author: Birdsong, Presiding Judge. Beasley, Chief Judge, Andrews, Judge, Blackburn, Judge, Blackburn, Judge.

text:
    A96A1365.
    BLAKE v. KROGER COMPANY.
    (480 SE2d 199)
   Birdsong, Presiding Judge.

John Blake sued Kroger Company for injuries allegedly received when he fell in defendant’s store. The trial court granted summary judgment to the defendant. Blake contends that he slipped and fell but did not see anything on the floor which caused him to slip and fall. He states that only skid marks from his shoe were sighted on the floor where he fell and that he immediately got up. Appellant testified that he “went straight to the service desk”; he says the service desk was in the immediate area, but he does not cite where in the record such evidence may be found. He contends there was an employee in the immediate area. Defendant Kroger controverts this statement of fact and contends the alleged fall occurred in aisle 5 and there was no employee in aisle 5 at the time of the fall.

Appellant testified that after he reported the fall, he and an employee went to the area where he had fallen, and after close examination, the employee located a skid mark and got down on the floor and found a small amount of clear liquid. However, appellant’s other testimony does not clearly show the employee found a small amount of clear liquid on the floor. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). Appellant said he “absolutely” did not believe he could have avoided this fall if he had been looking at the floor. “I think I could have been crawling, and I wouldn’t have seen it.” The aisle where he was walking “appeared] to be clean and free of any defects.” He did not see anything; “there was nothing to indicate that I was stepping in something until after I had already slipped and fell.” After he fell, he looked to see what was on the floor and “I didn’t see anything. . . . The only thing I could see was a black trail [skid mark] where my foot had gone in the substance.” He “couldn’t see any substance on that floor other than my foot print.” As to whether at any time he saw a puddle on the floor, he said: “No, I took a person back to clean it up, and we still didn’t see a puddle. . . . She got on the floor. She had a rag. And she said something to the effect that, no wonder you couldn’t see it. I don’t know what it is myself. And she cleaned it up!’ He said “after we came back and I got down [on the floor], I looked, but I still didn’t know what it was.” “When we came back and the [girl] asked me to show her where I fell, I went back there. We still couldn’t see it. .. . And she said oh, it’s some kind of detergent or something. I don’t remember what she said, verbatim.” (Emphasis supplied.)

Defendant Kroger contends its employees inspect and sweep its floors on a regular basis and are instructed to clean up any foreign substance they see on the floor. Appellant’s deposition shows he did not know how long the substance had been on the floor or when the floor of that aisle had been inspected.

On appeal, appellant contends the trial court erred in holding there were no material facts to support appellant’s claim that an employee was in the immediate area and had an opportunity to discover and remove the foreign substance. Secondly, he contends the trial court improperly shifted to him the burden of proof concerning Kroger’s superior constructive knowledge. Held:

1. As to the proprietor’s liability and duty in these cases, see Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327). To recover for a fall due to a foreign substance on the floor, the plaintiff must show the defendant had actual or constructive knowledge of the hazard and that the plaintiff was without equal knowledge of it. J. H. Harvey Co. v. Johnson, 211 Ga. App. 809 (440 SE2d 548). Liability for injuries resulting from an invitee’s fall is determined by the relative knowledge possessed by the proprietor and by the invitee of the condition which resulted in the injury, for the basis of the proprietor’s liability is his superior knowledge. Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (422 SE2d 305). Where there is no evidence of defendant’s actual knowledge of a hazardous condition, there are two classes of cases which may be based on the defendant’s constructive knowledge. See Winn-Dixie Stores v. Hardy, 138 Ga. App. 342, 345 (226 SE2d 142). Constructive knowledge may be inferred where there is evidence an employee was in the immediate vicinity of the dangerous condition and could have noticed and easily removed the hazard (Thompson v. Regency Mall &c., 209 Ga. App. 1, 3 (432 SE2d 230)), or alternatively, by showing the defendant failed to exercise reasonable care in inspecting the premises and keeping them safe. J. H. Harvey Co., supra; Winn-Dixie Stores v. Hardy, supra.

According to the dissent, Daniel v. John Q. Carter Enterprises, 218 Ga. App. 223 (460 SE2d 838) requires the defendant to negate plaintiff’s claim by presenting evidence not only that it had reasonable inspection and cleaning policies, but that it actually carried out those policies on the day of plaintiff’s fall.

However, contrary to the dissent’s perception of Daniel, this is not an immutable legal requirement. In the first place, in Daniel the defendant conducted an inspection before Daniel fell, so an inference of constructive knowledge on such grounds was not in issue. The “rule” stated in Daniel is therefore dictum. More importantly, if there is no evidence that actual inspecting and cleaning would have discovered and removed the foreign substance, there can logically be no inference that the defendant had constructive knowledge of its existence.

On either ground of constructive knowledge, the plaintiff must show the defendant could have found and removed the hazard. Just as a plaintiff who seeks to show constructive knowledge by showing that employees in the vicinity could easily have noticed and removed the hazard {Daniel, supra at 224), a plaintiff who claims constructive knowledge based on failure to inspect and clean the premises must show that such actions would have found and removed the hazard. Daniel itself states that in the class of cases based on failure to conduct inspecting and cleaning procedures, it must be shown the defendant’s failure to discover the hazard “ ‘was the result of the breach of (the defendant’s) legal duty to inspect the premises. If so, an inference would arise from that breach of (the defendant’s) constructive knowledge of the presence of the (foreign substance) on its floor.’ ” (Emphasis supplied.) Id. at 224, quoting Food Giant v. Cooke, 186 Ga. App. 253, 255 (366 SE2d 781). Although the dissent perceives that Daniel sets down a requirement to show compliance with inspection and cleaning procedures or suffer the inference of constructive knowledge, in fact Daniel says that in the absence of evidence the defendant conducted an inspection “ ‘that would have dis covered the foreign substance,’ ” the plaintiff is not required to show a length of time the substance remained on the floor. (Emphasis supplied.) Daniel, supra at 225, quoting Jackson v. Wal-Mart Stores, 206 Ga. App. 165, 169 (424 SE2d 845). The dissent’s understanding of Daniel’s “rule” is thus incomplete. Daniel says the defendant’s failure to show compliance with inspection and cleaning procedures permits an inference of constructive knowledge only if there is evidence that a reasonable inspection and cleaning would, have discovered the hazard and defendant’s failure to discover the hazard was the result of the breach of its duty to inspect. Daniel, supra at 224.

In cases cited by Daniel for this rule, no such inference was raised because there was evidence showing a reasonable inspection of the premises had been made. J. H. Harvey Co. v. Johnson, supra at 810; Morris v. Ryan’s Family Steak Houses, 206 Ga. App. 369 (425 SE2d 362); Jackson, supra. And, in the originator of the quoted “rule,” Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428 (408 SE2d 443), the defendant conducted reasonable inspection. Id. at 430. The fact that this was sufficient in Mallory to negate an inference of constructive knowledge does not mean such evidence is necessary to avoid that inference. The statement of the rule in Mallory is dictum and could not have been intended to control cases where there is no evidence that inspection or cleaning would have discovered and removed the substance and there is no evidence defendant’s failure to detect it was the result of its failure to comply with reasonable inspection and cleaning procedures.

In creating this “rule,” Mallory cited Food Giant v. Cooke, supra. Food Giant actually held that the issue is whether, under the existing circumstances, defendant’s failure to discover the hazard prior to plaintiff’s fall was “the result of the breach of [defendant’s] legal duty to inspect the premises. If so, an inference would arise from that breach [of duty] of [defendant’s] constructive knowledge of the presence of the oil on its floor.” (Emphasis supplied.) Food Giant, supra at 255; see Daniel, supra at 224. Food Giant involved an amount of motor oil of such size and visibility that even the plaintiff admitted she would have seen it if she had been looking, but since there was no evidence Food Giant had complied with its inspection and cleaning procedures that day, the plaintiff was not required to show the oil had been on the floor for a period of time in which Food Giant could have discovered it. See Daniel, supra at 225. Facing this factual stalemate, we held Food Giant “did not negate the possibility that, under the existing circumstances, its failure to have discovered the presence of the oil was the result of its failure to exercise reasonable care in inspecting the premises.” (Emphasis supplied.) Food Giant, supra at 256. We concluded the issues in that case were jury questions. It is important to note that Food Giant carefully did not hold there was an inference of constructive knowledge in that defendant; we merely said that “as to the issue of [Food Giant’s] constructive knowledge of the oil, the trial court did not err in denying summary judgment.” Id. Thus, Food Giant does not stand for the idea that an inference of defendant’s constructive knowledge will arise if it does not show compliance with reasonable inspection and cleaning procedures, and Mallory’s reliance on Food Giant for that idea was misplaced.

It is thus indisputable that going back to the original source of the dissent’s “rule” {Mallory), we meet not the rule but the proposition relied on in this opinion: that an inference of constructive knowledge based on failure to inspect arises only if there is evidence defendant’s failure to discover the foreign substance was the result of its failure to inspect. Daniel, supra.

In this case there is no evidence the defendant’s employees could have found and removed a supposed wet spot if they had inspected and cleaned or swept the area. Any such conclusion must be plucked from the air. There is no evidence to suggest that if Kroger’s employees had inspected, cleaned and swept this floor, they would have discovered or removed anything. The wet spot was barely visible, if at all, to those who crawled on the floor looking for it. It cannot be speculated that “sweeping” would have removed the hazard. The most diligent sweeping in every nook might have smeared the substance, whatever it was. There is simply no evidence that Kroger’s supposed failure to inspect and clean caused its failure to discover the alleged wet spot.

According to the dissent’s view of Daniel, a plaintiff can take such a case as this through trial, even though the evidence shows nobody could have seen the wet spot without crawling on the floor and despite the fact that the idea that inspection or cleaning or sweeping would have removed it is sheer speculation. The dissent’s rule never existed. To impose it in this case would create an absolute inference of constructive knowledge in the defendant of any foreign substance even if there is no evidence the defendant could have discovered it, and even where the hazard was invisible or barely visible. This would be contrary to Daniel and all the cases it cites.

A correct rule is that in the absence of evidence that a reasonable inspection would have discovered the foreign substance, no inference can arise that defendant’s failure to discover the substance was the result of its failure to inspect. Daniel, supra. We know of no case or rule which requires a proprietor or its employees to crawl on the floor at regular intervals to discover and remove every otherwise hidden or invisible hazard.

Where the moving party discharges his burden to show an absence of evidence supporting the non-moving party’s case, the non-moving party cannot rest on his pleadings or unsupported assertions but “must point to specific evidence giving rise to a triable issue.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). As no inference arises that Kroger’s failure to discover the foreign substance was caused by its alleged failure to “actually perform” an inspection, no inference arises that appellant’s injuries were caused by Kroger’s presumed failure actually to perform its routine inspection that day. Kroger cannot be charged with constructive knowledge of this substance based on its failure to testify that it actually carried out its usual inspection.

2. Since Kroger has shown conclusively that it had no actual knowledge of a dangerous condition on the floor and the evidence raises no inference of constructive knowledge, appellant’s case rests solely on the proposition that an employee was in the immediate vicinity of the foreign substance and should have discovered and removed it. Court of Appeals Rule 27 (a) (1) requires appellant to cite such parts of the record or transcript essential to consideration of his case, but in violation of this rule and in complete failure to support his assertion that an employee of the defendant was in the immediate vicinity of his fall, appellant cites no such evidence to this Court. There can be no inference that there was an employee in the immediate vicinity, for the evidence offered by appellant is too uncertain and at best raises only conjecture or possibility. Moore v. Winn-Dixie Stores, 216 Ga. App. 72 (2) (a) (454 SE2d 532). Moreover, since appellant insists the substance was invisible and he could not have seen it if he had been “crawling” on the floor, there exists no reasonable basis from which to conclude that, even if there had been an employee in the immediate vicinity, that employee should have discovered and removed this particular hazard. Daniel, supra at 224.

Summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts most favorable to the non-moving party, concludes the evidence does not create a genuine issue of material fact. Lau’s Corp., supra at 495. The dissent’s position does not rest on a genuine issue of fact but on the supposition and speculation that this wet spot was invisible or barely visible to anyone crawling on the floor. In our opinion, summary judgment to the defendant was correctly granted in this case.

Judgment affirmed.

Birdsong, P. J., Andrews, Johnson, Smith and Ruffin, JJ., concur and concur specially. Beasley, C. J., concurs specially. Pope, P. J., and Blackburn, J, dissent. McMurray, P. J., dissents without opinion.

Beasley, Chief Judge,

concurring specially.

I agree to the extent that, under the plaintiff’s theory in this case and the particular evidence, defendant is entitled to summary judgment.

Plaintiff alleged in his complaint that he fell “due to an invisible chemical solution” that defendant negligently allowed to exist on the floor, and that the negligence was that the area “should have been cleaned and inspected on a regular basis.” (Emphasis supplied.) Plaintiff did not allege that defendant had actual knowledge of the liquid, and there is no evidence that it did. The affidavit of defendant’s co-manager, on the other hand, states that “[biased on [his] investigation, [he] discovered that there was no Kroger employee on the aisle at the time the plaintiff allegedly fell,” and no Kroger employee was aware of the liquid before Blake reported his fall. Taking this together with the allegations, the theory was constructive knowledge at best.

The undisputed evidence showed, however, that the spot of liquid was clear and was so small that unless a person was on hands and knees it would not be seen. A jury could not be permitted to find a proprietor, here a grocery store, negligent for failing to conduct such an inspection of its floor to discover such a spot.

Thus the plaintiff’s case does not rest on the theory of constructive knowledge as usually understood because, even if the proprietor had inspected or patrolled minutes béfore plaintiff fell, it would not have discovered the liquid. It is fundamental that “[w]hile the owner or occupier of land is liable to invitees for his failure to exercise ordinary care in keeping the premises safe, [OCGA § 51-3-1], ‘(b)efore an owner can be held liable for the slippery conditions of his floors, produced by the presence of a foreign substance thereon, it is necessary that the proof should show that he was aware of the substance or would have known of its presence had he exercised reasonable care.’

[Cit.]” Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980).

Plaintiff’s case rests, instead, on the theory that adequate cleaning procedures would have removed the liquid even if it was not seen by the person applying the cleaning implement (broom, mop, mechanical device). As pointed out in the dissent, proper cleaning procedures will remove “small spills that might otherwise be difficult to detect.” That is certainly true in a typical grocery store, where spilled liquid is not an uncommon occurrence, and it might not be seen because of its size, the bright lighting which glares, and its blending in with the color of the floor.

Alterman Foods and the plethora of cases which follow it are limited to the concept that negligence must be founded on some species of knowledge. We have often said that a defendant can show a lack of knowledge by compliance with reasonable inspection “and/or cleaning procedures.” See, e.g., Morris v. Ryan’s Family Steak House, 206 Ga. App. 369 (425 SE2d 362) (1992); Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428, 430 (408 SE2d 443) (1991); Baggs v. Chatham County Hosp. Auth., 187 Ga. App. 834, 836 (3) (371 SE2d 653) (1988); Shiver v. Singletary, 186 Ga. App. 746, 747 (2) (368 SE2d 523) (1988).

Where reasonable inspection would not yield knowledge, as here, reasonable cleaning procedures could correct the slippery condition nevertheless. A proprietor’s duty to exercise ordinary care to keep the premises safe includes the duty “ ‘to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises.’ . . . [Cit.]” Johnson v. Autozone, 219 Ga. App. 390, 392 (465 SE2d 463) (1995). Regular cleaning of the floors would be such a precaution and, if adequate, would remove “invisible” spills.

Assuming that this, too, constitutes a species of constructive knowledge, defendant has not established its lack of negligence by showing that it had conducted reasonable cleaning procedures that day. The only evidence in this regard is the co-manager’s affidavit, which states that on the day of the incident, “Kroger had in place a policy which set forth that the floors were to be swept and inspected on a regular basis,” that “[e]mployees were instructed to look for and clean up any foreign substance they observed,” and “[i]f a substance was reported on the floor anywhere in the store, it was immediately cleaned up by an employee.” This is insufficient. Food Giant v. Cooke, 186 Ga. App. 253, 255 (1) (366 SE2d 781) (1988).

Nevertheless, liability based on constructive knowledge “requires proof of the length of time the dangerous condition was allowed to exist.” (Citation and punctuation omitted.) Edwards v. Wal-Mart Stores, 215 Ga. App. 336, 337 (449 SE2d 613) (1994). Since the record affirmatively establishes that plaintiff cannot show that the spot was on the floor long enough for reasonable cleaning procedures to have eliminated it, he must suffer summary judgment in defendant’s favor. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

I am authorized to state that Judge Johnson, Judge Smith, and Judge Ruffin join in this special concurrence.

Andrews, Judge,

concurring specially.

I concur with the majority that Kroger was entitled to summary judgment because there was no evidence showing that Kroger had actual or constructive knowledge of the substance on the floor. I write separately to address the manner in which summary judgment applies to Blake’s claim that Kroger had constructive knowledge of the hazard in light of the Supreme Court’s ruling in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In a premises liability case, constructive knowledge of the hazardous condition may be imputed to the proprietor in two ways. In the first class of case, constructive knowledge may be imputed to the proprietor when there is evidence that an employee of the proprietor was in the immediate area of the hazard and could have easily seen and removed the hazard. Banks v. Colonial Stores, 117 Ga. App. 581, 584-585 (161 SE2d 366) (1968). There is no evidence that an employee of Kroger was in such a position, so this case involves the second class of constructive knowledge case. The second class of case is premised on the liability which may be imposed on a proprietor for breach of the proprietor’s duty to exercise reasonable care to inspect and keep the premises in a safe condition for invitees. OCGA § 51-3-1. The theory of recovery in this class of case is that the proprietor breached its duty to exercise reasonable care to inspect the premises and discover and remove any hazard such an inspection would have revealed, and that this breach was the proximate cause of the plaintiff’s injury. Banks v. Colonial Stores, supra. Recovery under this theory requires proof of the length of time the hazard existed on the premises because, without such proof, “it would not be possible to determine whether the [proprietor] had been afforded a reasonable time within which to inspect and remove the hazard.” Id. at 585; Hughes v. Hosp. Auth. of Floyd County, 165 Ga. App. 530, 531 (301 SE2d 695) (1983). Accordingly, “[u]nder the second method of proving constructive knowledge, if the evidence shows that a foreign substance has remained on the floor of the premises for a sufficient period of time that it should have been discovered and removed in a reasonable inspection of the premises, then an inference arises from the breach of the duty to inspect the premises and keep it safe that the proprietor has constructive knowledge of the presence of the foreign substance.” Johnson v. Autozone, 219 Ga. App. 390, 392-393 (465 SE2d 463) (1995).

In Daniel v. John Q. Carter Enterprises, 218 Ga. App. 223 (460 SE2d 838) (1995), we addressed this second class of constructive knowledge case in the context of the proprietor’s motion for summary judgment. We cited Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257 (366 SE2d 785) (1988) to state that: “In seeking summary judgment, the defendant [proprietor] has the initial burden of showing that this theory of recovery is not viable by demonstrating that it exercised reasonable care in inspecting the premises. Ramey, supra at 259. This burden may be carried by evidence of compliance with reasonable inspection procedures. [Cit.] . . . Once a defendant [proprietor] demonstrates a lack of actionable constructive knowledge by compliance with reasonable inspection procedures, the burden shifts back to the plaintiff to show how long the foreign substance had been allowed to remain on the floor. Ramey, supra at 259. ... Of course, ‘(i)n the absence of evidence that (the defendant) conducted a reasonable inspection of the premises that would have discovered the foreign substance that caused the slickness on the floor, (the plaintiff would not be) required to present evidence establishing the length of time that the substance had been allowed to remain on the floor. (Cits.)’ Jackson v. Wal-Mart Stores, 206 Ga. App. 165, 169 (424 SE2d 845) (1992).” Daniel, supra at 224-225. The quoted statement from Jackson cited by Daniel also relied on Ramey as authority.

Ramey, supra, which was decided in 1988 prior to the Supreme Court’s decision in Lau’s Corp., supra, found that, because the proprietor failed to produce any evidence that it conducted a reasonable inspection of the premises, the proprietor failed to carry its initial evidentiary burden as the movant for summary judgment to show that the plaintiff’s theory of recovery was not viable. Ramey, supra at 258-259; see also Food Giant v. Cooke, 186 Ga. App. 253, 254-256 (366 SE2d 781) (1988) (decided the same day as Ramey and addressed the same constructive knowledge issue on summary judgment). Both Ramey and Cooke held that, since the proprietors did not meet their initial evidentiary burden on summary judgment, the burden did not shift to the plaintiff in response to summary judgment to produce evidence of how long the hazard had been on the floor. Accordingly, both Ramey and Cooke were based on the conclusion that summary judgment could not be granted to the proprietor because the “[proprietor’s] evidence did not negate the possibility that, under the existing circumstances, its failure to have discovered the presence of the [hazard on the floor] was the result of its failure to exercise reasonable care in inspecting its premises. See Winn-Dixie of Greenville v. Ramey, supra.Food Giant, supra at 256.

In light of the Supreme Court’s decision in Lau’s Corp., supra, the rule stated in Ramey and Cooke as to the proprietor’s evidentiary burden on summary judgment is no longer good law. Lau’s Corp. established the rule on summary judgment that: “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e). . . . [A]t summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case.” Id. at 491, 495 (4).

Thus, it is now clear that a defendant proprietor which moves for summary judgment on the basis that it lacked constructive knowledge of the hazard is not required, as Ramey and Cooke held prior to Lau’s Corp., to produce evidence that it conducted a reasonable inspection of the premises in order to shift the burden to the plaintiff to show how long the hazard had existed on the premises. Under Lau’s Corp., the defendant proprietor has no burden whatsoever on summary judgment to produce evidence to negate the plaintiff’s theory of recovery. As this Court recently held in its whole court decision in Johnson v. AutoZone, supra at 394, “[although showing [on a motion for summary judgment] that a foreign substance was not discovered despite compliance with reasonable inspection procedures is one method of demonstrating lack of constructive knowledge [cit.], it is not always necessary for the proprietor to show compliance with reasonable inspection procedures to establish a lack of constructive knowledge. . . . [T]he proprietor may simply point out the absence of any evidence in the record showing that the foreign substance had been on the premises for a period of time sufficient to have been discovered by a reasonable inspection of the premises. Lau’s Corp., supra.” In the absence of such proof, there is no basis for inferring that the proprietor had constructive knowledge of the hazard, and the plaintiff’s claim “tumbles like a house of cards.” Lau’s Corp., supra at 491.

In Daniel, supra, the proprietor produced evidence that it adhered to a schedule of reasonable inspections, so Daniel did not involve application of Ramey and Cooke to a case where the proprietor did not produce evidence to negate the plaintiff’s claim that it had constructive knowledge of the hazard. Nevertheless, the Ramey and Cooke rule re-stated in Daniel was superseded by the rule established by the Supreme Court in Lau’s Corp., which specifically “overrule[d] anything to the contrary.” Id. at 495. Daniel and any other similar case of this Court decided after Lau’s Corp. should be disapproved to the extent it states a rule which could be applied in a manner contrary to the holding of Lau’s Corp.

The dissent erroneously cites Daniel, supra, for the proposition that Lau’s Corp. required Kroger to negate Blake’s claim that Kroger had constructive knowledge of the hazard by presenting evidence that it conducted a reasonable inspection of the premises. In fact, Lau’s Corp. holds to the contrary. Under Lau’s Corp., Kroger had no burden to produce evidence on summary judgment to negate Blake’s claim; rather it was entitled to rely on the absence of evidence in the record to support Blake’s claim. Because there was no evidence as to how long the substance at issue had been on the floor, there was no basis to conclude that Kroger had constructive knowledge of the hazard, and the trial court properly granted Kroger’s motion for summary judgment.

I am authorized to state that Judge Birdsong joins in this special concurrence.

Blackburn, Judge,

dissenting.

Because Kroger did not present evidence piercing Blake’s allegations of negligent inspection and cleaning, I respectfully dissent. The evidence construed in Blake’s favor shows that, while walking down an aisle, he slipped on a small spot of liquid which the employee who cleaned it up surmised was detergent. The only viable issue in this case is whether Kroger exercised reasonable care in inspecting and keeping its premises safe for customers. See Brown v. Piggly Wiggly Southern, 210 Ga. App. 459, 460 (436 SE2d 513) (1993).

Under the analysis required by Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), Kroger was required to negate this claim by presenting evidence that it had reasonable inspection and cleaning policies and that it carried out those policies on the day of Blake’s fall. Daniel v. John Q. Carter Enterprises, 218 Ga. App. 223, 224-225 (460 SE2d 838) (1995). See also Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428, 430 (1) (408 SE2d 443) (1991). Until Kroger made that showing, Blake was not required to come forward with evidence showing how long the liquid had remained on the floor, which under the Lau’s Corp. test would constitute the showing of facts creating a triable issue. Sheriff v. Hosp. Auth. of Houston County, 221 Ga. App. 14, 15 (471 SE2d 3) (1996); Daniel, supra at 225.

The affidavit of Kroger’s manager establishes the grocer had policies to inspect and sweep its aisles on a regular basis. But nowhere in that affidavit does the manager state that any employee carried out those duties on the day of Blake’s fall. See Food Giant v. Cooke, 186 Ga. App. 253, 255 (1) (366 SE2d 781) (1988). Because Kroger has not presented evidence that it complied with its own policies, we cannot exclude the possibility that the liquid had been on the floor an unreasonable period of time. See Edwards v. Wal-Mart Stores, 215 Ga. App. 336, 337 (449 SE2d 613) (1994) (employee’s affidavit not conclusive). Compare J. H. Harvey Co. v. Johnson, 211 Ga. App. 809 (440 SE2d 548) (1994) and Daniel, supra at 225-226, in which the defendants made the required showing. Furthermore, unlike the defendants in Johnson v. AutoZone, 219 Ga. App. 390 (465 SE2d 463) (1995), Kroger made no evidentiary showing that the liquid had been on the floor such a brief period of time that employees engaged in reasonable inspection procedures would not have discovered it.

I cannot agree with the majority’s conclusion that Kroger’s failure to establish that it had in fact swept the premises as required by its policy is immaterial.

In making its determination, the majority addresses only the inspection requirements of Kroger’s procedure and ignores the requirement to sweep the aisles. The Kroger policy required “that the floors were to be swept and inspected on a regular basis.” (Emphasis supplied.) While it may well be true that a visual inspection might not have brought the spot to Kroger’s attention, there is no question that such spot existed based on the employee’s comments to Blake after the fall, i.e., “no wonder you couldn’t see it. I don’t know what it is myself. . . . Oh, it’s some kind of detergent or something. I don’t remember what she said, verbatim.” Blake’s honest admission on his uncertainty of the exact language used by the employee goes to the weight of his testimony, not its admissibility. In any event, the evidence must be viewed in the light most favorable to Blake as the non-moving party in a summary judgment action.

Nowhere in the record does Kroger establish that it did in fact follow its required procedure on the date in question of sweeping the aisles. It is reasonable to presume that the purpose to be served by sweeping the aisles is to clean up small spills that might otherwise be difficult to detect. The policy requires both inspection and sweeping. The majority’s interpretation requires only a visual inspection and would make sweeping a requirement only upon a visual determination of the existence of a defect.

While Kroger policy requires “regular” inspection and sweeping, nothing in the record establishes the frequency of these regular events. The reasonableness of the policy can be determined only by evaluating both the regularity and the frequency of the sweeping and the inspection. After all, leap year comes around on a “regular” basis every fourth year, but it is not frequent. The reasonableness of the policy itself cannot be shown in the absence of evidence of the frequency of the required events. Absent a discharge of its burden by Kroger, no burden shifts to Blake under Lau’s Corp. v. Haskins, supra. Because Kroger did not pierce the plaintiff’s pleadings on this issue, a jury question remains as to whether it breached its duty to inspect and maintain the premises in a safe condition for its customers.

On summary judgment, the fact that Kroger established a policy which required it to inspect and sweep, but has not shown it complied with that policy, should be construed most strongly against it. The violation of a privately imposed policy such as this, while not negligence itself, is “illustrative of what is considered reasonable behavior for employees.” Schofield v. Hertz Corp., 201 Ga. App. 830, 831 (1) (412 SE2d 853) (1991); see also Callaway v. Pickard, 68 Ga. App. 637, 650 (8) (23 SE2d 564) (1942). See Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980) (issue of whether store exercised reasonable care in keeping premises safe). A breach of the duty to inspect or sweep, especially where required by its own policy, creates an inference that the customer’s fall was caused by that breach. Food Giant, supra at 255. Unless the evidentiary record shows without issue of material fact that the defendant complied with its duty, or otherwise shows that a breach of that duty did not proximately cause the plaintiff’s injury, the defendant is not entitled to summary judgment. In this case, the trial court’s detailed opinion erroneously concludes that the affidavit of Kroger’s manager negated an essential element of Blake’s case. Therefore, summary judgment is not warranted and the trial court’s decision should be reversed.

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

On Motion for Reconsideration.

Blackburn, Judge.

I amend my earlier dissent by adding the following review of the process by which the appellate courts of Georgia have usurped the authority of the factfinder in premises liability cases. The decisions of this Court have so twisted, limited, and misapplied certain holdings of the Supreme Court of Georgia as to create a gauntlet of premises liability analysis through which plaintiffs almost certainly cannot, pass.

The substantive genesis of present premises liability opinions is generally stated to be Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980). Alterman Foods involved a plaintiff who wore a built-up shoe because one of her legs was shorter than the other as a result of an automobile accident some 15 years prior to her fall on the defendant’s property. At the time of her fall, Ligón had noticed nothing unusual about the floor in that it was “ ‘slippery and highly polished as usual.’ ” 246 Ga. at 621. There were no marks or streaks on the floor or stains on her clothing and no one, including Ligón, detected any foreign substance on the floor, or could determine why she fell.

The trial court granted summary judgment to defendant, this Court reversed, and the Supreme Court reversed our holding, reinstating the grant of summary judgment. See also Ligon v. Alterman Foods, 154 Ga. App. 440 (268 SE2d 701) (1980). The Supreme Court discussed various prior premises liability decisions by the appellate courts of Georgia with assorted factual scenarios and then divided “slip and fall” cases into “foreign substance” cases (those in which a foreign substance has fallen onto defendant’s floor) and “slippery floor” cases (those in which defendant’s floor has been made dangerously slippery by waxing or other treatment). 246 Ga. at 622.

The Supreme Court held that Alterman Foods was a “slippery floor” case, not a “foreign substance” case, and based its ruling on the fact that “[Ligón] could not determine what it was that caused her fall,” (emphasis in original) and “[p]laintiff did not introduce any evidence of the quality of material used or the methods which defendant used in waxing and maintaining its floor.” (Emphasis omitted.) 246 Ga. at 624. “She merely stated that she slipped and fell.” (Emphasis omitted.) Id. The Supreme Court further held that “[t]he slip and fall cases involving foreign substances are inapplicable in an instance [such as Alterman Foods] where the plaintiff alleges that he fell because of the slippery [floor caused by defendant].” Id. at 623-624. Conversely, “slippery floor” cases such as Alterman Foods should not be applicable to “foreign substance” cases such as the subject case. Thus, the “foreign substance” analysis of Alterman Foods was dicta as it was inapplicable to the facts thereof and was not the basis for the Court’s holding therein.

It is thus clear that the Supreme Court did not intend to establish a “bright line” analysis of all future “foreign substance” cases. Rather, the Court intended, through the hypothetical analysis of such cases to establish guidelines by which future “foreign substance” cases might be fairly decided on a case-by-case basis. Justice in each case would result from a balancing of the rights of victims to have their cases tried before a jury of their peers, with the right of defendants to minimize the cost of meritless or frivolous claims. As to the latter category, the Alterman Foods decision predates the enactment of OCGA § 9-15-14, the frivolous litigation statute, which now provides relief to defendants who are truly the victims of frivolous claims. Indeed, the enactment of OCGA § 9-15-14 was intended to provide a legal remedy for defendants in frivolous lawsuits.

If plaintiff’s case is as weak as contended, and defendant is as innocent as contended, a jury will surely so conclude. Defendant would then be free to seek reimbursement of its litigation expenses under OCGA § 9-15-14. Of course, a jury would apply a credibility test to the testimony of all witnesses, including the store clerk who testified on behalf of his employer that he had just inspected the subject location minutes before the subject incident. The jury would be free to reject or accept such testimony. Under the summary process presently employed, a defendant may submit an affidavit from an employee, whose salary it pays and whose duty it may have been to inspect the premises, stating that, in fact, the employee had timely inspected the subject spot and found no foreign substance. What if the employee had, in fact, not performed his duties, shall he risk termination by saying so, or sign the affidavit? What if the employee had, in fact, performed the inspection, but had done so in a negligent manner? Can it not be argued that the plaintiff’s fall supports the fact of a negligent inspection to the same extent as the inspector’s testimony establishes that the foreign substance was not present at the time of the inspection? What it presents is a jury question.

Under our present premises liability analysis process, this Court has determined that the fact of inspection establishes conclusively that the foreign substance was not present at the time of the fall. This conclusion allows a defendant, but not a plaintiff, to create evidence after the incident that is essentially irrefutable, regardless of its truth. Evidence so created often entitles defendant to summary judgment under the majority’s holding. The object of all legal investigation is truth, and the analysis and holdings of the majority invite falsehood. Under the majority’s analysis no evidence so created is subject to a credibility test by a jury. Indeed our Court has established the credibility of defendant’s affidavits as a matter of law.

The right to determine the credibility of witnesses is exclusively within the province of the jury, and where the outcome may be controlled by such determination, the case is not properly subject to summary adjudication. Likewise, the evidence must be viewed in favor of the non-moving party, and where the respondent/plaintiff relies in part upon inferences reasonably drawn from the evidence to establish the elements of his or her claim, such inference may not be defeated by an affidavit from defendant. Such affidavit merely creates an issue of fact for jury resolution. Any such contest between a reasonable inference and direct evidence as to a controlling fact may not be resolved by summary process. Our Court has sought to separate itself from its historic position on this matter, and the opinions are legion which include the statement that “ordinarily, negligence is a question for resolution by a jury,” and then proceed to hold, however, that the case therein involved is resolvable by summary process.

In premises liability cases, our Court has tended to take holdings narrowly drawn to a particular case and find that such holding controls a totally distinguishable fact situation. Premises liability cases are very fact intensive, and therefore it is exceedingly dangerous to state that what was an appropriate application of the law in one case is necessarily controlling in another similar, but distinguishable case. The selection of an inappropriate maxim from our gallery of controlling principles may bring about an unjust result.

This fact was recognized by the Supreme Court as it dealt with Alterman Foods, by its inclusion of a potpourri of premises liability principles therein. With the passage of time, those Alterman Foods principles which support summary judgment for a defendant have predominated premises liability analysis while other principles which favor a plaintiff have taken a back seat or been given lip service.

An example of the unbalanced application of premises liability principles is the overuse of adages such as: (1) “Normally a proprietor is permitted a reasonable time to exercise care in inspecting the premises and maintaining them in a safe condition”; and (2) “[T]he proprietor is under no duty to continuously patrol the premises.” Alterman Foods, 246 Ga. at 622. The majority fails to analyze the balance of the second principle stated above, which is “in absence of facts showing that the premises are unusually dangerous.” Id. Unusually dangerous, compared to what? Other food stores? Other departments within the same store? Too often our analysis ignores the potential for constructive knowledge by the defendant when the incident occurs in a hazardous location, i.e., the produce section. Such section is replete with hazardous conditions caused by foreign substances dropped by customers and employees on restocking and water sprayed by employees on the produce and spilled on the floor. The floor, by its pattern, is generally of such a nature that it is difficult to detect spills, especially water, unless caught in a light reflection.

Given the stores’ general knowledge of the heightened danger of such conditions, why are they not charged with a heightened duty of care under such conditions? Why does not the rule as stated in Atlanta Gas Light Co. v. Gresham, 260 Ga. 391 (394 SE2d 345) (1990), apply: The proprietor is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge. Why does the proprietor’s knowledge of the fact that foreign substances continuously and routinely create dangerous conditions for their customers, not create a jury question as to their standard of care as cited in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991)? This is especially true in the subject case, where the store’s own policy required regular sweeping and inspection of the premises. This policy creates an inference that sweeping is required because many dangerous conditions may be difficult to detect by inspection. In my view, it was the intention of the Supreme Court that such factors be weighed in determining the appropriateness of summary judgment in only clear cases, without factual dispute being removed from a jury’s consideration.

In the subject case, the special concurrence selectively relies on Lau's Corp. v. Haskins.

Lau’s Corp. contains the following language: “The particular standard of care to be applied and whether the owner breached that standard are usually issues to be decided by a jury. However, these issues may be decided by the court in plain and palpable cases where reasonable minds cannot differ as to the conclusion to be reached.” (Citations and punctuation omitted; emphasis supplied.) Id. at 493. The special concurrence ignores the plain language of Lau’s Corp. that “summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” (Emphasis supplied.) Id. at 495. The special concurrence and similar rulings by this Court routinely ignore the requirement that the evidence be viewed in the light most favorable to the non-moving party (notwithstanding the lip service given to this principle). They also ignore the fact that the non-moving party may rely upon reasonable inferences drawn from the evidence to meet his or her burden. The primary failure of this Court is in not recognizing, accepting, and addressing inferences raised by the evidence and credibility issues.

Decided December 5, 1996

Reconsideration denied December 20, 1996.

Orin L. Alexis, for appellant.

Brannen, Searcy & Smith, Daniel C. Cohen, for appellee.

The present state of premises liability analysis is also inconsistent with our position as a comparative negligence state, and not a contributory negligence state. Our process permits negligent defendants to escape having their negligence weighed by a jury against the negligence of the plaintiff, regardless of the relative degree of negligence, and to thereby totally avoid liability even where their negligence exceeded the plaintiff’s.

For the above reasons, I respectfully dissent to the majority opinion and to Judge Andrews’ special concurrence. I also dissent to Judge Beasley’s special concurrence as it would appear she would ignore the fact that we have notice pleading, not issue pleading, in Georgia. She also ignores the fact that the evidence of record must be considered in addition to the complaint.

I would implore the Supreme Court of Georgia or the Georgia legislature to restore to victims the right to have their cases tried by their peers and to release the stranglehold this Court has imposed upon victims’ rights through judicial activism and an improper usurpation of the authority of Georgia juries.

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


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A96A1496.
    TERRY v. THE STATE.
    (480 SE2d 193)
   Andrews, Judge.

Charles Everette Terry appeals from his conviction of one count of armed robbery. We find no harmful error and affirm.

1. Terry first contests the sufficiency of the evidence. Viewing the evidence with all inferences in favor of the jury’s verdict, it was that Atlanta City Councilman James Maddox, Sr. had finished grocery shopping around 9:00 p.m. on November 6, 1993 and was wheeling his buggy to his car when he noticed two men walking and talking in the lighted parking lot. As Maddox was loading his groceries into his car from his buggy which was propping open the car door, he was jumped from behind and “some kind of a metal or something hit me up side the head real hard.” The object was very hard and cold and Maddox said it seemed like a piece of metal to him. As Maddox fell, the buggy had fallen to the side and was near the rear wheel of the car. As Maddox was lying on his side in the parking lot, the two men began taking his wallet, watch, and ring. As they were doing so, Maddox was attempting to “see who it was that was attacking me” without making eye contact with them. His ring was difficult to get off his finger and he had this period during which to view the men. The men took over $600 in cash in addition to his jewelry and wallet.

A cashier getting off work saw the attack and ran into the store to get the security guard, an off-duty Fulton County sheriff’s deputy. As Deputy Smith exited the store, she saw a male walking fast away from the area indicated by the cashier. When she ordered the man to halt, he ran and she pulled her weapon on him. She saw that the man had “something black in his right hand.” She briefly lost sight of him before placing him under arrest. The item which she saw in the man’s hand was not recovered but was “consistent with” a black handgun.

Councilman Maddox came up and identified the arrested man, Starling, as one of the men who robbed him. The right side of Maddox’ face was swollen and purple and blood was coming out of the back of his neck. According to Deputy Smith, the wound she observed was “consistent with [Maddox] being hit with some kind of object.” Maddox’ wallet and ring were found on Starling but the cash and watch were not recovered.

Starling pled guilty to the robbery and testified against Terry. Starling had grown up with Terry, although, prior to this incident he said he had not seen Terry since 1986 because he, Starling, had been in prison. Starling saw Terry hanging out at a store near Perry Homes around 7:30 p.m. and the two of them drank a six pack of beer, two pints of wine, and smoked a couple of joints of marijuana. Starling took Terry to Greenbrier Mall and then they went to use the pay phone near the grocery store. Starling used the pay phone and Terry stood there with him. According to Starling’s trial testimony, he was the one who grabbed Maddox, Terry was just there with him and “wasn’t doing nothing.” Starling said Terry went into Maddox’ pocket, got the cash, and took Maddox’ watch. Because Starling was trying to get Maddox’ ring off, Terry had walked away before the security guard arrived.

Maddox identified Terry as the second man who robbed him.

(a) Terry contends there was insufficient corroboration of his accomplice’s testimony.

“ ‘[T]he rule that a felony conviction is not to be had on the uncorroborated testimony of an accomplice applies only when the accomplice is the sole witness upon whose testimony the [S]tate relies. (Cits.)’ (Emphasis in original.) McDaniel v. State, 158 Ga. App. 320 (279 SE2d 762) (1981). In the instant case, the State introduced evidence other than the testimony of [Terry’s accomplice], including evidence of the victim’s pre-trial identification of [Terry] as one of his attackers.” Morris v. State, 204 Ga. App. 437, 438 (2) (419 SE2d 733) (1992).

Slight evidence of a defendant’s identity and participation from an extraneous source is all that is needed to corroborate the accomplice’s testimony. Earl v. State, 214 Ga. App. 891, 892 (1) (449 SE2d 361) (1994). There was sufficient corroboration here.

(b) Secondly, Terry argues that the evidence was insufficient because there was not proof that a weapon was used in the robbery.

“The presence of an offensive weapon or the appearance of such may be established by circumstantial evidence, and a conviction for armed robbery may be sustained even though the weapon was neither seen nor accurately described by the victim. Some physical manifestation is required or some evidence from which the presence of a weapon may be inferred, [cit.], but OCGA § 16-8-41 (a) does not require proof of an actual offensive weapon.” McCluskey v. State, 211 Ga. App. 205, 207 (2) (438 SE2d 679) (1993).

Here, in addition to Maddox’ testimony that he was struck with a metal object, there was the testimony of the trained law enforcement officer that she saw a black object in Starling’s hand which was consistent with a black gun. Also, the evidence of Maddox’ extensive injuries was circumstantial evidence to support the State’s contention that Maddox was clubbed with a gun.

It was for the jury to evaluate Terry’s claim that Maddox’ injuries were caused by him striking his head on his cart as he fell. OCGA § 24-9-80.

The evidence was legally sufficient. McRae v. State, 221 Ga. App. 414 (471 SE2d 532) (1996); Alford v. State, 200 Ga. App. 483 (408 SE2d 497) (1991); Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336) (1987).

2. The second enumeration is that the court erred in allowing Dr. McKee, a forensic psychiatrist who examined Terry pursuant to his notice of intent to raise an insanity/mental incompetency defense, to testify that Terry had an antisocial personality disorder, including repeated conflicts with the law, because that testimony improperly placed his character in issue.

We need not consider the merits of this enumeration, however, since no objection to this testimony was made below. “ ‘ “Reversal of the trial court is not authorized on the basis of an evidentiary ruling that the trial court was never called upon to make.” (Cit.) Likewise, in the absence of a specific objection below, it was waived.’ Lewis v. State, 208 Ga. App. 656, 658 (1) (431 SE2d 445) (1993).” Allison v. State, 217 Ga. App. 580, 582 (459 SE2d 557) (1995).

3. Terry’s sixth enumeration is that the court erred in allowing Maddox’ in-court identification of Terry after an impermissibly suggestive pretrial “showup,” based on State v. Frye, 205 Ga. App. 508 (2) (422 SE2d 915) (1992). A number of factors defeat this argument.

Initially, there was no evidence of a'police initiated “showup.” See Baines v. State, 201 Ga. App. 354 (411 SE2d 95) (1991). Instead, the evidence was that Maddox attended the preliminary hearing scheduled for Starling and Terry. Maddox testified that he was not aware that the second person who attacked him was about to enter the courtroom, but, when he saw Terry, he recognized him as the second robber. There was no evidence suggesting in any way that the events described were anything other than a chance viewing, that Terry and Starling were the only persons in the courtroom with Maddox, or that Terry was identified by the State to Maddox prior to Maddox’ independently recognizing him. Compare Frye, supra.

There was no error. Daniels v. State, 252 Ga. 30, 31 (1) (310 SE2d 904) (1984); Anderson v. State, 206 Ga. App. 354 (1) (426 SE2d 6) (1992); Wilson v. State, 181 Ga. App. 435 (1) (352 SE2d 618) (1987).

4. In his fourth enumeration, Terry contends the trial court erred in “failing to answer and properly instruct the jury” after the jurors asked if the indictment could be “changed to Robbery instead of Armed Robbery.”

Upon the question being presented, the court inquired of defense counsel if she desired a charge on the lesser included offense of robbery by intimidation. While the State had no objection to a charge on the lesser included crime, defense counsel responded that her trial strategy was based on “all or nothing” because Terry claimed he was not present and presented an alibi defense. Counsel objected to the court’s proposed charge on the lesser included offense. In response, the court directed the deputy to tell the jury “this is not the kind of question I can answer.”

Terry’s argument here is that the question showed that the jury was confused and the court erred in failing to clear that confusion up. That is not, however, what the question evidenced. It showed that the jury understood the elements of armed robbery and desired to consider the lesser included charge. In light of the defense’s objections, the court did not abuse its discretion in not sua sponte charging on the lesser included offense. Patterson v. State, 264 Ga. 593, 594 (2) (449 SE2d 97) (1994); Miller v. State, 221 Ga. App. 718, 719 (472 SE2d 697) (1996).

5. The fifth enumeration is that the court erred in accepting the jury’s verdict when the first juror polled stated that “we never did come to a conclusion about this Armed Robbery thing because everybody said it should have been robbery instead of armed robbery.” The exchange between the court and the juror following this remark was: “Q. Sir, my question is did you agree with the verdict? A. Yes, I did, absolutely. Q. And did you agree with it arid you still agree with it? A. Yes.” The remaining jurors all answered the questions affirmatively without equivocation or question.

There was no error in the court’s accepting the verdict after the poll. “ ‘The indication of “reservations” does not prevent the verdict from being unanimous. The requirement is that a juror agree to a verdict. . . . [T]he juror(s) . . . answered affirmatively that the verdict was (theirs) in the jury room and still (theirs) upon being polled.’ [Cit.]” Rouse v. State, 265 Ga. 32, 34 (453 SE2d 30) (1995).

Terry’s speculation that this exchange indicates that the jury proceeded on the erroneous assumption that they could find him guilty of armed robbery if they felt the evidence only showed he was guilty of robbery is not meritorious. “[Qualified jurors, under oath, are presumed in the absence of clear contrary evidence to follow the procedural directives of and to respond honestly to the questions of the trial judge. [Cit.]” Garcia v. State, 207 Ga. App. 653, 658 (2) (b) (428 SE2d 666) (1993). See Larry v. State, 266 Ga. 284, 287 (466 SE2d 850) (1996); Kimmel v. State, 261 Ga. 332, 335 (4) (404 SE2d 436) (1991).

6. Enumerations 3, 7, and 8 all deal with contentions regarding ineffective assistance of counsel and will be addressed together.

The bases for the claimed ineffective assistance are that trial counsel erred by not objecting to Dr. McKee’s testimony; by failing to make an ex parte motion for an independent psychiatrist to examine Terry; and by using the State psychiatrist to do the examination and then allowing the release of that evaluation to the State.

“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990); see also Hayes v. State, 211 Ga. App. 801, 802 (1) (440 SE2d 539) (1994). A conviction will not be reversed on the basis of ineffective assistance of counsel unless “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Carter v. State, 176 Ga. App. 632, 633 (337 SE2d 413) (1985), quoting from Strickland v. Washington, 466 U. S. 668, 669 (104 SC 2052, 80 LE2d 674) (1984).

(a) At the motion for new trial hearing, trial counsel testified regarding her failure to object to Dr. McKee’s testimony, that “it was unexpected, caught me off guard. I did not have the available case law at the time so I did not raise an objection at the time, but I believe I should have.” Even assuming, however, that this failure evidences ineffectiveness, we conclude that the error was harmless beyond a reasonable doubt for it is highly probable that the error did not contribute to the verdict of guilty. Stanley v. State, 222 Ga. App. 750, 751 (476 SE2d 58) (1996); Miller v. State, 160 Ga. App. 832 (3) (287 SE2d 679) (1982). Here, in addition to Dr. McKee’s testimony concerning Terry’s organic brain disorder, antisocial personality disorder and alcohol and drug abuse, Terry introduced evidence from his sister that he had been shot in 1986 and been in a coma for three months. As a result, he suffered seizures and was on SSI for disability.

Terry’s defense was alibi, that he had nothing to do with the incident because he was with his sister the evening it occurred. There was no harmful error as required by Strickland v. Washington, supra.

(b) Terry also complains of trial counsel’s failure to request an independent psychiatric examination of him and of the release of Dr. McKee’s examination to the State.

Trial counsel testified that, after the examinations were performed by Grady Hospital and Georgia Regional Hospital doctors, she made a tactical decision to withdraw the insanity/diminished capacity defense and to rely on the alibi defense.

Such a tactical decision does not equate with ineffective assistance of counsel. Hammond v. State, 264 Ga. 879, 882 (4) (452 SE2d 745) (1995); Riser v. State, 222 Ga. App. 348, 349 (474 SE2d 632) (1996); Williams v. State, 218 Ga. App. 785, 788 (3) (463 SE2d 372) (1995).

Regarding the release of the reports to the State, Terry has made no showing that such release was requested by or even acquiesced in by his trial counsel and has not supported his claim of ineffective assistance on this ground. See Callaway v. State, 208 Ga. App. 508 (1) (431 SE2d 143) (1993).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

Decided December 4, 1996

Reconsideration denied December 20, 1996

Jana M. Whaley, for appellant.

Lewis R. Slaton, District Attorney, Juliette O. W. Scales, Assistant District Attorney, for appellee.

       Even had an objection been made, however, and improperly overruled, we note that the evidence of Terry’s guilt was such that it is highly probable that the error did not contribute to the verdict. Compare Sanders v. State, 251 Ga. 70, 76 (3) (303 SE2d 13) (1983), and Cornelius v. State, 213 Ga. App. 766, 772 (6) (445 SE2d 800) (1994), with Penson v. State, 222 Ga. App. 253, 255 (1) (474 SE2d 104) (1996).


text:
    A96A1502, A96A1503.
    HOSPITAL AUTHORITY OF CALHOUN COUNTY v. WALKER; and vice versa.
    (480 SE2d 849)
   Andrews, Judge.

In Case No. A96A1502, the Hospital Authority of Calhoun County d/b/a Calhoun County Emergency Medical Service (hereinafter Hospital Authority) appeals the judgment entered on a jury verdict finding that Rosalyn Walker (hereinafter Walker) was entitled to damages as a result of an automobile accident between herself and Willie Murry, an ambulance driver employed by the Hospital Authority. Hospital Authority brings one enumeration of error, contending that the trial court erred in denying its alternative motions for judgment notwithstanding the verdict or a new trial.

In Case No. A96A1503, Walker appeals from the trial court’s denial of her motion for prejudgment interest.

Case No. A96A1502

1. In deciding whether the court should have granted a motion for j.n.o.v., “[t]he primary question for determination is whether the evidence introduced, with all reasonable deductions . . . demanded a verdict for the defendant, as the standards for granting a motion for judgment n.o.v. are the same as those governing direction of a verdict. 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.” (Citations and punctuation omitted.) Famiglietti v. Brevard Med. Investors, Ltd., 197 Ga. App. 164 (1) (397 SE2d 720) (1990). Accordingly, the evidence at trial, viewed in the light most favorable to the jury’s verdict, was as follows.

Walker brought suit against Hospital Authority and Willie Murry for injuries suffered as a result of a collision between her automobile and the ambulance driven by Murry. Walker alleged a negligence claim against Murry and sued the Hospital Authority under a claim of respondeat superior. Walker first brought suit on July 6, 1989, in the Superior Court of Calhoun County (Civil Action File No. 89-V-077). That suit was voluntarily dismissed before a judgment was made. Walker brought suit again alleging the same claims against the Hospital Authority and Murry on July 6, 1990, in the Superior Court of Dougherty County (Civil Action No. 90-CV-2953). This suit was voluntarily dismissed as well. Walker brought this current action on April 12,1991, in the State Court of Dougherty County (Civil Action No. 91-SCV-0218). It was transferred to the Superior Court of Calhoun County to obtain proper venue (Civil Action File No. 93-V-105).

During opening statements of this current action, Walker dismissed her claims against Murry for a third time. This appeal arises out of the Hospital Authority’s claim that the third dismissal of Murry acts as a judgment on the merits in his favor, thus barring further suits against him. It is the Hospital Authority’s contention that such a dismissal of their employee bars recovery against them under the doctrine of respondeat superior.

2. OCGA § 9-11-41 (a) states that a plaintiff may voluntarily dismiss an action without order or permission of the court, subject to limitations not applicable here. Such a dismissal is without prejudice, except that the filing of a third notice of dismissal operates as an adjudication upon the merits. In the instant case, by operation of OCGA § 9-11-41, the third voluntary dismissal of the action against Murry acts as an adjudication on the merits of the action against him. Thus, the doctrine of res judicata bars Walker from bringing action against Murry on the same claims a fourth time.

It is the Hospital Authority’s contention that this third dismissal of Murry, which invokes the doctrine of res judicata, also acts as a bar as to Walker’s claim of respondeat superior.

The complaints in this case and the previous two are against Murry for negligence and the Hospital Authority for negligence under the doctrine of respondeat superior. The Hospital Authority contends that the dismissal of the claim against Murry for the third time acts as an adjudication on the merits against the driver and, therefore, bars Walker from recovery under the doctrine of respondeat superior since the Hospital Authority derives its liability from Murry.

A dismissal with prejudice operates as an adjudication on the merits. Marchman & Sons v. Nelson, 251 Ga. 475, 477 (306 SE2d 290) (1983). “OCGA § 9-11-41 (a) provides that a plaintiff’s third voluntary dismissal, without order of the court, operates as an adjudication upon the merits. This statute thus makes a third voluntary dismissal a dismissal with prejudice. . . . T.V. Tempo v. T.V. Venture, 182 Ga. App. 198, 199-201 (1) (355 SE2d 76) (1987).” Fowler v. Vineyard, 261 Ga. 454, 456 (2) (405 SE2d 678) (1991); Zohoury v. Zohouri, 218 Ga. App. 748, 749 (463 SE2d 141) (1995). Thus, the dismissal of Murry for the third time, which is an adjudication on the merits under OCGA § 9-11-41, is legally a dismissal with prejudice.

Decided December 5, 1996

Reconsideration denied December 20, 1996

W. Earl McCall, for appellant.

B. T. Edmonds, Jr., Norman J. Crowe, Jr., for appellee.

Dismissal of an action against a defendant with prejudice operates as an adjudication of the nonliability of that defendant to the plaintiff and is a judgment on the merits. Rowland v. Vickers, 233 Ga. 67, 68 (209 SE2d 592) (1974).

“[WJhere the liability of the master to an injured third person is purely derivative and dependent entirely upon the doctrine of respondeat superior, a judgment on the merits in favor of the servant and against the third person is res judicata in favor of the master in a suit by such third person. . . .” Gilmer v. Porterfield, 233 Ga. 671, 673 (1) (212 SE2d 842) (1975); Roswell &c. Liquor Store v. Schurke, 137 Ga. App. 145, 148 (1) (222 SE2d 847) (1975); Southern Bell Tel. &c. Co. v. Wallace, 133 Ga. App. 213, 216 (2) (210 SE2d 347) (1974); see Thornton v. Ware County Hosp. Auth., 215 Ga. App. 276, 277 (1) (450 SE2d 260) (1994).

Therefore, the court should have granted j.n.o.v. to the Hospital Authority.

Case No. A96A1503

3. Our decision in Case No. A96A1502 renders moot the appeal in Case No. A96A1503, and it is hereby dismissed.

Judgment reversed in Case No. A96A1502. Appeal dismissed in Case No. A96A1503.

Pope, P. J, and Smith, J., concur.


author: Pope, Presiding Judge.

text:
    A96A0880.
    GARDNER v. ROGERS et al.
    (480 SE2d 217)
   Pope, Presiding Judge.

Plaintiff Leatrice Gardner sued defendant Ken Rogers, who is a Richmond County Sheriff’s deputy, for assault, battery, malicious abuse of process and civil rights violations, all arising out of Rogers’ alleged use of excessive force against plaintiff during an arrest. Plaintiff also sued defendant Charles B. Webster, who is the Richmond County Sheriff, for having a policy in place that condoned the violation of plaintiff’s civil rights. The trial court granted summary judgment to Rogers and Webster, and plaintiff appeals. We affirm in part and reverse in part.

Construed most favorably to plaintiff, the evidence shows that Rogers was dispatched to the scene of an alleged simple assault. When he arrived, Tonya Ancrum informed Rogers that an unidentified woman who lived in a nearby house had threatened Ancrum with a knife. Ancrum also indicated that the woman had threatened Ancrum’s 11-year-old sister and that Ancrum wanted to take out a warrant on this woman. Consequently, Ancrum, Rogers and another deputy sheriff went to the woman’s house to listen to her side of the story. When they arrived at the house, the woman, who was later identified as plaintiff, opened the door. Rogers, who appeared angry at plaintiff, told plaintiff what Ancrum had reported to him and asked for plaintiff’s version of events.

Plaintiff told Rogers that earlier in the day plaintiff’s daughter had been arguing with several neighborhood children at the edge of plaintiff’s yard. Plaintiff instructed her daughter to come in the house, and she told the other children to get out of her yard. Shortly thereafter, Ancrum came to plaintiff’s house and claimed that plaintiff had hit Ancrum’s daughter. According to plaintiff, Ancrum threatened to shoot plaintiff. Plaintiff, who denied threatening any child, closed the door in Ancrum’s face and demanded Ancrum leave plaintiff’s property. Plaintiff also denied ever threatening Ancrum with a knife.

After complying with Rogers’ request for information, plaintiff asked Rogers if plaintiff was under arrest and if Rogers had a warrant. Rogers responded that no one was being arrested and that he had no warrant. At that point, plaintiff asked Rogers and everyone else to leave her property. Plaintiff then began to close her door. Rogers stopped the door with his foot, but did not inform plaintiff that he had more questions. Instead, Rogers stated that the property was his and that he had a right to be there. Plaintiff again asked whether Rogers had a warrant and whether she was under arrest. When Rogers told plaintiff no, plaintiff again attempted to close her door. Rogers said “try me on for size,” reaching through the doorway and placing a choke-hold on plaintiff’s neck. Then he pushed the door open and drove plaintiff against some furniture and beat her. Rogers twisted plaintiff’s arm behind her back telling her that she was only five seconds away from having her arm broken. According to plaintiff, she had no physical contact with Rogers prior to the time he first applied the choke-hold. Subsequently, Rogers took plaintiff to his patrol car, where he allegedly hit plaintiff’s head on the car. Rogers charged plaintiff with simple assault upon a police officer.

Instead of immediately taking plaintiff to the sheriff’s department, Rogers drove to a school parking lot where he met Lieutenant Williams. Rogers and Williams discussed the situation in plaintiff’s presence, and Williams advised Rogers concerning how the situation should be handled. Williams told Rogers to charge plaintiff with anything Rogers could think of.

Sometime shortly after her arrest, plaintiff went to the hospital complaining of shoulder and neck pain. After being treated and having her arm put in a sling, she was released, but she remained in pain for an extended period of time.

Approximately one week after plaintiff’s arrest, Ancrum took out a warrant against plaintiff for assault. Plaintiff was tried before a jury on that charge and on the simple battery charge brought by Rogers. The jury acquitted plaintiff of assault, but was unable to reach a decision on the simple battery charge. Thereafter, the State decided not to retry plaintiff on that charge.

1. In his motion for summary judgment, Rogers contended that he was entitled to qualified immunity regarding plaintiff’s claim that her civil rights had been violated. We cannot agree. While it is true that police officers performing discretionary functions are generally entitled to qualified immunity shielding them from personal liability under 42 USC § 1983, such immunity exists only “insofar as [the officer’s] conduct does not violate ‘clearly established’ statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U. S. 800, 801 (3) (a) (102 SC 2727, 73 LE2d 396) (1982); Bell v. City of Albany, 210 Ga. App. 371, 374 (436 SE2d 87) (1993). “[T]he test for determining whether a defendant is protected from suit by the doctrine of qualified immunity is the objective reasonableness of the defendant’s conduct as measured by reference to clearly established law. . . . On a motion for summary judgment, if the applicable law was clearly established at the time the defendant acted, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” (Citation and punctuation omitted.) Forney v. Purvis, 190 Ga. App. 192, 195-196 (2) (378 SE2d 470) (1989).

In this case, plaintiff’s excessive force claim is premised upon a clearly established right of which Rogers should have known, namely the right to be free from unreasonable search and seizure as guaranteed by the Fourth Amendment to the United States Constitution. In determining whether Rogers clearly violated plaintiff’s Fourth Amendment rights, and thus, whether or not he is entitled to qualified immunity, however, we must examine his actions in light of the Fourth Amendment’s objective reasonableness test. See Bell, 210 Ga. App. at 374-375; Graham v. Connor, 490 U. S. 386 (109 SC 1865, 104 LE2d 443) (1989). Under that test, the “question is whether [an officer’s] actions are ‘objectively reasonable’ in light of the facts and circumstances confronting [the officer], without regard to [any] underlying intent or motivation [on the officer’s part].” Graham, 490 U. S. at 397.

Applying the above test to the facts in this case and construing those facts most favorably to plaintiff as the party opposing summary judgment, we are compelled to conclude that Rogers’ use of force against plaintiff was not objectively reasonable. Contrary to Rogers’ assertion, the facts, when construed in plaintiff’s favor, do not demonstrate that Rogers had probable cause to arrest plaintiff for either misdemeanor obstruction or battery before he forcibly seized plaintiff. And even if he did have cause to arrest her, he certainly did not have cause to use the degree of force he allegedly did. Instead, the evidence so construed shows that plaintiff had cooperated with Rogers’ investigation, and that plaintiff did not ask Rogers to leave her property and attempt to close her door until after it appeared that Rogers had no more questions. According to plaintiff, Rogers never informed plaintiff that his investigation was not complete, even after plaintiff attempted to close her door. Moreover, both before and during her attempt to close the door, Rogers informed plaintiff that plaintiff was not under arrest and that Rogers had no warrant. Under such circumstances, plaintiff’s actions were justified.

Under the facts as stated, it would have been apparent to any reasonable officer in Rogers’ position that force was not authorized and that Rogers’ use of force against plaintiff was excessive and illegal. Accordingly, Rogers is not entitled to qualified immunity. Forney, 190 Ga. App. at 196 (2). Therefore the trial court erroneously granted summary judgment to Rogers on this ground.

2. The trial court also erred in granting summary judgment to both Rogers and Webster on plaintiff’s civil rights claim on the ground that plaintiff could not demonstrate that she had suffered “significant injury” as the result of Rogers’ actions. As acknowledged by both Rogers and Webster, the United States Supreme Court’s holding in Graham does not require that a plaintiff show significant injury as an essential ingredient to a Fourth Amendment excessive force claim. And, recent federal decisions specifically have negated any such requirement. See Harper v. Harris County, Texas, 21 F3d 597, 600 (13) (5th Cir. 1994); Knight v. Caldwell, 970 F2d 1430, 1432 (3) (5th Cir. 1992); Titran v. Ackman, 893 F2d 145, 147, n. ** (7th Cir. 1990); see also Hudson v. McMillian, 503 U. S. 1 (112 SC 995, 117 LE2d 156) (1992) (abandoning the significant injury requirement in claims for excessive use of force arising in the context of the Eighth Amendment).

3. Sheriff Webster, nevertheless, was entitled to summary judgment regarding plaintiff’s civil rights claim against him because plaintiff has failed to present evidence that Rogers’ actions were effected pursuant to a direct order from Webster or in accordance with an intentional custom or policy instituted by Webster. See Springfield, Massachusetts v. Kibbe, 480 U. S. 257, 267 (107 SC 1114, 94 LE2d 293) (1987); Gwinnett County v. King, 218 Ga. App. 800, 802 (3) (463 SE2d 511) (1995); Tillman v. Mastin, 216 Ga. App. 3, 4 (453 SE2d 85) (1995). Such a showing was necessary in light of the affidavit Webster filed denying the existence of such an order, policy or procedure. Therefore the trial court did not err in dismissing plaintiff’s civil rights claim against Webster.

4. The trial court did, however, err in dismissing plaintiff’s state law claims against Rogers for assault and battery. See OCGA § 51-1-14. Based on our holding in Division 1, a jury could conclude that Rogers’ conduct toward plaintiff was not justified and that Rogers’ conduct placed plaintiff in fear of an illegal, unauthorized physical contact. Capitol T. V. Svc. v. Derrick, 163 Ga. App. 65 (1) (293 SE2d 724) (1982). A jury could further conclude that Rogers carried out the illegal contact and in doing so committed a battery upon plaintiff. Jarrett v. Butts, 190 Ga. App. 703, 705 (4) (379 SE2d 583) (1989). Contrary to Rogers’ assertion, he is not entitled to state official immunity as a matter of law with regard to plaintiff’s claims for assault and battery because the jury could conclude that his actions were intentional and carried out with wilfulness, malice or corruption, in violation of a known right. See Hennessy v. Webb, 245 Ga. 329, 330-331 (264 SE2d 878) (1980); Doe v. Howell, 212 Ga. App. 305, 306 (2) (441 SE2d 767) (1994).

5. Finally, we conclude that the trial court did not err in granting summary judgment to Rogers with regard to plaintiff’s state law claim of malicious abuse of process. Claims of malicious abuse of process are applicable only where civil process has been improperly instigated, not criminal process. Gillilan v. Still, 199 Ga. App. 118, 119 (1) (404 SE2d 445) (1991).

In light of the above, we affirm the trial court’s grant of summary judgment to Webster. We also affirm the grant of summary judgment to Rogers on plaintiff’s malicious abuse of process claim, but we reverse the grant of summary judgment to Rogers on plaintiff’s claims of state law assault and battery, and plaintiff’s civil rights claim based on excessive use of force.

Judgment affirmed in part and reversed in part.

Andrews and Smith, JJ, concur.

Decided December 20, 1996

Ellis R. Garnett, for appellant.

Burnside, Wall, Daniel, Ellison & Revell, Thomas R. Burnside III, James W. Ellison, for appellees.


author: Smith, Judge.

text:
    A96A2032.
    BAGHDADY v. CENTRAL LIFE INSURANCE COMPANY.
    (480 SE2d 221)
   Smith, Judge.

Hisham Baghdady brought suit against Central Life Insurance Company after terminating a health insurance policy issued by Central on which he had paid premiums for eight years. He sought recovery of all premiums on the ground that no coverage ever existed. The trial court granted Central’s motion for summary judgment, and Baghdady appeals.

1. Baghdady contends the trial court erred in granting Central’s motion for summary judgment because the record clearly reflects that under the policy provisions, no coverage in fact existed during the entire time the policy was in force. The policy provides that “YOUR plan of insurance shall terminate on the earliest of: . . . the date YOU no longer reside in the United States of America.” Baghdady argues that because he did not reside in the United States but in Kuwait during the entire time the policy was in effect, no coverage was ever in effect, and the premiums should be returned.

He asserts that Central had notice that he did not live in the United States because of his answer to a question on the application for insurance requesting the name and address of “your employer or place of business,” which he indicated was in Kuwait. Baghdady argues that Central knew or should have known from that response that he was a “resident” of Kuwait. We do not agree.

(a) First, it is not clear that Baghdady was not a “resident” of the United States. Although one can have only one domicile, one may have more than one residence. ADC Constr. Co. v. Hall, 191 Ga. App. 33 (1) (381 SE2d 76) (1989). Baghdady could therefore have “resided” in the United States as well as in Kuwait, and the policy provision would not have been triggered. Baghdady is a citizen of the United States and has bought a home in Roswell, to which he intends to return when he retires. He has maintained several homes in the United States, which he has used as a base of operations no matter where he was then living. He and his wife traveled back and forth between the United States and Kuwait, coming here during the summers when the children were not in school. He paid U. S. income taxes on his earnings. Baghdady has failed to demonstrate that he was, in fact, not a resident of the United States as well as a resident of Kuwait during the time in issue. He has therefore failed to show that the termination provision in the policy was triggered.

(b) Second, even if Baghdady was not a resident of the United States, the record does not indicate that Central had any knowledge, actual or constructive, of this fact. The record reveals that on February 2, 1983, Baghdady completed an application for a combination life and health insurance policy. He indicated on the application that he and his family were covered under another insurance plan, which would terminate shortly because of a change of employment. On the application, Baghdady listed his “residence address” as an address in Dublin, Ohio. Payment of premiums was arranged for through automatic debits on bank accounts he maintained in the United States. The insurance policy was issued and became effective on March 1, 1983.

Baghdady testified on his deposition that he began working for the new employer on February 12, 1983, and after being offered a job in Kuwait, he sold his home in Ohio in May 1983. An additional application for insurance coverage was completed in August 1983. Although Baghdady was in Kuwait, his residence address was listed on the application as an address in Columbia, South Carolina. He was in Kuwait until August 1990, when Iraq invaded Kuwait. During the time he was in Kuwait, he maintained an address in the United States, principally a condominium in Columbia, South Carolina, which he owned and later transferred to his adult son. United States addresses were used on all correspondence to and from Central.

Because all correspondence between the parties was to and from addresses in the United States, Baghdady has failed to show that he notified Central that he no longer lived in the United States. He did not cancel his coverage until 1991.

2. Baghdady also contends he is entitled to recover the premiums under a theory of money had and received. This theory applies only when there is no actual legal contract. Pickelsimer v. Traditional Builders, 183 Ga. App. 709, 710 (1) (359 SE2d 719) (1987) (physical precedent only). Since a legal contract, in this case an insurance contract, existed here, the theory of money had and received is not applicable to these facts.

Moreover, an action for money had and received, although legal in form, is founded on the,equitable principle of unjust enrichment. Landers v. Heritage Bank, 188 Ga. App. 785, 787 (374 SE2d 353) (1988). In such cases, the equities must be weighed in determining whether recovery is proper. Id.

Decided December 20, 1996.

RolfM. Baghdady, for appellant.

Cashin, Morton & Mullins, Steven R. Glasscock, Richard W. Gerakitis, for appellee.

The gist of Baghdady’s contention is that he purchased a policy to cover him and his family while they were overseas, and he did not realize until he had paid premiums for eight years that the policy actually excluded coverage for his particular situation. In his own words, he realized that he had “wasted all [his] money.” Because the risk attached, however, and no fraud was present, no recovery of premiums may be had in this situation. Lui v. Occidental Life Ins. Co., 246 Ga. 752, 753 (272 SE2d 707) (1980).

An insured has a legal duty to examine the policy issued to him to learn what coverage is provided. Greene v. Lilburn Ins. Agency, 191 Ga. App. 829 (383 SE2d 194) (1989). Had Baghdady read the policy initially, he would have discovered the provision in issue just as he did when he finally read the policy eight years later. He did not do so, however, for the period of approximately eight years during which the policy was in force.

Although a plaintiff can generally recover payments mistakenly made when the mistake was caused by his lack of diligence or negligence in failing to obtain the true facts, that is true only when the other party would not be prejudiced by refunding the payments. Landers, supra at 787; OCGA § 23-2-32. In this case, even if Baghdady could show that no coverage existed, Central accepted and bore the risk of insuring Baghdady for eight years because of Baghdady’s negligence in failing to read the policy issued. Central therefore would be prejudiced by return of the premiums because it would remain uncompensated for the risk it bore. Balancing the equities in this case supports the trial court’s grant of summary judgment to Central.

Judgment affirmed.

Pope, P. J., and Andrews, J, concur.

       We note as well that the statute of limitation for an action based upon money had and received is four years. OCGA § 9-3-25; Macomber v. First Union Nat. Bank &c., 212 Ga. App. 57, 58 (1) (441 SE2d 276) (1994).


author: Blackburn, Judge.

text:
    A96A2387.
    WADDELL v. THE STATE.
    (480 SE2d 224)
   Blackburn, Judge.

Jonathan Scott Waddell, a former jailer at the Paulding County jail, appeals his convictions on one count of cruelty to inmates (OCGA § 42-4-5) and one count of party to the crime of simple battery (OCGA §§ 16-2-20; 16-5-23). He challenges the sufficiency of the evidence, claims the trial court improperly limited his cross-examination of the victim, argues his trial counsel was ineffective, and claims the trial court should have granted him a new trial based on newly-discovered evidence. He also seeks review of his sentence of two years in prison and two additional years on probation. We affirm.

1. Waddell’s claim that the evidence is insufficient is reviewed under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), with the evidence viewed in a light most favorable to the verdict, to determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes for which he was convicted. Rice v. State, 266 Ga. 247, 248 (467 SE2d 897) (1996).

The victim was arrested and spent two nights in the Paulding County jail while waiting for someone to pay his bond. He spent the second night in a cell with approximately two dozen inmates, one of whom was Brent Sapree, who was indicted with Waddell. Waddell was one of the guards for that cell hall. During the night, Sapree and other inmates severely beat the victim twice.

Sapree, who pled guilty to simple battery, testified he beat the victim at Waddell’s request in exchange for cigarettes, which were forbidden to inmates. According to Sapree, Waddell said he wanted the victim beaten because “he had problems with [the victim] about a girl.” The evidence showed the victim was a friend of Waddell’s ex-wife, and the victim testified Waddell had once confronted him when he saw the victim and Waddell’s ex-wife together. Waddell admitted he and the victim had once exchanged words. Before the attack, the victim overheard Waddell say to Sapree, “take him out,” at which time Waddell looked at the victim and gave him a “thumbs down” sign. After the beatings, another inmate saw Waddell give Sapree cigarettes.

The testimony of Waddell’s accomplice, Sapree, accompanied by the corroborating evidence presented by the victim and the other inmate, sufficiently supports the convictions. See Swinney v. State, 217 Ga. App. 657, 658 (1) (458 SE2d 686) (1995) (testimony of accomplice accompanied by slight corroborating evidence from another source identifies the accused as a participant in the criminal act).

2. Waddell enumerates as error the trial court’s refusal to allow him to cross-examine the victim regarding the criminal charges for which he was jailed at the time of the attack. In his opening statement, Waddell’s trial counsel told the jury they would hear evidence that the victim had been charged with making threats against an estranged husband of a female friend. The State subsequently moved in limine to exclude such evidence as irrelevant. Waddell responded that the facts which gave rise to the charge were relevant to show that the victim had a history of injecting himself into other people’s personal relationships. The trial court then ruled, “I’m not going to allow any testimony concerning the reason why the victim was in jail. I don’t find that to be relevant to the trial of the issues in this case.” The trial court did not err in excluding the testimony on this basis, as Wáddell’s argument merely amounted to an attempt to impeach the victim’s credibility. See Wetta v. State, 217 Ga. App. 128, 130 (3) (456 SE2d 696) (1995) (specific acts showing bad character are not admissible to impeach a witness’ credibility).

Waddell states the general principle that evidence of a witness’ pending criminal charge is always admissible to show the witness has a reason to testify favorably for the State. Accordingly, a trial court errs when it cuts off all questioning on this subject. See, e.g., Beam v. State, 265 Ga. 853, 856-857 (4) (463 SE2d 347) (1995); Hines v. State, 249 Ga. 257, 259-260 (2) (290 SE2d 911) (1982).

In this case, however, the record is clear that the only reason Waddell urged the trial court to allow him to explore the victim’s pending charge was his theory that the facts giving rise to the charge showed a pattern of misconduct by the victim. Therefore, as in

Strickland v. State, 257 Ga. 230, 232-233 (4) (357 SE2d 85) (1987); Haynes v. State, 199 Ga. App. 288, 290-291 (3) (404 SE2d 585) (1991); and Woods v. State, 210 Ga. App. 172, 173 (1) (435 SE2d 464) (1993), Waddell’s failure to make this argument below prevents appellate review. “ ‘Because this is a court for review and correction of error, we cannot consider objections to evidence different from those raised at trial.’ [Cit.]” Wilkins v. State, 220 Ga. App. 516, 517 (1) (469 SE2d 695) (1996). Furthermore, the trial court did not prohibit Waddell’s counsel from inquiring into the witness’ bias, and he did ask the witness whether a deal existed.

3. Waddell alleges his trial counsel was ineffective, a claim which requires him to show both that (1) his counsel’s performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the outcome of the proceeding would have been different. Sanders v. State, 211 Ga. App. 859, 862 (1) (440 SE2d 745) (1994). After an evidentiary hearing, the court found that trial counsel’s performance was not deficient. This Court must affirm that ruling unless it is clearly erroneous. Bradford v. State, 221 Ga. App. 232, 235 (3) (471 SE2d 248) (1996).

(a) Waddell claims his trial counsel met with him only once prior to trial for 90 minutes, failed to properly prepare him for cross-examination, and failed to fully investigate the case. The trial attorney testified that he reviewed with Waddell the statements of the State’s witnesses, discussed Waddell’s testimony with him, and felt he had prepared him adequately. As “there exists no magic amount of time which a counsel must spend in preparation for trial in order to provide a client with adequate counsel,” the time factor is not dispositive. Hand v. State, 205 Ga. App. 467, 469 (2) (422 SE2d 316) (1992).

Waddell claims that if his attorney had spent more time with him he would have made a better witness, but “even the most thoroughly prepared defendant may blurt out something unfavorable to his cause.” Hammond v. State, 264 Ga. 879, 887 (9) (452 SE2d 745) (1995). Furthermore, a review of the transcript shows the attorney was able to cross-examine the State’s witnesses regarding their prior inconsistent statements made to authorities. See Bevil v. State, 220 Ga. App. 1, 4 (7) (467 SE2d 586) (1996) (even though he did not interview witnesses, no testimony at trial surprised attorney who had reviewed statements of witnesses). Finally, although Waddell claims better investigation would have produced a certain witness, he has not claimed he told his attorney about this witness, nor has he shown the witness would have testified favorably for him. See Goodwin v. Cruz-Padillo, 265 Ga. 614, 615-616 (458 SE2d 623) (1995) (absent proffer of what witness would have said, no showing that attorney’s failure to secure his presence changed result of trial). The trial court’s finding that trial counsel adequately prepared for trial is not clearly erroneous; therefore, Waddell’s allegations of ineffective assistance of counsel have no merit.

(b) Waddell also alleges ineffective assistance in his attorney’s failure to move for a mistrial when, during the trial, two jurors stated they recognized the victim as a former schoolmate. Because neither juror knew the victim personally or had any opinion about his credibility, Waddell had no ground for a challenge for cause and, therefore, cannot claim ineffective assistance because his attorney failed to seek a mistrial. See Sanders, supra.

4. Waddell moved for new trial on the basis of newly discovered evidence and claims the trial court erred by denying that motion. The new evidence was the testimony of a woman who had lived with the victim before and after the trial. She was called as a witness on the motion and testified the victim told her Sapree beat him because he had stolen something from Sapree and Waddell was not involved. Assuming this evidence was “newly discovered,” it did not require a new trial, as Waddell failed to meet all the requirements set forth in Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980). In addition to its other requirements, Timberlake mandates that a new trial may not be granted “ ‘if the only effect of the evidence will be to impeach the credit of a witness.’ ” Id. As the trial court found, the testimony at hand does nothing more than contradict the victim’s trial testimony. See Martin v. State, 219 Ga. App. 277, 282-283 (8) (464 SE2d 872) (1995). This enumeration is, therefore, without merit.

Decided December 24, 1996.

Brian D. Hardison, for appellant.

James R. Osborne, District Attorney, Allyson P. Guy, Assistant District Attorney, for appellee.

5. Waddell also asks this Court to modify his sentence, which he claims is excessive in light of his prior clean record. On the cruelty to inmates conviction, the trial court sentenced him to two years in prison and one on probation, a sentence within the parameters of OCGA § 42-4-5 (b). The court added a consecutive charge of 12 months probation for Waddell’s conviction as a party to the crime of simple battery. This sentence did not exceed that allowed by law. See OCGA § 16-5-23; see Branch v. State, 182 Ga. App. 818, 820 (3) (357 SE2d 136) (1987). As Waddell raises no legal challenge to the consecutive sentences, we will not review the trial court’s exercise of discretion in imposing consecutive sentences.

Judgment affirmed.

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