text:
    A95A2071.
    RENTZ v. BROWN et al.
    (464 SE2d 617)
   Birdsong, Presiding Judge.

Lonnie S. Rentz appeals the judgment, based upon a jury verdict, in favor of Roy S. and Sheila J. Brown. The sole enumeration of error alleges that the trial judge erred by denying Rentz’s motion for judgment notwithstanding the verdict.

This is the second appearance of this case before this Court. In Brown v. Rentz, 212 Ga. App. 275 (441 SE2d 876), we affirmed the grant of summary judgment to Rentz’s wife, but reversed the grant of summary judgment to Lonnie Rentz because an officer of a corporation who takes part in the commission of a tort by the corporation is personally liable for the tort. Id. at 276. Upon remand, the Browns’ case went to trial against Lonnie Rentz and Rentz Builders, Inc. Ultimately, the jury returned a defense verdict for Rentz Builders, Inc., but found for the Browns in the amount of $25,000 against Lonnie Rentz.

At the close of the Browns’ evidence and again at the close of all the evidence, Rentz moved for a directed verdict on the grounds that there was no evidence that Rentz had participated in any tort by the corporation and further there was no evidence of the standard of care necessary to establish the tort of negligent construction. Held:

“The motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a ‘one-way’ verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.” (Citation and punctuation omitted.) Denson v. City of Atlanta, 202 Ga. App. 325, 326 (414 SE2d 312).

Here, the record shows that the case against Rentz and Rentz Builders, Inc., was submitted to the jury on the issues of fraud and negligence, and, according to the verdict, the jury found against Rentz for $25,000 only on the basis of negligent construction. Thus, the first question we must address is whether the evidence supported the findings of the jury.

“In an action against a builder, it is essential to present competent evidence as to the acceptability of specific professional conduct.” (Citation and punctuation omitted.) Hudgins v. Bacon, 171 Ga. App. 856, 860 (321 SE2d 359). Our law requires building contractors to exercise that degree of care and skill as is ordinarily employed by other contractors under similar conditions and like circumstances. Howell v. Ayers, 129 Ga. App. 899, 900 (202 SE2d 189). Further, the standard of care must be established through expert testimony. Newberry v. D. R. Horton, Inc., 215 Ga. App. 858, 859 (452 SE2d 560). As the transcript shows no evidence was presented establishing the standard of construction which Rentz was alleged to have violated in 1986 when the house was constructed, the verdict against him cannot stand. The only evidence presented on this issue concerned what the witnesses would have done if they had constructed the house or what recommended practice might have been, but no evidence was presented establishing the applicable standard of care in the industry. See Coursey Bldg. Assoc. v. Baker, 165 Ga. App. 521 (301 SE2d 688). Mere custom or practice, standing alone, is not sufficient. There must be evidence of a universal custom or practice. See MARTA v. Allen, 188 Ga. App. 902, 908 (374 SE2d 761). Moreover, no testimony was present on this issue from a witness the trial court found qualified as an expert. Therefore, the Browns did not establish this necessary element of their case, and the trial court erred by denying Rentz’s motion for a directed verdict as well as his motion for judgment n.o.v. Newberry v. D. R. Horton, Inc., supra. Accordingly, the judgment of the trial court must be reversed with direction to enter judgment for Rentz.

Decided November 8, 1995

Reconsideration denied November 29, 1995.

Chestnut & Livingston, Tom Pye, for appellant.

Garner & Still, Dennis T. Still, for appellees.

In view of our disposition of this issue, we need not address Rentz’s other contentions.

Judgment reversed with direction.

Johnson and Smith, JJ., concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A94A2571.
    OBONG et al. v. EKEREKE et al.
    (464 SE2d 660)
    Decided November 29, 1995.

      J. L. Jordan, for appellants.

      Deborah L. Green, for appellees.
   Blackburn, Judge.

In Ekereke v. Obong, 265 Ga. 728 (462 SE2d 372), the Supreme Court reversed the judgment of this Court in Obong v. Ekereke, 216 Ga. App. 59 (453 SE2d 84) (1995). Therefore, our judgment in this appeal is vacated, and the judgment of the Supreme Court is made the judgment of this Court. Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


author: Johnson, Judge.

text:
    A95A1070.
    KEITH et al. v. BEARD et al.
    (464 SE2d 633)
   Johnson, Judge.

On February 22, 1991, John Keith was riding a motorcycle when Alex Aguirre allegedly pulled out from an unpermitted commercial driveway into Keith’s path, and the two collided. John Keith and Donna Keith filed this action for damages for injuries resulting from the collision, naming Aguirre, Sherry Shover, the owner of the vehicle driven by Aguirre, the Georgia Department of Transportation (DOT), and James H. Beard III, individually and as general partner of B-K Properties, the owner of the commercial driveway (hereinafter referred to collectively as “Beard”) as party defendants. The Keiths settled their claims against the DOT.

In their complaint, the Keiths alleged the commercial driveway from Beard’s property onto State Route 14 violated DOT regulations and was constructed without obtaining proper permits, in violation of state law. They further claimed the driveway had insufficient sight distance and created a situation of poor visibility for traffic attempting to exit safely onto State Route 14. In his deposition, Keith testified he was riding his motorcycle approximately 40 feet behind the car ahead of him as he traveled along State Route 14 approaching the driveway in question. The Keiths also offered evidence of at least 21 other accidents occurring within 100 feet of the site of the accident between December 12, 1984, and January 17, 1990. The Keiths contended that prior to Keith’s accident in February 1991, Beard had actual knowledge of the danger created by the driveway because Beard had been sued for injuries sustained in an earlier accident at the same location. In his deposition of September 27, 1993, Beard admitted he had known about the alleged danger of the driveway from approximately April 11, 1990, when he was served with the earlier lawsuit. Beard conceded that he was reluctant to close the driveway because he believed the access to State Route 14 was important to his tenant, and he felt the elimination of the driveway would diminish the value of his property. The trial court granted Beard’s motion for summary judgment, and this appeal follows.

1. In their first enumeration of error, the Keiths contend that summary judgment was granted in error because genuine issues of material fact remain as to Beard’s liability. The Keiths allege that Beard’s actions in maintaining and improving the commercial driveway constitute negligence per se, as well as ordinary negligence, and therefore, summary judgment was improper. Although Beard has admitted he failed to obtain a commercial driveway permit as required by OCGA § 32-6-131, he contends the failure to obtain the proper permit constituted neither negligence per se nor negligence and was not the proximate cause of the accident on February 22, 1991. Additionally, Beard insists that Keith’s injuries were caused by Keith’s inattentiveness or disregard for his own safety, Keith’s failure to brake, and the other driver’s negligence. Because we find there are material issues of fact remaining to be resolved, we reverse.

OCGA § 32-6-131 provides: “It shall be unlawful for any person to construct a new commercial driveway or to reconstruct, alter, or improve any existing commercial driveway without first obtaining a permit from the department therefor and complying with the department regulations authorized by Code Section 32-6-133. A violation of this Code section, in addition to being unlawful, shall entitle the department to barricade, displace, or otherwise close such driveway and to collect the costs therefor from the violator as provided by Code Section 32-6-134.” Id.

In determining whether the violation of a statute is negligence per se, it is necessary to examine the purpose of the statute and decide (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm the statute was intended to guard against. Rabinovitz v. Accent Rent-A-Car, 213 Ga. App. 786 (446 SE2d 244) (1994).

In 1973, the General Assembly enacted the commercial driveway permit section as part of the Georgia Code of Transportation. Ga. L. 1973, p. 947. The law’s stated purpose is to “provide for the administration, financing, construction, maintenance, and operation of an adequate and integrated system of public roads and other modes of transportation in Georgia so that the safety, convenience and interests of the various modes of public transportation and the public will be promoted and served.” (Emphasis supplied.) Ga. L. 1973, p. 947. OCGA § 32-6-131 was enacted to effectuate this purpose. Thus, the General Assembly, by requiring permits for commercial access to state roads, intended to promote public safety by mandating DOT oversight as to whether, among other things, every new or changed commercial driveway is, in fact, safe to the public.

A DOT civil engineer measured the sight distance of Beard’s driveway and determined it was 493 feet, well short of the American Association of State Highway and Transportation Officials’ minimum required distance of 620 feet. The engineer testified he would not grant a permit to Beard as the driveway currently existed because he deemed the driveway to be hazardous and unsafe to the public. He further testified he did not know how long the road had been a state road and how long the speed limit had been 45 mph at that location, two factors which could affect the number of accidents. He also stated that although he had heard of other accidents at the same driveway, the DOT did not keep a log of telephone complaints or records on non-fatal accidents.

Keith clearly falls within the category of persons being protected by OCGA § 32-6-131, and it is clear as well that the harm complained of is the harm the statute is intended to guard against. Summary judgment is appropriate when the court, after viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991). Construing the facts most favorably toward the Keiths as respondents, a jury could determine that Beard violated OCGA § 32-6-131, and that construction or maintenance of the subject driveway in violation of that code requirement would be negligence per se.

Negligence per se does not mean liability per se. The Keiths would bear the burden of demonstrating that Beard’s failure to obtain a driveway permit was a contributing cause of the accident at issue here. Even if the Keiths can prove by virtue of expert testimony that the unpermitted driveway was unsafe, they still must prove causation of the accident. “To prevail on a negligence per se claim, a causal relation between the violation of the statutory duty and the injuries sustained thereby must be shown. [Cit.] ” (Emphasis supplied.) Walter v. Orkin Exterminating Co., 192 Ga. App. 621, 624 (3) (385 SE2d 725) (1989).

Moreover, we are not holding that all unpermitted driveways are per se unsafe or that every unpermitted driveway is inevitably unsafe. In this case, there is evidence that a permit would not have been issued because the location of this driveway would violate certain safety standards and be unsafe. Under the particular facts herein, we believe a jury should make the determination as to whether this particular driveway was unsafe and whether there was a causal relationship between the violation of the permit requirement and Keith’s injuries. Liability under these circumstances is a jury question.

2. The Keiths, in the alternative, suggest that a jury could decide Beard negligently created a hazardous condition and failed to ensure sufficient sight distance for motorists attempting to exit safely from Beard’s premises or that Beard maintained a dangerous condition adjacent to a highway such that a jury might find Beard’s conduct constituted ordinary negligence.

Here, we have a claim against a landowner whose land is immediately adjacent to a public way. Such a landowner may not, without incurring a duty, maintain an artificial condition so situated that persons lawfully using the public highway may, by accident or some force not their own fault, be injured by the artificial condition. We have not found a Georgia case which has applied the artificial condition theory to a driveway, but we believe that, in certain circumstances, it is not unreasonable to do so. It is particularly appropriate here, where Beard was aware of a previous accident at the driveway, was thus placed on notice of the sight distance problem, and yet took no action to alter it or warn of the dangerous condition. See Intl. Paper Realty Co. v. Bethune, 256 Ga. 54 (344 SE2d 228) (1986); Williams v. Scruggs Co., 213 Ga. App. 470, 471 (1) (445 SE2d 287) (1994). Whether Beard’s maintaining a commercial driveway so situated constitutes a danger subjecting users of the public highway to risk of injury as an artificial condition is a question for the jury.

Beard contends that regardless of any negligence on his part, Aguirre’s negligence in pulling out in front of Keith was an intervening act of negligence and the sole proximate cause of the accident. A jury could find, however, that Beard and Aguirre were joint tortfeasors, each responsible for different acts of negligence. We reject Beard’s argument that the intervening negligence of Aguirre necessarily breaks the causal chain, thus eliminating any act or omission of Beard as the proximate cause of Keith’s injuries. Where separate and distinct but concurrent acts or omissions of negligence of different parties are the proximate cause of one’s injuries, compensation for the entire loss may be recovered from either or both of the responsible parties. Allison v. Patel, 211 Ga. App. 376, 379 (438 SE2d 920) (1993). As we have previously noted, proximate cause is generally an issue for the jury, and there may be'more than one proximate cause of an injury. Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 158 (1) (B) (256 SE2d 916) (1979).

Beard’s argument based on questions of superior or equal knowledge involves premises liability theory, and the two cases he cites in support of his argument are both premises liability cases. The obvious question is whether this principle peculiar to premises liability law even applies since the accident occurred off Beard’s property and there was no proprietor/invitee or licensee relationship between Beard and Keith. We hold this principle does not apply to this fact situation.

Even if this principle from premises liability law did apply, the facts do not support Beard’s argument. Beard relies on O’Steen v. Rheem Mfg. Co., 194 Ga. App. 240, 242 (1) (390 SE2d 248) (1990) where the intersection at issue did not involve a public road and no breach of a landowner’s duty was alleged. Nor did the case involve statutory regulations of public roads. In O’Steen, we recognized that a knowledgeable plaintiff cannot recover damages if by ordinary care he could have avoided the consequences of the defendant’s negligence. “The superior/equal knowledge rule presumes the plaintiff, knowing of the danger, could have avoided the consequences of defendant’s negligence with the exercise of ordinary care.” (Citations and punctuation omitted.) Id. at 242.

In O’Steen, the defendant presented evidence that O’Steen had passed through the intersection in question more than 5,000 times and accordingly should have had equal knowledge of the purported hazard at the intersection. Id. at 240. The evidence showed that although O’Steen’s view at the intersection was totally obstructed by a parked tractor-trailer, she did not stop and proceeded without checking for traffic. Importantly, the exact nature of the danger was both known to O’Steen and recognized by her.

In this case, Keith testified he had no time to react to the danger because the accident occurred nearly immediately as he crested the hill near the unpermitted driveway, and Keith also testified he had no prior knowledge of any other accident at this location. Although the accident site was on Keith’s normal route to work, he testified he had never seen a vehicle pull out suddenly from that location and he had never experienced any near-accidents at that location. If the jury determines that Keith had equal knowledge or should have had equal knowledge of the danger and that through the use of ordinary care Keith could have avoided the danger at the intersection, then Keith’s recovery would be barred. Accordingly, a factual dispute remains regarding whether Keith had equal knowledge of the hazardous condition.

Beard relies on another premises liability case Hadaway v. Cooner Enterprises, 172 Ga. App. 113 (321 SE2d 830) (1984) to argue that the driveway was a static condition. However, Hadaway is also factually distinguishable. In Hadaway, the danger of tripping over uneven pavement was readily apparent. Whereas, here, the danger of the driveway was not apparent because of the limited sight distance due to the location of the driveway. The static condition at issue in Hadaway was an expansion crack in a sidewalk that was visible upon inspection and in plain view to pedestrians. Id. at 114. In fact, Hadaway admitted she could have seen the depression in the concrete if she had merely looked down. Id. Here, the access driveway was not in plain view, and there is evidence in the record that it could not be seen as vehicles crested the hill approaching it. Furthermore, even if the driveway is a static condition, the existence of cars using the driveway is subject to constant change. For these reasons, we find Beard’s reliance on Hadaway is misplaced, even assuming arguendo that premises liability analysis is appropriate.

Beard argues that because Keith regularly drove the route and was familiar with the location of the driveway, he should have anticipated the possibility of danger and should have reduced his speed or exercised extreme caution when he crested the hill approaching the driveway. Questions of whether Keith was contributorily negligent in failing to brake or in failing to keep a proper lookout for danger or whether Aguirre was negligent in pulling out onto State Route 14 in front of Keith are likewise issues for jury determination. We have consistently held questions of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one’s protection ordinarily are to be decided by a jury and a court should not decide them except in plain and indisputable cases. Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 295 (322 SE2d 737) (1984). Therefore, whether and to what extent Keith’s actions contributed to the accident is an issue for the jury.

Decided November 29, 1995.

Kirby & Roberts, L. Jack Kirby, for appellants.

Freeman & Hawkins, Warner S. Fox, Sharon L. Ware & Associ ates, Kathryn A. Thurman, for appellees.

3. Finally, we reach the Keiths’ claims for punitive damages. In support of their claim for punitive damages, the Keiths submitted evidence that despite receiving notice from an earlier lawsuit regarding the alleged dangerousness of the driveway, Beard took no action until after Keith’s accident and then acted only when the DOT threatened to barricade the driveway and bill Beard for the costs. The Keiths also presented evidence that from 1984 to 1990, more than 20 other accidents occurred at or near the intersection at issue, with no corrective action by Beard in response. However, the record does not indicate whether Beard had notice of the more than 20 other accidents which occurred at or near the subject intersection.

Whether a defendant’s actions are wilful, wanton, or evince an entire want of care as to authorize punitive damages by clear and convincing evidence under OCGA § 51-12-5.1 (b) is normally an issue for consideration by a jury. Hudgins & Co. v. J & M Tank Lines, 215 Ga. App. 308, 310 (450 SE2d 221) (1994); Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826, 828 (435 SE2d 54) (1993). However, in this case, the record contains insufficient evidence to justify sending the punitive damage issue to a jury. For this reason, we affirm the grant of summary judgment to Beard as to the Keiths’ claim to punitive damages.

4. In light of our holdings in Divisions 1 and 2, we need not reach the remaining enumeration of error.

Judgment affirmed in part and reversed in part.

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

       See also Restatement of the Law Second, Torts, § 368. See Harper, James & Gray, The Law of Torts (2d ed.), § 27.4 Conditions of the premises: Conditions near highway: cases cited show duty of occupier of land to prevent artificial conditions on his land from being unreasonably dangerous to highway travelers; and § 28.10 for rule that if an abutting landowner creates a condition unreasonably dangerous to highway travel, his liability to the traveler is not diminished by his tenant’s intervening negligent failure to remedy the condition.


text:
    A95A1347.
    COLLINS v. AMERICAN TELEPHONE & TELEGRAPH COMPANY et al.
    (464 SE2d 642)
   Johnson, Judge.

The issue presented in this case is whether former OCGA § 48-7-31 (d) (3) permitted a corporation engaged in a unitary service-related business with other corporations to file tax returns utilizing a unitary method of apportioning income. We find that the Code section as it existed at the time did authorize the taxpayers to employ that method of apportionment and affirm the judgment of the trial court.

In 1984, 1985 and 1986, each of the taxpayers involved in this case (American Telephone & Telegraph Company, AT&T Communications of the Southern States, AT&T Communications, AT&T Credit Corporation, AT&T Intelliserve, AT&T Resource Management Corporation, AT&T Southeast, and AT&T Teletype) filed separate state income tax returns. Each return determined the taxpayer’s taxable income by taking the combined net income of the taxpayer and the other affiliated companies and apportioning that total income based on the ratio of the particular taxpayer’s property, payroll and gross receipts in Georgia to the property, payroll and gross receipts everywhere for the affiliates. The state revenue department audited the taxpayers’ state income tax returns for those years, determined each taxpayer’s tax liability based only on the particular taxpayer’s income and deductions, and then apportioned income using the three-factor formula set out in OCGA § 48-7-31 (d) (2). The taxpayers appealed the determination of their tax liabilities, which protests were denied by the revenue department. Thereafter, the taxpayers appealed to the superior court where, after a bench trial, the court held that the taxpayers were required by OCGA § 48-7-31 (d) (3) to equitably apportion their income and that, because that Code section does not specify which method of apportionment must be used by taxpayers, they were free to choose their own method of apportionment, including the unitary method of apportionment they had selected. The Commissioner appeals.

1. The Commissioner argues that it properly computed the taxpayers’ liabilities for the years in question on a separate company basis because each company’s tax return must reflect that corporation’s income, the equitable apportionment provision of OCGA § 48-7-31 (d) (3) does not contemplate combined returns, corporations should not be allowed an unrestricted right to choose whatever method of apportionment is to their advantage, and the trial court’s interpretation of OCGA § 48-7-31 (d) (3) creates an unreasonable and perhaps unconstitutional distinction between (d) (3) companies and all other corporate taxpayers.

During the years at issue, OCGA § 48-7-31 (d) (3) provided: “[W]here the net business income is derived principally from business other than the manufacture, production, or sale of tangible personal property . . . the net business income of the corporation shall be equitably apportioned within and outside this state in the ratio that the business within this state bears to the total business of the corporation.” (Emphasis supplied.) This Code section does not specify what type of apportionment formula must be used. The preceding subsections, on the other hand, which apply to corporations engaged in the business of holding or selling intangible property, or those engaged in manufacturing, producing or selling tangible property, specify that those corporations are to apportion income using a one-factor or a three-factor formula. OCGA § 48-7-31 (d) (1) and (2).

In construing statutes, we are required to follow the literal meaning of the statute unless it produces an absurdity, contradiction or such an inconvenience as to ensure that the legislature meant something else. Telecom*USA v. Collins, 260 Ga. 362, 363 (1) (393 SE2d 235) (1990). “[W]hen a taxing statute has doubtful meaning, it must be construed liberally in favor of the taxpayer and against the State.” Id. at 364; Thompson v. Eastern Air Lines, 200 Ga. 216, 224 (39 SE2d 225) (1946).

The parties agree that the taxpayers in this case were engaged in the unitary business of providing services and were therefore required to equitably apportion their income pursuant to OCGA § 48-7-31 (d) (3). The parties also agree that that Code section did not specify any particular method of apportioning income. The question is whether the taxpayers had to use the method of equitable apportionment selected by the Commissioner or whether they could use another method. The unitary method employed by the taxpayers in this case is one such method of apportionment. Using this method of apportionment, the state tax base is calculated by defining the scope of the unitary business of which the local business forms one part, and apportioning the income of that unitary business between this state and the rest of the world, taking into account objective measures of the corporation’s activities in and outside of the state; the constitutionality of the unitary business apportionment method has been upheld and its wide acceptance recognized by the United States Supreme Court. Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159, 165 (103 SC 2933, 77 LE2d 545) (1983). The taxpayers in this case chose to use the unitary method of apportionment, as they believed it fairly and equitably apportioned their income to Georgia based on their business activities here. The Commissioner did not contend that the method was inequitable or unreasonable, just that the taxpayers should have used the three-factor method of apportionment set forth in OCGA § 48-7-31 (d) (2). Contrary to the Commissioner’s argument, we hold that the taxpayers were not required to utilize that formula set forth in OCGA § 48-7-31 (d) (2).

In Henry C. Beck Co. v. Blackmon, 131 Ga. App. 634, 639 (2) (206 SE2d 842) (1974), we held that because the statute gave corporations the right to use alternative methods of determining their Georgia-derived income, the Commissioner had no power, when no request was made, to decide whether another formula would more accurately reflect a taxpayer’s tax liability. Nor did the Commissioner have the power to recalculate the taxpayer’s income utilizing a different method merely because the taxpayer failed to seek his permission before using its selected method. Id. at 639. The Georgia Supreme Court affirmed the decision, adding that the Commissioner could treat businesses subject to the mandatory provisions of the equitable apportionment statute as separate businesses. Blackmon v. Henry C. Beck Co., 233 Ga. 412, 413 (211 SE2d 711) (1975). We are not persuaded by the Commissioner’s argument that Henry C. Beck Co. is not controlling.

We agree with the trial court that the taxpayers’ use of the unitary apportionment method was consistent with the plain meaning of the statutory language and this Court’s holding in Henry C. Beck Co. We add that taxpayers were not unrestricted in their methods of apportionment inasmuch as (d) (3) allowed the Commissioner to determine if the method of apportionment selected fairly and equitably apportioned income to this state. We agree with the trial court’s statement that if the legislature had intended taxpayers use a specific method of apportionment, it would have provided for such in the statute. In outlining specific methods of apportionment in subsections (d) (1) and (d) (2), while providing in (d) (3) only a general directive to equitably apportion income, the legislature manifested an intent not to require a specific method of apportionment for (d) (3) corporations. In any event, whether the trial court’s interpretation of the statute discriminates against corporations engaged in other types of business is not a question which is before this Court and therefore is not ripe for review.

2. The Commissioner argues that the taxpayers filed a combined return without the Commissioner’s consent. As discussed in Division 1, former OCGA § 48-7-31 (d) (3) allowed taxpayers discretion in selecting a method of apportionment. Moreover, the Code sections upon which the Commissioner relies as prohibiting combined returns do not purport to apply to unitary businesses filing separate returns and equitably apportioning income as prescribed by Chapter 7 of the Code.

Decided November 29, 1995

Michael J. Bowers, Attorney General, Daniel M. Formby, Warren R. Calvert, Senior Assistant Attorneys General, for appellant.

Troutman Sanders, David F. Golden, William N. Withrow, Jr., Norman L. Underwood, for appellees.

3. We agree with the Commissioner’s contention that neither the proposed regulation interpreting former OCGA § 48-7-31 (d) (3) nor the absence of administrative rules interpreting the Code section is necessary to a resolution of the issues in this case. See Divisions 1 and 2. Inasmuch as the Commissioner alleges no error by the trial court in this regard, there is nothing presented for review.

4. The Commissioner contends that the taxpayers’ arguments concern policy matters which should be addressed to the legislature rather than to the courts. As we have noted, the legislature is completely free to act in this area and is the primary source of policy as well as law on such tax matters. Indeed, in 1995, the legislature did amend OCGA § 48-7-31 (d) (3) so as to specify a particular method of apportionment for (d) (3) corporations. That the legislature deemed it necessary to so amend the statute is evidence that it recognized the fact that the statute as it was left the method of apportionment open. Moreover, if the legislature intended the amendment to apply retroactively, it could have so provided in the statute. In any event, this issue is rendered moot by our holdings in Divisions 1 and 2.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


author: Andrews, Judge. Blackburn, Judge,

text:
    A95A1398, A95A1399.
    PYA/MONARCH, INC. et al. v. HIGLEY et al. (two cases).
    (464 SE2d 630)
   Andrews, Judge.

In this interlocutory appeal, defendants PYA/Monarch, Inc. (“Monarch”), a food shipping business, and H. E. Hennigh, Inc. (“Hennigh”), an independent construction contractor, challenge the denial of their separate motions for summary judgment.

The underlying cause of action arose after a large, galvanized fence post being installed on Monarch’s property fell on plaintiff Edward Higley’s head while he was making a delivery to Monarch. It is undisputed that Monarch contracted with defendant Hennigh to make certain improvements to its property. The contract stated that Hennigh shall be “solely responsible for and have control over construction means, methods, techniques, sequences and procedures” and “take reasonable precautions for safety of, and . . . provide reasonable protection to prevent damage, injury or loss to: . . . employees on the Work [sic] and other persons who may be affected thereby.” Hennigh hired defendant Martin Robbins Fencing Company (“Martin”) to install the fence at issue. Martin then hired defendant Lee Goza to install some of the fencing. Goza dropped the fence post while he was installing fencing in the customer pickup area of Monarch’s truck terminal near the parking area, which was still in use during the construction.

In their complaint, Higley and his spouse (hereinafter referred to collectively as Higley) alleged that Monarch and Hennigh were liable for the negligence of the independent contractor. Alternatively, he alleged that Monarch and Hennigh negligently supervised the fencing work. Higley further claimed that Monarch and Hennigh were negligent per se for failing to exercise ordinary care to keep the premises safe.

Monarch moved for summary judgment, arguing that it was not liable for the torts of an independent contractor because it had delegated full possession and control of the area to Hennigh, the independent contractor. Hennigh’s motion for summary judgment asserted that it was not responsible for the collateral torts of Martin, an independent contractor. The trial court summarily denied both motions.

1. Monarch renews its argument on appeal, contending that the trial court erred in denying its motion for summary judgment because it surrendered its control of the premises to Hennigh.

To prevail on summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the non-movant, warrant summary judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Defendants who will not bear the burden of proof at trial may prevail on summary judgment by pointing out by reference to the record that there is no evidence sufficient to create a genuine jury issue on at least one essential element of plaintiff’s case. Id.

Landowners who surrender a portion of their premises to independent contractors are relieved of their duties with regard to that portion of the premises they no longer control. Little v. Liberty Savings Bank, 191 Ga. App. 732 (382 SE2d 734) (1989); OCGA § 51-2-4. However, even assuming, arguendo, that Monarch retained control of the portion of the premises where Higley was injured, summary judgment was appropriate.

To recover, Higley had to present evidence that: (1) Monarch had actual or constructive knowledge of the hazard, and (2) he lacked knowledge of, or Monarch prevented him from discovering, the hazard. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 809 (406 SE2d 234) (1991). Evidence that Higley could have acquired knowledge of the hazard by exercising ordinary care for his own safety would bar his recovery. Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (422 SE2d 305) (1992); Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994).

The basis for Monarch’s liability is its superior knowledge of the hazard. Shansab, 205 Ga. App. at 450. Consequently, evidence that Higley knew of the condition and thus had equal knowledge of the hazard precludes Monarch’s liability and demands summary judgment. Froman v. George L. Smith &c. Auth., 197 Ga. App. 338, 339 (398 SE2d 413) (1990). The fence construction was a patently open and obvious condition which could have been discovered through the exercise of ordinary care. Sullivan v. Quisc, Inc., 207 Ga. App. 114, 115 (427 SE2d 86) (1993). Under traditional precepts of premises liability, Higley had equal knowledge of the construction. Shansab, 205 Ga. App. at 451. By proceeding armed with this knowledge, Higley assumed the risks and dangers incident to the known condition. Rose v. Kennesaw House, 203 Ga. App. 648, 649 (417 SE2d 379) (1992). Therefore, summary judgment was improperly denied as to Monarch.

2. Hennigh argues that it was entitled to summary judgment because Martin was an independent contractor.

Generally, employers are not responsible for torts committed by independent contractors. OCGA § 51-2-4. Workers who operate independent businesses and are not subject to the immediate direction and control of those who hired them are independent contractors. Id.; Peachtree-Cain Co. v. McBee, 254 Ga. 91 (1) (327 SE2d 188) (1985). However, such employers face liability for negligence from independent contractors’ wrongful acts when the acts violate “a duty imposed by express contract upon the employer.” OCGA § 51-2-5 (3). Hennigh maintains that this language does not apply to the duties imposed by its contract with Monarch. We agree.

In interpreting subsection (3), we have held that “unless the parties stand in the relation of master and servant, the employer is not responsible for the damages occasioned by the negligent mode in which work is done.” (Citations and punctuation omitted.) Fields v. B & B Pipeline Co., 147 Ga. App. 875, 876 (250 SE2d 582) (1978). This finding appears to derive from a privity requirement — the contractual duties under which the employer would be liable for the acts of the independent contractor cannot be enforced by one not a party to the contract. Id.; see Crispens Enterprise v. Halstead, 209 Ga. App. 133, 134 (2) (433 SE2d 353) (1993) (“ ‘[W]here a person contracts to do a certain thing, he cannot evade liability by employing another to do that which he has agreed to perform.’ [Cit.]”). Because Higley was not a party to the contract under which he seeks to hold Hennigh liable, subsection (3) does not apply. Furthermore, the absence of evidence that Hennigh expressly assumed the responsibility for its independent contractor’s conduct also supports summary judgment. Toys ‘R’ Us v. Atlanta Economic Dev. Corp., 195 Ga. App. 195, 197 (393 SE2d 44) (1990). Because no genuine issues of material fact remained to be tried on the claims against Monarch and Hennigh, the trial court erred in denying their motions for summary judgment.

Decided November 29, 1995.

Drew, Eckl & Farnham, Arthur H. Glaser, Douglas T. Lay, for appellants.

Tobin & Hoffspiegel, Lloyd W. Hoffspiegel, McLaughlin, MacDougald, Hendon & Miller, Daniel MacDougald III, Mozley, Finlayson & Loggins, William D. Harrison, for appellees.

Judgments reversed.

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

Blackburn, Judge,

concurring specially.

Although I believe issues of fact remain regarding whether Monarch had surrendered complete control of the premises to Hennigh, I specially concur in the judgment reached by the majority as the only evidence in the record indicates that the plaintiff was not exercising ordinary care for his own safety. I also cannot agree with the majority’s conclusions in Division 2, but again because the plaintiff’s lack of care for his own safety precludes his recovery, I specially concur in the majority’s judgment.

Lee Madison Goza deposed that as he let one end of a fence post fall to the ground (the other end of the post was already on the ground), the plaintiff “all of a sudden . . . came out beside me and I guess he was going so fast that he couldn’t stop. . . . Instead of just trying [to] catch the post or something, he tried to get under the post. He hunkered down like this . . . , and got under the post and then it hit him on top of the head.” My review of the record revealed no evidence contradicting this testimony. Under these circumstances, the defendants’ motions for summary judgment should have been granted.

       We reject Higley’s argument that Hennigh is liable for the independent contractor’s negligence as the contractually delegated owner and occupier of the property on the grounds stated in Division 1.


author: McMurray, Presiding Judge.

text:
    A95A1504.
    EVA PENDLEY REALTY, INC. v. BAGLEY et al.
    (464 SE2d 850)
   McMurray, Presiding Judge.

Troy Preston Bagley and Evelyn Bagley brought an action against defendants Eva Pendley Realty, Inc. (“Pendley”), David Bagley and Karl Kandell, seeking (in pertinent part) to set aside a lien on certain real property filed by Pendley under Georgia’s Commercial Real Estate Broker Lien Act, OCGA § 44-14-600 et seq. Defendants denied the material allegations of the complaint, and Pendley counterclaimed, alleging the Bagleys breached an agreement to pay its sales agent, David Bagley, a commission for procuring a buyer for their real property. The Bagleys later filed a motion for partial summary judgment, asserting Pendley is not entitled to a lien under OCGA § 44-14-600 et seq. because “said Code Section [requires] a writing signed by the owner evidencing a listing agreement or an agreement to convey an interest in real estate [and they] never entered a written agreement of any type with Defendants.”

This appeal followed an order granting the Bagleys’ motion for partial summary judgment and setting aside Pendley’s lien. Held:

According to OCGA § 44-14-602 (a), two conditions must be satisfied before “[a]ny real estate broker who is not an employee or independent contractor of another real estate broker shall have a lien, in the amount of the compensation agreed upon by and between the broker and the landlord or seller or other client or customer, upon commercial real estate or any interest in commercial real estate.” The first condition is set out in subsection (a) (1) of the statute and provides that the listing broker’s rights must “[arise] out of a listing agreement or any other agreement for the management, sale, or lease of or otherwise conveying any interest in the commercial real estate as evidenced by a writing signed by the owner or its expressly authorized agent and with written notice to the party whose property may be liened, if different from the parties to the agreement.” (Emphasis supplied.) OCGA § 44-14-602 (a) (1).

In the case sub judice, it is undisputed that Pendley does not have a written listing agreement with the Bagleys as required by OCGA § 44-14-602 (a) (1). Nonetheless, defendants contend that an advertising brochure entitled, “PROPERTY INFORMATION,” which bears the Bagleys’ signatures and includes the language — “I want 15,000 net to me per [acre] base 83 aprox” — constitutes a written listing agreement as required by subsection (a) (1). We do not agree as this brochure does not provide Pendley with the right to procure a buyer and receive a commission for the sale of the Bagleys’ realty. Consequently, the trial court did not err in granting the Bagleys’ motion for partial summary judgment and setting aside Pendley’s lien.

Decided November 29, 1995

Gibson, Deal, Fletcher & Prebula, John W. Gibson, for appellant.

Stewart, Melvin & Frost, Frank Armstrong III, for appellees.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Ruffin, Judge.

text:
    A95A1564.
    KINSEY v. THE STATE.
    (464 SE2d 648)
   Ruffin, Judge.

A jury convicted Bernard Kinsey of armed robbery. The court sentenced Kinsey to life, and he appeals following the denial of his motion for new trial. We affirm.

Viewed in a light supporting the verdict, the evidence shows that one evening, Kinsey entered a convenience store, purchased a box of chicken from the store’s cook, sat at a table, ate the chicken, and left. Approximately 15 to 20 minutes later, Kinsey returned to the store. He walked to a beer cooler where he pulled a gun from his pants, removed a bottle of beer from the cooler, and placed the beer next to the cash register. When the cashier told Kinsey the price of the beer and while the cook was watching, he showed her the barrel of the gun which he had hidden in his shirt. Kinsey told the cashier not to move or he would shoot her and instructed her to put all the money into a brown paper bag. The cashier followed his instructions, and after taking the money, Kinsey backed out of the store. According to the cashier and the cook, the robbery took between five and ten minutes. The cashier immediately called the police, describing the robber as a black male of medium height with short hair, wearing a blue work shirt, blue jeans, and no shoes. The cashier looked at approximately 100 photographs in attempting to identify the robber. Although she put one photograph aside, she told the officers she was not certain it was the robber.

Approximately ten days later, while the cook was working, Kinsey came into the store again. When Kinsey saw the cook, he quickly left the store, and the cook called the police. The cook told police Kinsey was wearing blue shorts with trim around the bottom and no shoes. Kinsey was found shortly thereafter, barefoot and wearing shorts that fit the cook’s description.

A police officer later showed the cashier and the cook six photographs, all of black males with short hair of approximately the same age and physical makeup. While both the cashier and the cook identified Kinsey’s photograph as that of the robber, each was present when the other made the identification. The next day, the cook viewed a lineup of six black males with similar physical characteristics and identified Kinsey as the robber. The cashier did not participate in the lineup identification. At trial, both the cashier and the cook identified Kinsey as the robber.

We note initially, that Kinsey, who is represented by counsel on appeal, has violated this Court’s rules in preparing his brief. First, Kinsey’s counsel has violated Court of Appeals Rule 23 (a) which requires that in conformity with Rule 1 (b), all briefs are to be double spaced, with a type size no smaller than standard pica or elite or ten point courier font. Second, and potentially fatal to his appeal, Kinsey’s entire brief contains only a single reference to the transcript. Court of Appeals Rule 27 (c) (3) (i) is quite clear in its requirement that “[e]ach enumerated error shall be supported in the brief by specific reference to the record or transcript.” Generally, “[i]n the absence of such reference, [we] will not search for or consider such enumeration.” It is not the function of appellate judges to engage in the insipid search for support of alleged error without citation to relevant parts of the record. While in most cases appellant’s failure to cite to the record results in abandonment of his argument, there are cases in which this court chooses not to penalize an appellant for the glaring omissions of his counsel. In such cases, counsel should be subjected to contempt for failure to follow the rules of this court. Because error alone carries no connotation of harm, we must examine the factual underpinnings to ascertain whether there is harm. An error cannot be vitalized with verbiage but only with harm as demonstrated by the. record, hence the necessity for record citation by Kinsey’s counsel. It should go without saying that all counsel practicing in this court are expected to know and to follow the rules of this court. We turn now to the merits of Kinsey’s appeal.

1. In his first enumeration of error, Kinsey contends the trial court erred in admitting the in-court identifications of the cashier and the cook. Kinsey contends that because their pre-trial identifications of him were unduly suggestive, their in-court identifications were inadmissible. We disagree.

Although Kinsey argues that several factors contributed to an unduly suggestive identification process, virtually all those factors are either unsupported by the record, or when viewed in a light most favorable to the verdict, as they must be on appeal, do not support Kinsey’s argument. The fact that the two witnesses viewed the photo array in each other’s presence is the only factor suggesting a flawed identification process. However, “ ‘[a]dmission of testimony regarding a pre-trial identification is error only if the identification procedure was impermissibly suggestive and it appears that, under the totality of the circumstances, the suggestiveness of the procedure gave rise to a substantial likelihood of misidentification. (Cits.)’ [Cit.]” (Emphasis in original.) Traylor v. State, 217 Ga. App. 648 (1) (458 SE2d 682) (1995).

Decided November 29, 1995.

Thomas J. O’Donnell, for appellant.

Richard A. Malone, District Attorney, Anne L. Durden, William S. Askew, Assistant District Attorneys, for appellee.

In this case, there is no indication that either witness relied on the other’s identification of Kinsey. Moreover, considering that both witnesses closely observed Kinsey for five to ten minutes during the robbery and that both unequivocally identified him as the robber approximately ten days after the robbery, there was not a substantial likelihood of misidentification. Accordingly, the trial court did not err by admitting the identification evidence. The better practice, however, is to avoid having witnesses jointly identify a photographic array.

2. Kinsey next contends that because he was indicted for armed robbery under OCGA § 16-8-41 (b), which contains its own recidivist provisions, the trial court erred in sentencing him as a recidivist under OCGA § 17-10-7 (a). Kinsey argues that since he was not indicted as a recidivist under OCGA § 17-10-7 (a), he cannot be sentenced under that statute. We disagree.

The State was not required to indict Kinsey as a recidivist. The State was required to provide only “ ‘affirmative notice to [Kinsey] that his prior felony offenses would be used against him for recidivist purposes during sentencing.’ [Cits.]” (Emphasis omitted.) Ross v. State, 210 Ga. App. 455, 458 (4) (436 SE2d 496) (1993). Because the record shows the State provided such notice, we find no error.

3. The evidence was sufficient to authorize the jury to convict Kinsey of armed robbery under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Edwards v. State, 214 Ga. App. 383 (1) (448 SE2d 51) (1994).

Judgment affirmed.

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


text:
    A95A1707.
    McCRARY v. BRUNO’S, INC.
    (464 SE2d 645)
   McMurray, Presiding Judge.

Plaintiff Mable McCrary brought this tort action against defendant Bruno’s, Inc. d/b/a Piggly Wiggly No. 759, seeking to recover for injuries she sustained when she “came upon and fell on a dangerous condition” on the premises of defendant’s grocery store. Piggly Wiggly Southern, Inc. (“Piggly Wiggly”) and Bruno’s, Inc. jointly answered and denied the material allegations of negligence. After a period of discovery, the alleged hazard was determined to be a push broom, the kind “you sweep the floor with in a big store,” which apparently had been left standing against a shelf in one of the aisles of the grocery store. Defendants moved for summary judgment, contending that any hazard posed by the broom was open and obvious, that plaintiff failed to exercise ordinary care on her own behalf, and that plaintiff “had equal knowledge, or equal opportunity for knowledge, had she been in the exercise of ordinary care.”

The evidence, viewed in the light most favorable to plaintiff as the non-movant, shows the following: Plaintiff had been in this Piggly Wiggly store “[h]undreds of times.” She has “never been in a grocery store [where she has not] seen something on the floor.” Plaintiff has “perfect vision except for reading.” She needs eyeglasses “[j]ust to read.” On this particular occasion, the lighting was good. Plaintiff had been shopping for about 30 minutes before she fell. She was pushing her shopping cart up one aisle when she realized she had passed an item she wanted from the opposite side of that same aisle. Plaintiff turned around to face the front of the store and moved to the opposite side of the aisle. She was pulling the shopping cart behind her when she “tripped over something and I had my buggy and I was trying to balance myself with my buggy but I fell and when I. . . got up it was a mop a broom or whatever.” Plaintiff “wasn’t walking backwards. . . .” She “already saw what [she] wanted [and . . .] was just going back to it.”

Plaintiff “didn’t see [the broom] until after she fell[ and did not] remember having seen it when she [first came] up the aisle.” She believed it “may have been leaning up against the shelf at the time [she] ran into it.” Once tripped, plaintiff found she “was tangled up in it there.” From the floor, plaintiff saw the broom handle now “made a T with the shelf, . . . [l]ike a 90 degree angle. . . .” That is, the handle was “running horizontal or making it across the aisle, making a T . . .” with the shelving. Plaintiff knew “it wasn’t a new mop,” and this aisle was not that area of the store where mops and brooms are displayed. “No one [else] was in the area.” Plaintiff got up on her own and affirmed she had no trouble seeing the broom then, because it was “visible and apparent. . . .” Plaintiff conceded that she “wasn’t looking down at the floor . . .” when she fell but was relying on her “whole [peripheral] vision [to see] everything in front[, . . .] floor, shelves and all.”

In opposition to defendants’ motion for summary judgment, plaintiff submitted her affidavit, wherein she deposed as follows: “Immediately prior to my tripping over the push broom/mop . . . , I had walked past the area of the aisle where I fell over the push broom/ mop. ... At the time I initially walked by that area, the push broom/mop was not there. ... I had only taken a step or two past that area when I realized that I had passed by an item ... I needed. ... I did not look down on the floor when I went back down the aisle because I had already, moments before, been by that area and there was nothing in the aisle at that time.” Plaintiff could not identify “anything that would have blocked [her] view of it [i.e., the broom,] if [she] had looked down before she [fell].”

The trial court granted defendants’ motion for summary judgment, and this appeal followed. Held:

Plaintiff contends the trial court erred in granting summary judgment because “material facts remained in dispute. . . .” Specifically, she argues that the evidence, with all favorable inferences drawn in her favor, authorizes the jury to conclude that she had “immediately traversed the area where she tripped and fell immediately before the fall, and the broom/mop that caused her trip was not present at that time[; . . . and the] only way the [broom] could have reached that location would have been an employee of the Defendant placing that [broom] there.” Relying on Stone v. Winn Dixie Stores, 212 Ga. App. 291 (442 SE2d 1), plaintiff urges these circumstances are sufficient to show that a jury question exists as to whether she exercised due care on her own behalf to discover and avoid the hazardous push broom.

Where a plaintiff alleges he tripped and fell over an object negligently placed in a store aisle by the proprietor, the defendant-proprietor “is presumed to have knowledge of its existence. See American National Bank v. Howard, 117 Ga. [App.] 834[, 836] (161 SE2d 838) (1968). In this type of case the plaintiff may make out a cause of action by showing an act or omission on the part of the defendant which was the proximate cause of his injury and which could not have been avoided by the plaintiff through the exercise of ordinary care. [Cit.]” Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327). “ ‘ “The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” ’ McGrew v. S. S. Kresge Co., 140 Ga. App. 149, 151 [(4)] (230 SE2d 119) (1976); King Hardware Co. v. Teplis, 91 Ga. App. 13, 15 (84 SE2d 686) (1954). See also, Stowe v. Gallant-Belk Co., 107 Ga. App. 80 (129 SE2d 196) (1962).” Alterman Foods v. Ligon, 246 Ga. 620, 623, supra.

“Although a merchant has the right to place certain articles in the aisles of his store, ‘ “nevertheless, the merchant must so place such articles so as not to threaten danger to those using the aisle and so that they are in full sight and within the observation of everyone.” (Cit.)’ Big Apple Super Market v. Briggs, 102 Ga. App. 11, 14 (115 SE2d 385).” Stone v. Winn Dixie Stores, 212 Ga. App. 291, 292, supra. In the case sub judice, a push broom “leaning up against the shelf’ in a grocery store is not so unusual an obstruction in the aisles that a customer would be relieved of the “duty to maintain a lookout ahead for its presence in his path. See King Hardware Co. v. Teplis, 91 Ga. App. 13, 15[, supra]; Kitchens v. Davis, 96 Ga. App. 30, 34 (99 SE2d 266) (1957).” Kres v. Winn-Dixie Stores, 183 Ga. App. 854, 855 (1) (360 SE2d 415). This familiar article in a grocery store aisle presented a patent and static condition. Such an alleged defect, standing alone, is not dangerous or likely to cause injury until such time as one walks over it without looking. See Hadaway v. Cooner Enterprises, 172 Ga. App. 113, 114 (321 SE2d 830). Furthermore, plaintiff’s attention in the case sub judice was not distracted away from the hazard by anything but was specifically directed toward the opposite shelf (where the broom was leaning) and whatever item she had missed, “only a step or two past . . .” that area. Consequently, “ ‘her attention was directed to the very direction in which she was walking, and she was not relieved of the duty of avoiding a large, familiar, and conspicuous object in her path. (Cits.) It is generally incumbent upon one to use his eyesight for the discovering of any obstruction that may have been placed in the way. (Cits.)’ (Emphasis supplied.) Slaughter v. Slaughter, 122 Ga. App. 374, 379 (177 SE2d 119) (1970).” Kres v. Winn-Dixie Stores, 183 Ga. App. 854, 855 (1), supra. Where, as in the case sub judice, “ ‘there is nothing to obstruct or interfere with one’s ability to see such a “static” defect, the owner or occupier of the premises is justified in assuming that a visitor will see it and realize [any obvious] risk involved. See Jeter v. Edwards, 180 Ga. App. 283 (349 SE2d 28) (1986); Emory University v. Duncan, 182 Ga. App. 326 (2) (355 SE2d 446) (1987) [(physical precedent)].’ Crenshaw v. Hogan, 203 Ga. App. 104, 105 (416 SE2d 147).” Wiley v. Family Dollar Store &c., 208 Ga. App. 461, 462 (430 SE2d 839). Furthermore, “when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom.” (Citations and punctuation omitted.) Wiley v. Family Dollar Store &c., 208 Ga. App. 461, 462, supra. Since plaintiff had just passed the area where the allegedly hazardous broom was leaning against the shelf, she is deemed to have knowledge of its existence. “While we are fully aware of the beneficent and salutary rule, to which this court scrupulously adheres in proper cases, that ordinarily questions of diligence and negligence, including proximate cause, are for the jury, we also recognize it to be the duty of the court to determine those questions in clear, palpable, and indisputable cases. Evans v. Georgia Northern R. Co., 78 Ga. App. 709, 712 (52 SE2d 28), and cit. [. . .] ‘If the plaintiff by ordinary care could have avoided the consequences to himself of the defendant’s negligence, he is not entitled to recover.’ Code [Ann.] § 105-603 [now OCGA § 51-11-7].” Atlanta Gas Light Co. v. Brown, 94 Ga. App. 351, 354 (1) (94 SE2d 612). In our view, the case sub judice is one such case where the evidence clearly, palpably, and indisputably demonstrates that plaintiff failed to exercise ordinary care for her own safety in failing to discern and avoid such danger as was posed by the patent and static condition of the broom leaning against the grocery store shelf in plain view. Compare Stone v. Winn Dixie Stores, 212 Ga. App. 291, 292, supra, where the plaintiff in that case “tripped and fell over a garden hose which had been coiled up and placed directly behind [plaintiff] by [one] store employee . . . while [plaintiff] was talking to the cashier.” In Stone, this Court held that a “jury would be authorized to find that the store employee placed the coiled part of the hose so that it was not in full sight and observation of plaintiff but rather constituted a hidden obstruction as to him.” Id. In the case sub judice, plaintiff’s affidavit testimony is that when she passed the area where she fell, “the push broom/mop was not there.” She took a step or two past and immediately turned to go back down the aisle, whereupon she tripped over the broom and fell. When coupled with her undisputed and uncontradicted deposition testimony that she saw no one else in that aisle, the evidence does not create any jury issue as to whether an unseen employee of defendants placed the broom against the shelf behind plaintiff’s back and then disappeared, as plaintiff took “a step or two past that area” and then turned around. “A party will not be permitted to maintain in his pleadings a contradiction of those things of which the court is required to take judicial cognizance. Of the primary physical laws the courts must take notice. . . . Since a physical impossibility cannot exist at all,. . . [s]uch an allegation . . . must be wholly disregarded.” (Citation omitted.) Rome R. & Light Co. v. Keel, 3 Ga. App. 769, 771 (2), 773 (60 SE 468). Given the matter of seconds it could have taken plaintiff to take a “step or two past that area,” the only authorized inference in the case sub judice is that the broom was there all along and plaintiff simply failed to see it from either direction. Plaintiff’s reliance on Stone v. Winn Dixie Stores, 212 Ga. App. 291, supra, is therefore misplaced.

Decided November 29, 1995.

Morris & Sharp, Donald J. Sharp, Gilbert & Montlick, Fred A. Gilbert, for appellant.

Jones, Cork & Miller, Timothy Harden III, W. Kerry Howell, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A1824.
    KRAFT GENERAL FOODS, INC. et al. v. MAXWELL et al.
    (464 SE2d 639)
   Johnson, Judge.

Clarence Maxwell sued Kraft General Foods, Inc., FLI Distribution Associates, L.P., and Phillip Morris, Inc., for injuries sustained in a work-related accident. His wife, Yvonna Maxwell, seeks damages for loss of consortium. Kraft, FLI, and Phillip Morris moved for but were denied summary judgment. We granted their application for interlocutory appeal, and this appeal follows.

FLI entered into a construction contract with the Haskell Company, as general contractor, to renovate a building owned by FLI. Haskell hired Purcell-Brantley Construction to provide “all labor, material equipment and supervision to supply and install a . . . roofing system at the new building addition, and to remove the entire roof of the existing warehouse and office and replace it with a mechanically attached . . . roofing system.” Purcell-Brantley contracted with Labor Finders to provide laborers to help remove the old roof. Clarence Maxwell was one of the laborers so employed. During a lunch break, Maxwell’s co-workers found him injured on the building’s floor beneath a broken skylight.

1. Kraft, FLI, and Phillip Morris contend the trial court erred in denying their motion for summary judgment.

(a) FLI claims it is not liable because full possession and control of the property had been relinquished to Haskell. Maxwell, however, claims that summary judgment was properly denied because FLI did not completely surrender the premises to Haskell, and FLI retained the right to direct or control the manner of executing the work. We agree with FLI.

“Generally, a property owner who has surrendered full possession and control of the property to an independent contractor is not liable for any injuries sustained on the property.” (Citations omitted.) Englehart v. OKI America, 209 Ga. App. 151 (1) (433 SE2d 331) (1993). However, an employer is liable for the contractor’s negligence if he “retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference.” OCGA § 51-2-5 (5).

The contract between FLI and Haskell specifically provided that Haskell was not the agent of FLI and that Haskell had “the sole and entire responsibility for all . . . construction methods, . . . and for supervising, directing, coordinating, phasing, and scheduling the work.” It also provided that Haskell was responsible for commencing and carrying out all safety programs and measures concerning the work and for compliance with all safety laws. The contract gave FLI the right to ensure that Haskell’s work conformed to the contract drawings and specifications and the general right to order the work stopped or resumed, inspect its progress, or prescribe alterations and deviations. It also allowed FLI to dismiss any person who was unfit or unskilled and restricted Haskell’s right to terminate the job-site supervisor without FLI’s consent. Maxwell argues that pursuant to OCGA § 51-2-5 (5), FLI is liable because it retained the right to direct or control the manner of the work. The contract provisions did not give FLI control over Haskell’s and Haskell’s subcontractor’s work.

“It is not enough that the owner has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right does not mean that the contractor is controlled as to his methods of work. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.” (Citations and punctuation omitted.) Englehart, supra at 152 (1) (a). “It is well recognized that merely taking steps to see that the contractor carries out his agreement, by supervision of the intermediate results obtained, or reserving the right of dismissal on grounds of incompetence, is not such interference and assumption of control as will render the employer liable.” (Citations and punctuation omitted.) Slater v. Canal Wood Corp. &c., 178 Ga. App. 877, 881 (1) (345 SE2d 71) (1986). The rights retained by FLI, including its right to have access to the work, did not amount to control over the manner in which Haskell did the work. See Englehart, supra. There being no genuine issue of material fact regarding control of the premises, the trial court erred in denying FLI’s motion for summary judgment.

(b) Summary judgment also should have been granted to Kraft. Kraft had entered into a lease agreement with FLI to occupy the building and was an express third-party beneficiary of the contract between FLI and Haskell. Kraft did not, however, participate in the renovation and at the time of the accident had not yet occupied the building. Liability for injuries occurring upon one’s premises is governed by possession and control of the premises. Ga. Bldg. Svcs. v. Perry, 193 Ga. App. 288, 295 (4) (a) (387 SE2d 898) (1989). As Kraft had neither possession nor control of the building, the trial court erred in denying summary judgment to Kraft.

(c) Phillip Morris’s lack of liability is even more obvious. Phillip Morris did not own the building, lease the building, or contract for any work on the building. Therefore, Phillip Morris had no duty toward Maxwell, and thus, no breach could occur. See OCGA §§ 51-1-1 and 51-1-6. Accordingly, the trial court erred in denying summary judgment to Phillip Morris.

Decided November 29, 1995.

Long, Weinberg, Ansley & Wheeler, J. Kenneth Moorman, Ronald R. Coleman, Jr., for appellants.

Falanga, Barrow & Chalker, Robert A. Falanga, Jesse E. Barrow III, Sherwinter & McElroy, Emily Sherwinter, for appellees.

2. Kraft, FLI, and Phillip Morris contend the trial court erred in granting the Maxwells’ motion to add Haskell as a party defendant. However, appellants do not allege and we cannot see how they are harmed by the court’s inclusion of another defendant. In our view, only Haskell is aggrieved by its inclusion; yet, Haskell has not appealed the ruling. Because appellants are not aggrieved by the trial court’s ruling, they are without legal right to except thereto. See generally Norman v. Nationwide Credit, 202 Ga. App. 732 (415 SE2d 293) (1992); Davidson v. State Farm &c. Ins. Co., 161 Ga. App. 21, 22 (1) (288 SE2d 832) (1982).

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A95A1930.
    MILLER v. THE STATE.
    (464 SE2d 621)
   Smith, Judge.

Harold Miller was charged with 13 offenses stemming from his relationship with a neighbor’s 13-year-old son. The trial court directed a verdict as to three counts, and a jury acquitted Miller on three more. Following the denial of his motion for new trial, Miller appeals from the judgment of conviction entered on the remaining seven counts on which the jury found him guilty.

The record reveals that Miller discovered the neighbor child molesting his seven-year-old daughter. He did not contact the authorities, but Miller and his wife brought the boy home to the boy’s mother and advised her they thought the boy needed help. The next day, after the boy attempted suicide, he was admitted to Georgia Mental Health Institute. While there, he was interviewed by the police, and he admitted molesting both Miller’s daughter and his 11-year-old son. He eventually also made accusations against Miller, claiming Miller had given him money for committing oral sodomy and other acts and had molested him repeatedly, shown him pornography, and provided him with marijuana and alcohol. Based upon this information, law enforcement authorities sought and obtained a search warrant for Miller’s home. Miller was arrested when, upon executing the search warrant, police officers found pornographic books and magazines, sexually explicit photographs, sexually explicit videotapes (including a commercial tape at the end of which was a homemade tape of Miller himself performing autoerotic acts), and a small amount of marijuana and drug paraphernalia.

1. Miller was an attorney licensed in Georgia and practicing in the area of criminal defense at the time of his arrest. During a hearing on pretrial motions, he requested that he be allowed to act as co-counsel, along with his retained attorney. The trial court denied Miller’s request, stating that his “understanding of the law is you cannot both be represented by counsel and be pro se” and rejecting counsel’s suggestion that Miller’s status as a member of the bar was a relevant factor.

The trial court’s understanding was incorrect. In fact, Miller’s bar membership is crucial. In Seagraves v. State, 259 Ga. 36 (376 SE2d 670) (1989), the Supreme Court held that the Georgia Constitution of 1983, Art. I, Sec. I, Par. XII, permits an attorney to represent himself while also being represented by counsel, although a lay person may not do so. Id. at 39. The Supreme Court reasoned that an attorney’s familiarity with courtroom procedure and working with other attorneys significantly lessens the risk of disrupting proceedings. Id. at 38.

The trial court recognized it had erred after Miller was convicted, and at the hearing on Miller’s motion for new trial, Miller was permitted to act as co-counsel. Despite the court’s acknowledgement of its earlier error and the fact that one of the principal bases on which a new trial was sought was the trial court’s earlier denial of this right, the motion for new trial was denied. In denying the motion on this ground, the court found that its own earlier error was “completely harmless” and that it had been waived. We cannot agree and therefore are compelled to reverse.

The trial court based its waiver rationale upon Miller’s dismissal before trial of the lawyer who represented him at the time the request to act as co-counsel was made and the replacement of that lawyer with new counsel. The court concluded that Miller’s failure to renew his request to act as co-counsel after this change in retained counsel constituted a waiver. Contrary to the trial court’s conclusion, we do not find that the change of counsel required Miller to renew a motion on which the court previously had ruled with apparent finality. Miller’s request was based or dependent not upon the identity of retained counsel but on his own right to represent himself along with whomever he retained to represent him.

Likewise, we do not agree with the trial court that its error was harmless. The Supreme Court in Seagraves upheld an attorney/defendant’s right to act as co-counsel “subject to the authority of the trial court to limit the exercise of that right in order ‘to insure the orderly disposition of matters before it.’ [Cit.]” Id. at 39. The trial court may use that authority to prevent disruption of the proceedings but may not use that authority to prevent a non-disruptive attorney/ defendant from participating actively and professionally in his defense.

The trial court found that Miller “failed to offer any evidence of anything he could or would have done as co-counsel that [his retained trial counsel] did not do or which would have affected the outcome of this case.” This finding is belied by the record. Even if Miller would have been prevented from conducting cross-examination of the victim, for the victim’s protection, and even assuming the trial court was correct in believing that allowing Miller to make closing argument would be improper, Miller still presented evidence that had he been allowed to participate, the trial strategy and evidence might have differed in numerous other ways.

As Miller argued at the hearing on his motion for new trial, the accused — the person most familiar with the facts of the case — was also an experienced criminal defense attorney. Miller testified he would have interviewed and subpoenaed other witnesses, including members of the victim’s family, to test the credibility of the victim. In fact, he retained a firm of investigators to conduct these interviews, but contrary to his wishes, his counsel did not present these witnesses. He desired to participate in voir dire to establish a rapport with the jury and to “humanize” himself. He believed strongly that experts should be retained and called as witnesses, but no experts were called by his counsel.

Error is harmless only when it is highly probable that it did not contribute to the judgment. Snelling v. State, 215 Ga. App. 263, 266 (1) (c) (450 SE2d 299) (1994). We cannot say with certainty that preventing Miller from acting as co-counsel affected the outcome of the trial. We must consider, however, that the jury did not convict Miller of all offenses charged. We must also consider the nature of the evidence in this case, including the victim’s failure to accuse Miller until after he was discovered molesting Miller’s daughter, the admission into evidence of the explicit materials found in Miller’s home, and the fact that the case depended heavily on the jury’s evaluation of the credibility of both Miller and the victim. Given these factors, we also are not persuaded that a high probability exists that these differences in strategy and the denial of Miller’s request to participate in the trial as a professional did not affect the outcome. Accordingly, we must reverse.

2. Because this case must be retried, we consider Miller’s other enumerations of error concerning issues that may recur.

Miller contends the court erred in denying his motion to suppress the evidence found in the search of his home. Citing cases such as Davis v. State, 214 Ga. App. 36 (447 SE2d 68) (1994); VonLinsowe v. State, 213 Ga. App. 619 (445 SE2d 371) (1994), and Langford v. State, 213 Ga. App. 232 (444 SE2d 153) (1994), he first argues that the affidavit in support of the search warrant was deficient because it was based only on the uncorroborated statement of the victim, whose truthfulness must be questioned, and thus the warrant was not issued upon probable cause. The cases cited by Miller are distinguished on their facts; all involved affidavits based upon tips from anonymous, unnamed, or confidential informants. Here, the information came from a named informant, the alleged victim. This Court has upheld a search warrant for the home of an alleged child molester based upon similar information from the victim, holding that “[b]ecause the non-confidential hearsay informant was the victim of a crime, there was no requirement that her reliability be further corroborated in order to show that probable cause existed.” Peacock v. State, 170 Ga. App. 309, 310 (1) (316 SE2d 864) (1984). In Peacock, we noted that such an affidavit met the even more rigorous Aguilar-Spinelli (Aguilar v. Texas, 378 U. S. 108 (84 SC 1509, 12 LE2d 723); Spinelli v. United States, 393 U. S. 410 (89 SC 584, 21 LE2d 637)) test, now abandoned in favor of the “totality of circumstances” test. Id. See also Wilcoxen v. State, 162 Ga. App. 800, 801 (2) (292 SE2d 905) (1982).

Miller also argues that the warrant was overbroad and lacked sufficient particularity in the description of items sought and required officers to make subjective decisions regarding what constituted pornography. The warrant sought “pornographic magazines/pornographic videotapes depicting sexual intercourse, . . . masturbation or lascivious exhibition of the genitals or pubic area of any person. . .

A warrant must describe items sought with enough particularity to enable the executing officer to seize those items with reasonable certainty. However, when circumstances make an exact description a virtual impossibility, it is permissible that the warrant describe only the generic class of items sought. Tyler v. State, 176 Ga. App. 96, 97 (335 SE2d 691) (1985). In Tyler, this Court held that a warrant authorizing a search for “marijuana and ‘pornographic material which is in violation of Georgia law’ ” described the items sought with sufficient particularity. Id. The warrant here was far more particularized. The question of whether the items were pornographic vel non was not in issue here. Their designation as pornographic was merely a descriptive aid to the officers’ search. Id.; see Holden v. State, 202 Ga. App. 558, 561 (2) (b) (414 SE2d 910) (1992).

Finally, in this regard, Miller’s argument that the officers exceeded the scope of the warrant is similarly without merit. He bases this argument upon the seizure of many videotapes without first viewing them; many of these tapes were later determined not to be pornographic. The evil to be guarded against is the execution of an indiscriminate “general search.” We will not, however, impose a requirement that the executing officers view tapes in their entirety or read all printed materials prior to seizing them; such a requirement would be unreasonably burdensome, both on the officers and on the target of the search, whose premises are invaded. We believe the proper inquiry is simply whether from the titles, appearance, or location of the items, the officers reasonably believed the warrant authorized their seizure. Such was the case here, and we find no error. The trial court properly denied Miller’s motion to suppress evidence.

3. In Miller’s final enumeration, he maintains that even if his motion to suppress was properly denied, State’s Exhibit 8 should have been excluded because of its extremely prejudicial effect on the jury. State’s Exhibit 8 is a commercially produced videotape of a sexually explicit film at the end of which is added a homemade video approximately 15 minutes long, depicting Miller himself performing various autoerotic acts and talking to the camera. The tape was found in the search of Miller’s home.

Miller argues that the tape had no relevance to the sexual activity with which he was charged and that the nature of the homemade portion of this tape, in particular, is so “despicable” that it is analogous to post-autopsy or post-tracheotomy photographs, which have been prohibited because they unnecessarily cause prejudicial reaction in jurors. See, e.g., Brown v. State, 250 Ga. 862, 867 (302 SE2d 347) (1983). We disagree.

The rule in Brown is restricted to gratuitous exhibits that are also gruesome and prejudicial. The Brown court held that photographs showing mutilation of a victim resulting from the crime, or post-autopsy photographs that show facts apparent only after autopsy, may be necessary and relevant and are admissible.

The tape in issue here was relevant in several respects. One of the crimes with which Miller was charged was anal sodomy, and the tape is relevant to show his bent of mind toward this particular activity. The tape also corroborates certain portions of the victim’s testimony by proving that Miller possessed both commercial sex films and explicit home videotapes portraying Miller. In addition, this Court has held that such material is relevant to show the accused’s lustful disposition. Helton v. State, 206 Ga. App. 215, 216-217 (424 SE2d 806) (1992). The trial court did not err in admitting the tape.

Decided November 29, 1995.

Richard E. Hicks, R. Michael Whaley, for appellant.

J. Tom Morgan, District Attorney, Robert W. Houman, Desiree S. Peagler, Assistant District Attorneys, for appellee.

Judgment reversed.

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

       The charges in the indictment include two counts of aggravated child molestation, two counts of child molestation, three counts of solicitation of sodomy, sexual exploitation of a minor, two counts of exhibiting harmful materials to a minor, contributing to the unruliness of a minor, possession of marijuana, and possession of marijuana with intent to distribute.


text:
    A95A1986.
    JONES et al. v. BRASWELL ELECTRIC, INC.
    (464 SE2d 628)
   Smith, Judge.

Jannette Jones and her husband brought this action against Braswell Electric, Inc. to recover damages for injuries she incurred when she tripped and fell at her workplace over a coil of wire left on the floor by an employee of Braswell. The trial court granted Bras-well’s motion for summary judgment, and Jones appeals. We reverse.

Jones worked at a desk on an assembly line at OKI Telecom, which produces computer boards for use in various industries. She was a group leader and was responsible for retrieving parts for other workers on her line, in addition to doing her own work. She walked back and forth on the line many times during the day. On the day of the incident, an employee of Braswell Electric, Philip Brawn, was doing some work at the plant.

After Jones’s lunch break, another worker on the line, Sherry Bartlett, asked her to get a part. Jones got up from her work station to retrieve the part and tripped over coiled wires apparently placed on the floor by Brawn. Jones testified in her deposition that although she had seen Brawn at the plant that morning, he was in another area then, and she was at no time aware that Brawn was working near her station. When Bartlett asked her for a part, she rolled her chair back, then “got up to turn and walk away; and that’s when I fell.”

Jones admitted that the coil was easily seen, that she noticed it after she fell, and that nothing obstructed her vision. She described the coiled wire as approximately fourteen inches wide, six to eight inches high, and multi-colored. She agreed that no reason existed that she did not see the coil before she fell, other than she did not look.

In an affidavit presented in support of Braswell’s motion for summary judgment, Bartlett disagreed with portions of Jones’s description of the incident. Bartlett stated that she was aware of Brawn working in the area because as she worked, next to Jones, she was able both to see and to hear Brawn pulling wires down the work line behind the chairs. She also stated that Jones stepped over the wires as she walked down the line to get the part and that Jones tripped on the coiled wire on her way back to her work station.

We agree with Jones that these conflicts between her testimony and that of Bartlett are crucial. The trial court concluded that Jones could have avoided the consequences of any negligence on Braswell’s part by exercising ordinary care for her own safety. It is true that Jones was required to use all her senses to discover obstructions in her path. Bodenheimer v. Southern Bell Tel. &c. Co., 209 Ga. App. 248, 249 (433 SE2d 75) (1993). If a hazard is open, obvious, and apparent to sight, so that one looking would necessarily see it, the fact that a plaintiff fails to look does not relieve her of responsibility for her own misfortune. Id.

When the hazard is in the nature of a “hidden obstruction” to the plaintiff, however, the rule is different. See, e.g., Stone v. Winn Dixie, 212 Ga. App. 291, 292 (442 SE2d 1) (1994). The standard for measuring ordinary care by the plaintiff in such cases “is whether, taking everything into account the act is one which the common sense of mankind pronounces want of such prudence as the ordinarily careful person would use in a like situation.” (Citations and punctuation omitted.) Bodenheimer, supra at 250 (1).

In Stone, the plaintiff, a customer in a garden center, stopped to talk with a cashier. As he turned to leave, he immediately tripped over a coiled hose another employee had placed behind him while he was talking to the cashier. This Court concluded in Stone that “[a] jury would be authorized to find that the store employee placed the coiled part of the hose so that it was not in full sight and observation of plaintiff but rather constituted a hidden obstruction as to him. [Cits.]” Id. at 292. We held that a question of fact remained regarding whether the plaintiff exercised due care. “In considering negligence, the relationship between the plaintiff and the obstruction is affected by such factors as visibility, time of placement, location, nature of premises, etc.” Id. at 293.

Here, a jury must determine material questions of fact. Even if Jones did not see or hear Brawn working behind her, given Bartlett’s testimony, a question remains whether she should have noticed his presence and have been alert for the wire. A jury must also choose between two versions of the accident. If they believe Jones’s version, that she fell immediately upon arising from her chair, they would also be authorized to consider whether the coiled wire was a hidden obstruction as to her because turning and looking at the ground before rising from the chair would not be standard practice for anyone. If, instead, the jury credits Bartlett’s version of the incident and concludes that Jones stepped over the wire on her way to get a part and fell over it on her way back to her work station, the coiled wire would constitute an open and obvious obstruction. Jones’s admission that she failed to look then assumes great importance.

Decided November 29, 1995.

Lowendick, Speed & Donahue, William J. Rawls II, Craig R. White, for appellants.

Bovis, Kyle & Burch, W. Bruce Barrickman, Michaela S. Young, Timothy A. Hickey, Jr., for appellee.

Because genuine issues of material fact remain, the trial court erred in granting summary judgment to Braswell.

Judgment reversed.

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

       Braswell argues that Jones gave conflicting testimony on this issue at her deposition. We do not find her testimony conflicting. In fact, although Braswell insists that Jones testified she walked four feet before falling, Braswell’s attorney suggested that distance, but Jones specifically stated she did not walk that far.


text:
    A95A2069.
    LAGANA v. THE STATE.
    (464 SE2d 625)
   Smith, Judge.

Frank Lewis Lagaña III was charged with aggravated child molestation and statutory rape. A jury acquitted him on the child molestation charge and found him guilty of statutory rape. Lagaña appeals following the denial of his motion for new trial.

Lagaña, a heavy equipment operator, was employed by Jeff Hess to work on a construction project on Hess’s aunt’s farm. Hess had contracted with his relatives to clear a portion of the farmland so that chicken houses could be built. The victim, the 11-year-old granddaughter of the owners of the farm, claimed that she and Lagaña had sex one night in a truck at the back of the property. Shortly after the date alleged by the victim, Lagaña left Georgia, claiming Hess had not paid him. After Lagana’s departure, the victim told Hess’s fiance that Lagaña molested her. Hess’s fiance told the victim’s grandmother, who contacted the authorities, but the victim was not brought to the hospital to be examined until about ten days after the incident. Although the examining doctor testified that the victim was not a virgin, because of the time lapse, no physical evidence could be obtained showing whether intercourse took place on the date alleged.

1. Lagaña contends the trial court erred in denying his motion for mistrial made after the victim’s credibility was impermissibly bolstered by the testimony of her grandmother. We agree and reverse.

On direct examination, the grandmother was asked how she would characterize the child’s truthfulness. Defense counsel objected before the witness could respond. The prosecutor indicated he would rephrase the question, and a defense motion for mistrial was denied. When the prosecutor continued his questioning, he asked the witness whether she had “ever had any problems with [the victim’s] telling stories.” This time, the witness answered the question, indicating that she had not had any such problem. The defense again moved for mistrial, on the ground that the prosecutor had “gone in the back door, the same thing, about getting into her truthfulness . . . [which] would vouch for her credibility. That’s a jury issue.” The trial court again denied the motion.

The credibility of a witness, including a victim witness, is a matter for the jury’s determination under proper instruction from the court. OCGA § 24-9-80. It is well established that “[i]n no circumstance may a witness’ credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth.” (Citation and punctuation omitted.) Roberson v. State, 214 Ga. App. 208, 210 (4) (447 SE2d 640) (1994). The grandmother’s testimony in this case did just that, and the admission of this testimony is contrary to this Court’s rulings in Guest v. State, 201 Ga. App. 506, 507-508 (1) (411 SE2d 364) (1991) and State v. Oliver, 188 Ga. App. 47, 50-51 (2) (372 SE2d 256) (1988). Any question regarding the victim’s competency to testify must be developed from an examination of the child herself. Id.

The State relies upon Stamey v. State, 194 Ga. App. 305, 306 (1) (a) (390 SE2d 409) (1990), in arguing that this testimony did not warrant a mistrial. In Stamey, defense counsel failed to object to a social worker’s testimony that she believed the eight-year-old victim was telling the truth, and this failure was relied upon on appeal in support of a contention that trial counsel was ineffective. This Court acknowledged the error in allowing the testimony. We held, however, that the erroneously admitted opinion “was not a significant addition to [the witness’s] main testimony, so as to displace the jury’s minds on the issue and usurp their authority.” Id. Our holding rested upon the fact that the social worker had also recited “to exhaustion” the criteria for determining the truthfulness of pre-adolescents. Given this “other” testimony, the jury was able to determine for itself the truthfulness and credibility of the victim and could accept or reject the social worker’s opinion on this matter.

No such “other” testimony exists in this case. See Guest, supra, 201 Ga. App. at 508 (1). The admission of this testimony was error. The evidence against Lagaña depended heavily upon the credibility of the victim and was not overwhelming. The grandmother and others testified that the victim had been molested previously, and no physical evidence was obtained corroborating the victim’s claim regarding Lagaña. Under these circumstances, we cannot hold this error harmless. A new trial must be held.

Decided November 29, 1995.

Waddell, Emerson & Buice, John H. Bradley, for appellant.

Frederic D. Bright, District Attorney, Wilson B. Mitcham, Jr., Assistant District Attorney, for appellee.

2. On cross-examination, the prosecutor asked Lagaña the age of a girl he “brought back” from Florida to South Carolina. Since the trial court correctly ruled the question was improper, it is unlikely to recur at retrial. Our holding in Division 1 renders it unnecessary that we address the propriety of the denial of Lagana’s motion for mistrial on this issue.

3. No hearing is required to determine the presence of sufficient indicia of reliability before admitting hearsay evidence under the Child Hearsay Statute, OCGA § 24-3-16. Gregg v. State, 201 Ga. App. 238, 239 (3) (a) (411 SE2d 65) (1991). We may consider all evidence introduced in pretrial, trial, and post-trial proceedings in determining whether such statements were properly admitted. Id. at 240 (3) (a). The record in this case does not indicate, however, that the court made its determination that the hearsay evidence presented at trial exhibited sufficient indicia of reliability upon proper consideration of the factors enumerated in Gregg. Id. at 240 (3) (b). Upon retrial, the court is directed to base its determination upon those factors.

Judgment reversed.

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