for individuals employed as farm laborers until the notice filed with the board is revoked in a manner to he specified by rule of the board and written notice is given to each affected employee in a manner to be specified by rule of the board.”

       To reject previously elected coverage, Rules 2.3 and 61 (b) (24) required the employer to file a Form WC-31 with the insurer or the board. Rule 61 (b) (24) stated that cancellation would become effective 30 days from filing.


author: Birdsong, Presiding Judge.

text:
    A97A0208.
    PATTERSON v. JOHNSON et al.
    (486 SE2d 660)
   Birdsong, Presiding Judge.

Following the grant of an interlocutory appeal, John West Patterson appeals the denial of his motion to dismiss the complaint of Karen L. Johnson and Lorenzo L. Johnson because of lack of service of process and laches. He contends the trial court erred by applying a due diligence standard rather than the greatest possible diligence standard when considering whether the Johnsons had perfected service and also abused its discretion in not dismissing the complaint against him.

On March 1,1994, the Johnsons were involved in a motor vehicle collision with a vehicle driven by Patterson but owned by Thomas Dragoone. Patterson’s driver’s license, which he presented to the police officer investigating the collision, showed the same address as Dragoone’s. When the Johnsons filed suit against both Dragoone and Patterson on August 18, 1995, service was attempted on both at Dragoone’s residence with Dragoone’s wife receiving the service.

Patterson answered the complaint on September 18, 1995, and asserted insufficient service of process as a defense. On November 22, 1995, Patterson responded to discovery from the Johnsons seeking the basis for his assertion of that defense by stating that he did not reside at the Dragoone’s house when service was attempted. In the same discovery response he provided his current and correct address.

On March 22, 1996, Patterson moved to dismiss the action, or in the alternative for summary judgment, asserting that the Johnsons’ claim was now barred by the statute of limitation because service was never perfected upon him. Subsequently, on April 13, 1996, 44 days after the statute of limitation expired on March 1, 1996, the Johnsons served Patterson with process.

In response to this motion, the Johnsons contended that they had exercised reasonable diligence in perfecting service upon Patterson because they attempted to serve him at the address he gave the investigating officer at the time of the collision and because they were not able to depose Patterson before the period of limitation expired. After finding that the Johnsons “acted reasonably and diligently in effecting service of process” upon Patterson, the trial court denied the motion to dismiss.

Later, Dragoone was granted summary judgment because the trial court found that the family purpose doctrine was inapplicable. He is not a party to this appeal. Held:

“Where service is made, as here, after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute, but only if the plaintiff shows that he acted in a reasonable and diligent manner in attempting to effectuate proper service as quickly as possible. The plaintiff also has the burden of showing lack of fault. Slater v. Blount, 200 Ga. App. 470, 472 (408 SE2d 433) (1991).” Sykes v. Springer &c., 220 Ga. App. 388, 389 (469 SE2d 472). “If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible. If reasonable and diligent efforts are not made to insure proper service as quickly as possible, plaintiff is guilty of laches, and in such case, service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation.” Bowman v. U S. Life Ins. Co., 167 Ga. App. 673, 676 (307 SE2d 134). Further, as plaintiffs have the responsibility to investigate and learn where the defendant may be located and served (Jarmon v. Murphy, 164 Ga. App. 763, 764 (298 SE2d 510); Cheek v. Norton, 106 Ga. App. 280, 285 (126 SE2d 816)), it is no excuse that Patterson could not be served at the address that was indicated on his driver’s license some 18 months earlier.

Decided May 9, 1997

Before Judge Carlisle.

Sharon W. Ware & Associates, Reynolds E. Pitts, Jr., for appellant.

Erck, Dever & Merlin, Hayes M. Dever, Douglas M. Robinson, for appellees.

More importantly, the receipt of Patterson’s answer asserting defective service “should have put [the Johnsons] on notice and inspired them, through counsel, to exercise the greatest possible diligence to ensure proper and timely service.” Roberts v. Bienert, 183 Ga. App. 751, 752 (360 SE2d 25). Thus, from the time the Johnsons received this information, they were “obligated to exercise, not due diligence, but the greatest possible diligence to ensure proper and timely service.” (Citation and punctuation omitted.) Sykes v. Springer, supra at 390. Accord Devoe v. Callis, 212 Ga. App. 618, 620 (442 SE2d 765).

Although the question whether plaintiffs exercised the greatest possible diligence in perfecting service is generally a matter committed to the discretion of the trial court, under the facts of this case we must conclude that the trial court erred by applying the wrong standard. This defendant was not served until 44 days after the statute of limitation expired, more than ten months after the complaint was filed, and more than four months after plaintiffs were informed of Patterson’s correct address. Under these circumstances, we must find that the trial court erred by not dismissing the complaint. Further, as the Johnsons were guilty of laches, Patterson was not served with process within the period of limitation, and, therefore, he is entitled to summary judgment.

Accordingly, the order of the trial court is reversed and the case remanded to the trial court with direction to enter summary judgment for Patterson.

Judgment reversed with direction.

Ruffin and Eldridge, JJ, concur.


author: Blackburn, Judge.

text:
    A97A0434.
    BOULWARE v. QUIKTRIP CORPORATION.
    (486 SE2d 662)
   Blackburn, Judge.

Trudee L. Boulware appeals the trial court’s grant of Quiktrip Corporation’s motion for summary judgment in her action for psychological damages arising from a robbery at the Quiktrip store where she worked.

On November 26,1992, while Boulware was working alone as an assistant manager at a Quiktrip store, three or four armed robbers entered the store, pointed sawed-off shotguns at Boulware and robbed the store. Boulware contends she has suffered severe emotional injuries after the robbery. Boulware deposed that she received a bruise on her hack during the robbery when the robbers pushed her around. In addition to her claims of negligence, Boulware alleges in her complaint, the following: “After the armed robbery, [she] requested that she be moved to another position which would allow her to work without the fear of being the victim of another armed robbery. This request was denied and [Boulware] then requested that she be allowed to work on days so that she could work with less fear. The only solution offered by [Quiktrip] was for [Boulware] to take a cut in pay to a clerk’s position, which she could not afford to do and support her minor child. Due to [Quiktrip’s] failure to respond to [Boulware’s] emotional trauma due to the armed robbery, [Boulware] was forced to resign.”

Quiktrip contends that Boulware’s action is barred by the exclusivity provision of the Workers’ Compensation Act. See OCGA § 34-9-11 (a). As this is an issue of law we review it de novo. See Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (1) (392 SE2d 535) (1990).

Workers’ compensation is the exclusive remedy for injuries arising out of and in the course of employment. OCGA § 34-9-11. “The words ‘arising out of’ mean that there must be some causal connection between the conditions under which the employee worked and the injury which she received. The causative danger must be incidental to the character of the employment, and not independent of the relation of master and servant. The injuries, however, need not arise from something peculiar to the employment but the injury is compensable if after the event it is apparent to the rational mind that there is a causal connection between the conditions under which the employment was performed and the resulting injury.” (Punctuation omitted.) Macy’s South v. Clark, 215 Ga. App. 661, 662-663 (1) (452 SE2d 530) (1994). Furthermore, “[t]he legislature has expressly codified its intent that the Act be liberally construed to bring both employers and employees within the act. [OCGA § 34-9-23.]” Doss v. Food Lion, 267 Ga. 312 (1) (477 SE2d 577) (1996).

In her complaint, Boulware alleges that she has suffered severe emotional injuries proximately resulting from Quiktrip’s negligence in failing to provide a safe place to work and in failing to allow her to change positions within the company. By her own allegations, Boulware’s injuries arose out of and in the course of her employment. Boulware alleges a causal connection between the work she was required to perform and her injuries. Furthermore, “In McCormick v. Mark Heard Fuel Co., 183 Ga. App. 488 (2) (359 SE2d 171) [(1987)], this Court applied the well-established rule that ‘even if an employer’s wilful failure to furnish a safe workplace for his employees results in an injury to those employees, their only recourse is under the Workers’ Compensation Act.’ There exists no legal basis compelling us to depart from this sage general rule.” Zaytzeff v. Safety-Kleen Corp., 222 Ga. App. 48, 51 (473 SE2d 565) (1996). Therefore, Boulware’s injuries fall within the purview of the Act, and her remedy, if any, lies exclusively under the provision of the Act. See Maxwell v. Hosp. Auth. of Dade, Walker &c., 202 Ga. App. 92, 95 (413 SE2d 205) (1991).

Whether Boulware’s injuries are compensable under the Act is not before us, and the answer to that issue is not dispositive of whether this action falls within the Act’s exclusivity provision. “That an injury is not compensable under the act does not necessarily mean it is not within the purview of the act. ... In exchange for the right to recover scheduled compensation without proof of negligence on the part of the employer in those cases in which a right of recovery is granted, the employee forgoes other rights and remedies which he might otherwise have had, but if he accepts the terms of the Act he as well as the employer is limited to those things for which the Act makes provision.” (Punctuation omitted.) Nat. Data Corp. v. Hooper, 185 Ga. App. 866, 867 (366 SE2d 189) (1988).

Our decision in Oliver v. Wal-Mart Stores, 209 Ga. App. 703 (434 SE2d 500) (1993) is distinguishable from the present case. In Oliver, the employer accused the employee of stealing, and the employee sued for slander and intentional infliction of emotional distress. The employer’s actions therein were intentional torts and they cannot be considered an “accident arising out of and in the course of employment.” OCGA § 34-9-1 (4). Intentional torts are not covered by the Act. See Griggs v. All-Steel Bldgs., 209 Ga. App. 253, 255 (433 SE2d 89) (1993) (action for fraud not covered by the Workers’ Compensation Act).

Boulware argues that Quiktrip is estopped from asserting the exclusivity provision of the Act because it controverted her claim which she filed under the Act. However, as stated above, “although a claim comes within the coverage of the Act, it does not follow that it is always compensable.” (Punctuation omitted.) Zaytzeff, supra at 50. Therefore, Quiktrip was within its rights to controvert Boulware’s claim, and Boulware’s actions in abandoning her workers’ compensation claim and pursuing the present action do not support an estoppel argument.

Decided May 9, 1997.

Before Judge Wyatt Cummings Moore.

McKinney & Salo, Jan McKinney, for appellant.

Sullivan, Hall., Booth & Smith, Roger S. S.umrall, Heather R. Clark, for appellee.

Based on the foregoing, the present case is barred by the exclusivity provision of the Workers’ Compensation Act and summary judgment was appropriate.

Judgment affirmed.

Pope, P. J, and Johnson, J., concur.


author: Judge Harold R. Banke.

text:
    A97A0730.
    LLOYD v. THE STATE.
    (487 SE2d 44)
   Judge Harold R. Banke.

Keith Edward Lloyd was convicted of criminal damage to property, two counts of aggravated assault, kidnapping, and aggravated assault with intent to rape. He received a sentence of life without parole on the kidnapping charge. On appeal, he enumerates five errors.

The evidence, viewed in the light most favorable to the verdict, reveals the following. Sims v. State, 266 Ga. 764, 765 (1) (470 SE2d 886) (1996). This case arose after Lloyd spotted the victim bicycling down a country road near her home. Lloyd stopped his Jeep in front of her, told her she was going to get wet, and asked her if she wanted a ride. She declined and proceeded toward her home. Lloyd then drove the Jeep into the victim, knocking her off the bicycle. He threatened to cut her with a screwdriver and forced her into the Jeep. When the Jeep would not start, Lloyd grabbed the victim by the arm and dragged her and the bicycle down an embankment to a drainage ditch.

Lloyd then ordered the victim to lie down on her back. He straddled her and pulled her top up and her pants down. Lloyd then pulled down his own pants and exposed himself.

At that point, a truck pulled up, its driver called out, and Lloyd went to see who it was. The terrified victim ran up the embankment, hysterically screaming, “He tried to kill me. He tried to rape me.” She ran across the road and toward her home. Finally, she calmed down enough to recognize the couple in the truck that had stopped and let them drive her home. After the victim explained what happened to her husband, he called the police.

When police reached the scene, the Jeep was still there, but Lloyd was not. After contacting the 911 center, the sheriff learned that a person matching Lloyd’s description had been walking on a nearby road. The sheriff found and arrested Lloyd and confiscated a screwdriver from Lloyd’s pocket. Held:

1. We reject Lloyd’s contention that the evidence was insufficient to support the kidnapping charge because the State failed to prove the essential element of asportation. OCGA § 16-5-40; Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The victim’s testimony that Lloyd grabbed her by the arm and dragged her down the embankment to the drainage ditch is sufficient to satisfy the asportation requirement. Lockett v. State, 217 Ga. App. 328, 329 (1) (457 SE2d 579) (1995) (the slightest movement of the victim establishes asportation).

2. The trial court’s denial of Lloyd’s motion for change of venue was not manifestly erroneous. Cheeks v. State, 203 Ga. App. 47, 49 (3) (b) (416 SE2d 336) (1992). The record shows that 14 venire members had read the sole article published about the crime in the local newspaper. The individuals who read the article indicated they could decide the case impartially and put aside what they read. Inasmuch as only one article was published some six months prior to the trial and not one juror was excused for having formed a fixed opinion about the case, we cannot say the evidence demanded a change of venue. Lee v. State, 258 Ga. 82, 86 (9) (365 SE2d 99) (1988). In any event, the record shows that Lloyd failed to exhaust his peremptory strikes, a fact which generally precludes a successful challenge to the denial of a motion for change of venue. McDuffie v. State, 210 Ga. App. 112, 115 (5) (435 SE2d 452) (1993).

3. We reject Lloyd’s contention that similar transaction evidence admitted at trial was not sufficiently similar to the offenses charged. After a hearing, the trial court admitted evidence that Lloyd had pleaded guilty to rape, kidnapping, aggravated assault and possession of a firearm during commission of a felony several years earlier. The record shows that the similar transaction victim, a blond like the instant victim, was jogging on a country road when Lloyd pulled his car over and asked her if she needed a ride. When she refused, he pulled a shotgun from his car, pointed it at her, forced her into the car, and drove to a wooded area where he raped her. The trial court’s finding that this evidence tended to prove the charge pending was not clearly erroneous. Lumsden v. State, 222 Ga. App. 635, 636 (1) (475 SE2d 681) (1996). Notwithstanding Lloyd’s arguments to the contrary, the facts that he used a gun and a knife instead of a screwdriver and was interrupted before he completed the rape do not demand a different result.

Decided May 9, 1997

Before Judge Milam.

Lee Sexton & Associates, Robert L. Ferguson, for appellant.

Roger G. Queen, District Attorney, for appellee.

4. The Supreme Court’s recent decision in Ortiz v. State, 266 Ga. 752, 753-754 (2) (a) (470 SE2d 874) (1996), forecloses Lloyd’s argument that his sentence on the kidnapping charge, life without parole, constituted cruel and unusual punishment.

5. We reject Lloyd’s contention that, as applied, OCGA §§ 17-10-6.1 and 17-10-7 (b) (2), the 1994 sentencing enhancement provisions under which his recidivist sentence on the kidnapping charge was imposed, constitute ex post facto laws. He advances the specious argument that when he committed the 1988 rape and kidnapping, he could not have known that six years later the General Assembly would enact these enhancement statutes, thereby preventing him from conforming his conduct accordingly.

“The rule with respect to the ex post facto clause is that any law enacted after the offense was committed which inflicts greater punishment or alters the situation of the accused is ex post facto.” Logan v. State, 212 Ga. App. 734, 736 (1) (b) (442 SE2d 883) (1994). Because these statutes took effect before Lloyd committed the offenses at issue, the ex post facto clause has no application.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A97A0841.
    THOMAS v. DIAMOND RUG & CARPET MILLS.
    (486 SE2d 664)
   Beasley, Judge.

This discretionary appeal poses the question whether an employee of a self-insured employer, who has not established a drug-free workplace program, may be denied workers’ compensation benefits under OCGA § 34-9-17 (b) (3) based on refusal to submit to a drug test following an on-the-job injury if he has not been given notice of the consequences of such refusal pursuant to OCGA § 34-9-414.

On May 27, 1995, Thomas appeared at work at Diamond Rug & Carpet Mills, a self-insured employer, at 7:00 a.m. At about 9:30, a hyster (forklift) operated by him ran into a wall, causing injuries to his left foot and ankle. Thomas’ supervisor found long skid marks left by the hyster and had never seen an accident of this severity with a hyster. Forty-five to sixty minutes before the accident, a supervisory employee observed Thomas smoking what appeared to be a marijuana pipe.

Thomas was initially treated at a hospital emergency room and then taken to a medical center, where a registered nurse was asked to obtain a urine specimen from Thomas for the purpose of a workers’ compensation drug screen test. The nurse asked Thomas if he would voluntarily take a drug test and Thomas refused. He similarly refused a drug test on three occasions over the week he was hospitalized.

Thomas denied smoking marijuana before the accident. He points out that Diamond’s incident reports do not note any fault on his part but rather state that he had not been adequately trained in the use of a hyster and that he drove it onto a freshly mopped floor without warning signs. Thomas testified that he refused the drug test because he had been given narcotic pain medications in the ambulance on the way to the medical center.

The day before the accident, he took a drug test given by another company and the results were negative. Thomas had tested positive for marijuana in 1992 during a pre-employment physical given by Diamond. He again submitted to a drug screen by Diamond in January 1995; it was negative. He was aware that Diamond required workers to submit to drug testing after a work-related injury and that he could be terminated for refusing. He testified, however, that he had not been told his refusal could result in the denial of workers’ compensation benefits.

OCGA § 34-9-17 (b) states: “No compensation shall be allowed for an injury or death due to intoxication by alcohol or being under the influence of marijuana or a controlled substance, except as may have been lawfully prescribed by a physician for such employee and taken in accordance with such prescription.” Subsection (b) (3) specifies: “If the employee unjustifiably refuses to submit to a reliable, scientific test to be performed in the manner set forth in Code Section 34-9-415 to determine the presence of alcohol, marijuana, or a controlled substance in an employee’s blood, urine, breath, or other bodily substance, then there shall be a rebuttable presumption that the accident and injury or death were caused by the consumption of alcohol or the ingestion of marijuana or a controlled substance.”

OCGA § 34-9-415 is part of Article 11 of OCGA Title 34, which Article is entitled “Drug-Free Workplace Programs.” OCGA § 34-9-410 et seq. If an employer implements such a program substantially in accordance with OCGA § 34-9-413, the employer shall qualify for certification for a five percent premium discount under its workers’ compensation insurance policy. OCGA § 34-9-412. OCGA § 34-9-413 requires a drug-free workplace program to contain various elements, including a written policy statement as provided in OCGA § 34-9-414 and substance abuse testing as provided in OCGA § 34-9-415. OCGA § 34-9-413 (a) (1), (2). OCGA § 34-9-415 (a) requires the testing conducted by the employer to be in conformity with the standards and procedures established in Article 11 and all applicable Board rules adopted pursuant to Article 11.

OCGA § 34-9-414 (a) states that one time only, prior to testing, all employees and job applicants for employment must be given a notice of testing. In addition, it requires that all employees be given a written policy statement from the employer. Among other things, the policy statement shall identify “[t]he actions the employer may take against an employee or job applicant on the basis of a positive confirmed test result.” OCGA § 34-9-414 (a) (1) (B). The policy statement must also advise the employee or job applicant of “[t]he consequences of refusing to submit to a drug test.” OCGA § 34-9-414 (a) (4).

The ALJ rejected Thomas’ argument and concluded that an employer may invoke the defense in OCGA § 34-9-17 (b) without complying with the notice requirements of OCGA § 34-9-414 because the two Code sections are separate and distinct. Although OCGA § 34-9-17 (b) (3), the presumption provision, does incorporate OCGA § 34-9-415 by reference, the ALJ determined that the issue of Diamond’s compliance with the latter Code section was moot because Thomas refused to submit to drug testing. Finding that Thomas unjustifiably refused and that the rebuttable presumption that the work-related accident was caused by the ingestion of marijuana had been corroborated by other evidence, the ALJ denied Thomas’ claim for benefits. The Appellate Division accepted the ALJ’s findings, adopted its conclusions, and made the award of the ALJ its award. Finding some evidence in the record to support the award, the superior court affirmed.

OCGA § 34-9-17 (b) provides an affirmative defense to the employer where the employee’s injury or death was due to the specified causes. Clark v. Williamson, 206 Ga. App. 329, 332 (2) (425 SE2d 311) (1992). If the employee unjustifiably refuses to submit to a drug test performed according to OCGA § 34-9-415, the statutory presumption in OCGA § 34-9-17 (b) (3) shifts the burden to the employee to prove that the accident and injury or death were not so caused. On the other hand, if refusal is justified or the test is not performed in the requisite manner, the employer bears the burden of proving its affirmative defense; no statutory presumption arises.

OCGA § 34-9-17 (b) (3)’s presumption is not applicable in this case. Before an employee’s refusal to submit to a drug test can carry a rebuttable presumption which may bar workers’ compensation benefits, fundamental standards of due process require that the employee be given notice of this consequence so he or she can choose knowledgeably. An additional consideration is the mandate for the equal protection of laws. Employees whose employers are participants in the drug-free workplace program are entitled to such notice. We cannot conclude that employees of others do not have the same right even though OCGA § 34-9-411 (7) exempts self-insured employers from Article 11. Consequently, an employee’s refusal to submit to a drug test following an on-the-job injury is not, as a matter of law, unjustifiable under OCGA § 34-9-17 (b) (3) if the employee has not been given advance notice that refusal will adversely affect entitlement to workers’ compensation benefits in the manner the legislature decreed in that Code section.

Decided May 9, 1997

Before Judge Boyett.

Bennett & Hamilton, Rodney H. Bennett, for appellant.

Drew, Eckl & Farnham, John C. Bruffey, Jr., Sullivan, Hall, Booth & Smith, Steven D. Prelutsky, for appellee.

The judgment is reversed and the case remanded for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

McMurray, P. J., and Smith, J., concur.


text:
    A97A0948.
    ROBINSON v. THE STATE.
    (486 SE2d 667)
   McMurray, Presiding Judge.

A DeKalb County jury convicted Michael Robinson of trafficking in cocaine and possessing cocaine with intent to distribute. On appeal, he enumerates as error the trial court’s denial of his motion to suppress. In that motion, Robinson claimed police illegally stopped his car, searched him and his passenger, and seized cocaine from the pocket of Robinson’s jacket, which the passenger was wearing at the time of the search. The trial court ruled Robinson had no standing to complain of cocaine seized during a search of the passenger. Held:

On review of the denial of a motion to suppress, this Court construes the evidence most favorably to uphold the trial court’s findings and judgment. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). The trial court’s ruling will be affirmed if it is right for any reason. Hunt v. State, 212 Ga. App. 217, 219 (441 SE2d 514) (1994).

The evidence developed at the motion to suppress hearing, as found by the trial court, showed that on December 1, 1994, a confidential and reliable informant contacted the commander of DeKalb County’s drug strike force. The informant had on several occasions provided this officer with information leading to drug seizures and arrests. The informant stated that around 1:00 p.m. that day, a long-haired, light-skinned black man driving a green Toyota automobile would make a drug deal at the Red Lobster on Memorial Drive. The officer and his partner drove to the restaurant at the appointed time in an unmarked car.

As soon as the officers arrived at Red Lobster, a green Toyota, whose passenger was a man matching the description given by the informant, pulled into the restaurant’s parking lot. The long-haired man got out of the car and walked toward the officers, looked at them, then returned to the Toyota. Several minutes later, a Lincoln Towncar pulled into the lot and the driver, later identified as Robinson, exchanged words with the long-haired man. The two cars then pulled to the back of the parking lot. The long-haired man got in the back seat of the Lincoln and, after a conversation with Robinson in the front seat, went back to the Toyota. Both the Toyota and the Lincoln left, going in opposite directions. Based on his experience, the officer believed a drug deal had occurred and radioed uniform patrol officers to stop the Lincoln.

Officers stopped the Lincoln at a fast-food restaurant and ordered Robinson and his passenger out of the car. Although searches of Robinson and the car yielded no contraband, police found a quarter kilogram of cocaine in the pocket of the jacket worn by the passenger, Jones. Jones told officers that the jacket belonged to Robinson and said he put on the jacket only because he was cold and did not know it contained cocaine. Inside the jacket was a wallet containing Robinson’s identification, and Robinson admitted the cocaine was his.

1. We disagree with Robinson’s claim that the police had no authority to stop his vehicle. “At a minimum, the information upon which the officers acted was sufficient to create a reasonable, articulable basis for stopping [Robinson’s car. The officer’s] testimony showed the confidential informant had given reliable information on several occasions, and the officer saw arid heard for himself that the informant could accurately predict [Robinson’s] activities that [day].” D’Angelo v. State, 223 Ga. App. 558 (1), 559 (479 SE2d 384) (1996). Corroborated information given by the reliable informant, along with the officer’s observations, gave the officer a “founded suspicion” that he had just witnessed criminal activity. See Samuel v. State, 198 Ga. App. 558, 559-560 (1) (402 SE2d 325) (1991). The uniformed officers were entitled to rely on that information to make an investigatory stop of Robinson’s Lincoln. See Beck v. State, 216 Ga. App. 532, 534 (1) (455 SE2d 110) (1995). Therefore, to the extent Robinson claims the cocaine seizure resulted from the investigatory stop of his vehicle, we find no error because that stop was supported by articulable suspicion.

2. Finding the investigatory stop proper, we are now faced with the narrow question of whether Robinson has standing to claim a violation of his own constitutional rights in the resulting pat-down of his passenger, Jones, and in the search of the jacket Jones was wearing. Because Fourth Amendment rights are personal, a defendant may move to suppress evidence obtained through an illegal search or seizure only when his or her own rights were violated. Rakas v. Illinois, 439 U. S. 128, 132-133 (99 SC 421, 58 LE2d 387) (1978); Gilbert v. State, 159 Ga. App. 326, 327 (1) (283 SE2d 361) (1981). The unique facts in this case appear to present an issue of first impression.

Robinson claims he has standing to object to the search of the jacket because it belonged to him and he could have demanded the jacket from Jones at any time. But as the United States Supreme Court has held, “[w]hile property ownership is clearly a factor to be considered in determining whether an individual’s Fourth Amendment rights have been violated, [cit.] property rights are neither the beginning nor the end of [the] Court’s inquiry.” United States v. Salvucci, 448 U. S. 83, 91 (100 SC 2547, 65 LE2d 619) (1980). Rather, “the inquiry focuses directly on whether the defendant had a reasonable expectation of privacy in the area searched. Rawlings v. Kentucky, 448 U. S. 98, 104 (100 SC 2556, 65 LE2d 633) (1980).” State v. Scott, 176 Ga. App. 887, 889 (1) (339 SE2d 276) (1985). Whether the accused (1) had the right to possession of the seized item, (2) had the right to exclude others from the area searched, and (3) took normal precautions to maintain the privacy and security of the items seized, are important factors in that analysis. Sims v. State, 251 Ga. 877, 882 (6) (311 SE2d 161) (1984) (citing Rawlings v. Kentucky, supra). The expectation of privacy must also be “legitimate” — one that “society is prepared to recognize as reasonable.” (Citation and punctuation omitted.) Rakas v. Illinois, supra at 142 & n. 12.

Had the jacket been lying on the seat of Robinson’s car, he might well have had standing to complain of a search. See, e.g., Brown v. State, 181 Ga. App. 768, 770 (1) (a), 771 (353 SE2d 572) (1987) (defendant who removed his shirt retained privacy interest in that shirt). In this case, however, the trial court found Robinson had no reasonable expectation of privacy in the jacket because he allowed Jones to wear it and took no precautions to maintain the privacy of its contents. We agree. As in Rawlings v. Kentucky, supra at 105, there is no evidence Robinson expected Jones to keep private the contents of the jacket; rather, the evidence presented showed Jones was wearing the jacket because he was cold and was unaware of its contents. Unlike a suitcase, briefcase, or other closed container, a jacket is not traditionally a repository for items of a private nature. See Sims v. State, supra at 882 (6); compare State v. Browning, 209 Ga. App. 197 (1), 198 (433 SE2d 119) (1993). In allowing Jones to have unlimited control over the jacket and its contents, Robinson relinquished whatever expectation of privacy he may have had in it.

Decided May 9, 1997.

Before Judge Coursey.

Paul J. McCord, for appellant.

J. Tom Morgan, District Attorney, Gregory K. Schwarz, Robert M. Coker, Assistant District Attorneys, for appellee.

Moreover, when Robinson allowed Jones to wear the jacket, Robinson took the risk that police might conduct a pat-down search of Jones if the two were stopped for a traffic violation. See, e.g., Maryland v. Wilson, _ U. S. _ (117 SC 882, 885, 137 LE2d 41) (1997) (officers making a traffic stop may validly require vehicle’s passengers to submit to a pat-down search for weapons). Therefore, any expectation of privacy Robinson may have held in the clothing Jones wore was not legitimate or reasonable. “Unlike a house, a hotel room, an automobile, or a briefcase, one cannot acquire a right to exclude others from access to a third person.” United States v. Brown, 743 F2d 1505, 1507-1508 (11th Cir. 1984) (holding that a defendant may not object to a search of his companion’s pants leg for drugs the two men hid there). The pat-down search was directed toward Jones, not Robinson. The fact that Jones was wearing a jacket belonging to Robinson does not give Robinson standing to complain of the search. See Gilbert v. State, supra (even though defendant may have placed drugs in the waist of his companion’s jeans, he had no standing to complain of a search of her clothing).

Judgment affirmed.

Beasley and Smith, JJ, concur.

       Although Jones was indicted along with Robinson, Jones failed to appear for trial.


text:
    A97A1008.
    THOMAS v. THE STATE.
    (486 SE2d 673)
   Blackburn, Judge.

This is the third appearance of this case before us. In Thomas v. State, 145 Ga. App. 69 (243 SE2d 250) (1978), we affirmed Thomas’ convictions for armed robbery and kidnapping, set aside the death sentence on the kidnapping count, and remanded for resentencing. In Thomas v. State, 150 Ga. App. 341 (258 SE2d 28) (1979), we affirmed the trial court’s resentencing on the kidnapping count to life imprisonment served consecutively to the life sentence received on the armed robbery conviction. In the present appeal, Thomas appeals the trial court’s denial of his motion for modification of sentence.

“A trial court has no jurisdiction to modify a sentence after the term of court ends or 60 days pass. Heard v. Gill, 204 Ga. 261 (49 SE2d 656) (1948); OCGA § 17-10-1. Where a sentence is void, however, the court may resentence the defendant at any time. Mullins v. State, 134 Ga. App. 243 (214 SE2d 1) (1975).” Crumbley v. State, 261 Ga. 610, 611 (409 SE2d 517) (1991). In this case, Thomas contends that his sentence is void due to Georgia’s violations of the Voting Rights Act as found in Brooks v. State Bd. of Elections, 775 FSupp. 1470 (S.D. Ga. 1989). However, the court in Brooks specifically held that the actions taken by the judges whose positions were questioned were valid. Id. at 1482.

Decided May 9, 1997

Before Judge Gaines.

Albert Thomas, pro se.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

Thomas’ argument that the United States Supreme Court’s decision in Ryder v. United States, 515 U. S. _ (115 SC 2031, 132 LE2d 136) (1995) renders his sentence void is without merit. In Ryder, the court determined that decisions made by a three-judge panel of the Coast Guard Court of Military Review were not entitled to de facto validity as two of the judges were civilians appointed by the general counsel of the United States Department of Transportation in violation of the Federal Constitution’s appointment clause. The court’s decision in Ryder is, therefore, inapplicable to the present case.

As Thomas’ sentence is not void on the basis of the arguments presented, his motion for modification of sentence was properly denied by the trial court. See Crumbley, supra.

Judgment affirmed.

Johnson, J, and Senior Appellate Judge Harold R. Banke concur.


author: Eldridge, Judge.

text:
    A97A1291.
    STROEINING v. THE STATE.
    (486 SE2d 670)
   Eldridge, Judge.

Michael Alan Stroeining was indicted for one count of aggravated child molestation, one count of rape, two counts of child molestation, and one count of false imprisonment. A Cherokee County jury found appellant guilty of one count of child molestation in that appellant did “immoral and indecent acts to and in the presence of [the victim], a child under the age of fourteen (14) years, by showing said child a videotape depicting sexual relations between males and females, said acts having been done with the intent to arouse and satisfy the sexual desires of said accused”; appellant was acquitted of the other offenses with which he was charged. We affirm appellant’s conviction.

In the trial of the case sub judice, the then 12-year-old victim testified that in the living room of the trailer in which she lived, her stepfather, appellant, forced her to watch videotapes with “[p]eople having intercourse and oral sex”; upon further questioning by the prosecutor, the victim provided a brief description of the acts on the tapes that constituted sexual intercourse and oral sex. The victim also testified that when she tried to leave the living room, the appellant forced her to sit and watch the films. Other witnesses testified, on behalf of the State and the defense, regarding the presence of sexually explicit videotapes in the appellant’s home. Finally, when initially confronted by the victim’s father with the victim’s allegations against him, appellant’s denial included the statement, “No. I did not touch your daughter. All we did is watched [sic] fuck movies.”

1. In his first enumeration of error, appellant contends that the State failed to prove that the videotapes shown to the victim were “obscene” and thus, “harmful” to minors under the definitions provided in OCGA § 16-12-102 (1). Therefore, appellant argues, simply proving that appellant showed the victim sexual videotapes, tapes that he has a First Amendment right under the Constitution to possess and view, is insufficient as a matter of law to demonstrate that appellant did “an immoral or indecent” act so as to sustain a conviction for child molestation pursuant to OCGA § 16-6-4. We do not agree.

Under OCGA § 16-12-101 et seq., the legislature attempts to protect minors from harmful materials and to deter those whose intent it is to sell, exhibit, or disseminate these harmful materials to minors for profit. OCGA § 16-12-101. The focus is on the materials, themselves, because the “protection of minors from harmful materials [is] in the best interest of the morals and general welfare of the citizens of this state in general and of minors in this state in particular.” OCGA § 16-12-101. Accordingly, deciding what constitutes “harmful” materials becomes all important in balancing the above public policy interests with an adult’s First Amendment right under the United States Constitution and Art. I, Sec. I, Par. V, of the Georgia Constitution to: (1) possess materials that might otherwise be deemed “harmful” to minors; and (2) sell, exhibit or distribute such material for profit. OCGA § 16-12-103; see Hunter v. State, 257 Ga. 571 (361 SE2d 787) (1987). The definitions cited by appellant under OCGA § 16-12-102 (1) determine what materials are “harmful” to minors for purposes of proving a violation of that statute.

On the other hand, our child molestation statute prohibits any “immoral or indecent” act done to or in the presence of a minor with the intent to “arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4. This crime is a joint operation of act and intent. OCGA § 16-2-1. The focus is on the adult’s action toward the child in relation to the motive for the action; whether said action is “immoral or indecent” is a jury question that may be determined in conjunction with the intent that drives the act. McCord v. State, 248 Ga. 765, 766 (285 SE2d 724) (1982); Cornelius v. State, 213 Ga. App. 766 (445 SE2d 800) (1994); Davidson v. State, 183 Ga. App. 557, 558 (3) (359 SE2d 372) (1987). Clearly, there are no constitutional protections afforded one whose actions toward a minor are motivated by the prohibited intent.

Thus, in the case before us, the precise contents of the sexually explicit videotapes and whether the tapes, themselves, would be deemed “obscene” or “harmful” to the victim under the definitions provided in OCGA § 16-12-102 (1) are irrelevant considerations, since our child molestation statute, OCGA § 16-6-4, was not designed to protect the victim from the contents of appellant’s prurient videotapes, but from the actions of appellant.

In the instant case, the jury decided that appellant committed the immoral or indecent act of showing a sexually explicit videotape to his minor stepdaughter with the intent to arouse or satisfy his own sexual desires. We find the evidence to be sufficient to support appellant’s conviction. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. For the reasons outlined in Division 1 herein, the trial court did not err in refusing to charge the jury on the definitions of “obscene” materials pursuant to OCGA § 16-12-102 (1).

3. Appellant next asks us to inquire “[c]an the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective. If the indictment is fatally defective, the sufficiency of the indictment can be questioned by general demurrer or by motion in arrest of judgment.” (Citations and punctuation omitted.) State v. Eubanks, 239 Ga. 483, 485 (238 SE2d 38) (1977). Appellant contends that the trial court erred in denying his motion in arrest of judgment because he could admit that count of the indictment for which he was convicted and not be guilty of a crime; appellant argues that showing sexually explicit videotapes is not an indecent or immoral act since the material is protected under the First Amendment of the Constitution.

Appellant’s argued “admission” is peculiarly selective in that it is centered on his right to possess and view the videotapes, rather than what he did with the tapes as alleged in the indictment. Appellant’s admission to the count of the indictment for which he was convicted would be an acknowledgment that he showed sexually explicit videotapes to a minor with the intent of satisfying his own sexual desires. Accordingly, regardless of appellant’s constitutional right to possess and personally view “x-rated” videos, we conclude that an admission of the act and intent alleged in the indictment would be sufficient to find appellant guilty of the crime of child molestation, and we decline to hold that First Amendment “free speech” concerns extend to protect appellant from prosecution for this type of conduct.

Decided May 9, 1997.

Before Judge Gault.

Conrad & Abernathy, Eric A. Ballinger, for appellant.

Garry T. Moss, District Attorney, Rachelle L. Strausner, Assistant District Attorney, for appellee.

4. Because we have decided the main appeal, the appeal from the denial of bond pending post-trial relief is moot. Rottenberg v. State, 184 Ga. App. 331, 332 (3) (361 SE2d 533) (1987).

Judgment affirmed.

Birdsong, P. J., concurs. Ruffin, J., concurs in judgment only.

       Notably, appellant’s actions illustrate the classic situation of attempting to do by indirection what one is prohibited from doing directly. If one can satisfy the elements of our child molestation statute by performing sexually explicit acts in front of a child in order to satisfy one’s sexual desires, then to show a child a videotape of one’s performance of the same acts, for the same purpose, would also satisfy the statute’s proscriptions. Thus it follows that, under these same circumstances, to utilize a surrogate, i.e., the “x-rated” films of others, would also satisfy the statute.


author: Smith, Judge.

text:
    A97A0080.
    CAROLINA CABLE CONTRACTORS, INC. v. HATTAWAY et al.
    (487 SE2d 53)
   Smith, Judge.

Tracy Hattaway (“appellee”), individually and on behalf of her children, filed this action for damages against Mark Hattaway (her ex-husband) and Carolina Cable after Mark Hattaway (Hattaway) was involved in a one-vehicle accident while driving a truck owned by his employer, Carolina Cable. The Hattaways’ children were traveling with Hattaway and were injured as a result of the collision. We granted Carolina Cable’s application for interlocutory appeal to address the trial court’s conclusion that Carolina Cable was liable under a negligent entrustment theory. We conclude that Carolina Cable was not liable under this theory, and we reverse.

The facts surrounding the accident are not in dispute: It occurred during the early morning hours of August 1, 1993, while Hattaway was driving a truck owned by Carolina Cable. Prior to the wreck, he had been to one or two nightclubs and had drunk two mixed drinks. He also had two or three beers before going to the clubs. After visiting the nightclubs, he went to a Waffle House or Huddle House, where he ate some food and stayed for two or three hours until he felt that he was able to drive. He then picked up his children and was driving home when the wreck occurred.

Hattaway testified that he “dozed off” and hit the edge of the road and then a culvert. The truck rolled over and landed in a yard on the other side of the road. The only evidence concerning the cause of the accident was Hattaway’s testimony that he fell asleep. His blood alcohol content following the wreck was .03 grams. Hattaway testified that on the night of the accident he learned from the investigating officer that his license was suspended. Hattaway testified unequivocally that his bosses at Carolina Cable did not know about the suspension and that before the accident he never had a DUI.

Georgia requires that the entrustor of a vehicle have actual knowledge of the incompetence of the person to whom the vehicle is entrusted in order to be held liable. The latest Supreme Court pronouncement of this doctrine is in Gunn v. Booker, 259 Ga. 343, 347 (3) (381 SE2d 286) (1989), where the court explained, citing several earlier cases, that “[u]nder the doctrine of negligent entrustment, a party is liable if he entrusts someone with an instrumentality, with actual knowledge that the person to whom he has entrusted the instrumentality is incompetent by reason of his age or inexperience, or his physical or mental condition, or his known habit of recklessness.” (Footnote omitted.) See also Clarke v. Cox, 197 Ga. App. 83, 84 (1) (397 SE2d 598) (1990); Wallace v. ARA Sues., 185 Ga. App. 639 (365 SE2d 461) (1988); Collins v. Everidge, 161 Ga. App. 708, 710 (2) (289 SE2d 804) (1982).

On motion for summary judgment, Carolina Cable proffered an affidavit from one of its owners, Wendell McConnell, stating that Hattaway produced a valid driver’s license when he was hired; that prior to the accident, he had no personal knowledge that Hattaway was an incompetent or reckless driver or had any problem that might affect his driving ability; that neither he nor Carolina Cable “had knowledge that Mark Hattaway might operate a company vehicle under the influence of alcohol either on company time or personal time”; and that neither he nor Carolina Cable knew that Hattaway “might have had a problem with his driver’s license” prior to the accident. This specific denial of any knowledge that Hattaway was incompetent to drive negated appellee’s pleadings, requiring her to set forth specific facts showing a genuine fact issue. See Barnes v. Johnson, 194 Ga. App. 568, 569-570 (1) (390 SE2d 921) (1990).

Appellee attempts on appeal, as she did below, to show the existence of fact issues concerning Carolina Cable’s knowledge of Hattaway’s incompetence by referring to evidence that Carolina Cable permitted Hattaway and other employees to drive company trucks on personal business. But whether Hattaway and other employees used the trucks with Carolina Cable’s permission for activities unrelated to work is irrelevant. Even assuming permission was given, the issue is whether Carolina Cable entrusted the truck to Hattaway with actual knowledge of his incompetence or habit of recklessness. See, e.g., Collins, supra.

Appellee further argues that Carolina Cable’s alleged knowledge that other employees drank prior to driving or operated company vehicles despite having poor driving records demonstrates, at least circumstantially, that it had actual knowledge of Hattaway’s alleged incompetence. This argument, too, is unconvincing; it seeks to impose a constructive knowledge requirement on vehicle owners. It is not sufficient, however, for a plaintiff to show constructive knowledge, i.e., that the entrustor should have known the person being entrusted was not competent. The distinction between actual and constructive knowledge is explained in Roebuck v. Payne, 109 Ga. App. 525, 526 (2) (136 SE2d 399) (1964). The entrustor is not liable “merely because [he or she], by the exercise of reasonable care and diligence, could have ascertained the fact of the incompetency of the driver.” Id. Thus, OCGA § 23-1-17 does not apply.

The negligent entrustment doctrine was recently applied by this Court in Greene v. Jenkins, 224 Ga. App. 640, 641 (1) (481 SE2d 617) (1997). The doctrine, with the limitation of actual knowledge, is one of long standing in Georgia. See Graham v. Cleveland, 58 Ga. App. 810, 815 (2) (200 SE 184) (1938); NuGrape Bottling Co. v. Knott, 47 Ga. App. 539 (171 SE 151) (1933). The conclusion urged by appellee would be contrary to the well-settled law that actual knowledge of the alleged negligent driver’s incompetence or recklessness is required.

The actual knowledge requirement is narrower than that offered by the Restatement 2d of Torts, § 308 (1965), which describes the common law doctrine of negligent entrustment as follows: “It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.” Embraced in this definition is the concept of constructive knowledge, which is absent as such from the Georgia law on negligent entrustment. Colorado appears to be a state where constructive knowledge is sufficient. See Casebolt v. Cowan, 829 P2d 352, 357-359, 369-373 (Colo. 1992); Hasegawa v. Day, 684 P2d 936, 939 (Colo. App. 1983). California law is likewise. See, e.g., Dodge Center v. Sup. Ct., 199 Cal. App. 3d 332, 341 (244 Cal. Rptr. 789, 794) (1988).

This is not to say that circumstantial evidence cannot be used to prove actual knowledge. Roebuck v. Payne, supra at 527 (3). As stated in Saunders v. Vikers, 116 Ga. App. 733, 736 (7) (158 SE2d 324) (1967), there must be evidence of “actual knowledge of a pattern of [incompetence] or facts from which such knowledge could be reasonably inferred in order to preserve the issue for jury determination.” Otherwise summary judgment is warranted, as it is here, because there is no question of fact or credibility to be decided by a jury, viewing all the evidence in the non-movants’ favor. The Court, in Ed Sherwood Chevrolet v. McAuley, 164 Ga. App. 798, 799 (1) (298 SE2d 565) (1982), recognized that a plaintiff must generally rely on circumstantial evidence to prove actual knowledge in this type of case. That acknowledgment was repeated in Clarke v. Cox, supra at 83 (1), where there was “ample circumstantial evidence” that defendant knew of the entrusted driver’s drinking problem but none that he had actual knowledge of driving under the influence.

Comparing the evidence in those cases to the evidence produced by appellee, even Hattaway’s testimony that his employer knew he drank on the premises and had beer cans in the vehicle, does not create a reasonable inference that the owner knew he drove while impaired by alcohol. The trial court pointed also to evidence that the employer had been notified by a local convenience store and gas station that some employees bought beer when they fueled the company trucks and that the employer did nothing to stop this practice. But all of this evidence does no more than support a finding of constructive, not actual, knowledge that Hattaway drove the company vehicle while under the influence of intoxicants.

Because appellee failed to meet her burden as respondent on motion for summary judgment of pointing to facts showing actual knowledge by Carolina Cable of incompetence or habitual recklessness, the trial court erred in denying summary judgment to Carolina Cable.

Judgment reversed. Beasley, J., concurs.

McMurray, P. J., concurs in the judgment only.

Decided May 12, 1997.

Before Judge Bailey.

Blasingame, Burch, Garrard & Ashley, Andrew J. Hill III, John B. Parker, for appellant.

James D. Crowe, for appellees.

       The complaint alleged liability against Carolina Cable on theories of respondeat superior and negligent entrustment. The trial court granted summary judgment to Carolina Cable on the respondeat superior claim, concluding that Hattaway was on a personal mission when the accident occurred.

       Throughout our analysis, we have employed the assumption that the alcohol in Hattaway’s system was a proximate cause of the collision. If it was not, then of course the negligent entrustment theory fails at the outset.


text:
    A97A0568.
    COCHRAN et al. v. LOWE’S HOME CENTER, INC. et al.
    (487 SE2d 50)
   Birdsong, Presiding Judge.

Plaintiff/appellant Carrie Jan Cochran was in a Lowe’s Home Center store when a load of boxed ceiling fans fell on top of her, without warning. The fans had been stacked warehouse-style on top of shelves on the aisle where Cochran was shopping. According to Cochran, she was “pummelled” by 300 to 400 pounds of ceiling fans when a forklift operator pushed over the unstable stack while working on the adjacent aisle. Cochran’s injuries were severe. According to Cochran, the evidence shows there had been warnings from employees that such stacks were too high and were unstable, and there had been staff meetings at Lowe’s concerning the over-stacking of boxes which were easily toppled and how high such stacks should be to prevent them from falling, but no action was taken and no policy was established as to how high such boxes should be stacked. Lowe’s had no policy concerning use of forklifts when customers were present, or if there was a policy, it was not enforced. A certified safety engineer affied that Lowe’s disregarded basic safety principles and stacked boxes in a manner in violation of National Standards of Material Handling, and that the area where Cochran was shopping was highly dangerous and a “deadly situation” for anyone walking there. And, this was not the first incident where customers were injured from falling merchandise at Lowe’s southeastern stores. Under a limited discovery order, plaintiff uncovered thirteen incidents in which customers were injured from falling merchandise in Lowe’s stores in four states in the year and a half before Cochran was injured. In fact, four other customers were injured at this Macon, Georgia store in the eighteen months preceding Cochran’s injuries. Two of these injuries occurred the same month as Cochran’s injuries; one customer was struck in the head by a box that fell off a shelf, and another was struck by a box that fell when an employee was “up-stocking.”

The trial court granted summary judgment to Lowe’s on plaintiffs’ claim for punitive damages. On appeal, Cochran contends the trial court erred because Lowe’s knowledge of the dangerous conditions and of previous injuries to customers, combined with its failure to prevent similar occurrences, created an issue for the jury as to whether such conduct amounts to wilful or wanton misconduct or that entire want of care that raises the presumption of conscious indifference to the consequences under OCGA § 51-12-5.1. Secondly, Cochran contends that Lowe’s own safety policies regarding the use of spotters and interlocking support for unwrapped stacks of merchandise created a question for the jury as to whether such violations warrant an inference of conscious indifference to the consequences. Held:

The trial court erred in granting summary judgment to the defendant in the circumstances of this case.

On motion for summary judgment, the evidence is construed in favor of the respondent, in this case, Cochran, and she is entitled to the benefit of every dispute in the evidence and every reasonable inference of fact which arises from the evidence. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). The proprietor of premises has a statutory duty to inspect its premises and keep the premises in a safe condition for invitees. OCGA § 51-3-1. The 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. Howell v. Three Rivers Security, 216 Ga. App. 890, 891 (456 SE2d 278). See generally Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327).

To support an award of punitive damages in a premises liability case, there must be such “clear and convincing evidence” that the defendant showed such wilful misconduct, wantonness, or that entire want of care which would raise the presumption of conscious indifference to consequences, under OCGA § 51-12-5.1. Bonard v. Lowe’s Home Centers, 224 Ga. App. 85, 86 (1) (479 SE2d 784); Bradford v. Xerox Corp., 216 Ga. App. 83 (453 SE2d 98). Mere negligence will not support an award of punitive damages; something more than the mere commission of a tort is always required for the imposition of punitive damages. Troutman v. B. C. B. Co., 209 Ga. App. 166, 167 (433 SE2d 73).

Lowe’s contends the thirteen reported incidents of stacked merchandise falling on its customers and the two reported incidents where customers were injured by falling boxes during the same month and in that same store where Cochran was injured “have no relation to each other and do not evidence a specific safety issue.”

In essence, Lowe’s contends there is no showing of “substantial similarity” between these other, prior incidents so as to make those incidents relevant. This is the rule in products liability cases. See Uniroyal Goodrich Tire Co. v. Ford, 218 Ga. App. 248, 258 (461 SE2d 877), rev’d on other grounds, Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226, 230 (476 SE2d 565). In products liability cases, the issue is more clearly delineated such that a court may decide whether a defect in a product bears “substantial similarity” to a defect in a product involved in the suit. The question whether one defect in a product is substantially similar to another is a narrow one and susceptible to judgment by the court as in Uniroyal Goodrich, supra.

The matter is slightly more complicated in the case of accidents caused by a hazardous condition since the causes of accidents are subject to many factors other than a particular defect in a particular product. Nevertheless, summary judgments may still be made. See Denmon v. Rich’s, Inc., 103 Ga. App. 818 (120 SE2d 659); see also Sparks v. Pine Forest Enterprises, 174 Ga. App. 598, 600 (331 SE2d 34) (physical precedent); Greene v. Piedmont Janitorial Svcs., 220 Ga. App. 743, 744 (1) (470 SE2d 270), where we held that the plaintiff’s evidence that slips-and-falls had occurred in other bathrooms maintained by the defendant was “inadequate to establish the cause of any falls by other persons in other rest rooms maintained by [the defendant]. It is sheer speculation to say that evidence of these unrelated and indefinite circumstances is proof of the same negligently excessive use of cleaning products as [plaintiff contends].”

The alleged injuries in this case are not generalized “falls” which involve “sheer speculation” and “unrelated and indefinite circumstances.” Greene, supra. They are specifically caused by boxes falling from shelves which were stacked too high and were therefore unstable and likely to fall. Plaintiff Cochran alleges and shows by these other incidents a particular hazard created by an habitual practice of stacking merchandise in a manner which the proprietor knew to be dangerous and knew to have caused injuries to customers in a particular manner, and for a particular reason that may render these incidents substantially similar. The evidence, construed in favor of respondent Cochran on Lowe’s motion for summary judgment, shows that Lowe’s had specific warning that boxes containing heavy merchandise were being stacked too high on shelves above customers; that such high stacks were unstable and had, in several recent cases, actually toppled over on customers; and this precise danger had been brought to Lowe’s attention and had been discussed at safety meetings, but nothing had been done to prevent the injury which occurred to the plaintiff. It cannot be said, therefore, that there is no genuine issue of material fact and that Lowe’s is entitled to judgment as a matter of law on the question whether it exhibited that entire want of care which raises a presumption of a conscious indifference to consequences. OCGA § 51-12-5.1. This is a matter for the jury in this particular case.

Judgment reversed.

Eldridge, J., and Senior Appellate Judge Harold R. Banke concur.

Decided May 12, 1997

Before Judge Etheridge.

Westmoreland, Patterson & Moseley, Thomas H. Hinson II, for appellants.

Goldner, Sommers, Scrudder & Bass, Henry E. Scrudder, Jr., William W. Horlock, Jr., for appellees.