text:
    A98A1774.
    CAPITAL ALLIANCE INSURANCE COMPANY, INC. v. CARTWRIGHT et al.
    (512 SE2d 666)
   Blackburn, Judge.

Capital Alliance Insurance Company, Inc. (Capital Alliance) appeals from the trial court’s denial of its motion for summary judgment and the grant of defendants’ motion for summary judgment in the underlying declaratory judgment action. We reverse, finding that, under Alabama law, the policy unambiguously excludes coverage for claims arising out of the use of a truck or trailer, and, consequently, the trial court erred in granting summary judgment to defendants and in failing to grant summary judgment to Capital Alliance.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Applying this standard to the facts before us, the record shows that Capital Alliance issued a commercial general liability policy to Franklin Transportation, Inc. (Franklin), a motor contract carrier. That policy contained an automobile liability exclusion which stated: “This insurance does not apply to . . . ‘[b]odily injur/ or ‘property damage’ arising out of the . . . use ... of any . . . ‘auto’. . . owned or operated by or rented or loaned to any insured. Use includes operation and ‘loading or unloading.’ ” The Capital Alliance policy defined “auto” as “a land motor vehicle, trailer or semi-trailer designed for travel on public roads, including any attached machinery or equipment.” Franklin obtained coverage from another carrier to cover its automobile liability.

The Capital Alliance policy also contained a contractual indemnity exclusion which stated: “This insurance does not apply to . . . ‘[b]odily injur/ or ‘property damage’ for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages: (1) Assumed in a contract or agreement that is an ‘insured contract.’ ” Pursuant to the policy an “insured contract” is “[t]hat part of any other contract or agreement pertaining to your business . . . under which you assume the tort liability of another party to pay for ‘bodily injur/ . . . to a third person.”

Prior to purchasing the Capital Alliance policy, Franklin entered into a Drayage Services Agreement with Triple Crown Services, Inc. (Triple Crown). Franklin agreed to indemnify Triple Crown for loss or damages arising out of the performance of this agreement. Subsequently, Franklin was hauling a trailer owned by Triple Crown, and a shock absorber fell off the trailer, went through the windshield of Cartwright’s car, and struck Cartwright in the head, seriously injuring him.

Cartwright filed suit against Franklin and Triple Crown for his injuries. Triple Crown sought indemnity from Franklin for Cartwright’s claim. The defendants, in turn, sought coverage for the indemnity claim under the commercial general liability policy issued by Capital Alliance. Capital Alliance filed a declaratory judgment action seeking a determination of its liability, arguing that the automobile exclusion barred coverage of the claim. Defendants argued that the policy provided coverage under the contractual indemnity exclusion. It is undisputed that the contractual indemnity exclusion does not apply to the facts of the underlying claim and therefore does not bar coverage.

1. The trial court determined the Capital Alliance policy was ambiguous because the automobile exclusion barred coverage, but the contractual indemnity exclusion did not. Construing this ambiguity against the insurer, the trial court held the policy provided coverage for the indemnity claim. The trial court based coverage on the exception contained within the contractual indemnity exclusion.

In analyzing a contract of insurance, “the court must examine more than an isolated sentence or term; it must read each phrase in the context of all other provisions.” Hall v. American Indem. Group, 648 S2d 556, 559 (Ala. 1994). Reading the policy as a whole, the application of the contractual indemnity exclusion has no bearing on the interpretation or application of the automobile liability exclusion. The exclusions are not mutually exclusive. Typically when one or more exclusions apply to bar coverage, the other exclusions do not. Under the trial court’s construction, insurance carriers would be unable to eliminate risks unless all of the exclusions within a policy applied to a claim. “Courts are not empowered to insert ambiguities by strained and twisted reasoning[ ] into contracts where no ambiguities exist.” (Punctuation omitted.) Woodall v. Alfa Mut. Ins. Co., 658 S2d 369, 371 (Ala. 1995). The policy is not made ambiguous simply because the contractual indemnity exclusion does not apply.

Nor is the policy made ambiguous by the automobile exclusion. The Alabama Supreme Court has previously interpreted a similar automobile exclusion and found it unambiguous. St. Paul Mercury Ins. Co. v. Chilton-Shelby Mental Health Center, 595 S2d 1375 (Ala. 1992). In that case, St. Paul had issued a policy to the mental health center which included general liability coverage. One of the services provided by the mental health center was rural transportation. The policy excluded “injury due to the ownership or use of any auto owned or operated by any protected person.” (Punctuation omitted.) Id. at 1376. When the mental health center sought coverage for the heat-related death of a toddler who had been left accidentally in a parked van, St. Paul relied on the automobile exclusion to deny coverage. The Alabama Supreme Court found the exclusion unambiguous as written and held the policy had to be enforced as written. The exclusion barred coverage for the wrongful death claim. Id. at 1377.

Applying that holding to the facts before us, the automobile exclusion is unambiguous and operates to bar coverage of the underlying claim. ‘Where there is no ambiguity in the terms of an insurance contract as written, express provisions of the policy, including any exclusions, cannot be defeated by making a new contract for the parties. Although insurance policies containing ambiguities are to be construed in favor of the insured, it is imperative that courts enforce unambiguous policies as written.” (Punctuation omitted.) Carpet Installation &c. v. Alfa Mut. Ins. Co., 628 S2d 560, 562 (Ala. 1993). The automobile exclusion excludes risks associated with the insured’s use of trailers and semi-trailers. The bodily injury alleged by Cartwright undisputedly arises out of the use of a trailer or semitrailer being operated on a public road by the insured, Franklin. Even though the claim against Franklin is a contractual indemnity action, the fact remains that Cartwright’s injuries arose out of the use of a trailer, a risk excluded by the policy.

Defendants contend that Townsend Ford v. Auto-Owners Ins. Co., 656 S2d 360 (Ala. 1995) supports finding the terms of the exclusion ambiguous. Townsend is distinguishable. Townsend held that an automobile dealership’s misrepresentations did not fall within the scope of the automobile exclusion. In contrast, the claim here clearly falls within the ambit of the automobile exclusion. See St. Paul Mercury Ins. Co., supra (although liability was not predicated on the insured’s operation of a van, the claimant’s injuries arose out of use of van and exclusion applied).

Defendants argue that the policy should be construed to meet the reasonable expectations of the insured. However, since the express provisions of the Capital Alliance policy are clear and unambiguous, construction of the policy is unnecessary. United Sues. Auto. Assn. v. Smith, 329 S2d 562 (Ala. App. 1976). Furthermore, the actions of Franklin do not show a reasonable expectation of coverage. The Common Policy Declarations page of the policy clearly states that no business auto liability coverage was purchased. Franklin accepted the policy with the understanding that it excluded liability arising out of the use of trailers and even obtained coverage from another carrier to cover the excluded risk. Franklin’s actions are consistent with the actions of an insured who had no expectation that such claims would be covered by the Capital Alliance policy.

Accordingly, the trial court erred in finding that the Capital Allianee policy was ambiguous and in finding that it covered the contractual indemnity for Cartwright’s claim. The trial court also erred in failing to find that the automobile exclusion barred coverage of the underlying claim.

Decided February 19, 1999

Seacrest, Karesh, Tate & Bicknese, Gary L. Seacrest, Lauren G. Danielson, for appellant.

Drew, Eckl & Farnham, Lucian Gillis, Jr., for appellees.

2. Capital Alliance contends the trial court erred by prematurely granting summary judgment to the defendants prior to the expiration of 30 days from service of the defendants’ motion and before Capital Alliance had the opportunity to respond. Our decision in Division 1 makes this enumeration of error moot.

3. The defendants moved to strike certain affidavits filed by Capital Alliance. As this Court did not consider those affidavits in Division 1, the defendants’ motion is moot.

Judgment reversed.

McMurray, P. J, and Eldridge, J, concur.

       Franklin Transportation, Inc., Triple Crown Services Company, NS Crown Services, Inc. and TCV, Inc.

       The parties agree that Alabama law applies to the interpretation of the policy.

       Cartwright’s claim against Franklin was covered by the insurance carrier who had issued the automobile liability policy.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A98A1920.
    WALSH v. THE STATE.
    (512 SE2d 408)
   Pope, Presiding Judge.

William F. Walsh appeals from his conviction on three counts of child molestation. We affirm.

1. In his first enumeration, Walsh asserts that a search warrant issued for his home on November 8, 1996, lacked probable cause and that the trial court erred in denying his motion to suppress evidence seized pursuant to the warrant. Walsh also argues that three scraps of paper seized by police did not fall within the scope of the warrant.

(a) “On appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgments made. [Cit.] Moreover, when reviewing an affidavit for a search warrant, we look at the totality of the circumstances to determine if there was probable cause to issue the search warrant. [Cit.]” (Punctuation omitted.) Culver v. State, 230 Ga. App. 224, 227 (1) (496 SE2d 292) (1998).

The search warrant was obtained by Sergeant Mike McHugh of the Walton County Sheriff’s Office. McHugh’s affidavit stated that on October 25, 1996, he was informed by the Walton County Department of Family & Children Services (DFCS) that several male students at Social Circle Elementary School had complained that they had been fondled by Walsh, a teacher at the school. McHugh said that he had interviewed a number of students and that they had given credible statements that Walsh had touched at least five students inappropriately in violation of OCGA § 16-6-4 (a). He also represented that other witnesses corroborated the students’ statements that they were photographed by and with Walsh, at Walsh’s request. An adult told investigators that Walsh had shown her photos he had taken depicting some of his former students in a wooded area and that the pictures appeared to be computer-generated. McHugh also stated that he had learned from Gilmer County that similar charges had been asserted by students at a school in Gilmer County where Walsh once taught, that Walsh had admitted to taking pictures of the Gilmer County students involved, and that such pictures had been located at Walsh’s residence. McHugh noted that his investigation had also revealed that Walsh had a thorough working knowledge of photographic equipment and development.

Based upon this affidavit, the Walton County magistrate issued a warrant allowing investigators to search for “photographs, negatives, computer disks, computer programs or computer equipment which contain images or pictures of children that were photographed by William ‘Bill’ Walsh or photographed with Walsh.”

At the suppression hearing, McHugh testified that he has had special training in the area of child molestation and abuse and has handled between 30 and 40 such cases. He confirmed the facts asserted in his affidavit, explaining that he had access to the entire Gilmer County file on Walsh and that he had seen photographs that Walsh had taken of the children in Gilmer County. While McHugh acknowledged that there was nothing on the face of any of the pictures referenced in his affidavit showing criminal activity, he said that the pictures established physical contact with some of the students who previously had made allegations against Walsh. He testified that in his experience, child molesters often keep a trophy or some token to remind themselves of their victims, and that trophy sometimes is a photograph of the victim. McHugh further explained that he obtained the warrant because he was seeking photographs showing physical contact between Walsh and the alleged Walton County victims.

We find that this evidence was sufficient to find probable cause to issue the warrant. “The totality of the circumstances and evidence collected was sufficient to find that there was a fair probability that a search of [Walsh’s home] would result in evidence [relevant to] a crime, and therefore probable cause existed for the issuance of the warrant.” Culver v. State, 230 Ga. App. at 228 (1). See Bromley v. State, 259 Ga. 377, 379 (3) (380 SE2d 694) (1989); Miller v. State, 219 Ga. App. 213, 216 (2) (464 SE2d 621) (1995).

(b) McHugh, accompanied by officers from the GBI and the Oconee Sheriff’s Office, executed the warrant at Walsh’s home and seized six photo albums full of pictures and three small scraps of paper with Internet sites written in red ink. These scraps of paper were located in the lower right-hand drawer of the desk where the computer was kept. McHugh testified that they seized these papers because some of the Internet sites listed had obviously pornographic titles and further contained the suffix “JPG” or “GIF,” which indicates that a picture is attached.

Walsh contends that these papers fell outside the scope of the search as they were not listed among the items in the warrant. However, the officers were entitled to seize this evidence, even if it was not specifically listed in the warrant. The search warrant allowed the officers to seize photographs, computer programs and computer equipment containing images or pictures of children photographed with or by Walsh. The three slips of paper contained a listing of Internet addresses, some of which had pornographic titles and which indicated that photographic images were attached. Because the officers did not have Internet access at the scene of the search, they could not determine whether the photographs referenced were of Walsh or of any of the children. But because the addresses indicated that they were, as McHugh phrased it, “pathways to pictures” the officers were entitled to seize the papers pending further investigation.

“The police officers were not compelled to overlook relevant evidence . . . simply because it was not specifically [listed] in the search warrant. [Cit.] The fact that the police officers seized items not listed in the warrant did not render the search a general one or make it unlawful. [Cits.]” (Punctuation omitted.) McBee v. State, 228 Ga. App. 16, 21 (3) (491 SE2d 97) (1997) (allowing the seizure of nude photographs even where photographs were not listed in the warrant).

(c) Walsh next contends that the three slips of paper were not subject to seizure because they were private papers within the meaning of OCGA § 17-5-21. The Supreme Court of Georgia has held, however, that the private papers referred to in that statute are restricted to those covered by an applicable privilege. Sears v. State, 262 Ga. 805, 807 (3) (426 SE2d 553) (1993); Hale v. State, 220 Ga. App. 667, 670 (2) (d) (469 SE2d 871) (1996). As no privilege applies to Walsh’s papers, this argument is without merit.

2. Walsh also contends that the trial court erred in failing to suppress evidence collected during a warrantless search of his home on November 15, 1996. On that date, the Oconee County Sheriff called Walsh’s wife and asked if he and a GBI agent working on the case could come over and take the computer. She agreed. When the officers arrived at the Walsh house, Walsh’s wife let them in and told them that they could take the computer. She told the officers that she had purchased the computer for her husband, and their children also used it.

Walsh contends that his wife lacked authority to consent to a seizure of the computer because it contained records of his Internet browsing, which were a record of his personal thoughts and associations. We disagree.

“The authority which justifies the third-party consent does not rest upon the law of property, . . . [cits.] but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” United States v. Matlock, 415 U. S. 164, 171, n. 7 (94 SC 988, 39 LE2d 242) (1974). See Gossett v. State, 199 Ga. App. 286, 287 (1) (b) (404 SE2d 595) (1991).

At the time of the search, Walsh and his wife were married and, until the time of Walsh’s arrest, had resided together in the house. Further, Walsh’s wife had purchased the computer, and the couple’s children used it. Thus, the computer was not Walsh’s alone but was available to the entire family. Under these circumstances, Walsh’s wife had the authority to consent to the seizure of the computer, because she had common authority over the premises as well as over the computer itself. See Brooks v. State, 231 Ga. App. 561, 563 (2) (500 SE2d 11) (1998); Johnson v. State, 266 Ga. 140, 141 (2) (464 SE2d 806) (1996).

3. Walsh argues in his next enumeration that the trial court erred in denying his motion in limine to exclude materials obtained from a search of his computer. These materials included nude pictures of young men and explicit transcripts from homosexual Internet chatroom sessions.

‘Where a defendant charged with sex crimes seeks to exclude from evidence material offered for its sexually explicit nature, the question is whether the evidence sought to be excluded by the defendant is admissible to show defendant’s bent of mind toward the sexual activity with which he was charged or defendant’s lustful disposition.” (Citations and punctuation omitted.) Ingram v. State, 211 Ga. App. 252, 256 (6) (438 SE2d 708) (1993). “Furthermore, if evidence is relevant, no matter how slightly, it generally should be admitted and its weight left to the jury.” (Citations and punctuation omitted.) Kelley v. State, 233 Ga. App. 244, 250 (4) (503 SE2d 881) (1998). See also Culver v. State, 230 Ga. App. at 235 (16).

Walsh’s child molestation charges concern the inappropriate touching of male children. While the materials at issue do not specifically depict sexual activity involving children, all the materials concern sexual activity between males. The pictures introduced by the state were either of young nude men or involved homosexual acts. The chatroom materials were sexually explicit and related to homosexual activity. “This court . . . has consistently held in child molestation cases that [materials] showing natural and unnatural sex acts . . . can have a tendency to show a bent of mind toward sexual activity. [Cits.] This [evidence] is admissible to show bent of mind and lustful disposition . . . , even if the content of the material does not relate to children. [Cit.]” (Punctuation omitted.) Burris v. State, 204 Ga. App. 806, 808 (1) (420 SE2d 582) (1992). See also Ingram v. State, 211 Ga. App. at 256 (6).

Accordingly, we find no error in the trial court’s denial of Walsh’s motion in limine.

4. In his last enumeration, Walsh contends that the trial court erred in denying his motion for a directed verdict for acquittal because the evidence showed that no touching occurred beneath the victims’ clothing and no other indicia existed that the touching was sexual in nature.

Walsh was tried for child molestation based upon the testimony of three young male victims, who were students at an Oconee County middle school, where Walsh was a substitute teacher. The first boy, who was 11, testified that when Walsh called him up to his desk he placed his hand on the boy’s buttocks. When the boy looked at Walsh’s hand, he removed it, but Walsh placed his hand there a second time and held it there until the boy pulled away. The boy testified that Walsh’s actions made him very uncomfortable.

The second boy, who was 12, testified that on that same day, Walsh called him up to his desk. Walsh then grabbed his buttocks and pulled the boy closer to him. Walsh kept his hand there for a few minutes until the boy returned to his desk. The boy testified that Walsh’s actions qualified as a “bad touch.”

The third boy, who was 13, was also called up to Walsh’s desk that day. Walsh said he wanted to speak to the boy to compliment him on his good behavior. The boy thought this was strange as he had not been especially good that day. Walsh then grabbed the boy’s buttocks, making him feel uncomfortable. Later, when the boy was attempting to conceal a note he had received from a friend, Walsh came over to the boy’s desk, put his hand under the paper and held the boy’s penis for a matter of seconds until the boy pulled his chair away. A girl in the class witnessed Walsh touching the boy and testified that Walsh had touched the boy on the penis. Walsh then kept all three boys in the classroom after dismissing the rest of the class to recess and gave the boys candy.

We find that this evidence was sufficient to present the issue of child molestation to the jury. A conviction for child molestation does not require a showing that the victim was touched beneath his clothing. See Watson v. State, 222 Ga. App. 814 (476 SE2d 96) (1996); Bragg v. State, 217 Ga. App. 342, 343 (2) (457 SE2d 262) (1995). Moreover, the issue of whether the touching was sexual in nature is for the jury. See Watson v. State, 222 Ga. App. at 816 (3).

Decided February 19, 1999.

Kennedy R. Packer, for appellant.

Harry N. Gordon, District Attorney, Kirk M. Thomas, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, P. J., and Ruffin, J., concur.


text:
    A98A2051.
    WIDNER et al. v. BROOKINS, INC. et al.
    (512 SE2d 405)
   Pope, Presiding Judge.

Betrice Widner suffered injuries when her car fell into a trench that had been dug across a public road to lay a telephone cable. Bell South Telecommunications, Inc. had contracted with appellee Brook-ins, Inc. to lay the cable, and Brookins, in turn, had sub-contracted with Pro Grassing & Grading, Inc. to perform the actual work. Betrice Widner and her husband, William O. Widner, sued Bell South and Brookins, and Brookins filed a third-party complaint against Pro Grassing.

This is the second appearance of this matter before this Court. In Bell South Telecommunications v. Widner, 229 Ga. App. 634, 637 (495 SE2d 52) (1997), we reversed the trial court’s denial of Bell South’s motion for summary judgment and remanded the case with the direction that summary judgment be entered in Bell South’s favor. After remand, Brookins moved for summary judgment, and the trial court granted the motion. The Widners appeal, and we affirm.

1. The Widners contend that Pro Grassing was acting as an employee and agent of Brookins, not as an independent contractor, in laying the telephone cable, and thus contend that Brookins is liable under respondeat superior for any negligence of Pro Grassing. However, we found in the earlier appeal that Pro Grassing was performing the work on the telephone cable as an independent contractor of Brookins. Bell South Telecommunications v. Widner, 229 Ga. App. at 636 (1). Because the Widners introduced no additional evidence on this issue in response to Brookins’ motion for summary judgment, that finding remains the law of the case. See Lowman v. Advanced Drainage Systems, 228 Ga. App. 182, 184-185 (491 SE2d 427) (1997); McLean v. Continental Wingate Co., 222 Ga. App. 805, 807 (1) (476 SE2d 83) (1996). Thus, the Widners’ argument that Brookins could be liable under respondeat superior is without merit.

2. As a general rule, an employer is not liable for the torts of an independent contractor. OCGA § 51-2-4. Nevertheless, the Widners contend that Brookins is vicariously liable for any negligence on the part of Pro Grassing. They raise a number of different arguments to support this contention, relying upon OCGA § 51-2-5, which sets out various exceptions to the general rule. However, they raised only two of these arguments before the trial court. Because this Court cannot consider arguments that were neither raised nor ruled upon in the trial court, we will consider only those arguments addressed below. See Chrison v. H & H Interiors, 232 Ga. App. 45, 50 (2) (500 SE2d41) (1998); Siegrist v. Iwuagwa, 229 Ga. App. 508, 511 (1) (494 SE2d 180) (1997).

(a) The Widners first argue that Brookins is liable for Pro Grassing’s negligence because it violated a duty imposed upon Brookins by an express contract. Although the Widners do not cite to the statute, their argument tracks the language of OCGA § 51-2-5 (3), which provides that an employer is liable for the negligence of a contractor “[i]f the wrongful act is a violation of a duty imposed by express contract upon the employer.”

The Widners have failed on appeal to point to any express contractual obligation imposed upon Brookins. Instead, they rely upon case law to argue that Brookins had an implied duty to restore the road to its original condition after the utility work was completed. Such an implied obligation does not impose liability upon Brookins under the statute. We have interpreted the exception outlined in OCGA § 51-2-5 (3) “as requiring an express obligation by the employer to be responsible for the independent contractor’s conduct. [Cits.]” Toys ‘R’ Us v. Atlanta Economic Dev. Corp., 195 Ga. App. 195, 196 (1) (A) (393 SE2d 44) (1990).

Because nothing in the record indicates that Brookins contracted to be responsible for Pro Grassing’s conduct, this exception to the general rule does not apply. Toys R” Us, 195 Ga. App. 195. See also Stanley v. Fiber Transp., 221 Ga. App. 171, 174 (5) (470 SE2d 767) (1996). Cf. Southern Mills v. Newton, 91 Ga. App. 738, 742 (2) (a) (87 SE2d 109) (1955).

(b) The Widners also cite OCGA § 51-2-5 (6), which provides that an employer may be liable for the negligence of an independent contractor “[i]f the employer ratifies the unauthorized wrong” of the contractor. The Widners contend that Brookins ratified Pro Grassing’s actions because it accepted Pro Grassing’s work on the project. See, e.g., Wilmock, Inc. v. French, 185 Ga. App. 259 (363 SE2d 789) (1987). They base this argument on Betrice Widner’s testimony that T. L. Edmonds, a “go-between” hired by Bell South, told her that the trench had been re-opened and some of the cable re-laid. She stated that Edmonds told her that when the trench was re-filled, the dirt had not been compacted properly because it had begun to rain before the work was finished.

However, this testimony does not raise a factual issue regarding ratification on the part of Brookins. Edmonds was not an employee of Brookins; he was an independent contractor hired by Bell South to secure right-of-way for the company to lay telephone cable. Therefore, Edmonds was not speaking for Brookins in describing these events. Betrice Widner also testified that the actions Edmonds was describing were undertaken by the company that originally laid the cable, which was Pro Grassing. Nothing in this recounting of events reflects any acts of acceptance or ratification or otherwise on the part of Brookins. To ratify an act of an independent contractor, one must have knowledge of the act. Clayton v. Edwards, 225 Ga. App. 141, 143 (2) (483 SE2d 111) (1997); Southern Mills v. Newton, 91 Ga. App. at 743 (2) (b). Nothing in the record indicates that Brookins had any knowledge of Pro Grassing’s re-trenching activities at the time of the accident. Thus, nothing in the record supports the Widners’ ratification argument.

3. The Widners also argue that the trial court erred in granting Brookins’ motion because they assert that Brookins has admitted liability. Betrice Widner stated in her deposition that Herschiel Brook-ins, president of Brookins, Inc., visited her home shortly after the accident along with Bonnie Stephens, a Pro Grassing representative, and Edmonds, the “go-between” sent by Bell South. She testified that during the visit Herschiel Brookins stated that he would pay her medical bills, but said that the Widners would have to go through Bonnie Stephens of Pro Grassing for payment. The Widners argue that Herschiel Brookins was acting for Brookins, Inc. in offering to pay the medical bills and that the offer was an admission of liability.

However, as discussed in Divisions 1 and 2, Brookins has no vicarious liability in this case. Thus, the Widners “would have us hold that even where there is no legal liability, a defendant may be held legally liable if he agrees to pay. There is no authority for this position. An admission of liability has efficacy only if there is liability. If there is none, then the statements of the alleged tortfeasor constitute merely expressions of sympathy, benevolence, or an acceptance of moral responsibility.” (Emphasis in original.) Neubert v. Vigh, 218 Ga. App. 693, 695 (462 SE2d 808) (1995) (Beasley, C. J., concurring specially). “ ‘[Activity constituting a voluntary offer of assistance made on the impulse of benevolence or sympathy should not be considered as an admission of liability.’ Deese v. Carroll City County Hosp., 203 Ga. App. 148, 150 (416 SE2d 127) (1992); Rosequist v. Pratt, 201 Ga. App. 45, 46 (410 SE2d 316) (1991).” Id. at 694.

Decided February 19, 1999.

Ronnie J. Lane, William M. Shingler, for appellants.

Langley & Lee, Donald W. Lee, for appellees.

Moreover, it appears from the surrounding circumstances that Herschiel Brookins’ statement was simply a sympathetic offer of assistance and was not intended as an admission of liability on the part of the corporation. In fact, Herschiel Brookins qualified the offer by stating that any medical assistance would have to come through Pro Grassing’s representative. This statement is consistent with the position that Brookins, Inc. has taken in this lawsuit in naming Pro Grassing as a third-party defendant. Further, Betrice Widner conceded that, although she had had an earlier discussion about the cause of the accident with Edmonds, Herschiel Brookins never discussed the reasons for the accident when he and Stephens accompanied Edmonds to her home.

Therefore, we find that no admission of liability occurred and that the trial court correctly granted Brookins’ motion for summary judgment.

Judgment affirmed.

Beasley, P. J., and Ruffin, J., concur.

       A more complete statement of the underlying facts appears in our earlier opinion. Bell South Telecommunications v. Widner, 229 Ga. App. at 634-635.


author: Smith, Judge.

text:
    A98A2071.
    DUNCAN et al. v. RANDOLPH.
    (512 SE2d 688)
   Smith, Judge.

Angela Duncan and JoAnn Mosley brought suit against Robert Keith Randolph to recover for injuries allegedly caused by a collision between the vehicles driven by Duncan and Randolph. The case was tried before a jury, which returned a verdict in favor of Randolph. Duncan and Mosley’s motion for new trial was denied, and they appeal. We find no error and affirm.

In their sole enumeration of error, Duncan and Mosley contend that in denying their motion for new trial, the trial court failed to exercise its discretion. They argue it is apparent that no discretion was exercised because the jury’s verdict was contrary to law. In their brief, they expand upon this enumeration, asserting that the evidence at trial was “simple and straightforward”; that it showed “irrefutably” both that the accident would not have occurred but for Randolph’s failure to yield the right of way in violation of OCGA § 40-6-70 and that Duncan’s and Mosley’s injuries were proximately caused by the collision. They also argue that the trial court confused the jury in its charge on negligence per se.

We note first that Duncan and Mosley cannot now complain of the trial court’s jury charge because they did not object at trial and have therefore waived their right to raise this issue on appeal. Nalley Northside Chevrolet v. Herring, 215 Ga. App. 185, 187 (4) (450 SE2d 452) (1994).

None of the remainder of Duncan and Mosley’s assertions is supported by the record. The evidence at trial was in conflict with regard to at least one material fact. Although Duncan testified that her vehicle’s headlights were on, Randolph testified that they were not. The collision occurred at an intersection, as Duncan was headed north and Randolph was headed west. The parties agreed that it was rainy and foggy at the time of the incident with poor visibility, conditions warranting headlights. Randolph testified that he approached the intersection cautiously, traveling “maybe five mile an hour” after stopping at a stop sign. He knew Duncan’s headlights were not on “because if she’d have had her headlights on I would have seen her from a good ways off.”

Duncan and Mosley assert in their brief that Randolph was cited for failing to yield the right of way and that he paid a fine. Neither the citation nor any testimony concerning it appears in the record. It is well established, however, that even when negligence per se is shown, the plaintiff must still prove proximate cause and actual damage in order to recover. Central Anesthesia Assoc. v. Worthy, 254 Ga. 728, 733 (2) (333 SE2d 829) (1985). And it is generally a jury question as to whether or not such negligence proximately caused the injury. Williams v. Calhoun, 175 Ga. App. 332, 335 (333 SE2d 408) (1985).

To recover in this case, even assuming that Randolph was negligent per se, Duncan and Mosley were required to prove that their injuries were proximately caused by Randolph’s conduct in violating the statute by failing to yield the right of way. Some evidence suggested otherwise, however. The jury could have believed that the cause of the collision was not Randolph’s negligence in failing to yield the right of way, but his inability to see Duncan’s vehicle because she had failed to use her headlights in poor weather conditions. Moreover, evidence was also presented showing that both Duncan and Mosley had pre-existing conditions that could have been responsible for some of the pain and the medical treatment for which they sought to recover.

Decided February 19, 1999.

Boswell & Teske, Stephen E. Boswell, for appellants.

Chambers, Mabry, McClelland & Brooks, Wilbur C. Brooks, for appellee.

The denial of a motion for new trial made on the ground that the verdict is contrary to the evidence presented addresses itself only to the trial court’s discretion. In reviewing the denial of such a motion, it matters not that the evidence would also have authorized a verdict for the other party; we must view the evidence in the light most favorable to the jury’s verdict. If any evidence supports the trial court’s denial of the motion, we must affirm. Clark v. United Ins. Co. &c., 199 Ga. App. 1, 3 (404 SE2d 149) (1991). Because at least some evidence supports the trial court’s denial of Duncan and Mosley’s motion for new trial, it is affirmed.

Judgment affirmed.

Johnson, C. J., and Barnes, J., concur.

       The transcript does include some colloquy regarding the citation before trial, but the jury was not present. The trial court charged the jury regarding negligence per se.


author: Blackburn, Judge.

text:
    A98A2279.
    GOUGH v. THE STATE.
    (512 SE2d 682)
   Blackburn, Judge.

Eugene Gough appeals his convictions for aggravated assault and burglary, following a jury trial, contending: (1) that the evidence was insufficient to support the convictions; (2) that the trial court erred by allowing a written statement of his alleged victim to be used as a “continuing witness” by the jury during deliberations; and (3) that the trial court erred by giving an overbroad instruction on the law of aggravated assault. For the reasons set forth below, we affirm.

1. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Gough] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The . . . verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The evidence shows that Gough arrived at the home of his ex-girlfriend, Jacqueline Habersham, at approximately 11:00 p.m. on February 6, 1997. Gough testified that he was angry with Haber-sham and wanted to confront her about accusations that she had made that he had stolen her food stamps and set fire to her home. Gough also testified that he was mad at Habersham because he believed that she had not been sending their daughter to school on a regular basis.

Habersham refused to allow Gough into her home, so he kicked her door down and entered forcibly. Once inside, Gough immediately started to argue with Habersham. At that time, Michael White, another ex-boyfriend of Habersham, briefly stopped by, saw that the door had been kicked in, and left to call the police. Enraged, Gough picked up a hammer and struck Habersham in the head. Two of Habersham’s children witnessed the assault. Habersham fled into her kitchen where Gough also picked up a knife. Moments later, Officer Scott Connolly arrived at the home, and he witnessed Gough holding Habersham in a headlock and striking her with the hammer. Seeing the police officer, Gough dropped his weapons and fled the scene.

This evidence is more than ample to support Gough’s conviction for aggravated assault. Gough’s claim that he struck Habersham with the hammer only by accident does not change this result, as the jury had testimony from several witnesses that the act was intentional. The evidence is also sufficient to support Gough’s conviction for burglary despite Gough’s argument that he had no intent to commit a felony in Habersham’s home when he forced entry therein. Although Gough claims that he went to Habersham’s home merely to talk with her, by his own admission, he was angry with Habersham and he wished to confront her, so much so that he invaded her home by kicking the door down. The jury was authorized to believe that, in his enraged state, Gough intended to harm Habersham, thereby supporting the charge of burglary.

2. Gough contends that his convictions must be reversed because a written statement made by Habersham to the police was allowed to go out with the jury despite the fact that Habersham was present to testify at trial. Specifically, Gough contends that such written testimony violated Georgia’s continuing witness rule.

“In Georgia the ‘continuing witness’ objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.” (Punctuation omitted.) Hinton v. State, 233 Ga. App. 213 (1) (504 SE2d 49) (1998).

Habersham’s statement was initially referred to during trial by Gough’s attorney, who used the document to impeach Habersham’s previous testimony. Subsequently, the State sought to introduce the entirety of the statement into evidence pursuant to OCGA § 24-2-4 which provides: “Where either party introduces part of a document or record, the opposite party may read so much of the document as is relevant.” The trial court then admitted the statement over a continuing witness objection made by Gough.

It was inappropriate for the trial court to have allowed Haber-sham’s statement to go out with the jury under these circumstances. Habersham was available to testify and did so. The sending to the jury of her statement violates the continuing witness rule under these facts. However, a judgment need not be reversed unless error is harmful. To the extent that the evidence contained in the statement was also brought out during trial and the evidence of Gough’s guilt was overwhelming, no harm resulted from this error. See, e.g., Hinton, supra; Johnson v. State, 234 Ga. App. 58, 59 (2) (506 SE2d 212) (1998).

Habersham’s statement, however, also contained evidence not specifically elicited during trial testimony. Although Habersham’s statement indicated that she had accused Gough of committing arson in her home prior to the assault, Gough, in his own testimony during trial, explained that he went to Habersham’s house because: “[he] wanted to give her the food stamps . . . and to go ahead and finish talking to her, because after the police came in — after the police got there, right, [Habersham] told them that [he] did something to her house while she was in Waynesboro. . . . And it was a very serious thing what [Habersham] had said.” As such, Gough, himself, placed evidence before the jury that Habersham had accused him of a serious crime against her home.

Evidence contained in the statement that Gough expressed his desire to have sex with Habersham while entering her home, although more troubling, is also harmless under the facts of this case. As discussed above, the evidence regarding Gough’s assault of Habersham was compelling, and, based on Gough’s own admissions, the evidence supporting his burglary conviction was equally forceful. Although Gough contends that he was prejudiced by this evidence because the jury could have concluded that he intended to rape Habersham upon entering her home, no allegation of rape was made during trial. Instead, all of the evidence introduced with regard to the burglary charge indicated only that Gough intended to cause Habersham serious bodily injury.

Decided February 19, 1999.

Lawrence D. Galehouse, Jeffrey S. Bowman, Peter D. Johnson, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

As the evidence in this case is clear and overwhelming, it is highly probable that the error of allowing the victim’s statement to go to the jury did not contribute to the verdict. See Hinton, supra at 214.

3. Although Gough was indicted for aggravated assault by use of a deadly weapon with intent to cause serious bodily injury, the trial court, in its instructions to the jury, recited the entirety of the applicable Code section, including the intent to murder, rape, or rob as alternative means of committing aggravated assault. However, at the beginning of its charge, the trial court read the indictment to the jurors which specifically alleged that assault with a deadly weapon was charged. As such, the giving of the entire Code section on the law of aggravated assault did not mislead the jury as Gough contends, although the better practice would have been to limit the instruction to the contended acts. Thomas v. State, 268 Ga. 135, 141 (17) (485 SE2d 783) (1997).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       Just hours earlier, Officer Scott Connolly, responding to a domestic disturbance call, had found Gough at Habersham’s house and instructed him to stay away.

       Gough was tried for arson in a prior trial, but a jury found that he was not guilty of the crime.

       After the statement’s admission, Gough argued that the document contained hearsay. However, by failing to raise this objection at the time of the document’s admission, Gough waived this argument.


author: Eldridge, Judge.

text:
    A99A0250.
    THE STATE v. GILLETTE.
    (512 SE2d 399)
   Eldridge, Judge.

Robert John Gillette was arrested and charged with driving under the influence, less safe driver; driving under the influence, unlawful blood alcohol concentration; and failure to maintain a lane. He filed a motion to suppress, claiming, inter alia, that he was denied an additional chemical test of his choice pursuant to the rights contained in the implied consent notice read to him at the time of arrest. See OCGA § 40-5-67.1 (b) (2). The State Court of Gwinnett County granted Gillette’s motion. The State appeals.

At the evidentiary hearing on the motion to suppress, the arresting officer was the only witness to testify as to Gillette’s request for an additional chemical test. The officer testified that, following the reading of the implied consent notice, Gillette requested an independent chemical test of his blood. “And I told him, if you submit to the State-administered chemical test of your breath, then we’ll give him the option to go get a blood test done.” Gillette consented to the State-administered breath test. The officer testified that, following the administration of the breath test, “I asked him if he wanted a blood test, and he declined and said he had rather have another breath test, operated by myself.” The officer complied with Gillette’s request.

On cross-examination as to this point, defense counsel asked the following questions and elicited the following responses: “[Q:] Did you ask him if he wanted a breath test on the same machine that you were using? [A:] I believe I did. I’m not positive. [Q:] You don’t remember him saying that he wanted to go to a hospital for a breath test? [A:] He might have said that, but they don’t administer breath tests, as far as I know, at hospitals. [Q:] You remember Mr. Gillette saying . . . that he wanted to go to the hospital for a breath test; is that right? [A:] I don’t recall. He could have said that. [Q:] You just testified a minute ago that, yes, that’s what he said, but hospitals don’t administer breath tests. . . . [I] sn’t it true that [after the State test,] Mr. Gillette said he wanted to go to the hospital for a breath test? [A:] I don’t recall that. [Q:] Isn’t it true that when you heard that he wanted to go to the hospital for a breath test that you and some other officer then told Mr. Gillette that hospitals don’t do breath test? [A:] I don’t believe — I don’t know. [Q:] But you testified about three minutes ago that you told Mr. Gillette that hospitals don’t do breath tests. And now you’re saying that you don’t recall whether or not you said that? [A:] I don’t know whether I said that or not. It sounds like that’s correct, but I don’t have it in my report.”

The above-referenced testimony is the only evidence as to the defense’s contention that Gillette requested a hospital-conducted, independent breath test and was denied such independent test. Gillette, himself, did not testify at the hearing and thus did not testify that he asked to be given a breath test at the hospital, which request was refused.

The trial court found as a matter of fact that “the defendant informed the police officer that he wanted to be taken to the hospital in order to exercise his right to an independent test of his breath. The police officer did not transport the defendant to a hospital to allow the defendant to request a blood or other type of independent test. Instead, the police officer advised the defendant that the hospital does not administer breath tests and offered to administer an additional breath test to the defendant. At this point, the defendant capitulated and submitted to yet another state administered breath test.” On this factual basis, the trial court granted Gillette’s motion to suppress. Held:

“When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.” (Citation and punctuation omitted.) Kittler v. State, 234 Ga. App. 120, 122 (506 SE2d 231) (1998).

Here, it is undisputed that the officer properly advised Gillette of his rights under the implied consent notice, OCGA § 40-5-67.1 (b) (2). The only issue is whether Gillette affirmatively requested a hospital-conducted, independent breath test. Based on the officer’s testimony, the trial court found that he did. Accordingly, the sole question before this Court is whether the arresting officer’s testimony, “He might have said that, I don’t recall; He could have said that; I don’t recall that; I don’t believe — I don’t know; and I don’t know whether I said that or not. It sounds like that’s correct, but I don’t have it in my report,” is sufficient evidence in and of itself to establish the trial court’s factual finding that “the defendant informed the police officer that he wanted to be taken to the hospital in order to exercise his right to an independent test of his breath.” Because there was no evidence in the record establishing that the defendant, in fact, ever made such request, we find that the officer’s testimony, alone, is insufficient to support the trial court’s factual finding.

In this case, the defense attorney, in what the trial court referred to as “artfully worded questions,” raised the notion that Gillette requested a hospital-conducted, independent breath test. However, the defense attorney’s questions assumed facts not established by any evidence, i.e., that such request had been made. Clearly, the defense attorney’s questions, no matter how “artfully worded,” cannot themselves serve as proof. The arresting officer repeatedly testified that he did not recall Gillette making such request; such request might have been made, but he did not remember it. In the absence of any evidence affirmatively establishing that Gillette did, in fact, request a hospital-conducted, independent breath test, there is nothing in the record but the officer’s mere speculation that such request might have been made. Such speculation or conjecture, unsupported by fact in the record, is not competent evidence to establish the fact about which such speculation or conjecture is made; such evidence cannot even support an inference, let alone establish a fact. See Greene v. Jenkins, 224 Ga. App. 640, 644 (2) (481 SE2d 617) (1997).

Decided February 19, 1999.

Gerald N. Blaney, Jr., Solicitor, Traci R. Soderberg, Assistant Solicitor, for appellant.

Clark & Towne, Jessica R. Towne, for appellee.

Further, in light of the fact that Gillette did not testify, there was no conflict in the evidence for the trial court to resolve. Thus, as a matter of credibility, even if the trial court chose to disbelieve the police officer’s testimony, the court was presented with no evidence by which to establish as fact the defense attorney’s version of events, i.e., that Gillette requested a hospital-conducted, independent breath test. Disbelief of a witness’ testimony as to certain facts does not, by itself, factually establish the opposite conclusion so as to serve as proof thereof. “A fact is not proved unless it is established.” (Citation and punctuation omitted.) Jackson v. State, 177 Ga. 264, 265 (170 SE 26) (1933); Mooney v. State, 221 Ga. App. 420, 424 (471 SE2d 904) (1996).

At the motion hearing, no evidence established as fact that Gillette requested a hospital-conducted, independent breath test so as to serve as prove thereof. Accordingly, the trial court’s factual finding was clearly erroneous, and the grant of the motion to suppress was error.

Judgment reversed.

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


text:
    A99A0360.
    In the Interest of D. E. K., a child.
    (512 SE2d 690)
   Eldridge, Judge.

The mother of D. E. K. appeals from the entry of a temporary placement order of the juvenile court finding that D. E. K. was deprived and awarding temporary custody to the Pierce County Department of Family & Children Services (“DFCS”). Following an adjudicatory hearing, the juvenile court judge entered an order finding that clear and convincing evidence existed to find D. E. K. deprived based upon the following facts: (1) between April 8, 1998, when the child was placed in an emergency shelter, and July 13, 1998, the date of the adjudicatory hearing, the. appellant had experienced at least six changes of address; (2) on September 10, 1997, at approximately 11:00 p.m., a law enforcement officer observed the appellant in a motel room, there was a strong odor of marijuana in the room, the appellant’s pupils were dilated, and, in the opinion of the officer, the appellant was under the influence of marijuana; (3) on the same evening, the appellant had left D. E. K. asleep in the appellant’s automobile, which was parked outside the motel room, with no one to watch or guard the vehicle; (4) the appellant was eighteen years of age at the time of the hearing; (5) the father of D. E. K. had abused the appellant on at least three different occasions; (6) during the last episode of abuse, the father of D. E. K. was arrested, and prior to the arrival of police officers, the appellant took the child to the barn and hid to avoid the father; (7) the appellant testified that she planned to divorce the father, but since D. E. K. was placed in shelter care, the appellant had obtained employment with a construction company that employed the father and was seen in Way-cross accompanying the father to a local motel; (8) the appellant testified that, at the time of the adjudicatory hearing, she resided in a two-bedroom mobile home in West Green, Coffee County, and she admitted that she and the father had previously lived in the same area; and (9) the appellant was still wearing the wedding rings which she admitted were symbolic of her marriage to the father. The appellant, in her sole enumeration of error, contends the evidence was insufficient for the juvenile court to find D. E. K. was deprived. We agree.

The evidence at the deprivation hearing showed the following: about six days after D. E. K.’s birth on September 9, 1996, DFCS received a “report of problems in the home.” However, prior to DFCS making an investigation, D. E. K.’s parents moved to Pennsylvania. At some point, D. E. K.’s parents moved back to Georgia. On September 10, 1997, at approximately 11:00 p.m., Don Kicklighter, a sergeant with the Wayne County Sheriff’s Department, went to the Jesup Motel, where D. E. K.’s father lived, to check on the welfare of the appellant pursuant to a call from D. E. K.’s paternal grandfather. When D. E. K.’s father opened the door, Sergeant Kicklighter smelled marijuana in the room. The father’s eyes were glassy, and his pupils were dilated. Sergeant Kicklighter suspected the father had been smoking marijuana. The father consented to be searched. The sheriff found marijuana in the father’s pocket and arrested him for possession of marijuana.

The father told the sheriff that the appellant was in room 120, which was the room next door. When the appellant opened the door, Sergeant Kicklighter testified he also smelled marijuana in room 120. Sergeant Kicklighter further testified that the appellant’s eyes were glassy and red, her pupils were dilated, and she was extremely nervous and scared. The appellant admitted that she had smoked marijuana earlier that day, but she denied smoking marijuana immediately prior to the sheriff’s arrival. Sergeant Kicklighter did not find any drugs on the appellant or in her room. When the appellant indicated she was not planning to spend the night at the motel, Sergeant Kicklighter administered a horizontal gaze nystagmus test to the appellant, which she failed. Sergeant Kicklighter instructed the appellant that she should not drive and offered to transport her to the sheriffs office where she could call someone to pick her up. The appellant then told Sergeant Kicklighter that one-year-old D. E. K. was in her car in the parking lot.

When Sergeant Kicklighter went with the appellant to her car, D. E. K. was asleep and strapped in his car seat. Sergeant Kick-lighter testified that it was a cool September night and the baby had on only a shirt and a diaper. However, the baby did not appear to be in any distress, he was not “shaking or shivering,” his lips were not blue, and he did not appear to be injured in any way. In fact, the baby appeared to be clean and healthy. At trial, the appellant testified that she had just gotten back from buying food at McDonald’s and had left the baby, who was asleep, in the car only minutes while she took the food inside.

On April 7, 1998, the appellant, D. E. K., and the child’s father were at a friend’s house. The father and his friend were drinking alcohol and began fighting. During the fight, D. E. K.’s father grabbed the appellant’s foot and twisted her knee. The appellant testified that she took D. E. K. to a barn and hid. The police were summoned, and D. E. K.’s father was arrested.

On April 8, 1998, the appellant was arrested for deposit account fraud, and D. E. K. was placed in emergency shelter care. The appellant was released from custody on the day of her arrest, and, shortly thereafter, D. E. K. was placed with the appellant’s mother, where the appellant also was living. After about a month, the appellant’s mother began drinking, and the appellant, with DFCS approval, took D. E. K. and went to her sister’s house. The following day, D. E. K. was placed with a foster family. However, D. E. K. was allowed to visit with his mother the next day and spend the night.

The morning after D. E. K.’s visit, the appellant started a new job at Henry Construction, which was located in Waycross, and moved in with a friend who lived nearby. The appellant stayed with her friend about a week until she could save enough money to move into her own apartment. Before the appellant could save enough money to have the utilities turned on in her apartment, she discovered that the roof leaked. She moved out of the apartment and moved to West Green. At the time of the hearing, she was living by herself in a mobile home with the utilities on, had a job at McDonald’s, and had arranged for a neighbor to care for D. E. K. while she was at work.

At the hearing, the appellant admitted that the child’s father had abused her on three separate occasions during the previous three years. The appellant testified that, after each abusive episode, she left D. E. K.’s father. However, the child’s father would promise to stop drinking, and the appellant would reconcile with him because she wanted her son to grow up with both a mother and a father. The appellant testified that, after the April 7, 1998 incident, she called the sheriff’s department to see if they could help her get placed in an abused women’s shelter.

The appellant testified that, while the father had abused her, D. E. K. had never been abused in any way by his father. The appellant further testified that she now realized that the father was not going to change and, as soon as she saved enough money to obtain a lawyer, she planned to file for divorce. The appellant testified that she had not lived with D. E. K.’s father since D. E. K. was placed in foster care. Even though the appellant’s youngest sister testified that she had seen the appellant and the father together as they left work at Henry Construction one evening and had given them a ride to a local motel, the appellant testified that she and the father were together because they were talking about D. E. K., that she had not spent the night with him at the motel, and she had not seen D. E. K.’s father since she stopped working at Henry Construction.

Both of the appellant’s sisters testified that the appellant took good care of D. E. K.; that she fed and clothed D. E. K.; and that she had never harmed or injured D. E. K. Tony Cason, D. E. K.’s current caseworker, testified that the appellant was protective of D. E. K. and that, while D. E. K. was in the appellant’s custody, the child had never been harmed and always appeared to be well fed, well clothed, healthy, and attentive.

“The definition of a deprived child, as contained in OCGA § 15-11-2 (8), focuses upon the needs of the child regardless of parental fault. The petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue.” (Citations, punctuation and footnote omitted; emphasis in original.) In the Interest of J. P., 267 Ga. 492 (480 SE2d 8) (1997); see In re R. R. M. R., 169 Ga. App. 373, 374 (312 SE2d 832) (1983). “It is well established that clear and convincing evidence is required to support a finding of deprivation. OCGA § 15-11-33 (b) (1); In re Suggs, 249 Ga. 365 (291 SE2d 233) (1982); In re R. R. M. R., [supra].” In the Interest of E. R. D., 172 Ga. App. 590 (323 SE2d 723) (1984).

Under the facts of this case, a deprived child is defined as a child who “ [i] s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health or morals.” OCGA § 15-11-2 (8) (A). The evidence is uncontroverted that the appellant has taken care of D. E. K. to the best of her ability. D. E. K.’s basic physical, mental, and emotional needs have been met by the appellant. While this Court does not condone the appellant’s transitory lifestyle, her previous drug use, her relationship with an abusive husband, and her leaving D. E. K. unsupervised in the car for even a short period of time, such conduct, alone, is not clear and convincing evidence that D. E. K. is deprived under the definition set forth in OCGA § 15-11-2 (8) (A) and that temporarily removing custody of D. E. K. from the appellant would be best for D. E. K.’s welfare.

Decided February 19, 1999.

Houston & Golub, Phillip N. Golub, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, Michael D. DeVane, for appellee.

Judgment reversed.

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


text:
    A99A0481.
    SANDERS v. THE STATE.
    (512 SE2d 678)
   Eldridge, Judge.

Appellant Ernest E. Sanders challenges his convictions for two counts of armed robbery and one count of burglary. We affirm.

“On appeal [,] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidencé or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Viewed in such light, the evidence shows that, on January 4, 1996, Ernest Powell arrived at his home in Oglethorpe, Georgia, and found his furnishings and possessions in disarray. Moments later, he heard noises in the back of the home, and when he walked back there, he was confronted by Sanders, who was pointing a handgun directly at Powell’s face. Sanders cursed at Powell and grabbed Powell’s gold chain necklace. As Powell “swung at him,” Sanders fell out the door, then got up and ran away. Powell pursued Sanders and soon saw Sanders at the home of Gladys Baldwin, Sanders’ aunt. Powell went to the Oglethorpe police station, and a police officer drove Powell to Baldwin’s home. While Powell was still in the police vehicle, he identified Sanders as the robber. The officer approached Sanders, and before he could tell Sanders why he was there, Sanders pointed to the vehicle and spontaneously said “I haven’t done anything to that m_ f__.” Sanders then attempted to flee, but was apprehended, arrested, and charged with burglary and armed robbery. The trial court appointed Donald Lamberth to serve as his attorney. Lamberth arranged for bail, and Baldwin bailed Sanders out on January 11, 1996.

A few days later, while Sanders was out on bail on the first armed robbery, Sanders again was at Baldwin’s home when Harold Hankerson stopped by. As Hankerson left a short while later, he saw someone running toward him on the street. Hankerson realized it was Sanders. Sanders pointed a handgun at Hankerson’s head, grabbed his wallet, and demanded “Give it up.” Hankerson, who was armed with his own handgun, gave Sanders his handgun. Sanders ran back to his aunt’s home. Hankerson reported the incident to police officers, who arrested Sanders shortly thereafter. Sanders was indicted on one count of armed robbery. Lamberth was again appointed as Sanders’ attorney and represented Sanders on both armed robberies. Lamberth discussed the cases with Sanders on several occasions, participated in discovery, and interviewed witnesses.

Although the record is conflicting, it shows that sometime in the months prior to trial, Sanders’ mother arranged for another attorney, Henry Williams, to represent Sanders on one or both of the charges. However, due to a fee dispute, Williams withdrew from the cases on July 1, 1996, and Lamberth renewed his representation on both cases at least two weeks before the trial calendar. Both cases were listed separately on the August 27, 1996 trial calendar. At the urging of the district attorney, the trial court joined the cases for trial. Lam-berth had not been aware of the State’s intention to join the cases and objected to the joinder, but his objection was overruled.

Lamberth represented Sanders during the jury trial, which was conducted the same day, August 27, 1996. Sanders was convicted on all counts. He filed a motion for new trial, which was denied. This appeal follows. Held:

1. In his first enumeration of error, Sanders claims that the trial court erred when it overruled his objection to the decision to join the armed robbery charges. We disagree.

(a) Joinder of offenses is allowed when two or more offenses (1) have the same or similar character, even though they are not part of a single scheme or plan; (2) are based on the same conduct; (3) are based on a series of connected acts; or (4) constitute parts of a single scheme or plan. Davis v. State, 223 Ga. App. 346, 348 (477 SE2d 639) (1996); see also OCGA § 16-1-7 (b). The Supreme Court has held that, because of the great risk of the “smear effect,” i.e., prejudice from the joint disposition of unrelated charges, a defendant has an absolute right, upon proper motion, to have offenses severed for trial “where the offenses have been joined solely on the ground that they are of the same or similar character.” (Emphasis supplied.) Carter v. State, 261 Ga. 344 (1) (404 SE2d 432) (1991), citing Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975). See also Davis v. State, supra at 349. However, “[o]ffenses are not joined solely because they are of the same or similar character where the similarity reaches the level of a pattern evincing a common motive, plan, scheme or bent of mind.” (Citations and punctuation omitted; emphasis in original.) Whitfield v. State, 217 Ga. App. 402, 403 (1) (457 SE2d 682) (1995).

In this case, Sanders was charged with two separate counts of armed robbery, as well as one count of burglary. Both armed robberies occurred within 16 days of each other; in fact, the second armed robbery occurred only days after Sanders was released on bond for the first armed robbery. The offenses occurred in the same neighborhood, only blocks apart. In both cases, the defendant surprised the victims, who knew or previously had seen the defendant. Sanders pointed a handgun at their heads, suddenly snatched their valuables, and then ran to his aunt’s home. Accordingly, as the charges were not joined solely because of their similar nature, i.e., the fact that they were both armed robberies, Sanders was not automatically entitled to severance of the charges.

(b) When charges are joined for reasons in addition to their similar character, the trial court has the discretion to grant a motion for severance. In exercising this discretion, the trial court “should consider whether [,] in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.” (Citations and punctuation omitted.) Davis v. State, supra at 349. See also OCGA § 16-1-7 (c).

As to whether the trial court abused its discretion in joining these cases, the record shows that there was sufficient evidence for a rational factfinder to find Sanders guilty of each individual charge beyond a reasonable doubt. See Jackson v. Virginia, supra. Further, “the crimes were simple, involved only one defendant and one victim each time, . . . the court clearly charged the jury to consider each charge separately!,] . . . and the jury announced its verdict on each count separately. There was nothing complex about these two offenses such as could make it difficult for the trier of fact to distinguish the evidence and apply the law intelligently as to each offense. Lastly, the risk of prejudice (‘smear effect’) from this joint disposition was minimal.” (Citations and punctuation omitted.) Davis v. State, supra at 349. “The evidence of [either act] could have been introduced at the trial of [the other], which negates any claim that [Sanders] was impermissibly prejudiced by the trial of the charges together. [Cits.]” Owens v. State, 213 Ga. App. 693, 694 (4) (445 SE2d 818) (1994), citing Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). The trial court did not abuse its discretion in joining the cases in a single trial.

2. In his second enumeration of error, Sanders claims that he was denied effective assistance of counsel. “‘In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.’ (Citations and punctuation omitted.) Stephens v. State, 265 Ga. 120, 121-122 (453 SE2d 443) (1995). See also Hudson v. State, 218 Ga. App. 671, 672 (462 SE2d 775) (1995). In order to rebut this presumption, appellant must show that ‘counsel’s representation fell below an objective standard of reasonableness. (Cit.)’ Knight v. State, 266 Ga. 47, 48 (4) (464 SE2d 201) (1995). ‘The trial court’s ruling that counsel’s performance did not fall below an objective standard of reasonableness and that (appellant) failed to show a reasonable probability that the result would have been different but for the alleged errors must be upheld unless those findings are erroneous.’ Harris v. State, 268 Ga. 412-413 (490 SE2d 96) (1997).” Smith v. State, 234 Ga. App. 586, 588 (1) (506 SE2d 406) (1998).

In support of this enumeration, Sanders asserts that Lamberth should have known that the cases would be joined for trial and implies that Lamberth should have filed a written motion to sever. However, Sanders does not show how Lamberth could have anticipated the State’s decision to recommend joinder or why such failure to anticipate joinder was unreasonable under the circumstances. Nor can Sanders demonstrate any harm from Lamberth’s failure to anticipate such joinder or make such motion, since a motion to sever would have been properly denied pursuant to our decision in Division 1, supra.

Although Sanders also asserts that Lamberth should have subpoenaed witnesses as to the January 4, 1996 charges, he does not show that there is anyone who could or should have been called to testify on his behalf concerning the January 4 incident. Lamberth testified at the motion for new trial hearing that he attempted to interview two individuals who, according to information he received from Sanders, might have been able to testify on Sanders’ behalf. However, when questioned by the trial court during the hearing, Sanders refused to explain to the court what, if any, evidence these witnesses may have been able to provide as to the January 4 incident. Further, Lamberth testified that he decided not to call these witnesses because of their “reputation.” Lamberth testified that he was not aware of any other witnesses who could have been called regarding the first offense.

Decided February 19, 1999.

Mark S. Martin, for appellant.

John R. Parks, District Attorney, Henry O. Jones III, Assistant District Attorney, for appellee.

Finally, Lamberth testified at the hearing on Sanders’ motion for new trial that he was familiar with the facts of both indictments; had had numerous discussions with both Sanders and Williams concerning the charges; and had a discovery package on both indictments.

Accordingly, Sanders has failed to demonstrate that trial counsel’s performance was deficient or that the outcome of his trial would have been different but for counsel’s actions.

Judgment affirmed.

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

       Although defense counsel did not move for severance prior to trial, it is undisputed that he objected to joinder of the charges when he learned, during the calendar call on the day of the trial, that the trial court intended to try both of the indictments jointly before the same jury. Accordingly, for the purpose of this appeal, we will treat such objection as a motion to sever. See Kelly v. State, 209 Ga. App. 789, 792 (2) (434 SE2d 743) (1993); Langston v. State, 195 Ga. App. 873-874 (2) (395 SE2d 74) (1990).


text:
    A98A1938.
    ADVANCE TECHNOLOGY CONSULTANTS, INC. v. ROADTRAC, L.L.C.
    (512 SE2d 27)
   Blackburn, Judge.

In this interlocutory appeal regarding the use of trade secrets and intellectual property, RoadTrac, L.L.C. sued Advance Technology Consultants, Inc. (ATC) for, among other things, breach of contract and misappropriation of trade secrets. ATC now appeals two of the trial court’s rulings governing discovery, contending: (1) that the trial court erred by requiring ATC to disclose its nontechnical trade secret, proprietary, and confidential information, including marketing contacts and customer lists, without an appropriate protective order, and (2) that the trial court erred by denying ATC’s request to defer the production of certain information until ATC’s motion to dismiss certain claims by RoadTrac had been considered.

On November 9,1995, RoadTrac and ATC entered into a Venture Agreement in which ATC contracted to provide “central site software, hardware interfaces, maps, upgrades and enhancements, associated reports and reporting, client software systems for the Products and monitoring” for global positioning satellite system (GPS) technology being developed by RoadTrac. In return, RoadTrac agreed to provide ATC certain hardware with which ATC’s software would interface.

On January 4, 1996, RoadTrac and ATC entered into a Distributor Agreement whereby ATC contracted to distribute RoadTrac’s GPS products. ATC further agreed to certain covenants not to compete with RoadTrac in the development and sale of GPS technology. Pursuant to the duties and obligations created by these contracts, RoadTrac and ATC shared information regarding the development of GPS technology.

Following the execution of these contracts, problems and misunderstandings occurred. ATC alleges that the GPS hardware supplied to it by RoadTrac was defective, making it difficult to develop compatible software. RoadTrac, on the other hand, contends that its hardware was fully functional and that ATC simply failed to provide supporting software at all.

Several months after entering into the Venture Agreement and the Distributor Agreement, ATC entered into a direct contract with Southwestern Bell Telephone Company, with which both RoadTrac and ATC had been in contact previously, to deploy GPS tracking systems. On September 4, 1996, ATC informed RoadTrac that, due to the alleged nonperformance of its hardware, it considered both the Venture Agreement and the Distributor Agreement to have been breached and subject to termination. On September 11, 1996, RoadTrac responded by filing suit against ATC for breach of contract, misappropriation of trade secrets, tortious interference with business relations, and violation of the Georgia Trade Secrets Act. RoadTrac claimed that ATC had stolen its customers and its trade secrets. RoadTrac also sought litigation expenses.

During the discovery which ensued, RoadTrac requested ATC’s records concerning its development and distribution of GPS technology both before and after the “termination” of the Venture Agreement and Distribution Agreement. The requested material covered both technical information relating to the development of hardware and software and nontechnical information such as customer lists and marketing procedures. ATC failed to produce all of the requested information, contending that RoadTrac was not entitled to material generated subsequent to the termination of the Venture Agreement and the Distribution Agreement.

On April 1,1997, RoadTrac filed a motion to compel ATC to comply with its discovery requests. After a number of hearings, the trial court granted RoadTrac’s motion on February 16, 1998. The trial court ordered that all technical information which was not in ATC’s possession as of the purported termination date would be produced on an “attorneys’- and experts’-eyes-only basis.” No similar protections were placed on similar nontechnical information.

1. ATC now contends that the trial court abused its discretion by failing to place any protection on the production of its nontechnical information. RoadTrac concurs, stating in its brief: “RoadTrac agrees that a protective order limiting use of ATC’s nontechnical, trade secret information to this case would be appropriate.”

“The trial court is vested with a broad discretion over the use of discovery procedures and unless there is clear abuse of its discretion, appellate courts will not interfere in its rulings.” Shannon v. Huntley’s Jiffy Stores, 174 Ga. App. 125 (1) (329 SE2d 208) (1985).

In this case, it is still contested whether ATC actually breached its agreements with RoadTrac. Furthermore, it is clear that, without any protections in place, ATC could be irreparably harmed, as ATC and RoadTrac are now in the position of being competitive bidders for projects in the newly emerging field of GPS technology. As such, RoadTrac should not have unlimited access to ATC’s customer information, marketing lists, pricing policies, and the like. Accordingly, we find that the trial court abused its discretion in failing to formulate appropriate protections for ATC’s nontechnical trade secret, proprietary, and confidential information, and we remand the case so the trial court can do so.

2. ATC also contends that the trial court erred by deferring a ruling on its motion to dismiss until completion of discovery. On September 22, 1997, ATC filed a motion to dismiss all of RoadTrac’s claims based upon restrictive covenants contained in the Venture Agreement and the Distributor Agreement, contending that such covenants were unenforceable as a matter of Georgia law. With regard to RoadTrac’s motion to compel, ATC argued that it should not be forced to produce information concerning its development of GPS technology until after the trial court ruled on its motion to dismiss. On February 16,1998, the trial court deferred consideration of ATC’s motion and ordered discovery to continue.

The trial court did not abuse its discretion in deferring a ruling on ATC’s motion to dismiss, and we affirm this ruling. While ATC argues that the discovery sought by RoadTrac will have no bearing on the efficacy of its motion to dismiss, this argument is misplaced. RoadTrac’s claims cover areas which are not necessarily dependent on the covenants contained in the contracts, such as misappropriation of trade secrets and tortious interference with business relations, and the discovery sought by RoadTrac could produce relevant evidence with regard to these claims.

Decided February 5, 1999

Reconsideration denied February 22, 1999

Gillen, Dailey, Cromwell & Withers, Michael A. Dailey, for appellant.

Arnall, Golden & Gregory, Kevin B. Getzendanner, James W. Butler III, Henry R. Chalmers, for appellee.

Judgment affirmed in part, reversed in part and case remanded.

McMurray, P. J., and Eldridge, J., concur.

       Global positioning satellite system technology involves the use of satellites to track the position of objects on the surface of the earth.


author: Johnson, Chief Judge.

text:
    A98A2192.
    LOVINS et al. v. KROGER COMPANY.
    (512 SE2d 2)
   Johnson, Chief Judge.

A Kroger grocery store employee placed spinach dip and crackers on a table for customers to sample. She then inspected the floor in the area, saw that it was clean, and went behind the nearby counter to prepare a cheese basket. Less than ten minutes later William Lovins, who was pushing a shopping cart into the area, slipped on spinach dip and fell. Lovins and his wife (collectively “Lovins”) sued the Kroger Company. Lovins appeals from the grant of summary judgment to Kroger, contending summary judgment was improper because there was evidence that Kroger had actual or constructive knowledge that the dip was on the floor and that Lovins exercised reasonable care for his own safety. We affirm.

In order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard, and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997); Haskins v. Piggly Wiggly Southern, 230 Ga. App. 350, 351 (496 SE2d 471) (1998).

1. (a) Defendant’s actual knowledge. Lovins claims that actual knowledge can be inferred from the employee’s testimony that she did not see any customers passing through the area or sampling the dip between the time she set out the dip and the time Lovins fell. The employee added that she did not see any customers because she had her back turned to the area. Lovins argues that “[i]f no customers dropped the dip, then [the employee] must have.”

In passing on a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. Bob v. Hardy, 222 Ga. App. 550, 553 (4) (474 SE2d 658) (1996). While Lovins claims evidence that the employee did not see any customers in the area implies that she dropped the dip, this claim is without merit given the employee’s testimony that she did not drop anything, inspected the area after setting up the samples, and saw no spills. Moreover, an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 683 (3) (a) (498 SE2d 748) (1998); Brumbelow v. City of Rome, 215 Ga. App. 321, 322 (450 SE2d 345) (1994). Lovins failed to show evidence of actual knowledge.

(b) Defendant’s constructive knowledge. Lovins also failed to show evidence of constructive knowledge. Constructive knowledge can be shown in either of two ways: (i) by presenting evidence that an employee of the defendant was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard; or (ii) by presenting evidence that the substance was on the floor for such a time that (a) it would have been discovered had the proprietor exercised reasonable care in inspecting the premises and (b) upon being discovered, the substance would have been cleaned up had the proprietor exercised reasonable care in cleaning the premises. Hardee’s Food Systems v. Green, 232 Ga. App. 864, 866 (2) (502 SE2d 738) (1998).

(i) Lovins contends that the employee who put out the sample or another employee in a nearby delicatessen area were close enough to the accident site to have easily seen and removed the hazard. However, showing that an employee was merely working in the area of a foreign substance is not enough. The employee must have been in a position to have easily seen and removed the substance. Hardee’s Food Systems, supra at 866-867 (2) (a). Here, the employee working in the cheese section testified that she was not facing the area in which the fall occurred and that the showcase blocked her view of the area in which Lovins fell. When he fell, she turned but could not see him until she stood on her toes.

The delicatessen manager was also in the area, but was working in the back of the bakery section with her back turned to the site. Under these circumstances, it may not be said that the employees could have easily seen the dip on the floor so as to impute constructive knowledge. See Super Discount Markets v. Clark, 213 Ga. App. 132, 134 (443 SE2d 876) (1994); Kitchens v. Restaurant Mgmt. Svcs., 192 Ga. App. 313, 314 (1) (385 SE2d 11) (1989); Queen v. Kroger Co., 191 Ga. App. 249, 250 (1) (381 SE2d 413) (1989).

Decided February 1, 1999

Reconsideration denied February 22,1999

William L. Skinner, for appellants.

Smith, Howard & Ajax, Matthew L. Hilt, Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, James R. Doyle II, for appellee.

(ii) The evidence is undisputed that an employee inspected the floor just ten minutes before the fall and found no foreign substance. Therefore, Lovins has not presented evidence establishing that Kroger employees would have discovered the substance and cleaned it up had they exercised reasonable care in inspecting and cleaning the premises. See generally Hardee’s Food Systems, supra at 867-868 (2) (b); Coffey v. Wal-Mart Stores, 224 Ga. App. 824, 828 (2) (482 SE2d 720) (1997). Because Lovins failed to sustain his burden of producing some evidence that Kroger had actual or constructive knowledge of the hazard, Kroger was entitled to summary judgment as a matter of law. See Haskins, supra at 351.

Contrary to Lovins’s contention, Robinson, supra, does not require a different result. As discussed in Sharfuddin, supra at 680 (1), Robinson focused on the issue of a plaintiff’s knowledge of the foreign substance, not the defendant’s actual or constructive knowledge. Robinson did not change the plaintiff’s burden concerning the defendant’s knowledge. Id. In this case, Lovins presented no evidence that Kroger had actual or constructive knowledge of the dip on the floor and no evidence from which such knowledge could be inferred. Given Lovins’ failure to carry his burden as to Kroger’s knowledge, Robinson does not alter our holding here. See Sharfuddin, supra at 686.

2. Plaintiff’s knowledge and care. Assuming a factual issue was presented as to whether Lovins should have seen the dip before stepping in it, the trial court correctly granted summary judgment to Kroger because there was no evidence that Kroger had actual or constructive knowledge of the hazard before Lovins fell. See Williams v. Sing Bros., 226 Ga. App. 657, 658 (1) (487 SE2d 445) (1997); Johnson v. Autozone, 219 Ga. App. 390, 392 (465 SE2d 463) (1995).

Judgment affirmed.

Smith and Barnes, JJ, concur.


author: Ruffin, Judge.

text:
    A97A2367.
    STRAHLEY v. PRUITT CORPORATION.
    (512 SE2d 710)
    Decided February 22, 1999.

      Robert D. Jones, for appellant.

      Clifton, Sanders & Smith, Cecil L. Clifton, Jr., for appellee.
   Ruffin, Judge.

In Strahley v. Pruitt Corp., 231 Ga. App. 502 (498 SE2d 78) (1998), we reversed the grant of summary judgment to Pruitt Corporation (Pruitt) on Strahley’s interference with a contract claim and affirmed the grant of summary judgment to Pruitt on Strahley’s claim of interference with business relations. In Pruitt Corp. v. Strahley, 270 Ga. 430 (510 SE2d 821) (1999), the Supreme Court reversed our decision as to Strahley’s tortious interference with the contract claim. Accordingly, Division 1 of our prior opinion, dealing with the claim of tortious interference with a contract, is vacated and the judgment of the Supreme Court is made the judgment of this Court. Division 2 of our prior opinion, which affirmed the grant of summary judgment to Pruitt on Strahley’s claim of interference with business relations, was not affected by the Supreme Court’s decision and, therefore, stands.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.