text:
    A95A2184.
    BATTS et al. v. CRACKER BARREL OLD COUNTRY STORE, INC.
    (464 SE2d 829)
   Birdsong, Presiding Judge.

This is another trench cave-in case. Plaintiff Batts worked for Master Plumbing Sewer & Drain, Inc., which was hired by Cracker Barrel Old Country Store, Inc. to replace a terra cotta sewer pipe with a PVC pipe. Batts contends the original pipe was installed by Cracker Barrel in an old pond bed, so that the ground around the terra cotta constantly filled with water. Master Plumbing arranged to have the water pumped out. However, Master Plumbing did not shore up the sides of the trench. At least five or six times before Batts’ injury, the walls of the trench caved in while Master Plumbing’s workers were installing new pipe sections. Batts contends Master Plumbing’s owner requested an advance from Cracker Barrel to pay for materials to either stabilize the trench walls or dig the trench walls at a safe angle, but that Cracker Barrel refused such an advance and told them to keep digging. After being injured in a cave-in, Batts sued Cracker Barrel, citing Cracker Barrel’s negligence in defectively constructing a terra cotta sewer pipe in a former pond bed, in failing to allow the use of safety equipment and precautions, and in insisting Batts and his employer keep working in the face of the hazards occasioned by Cracker Barrel’s defective construction of the premises. From an adverse summary judgment, Batts appeals. Held:

The standards of summary judgment are stated in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). The evidence discloses beyond any material issue of fact that the cause of the cave-in was the failure of Batts’ employer to shore up the sides of the trench or properly slope its sides. The evidence also discloses beyond any issue of fact that Batts and his employer had ample notice of the tendency of this trench to cave in. We do not see a proximal causal chain from this trench cave-in to the fact that Cracker Barrel installed terra cotta pipe in an old pond bed. The fact that the trench filled with water seeping from the surrounding soil was merely a hazard which made proper shoring or sloping of the trench absolutely essential. This hazard was known to Batts and to his employer. They even concede they recognized the need to shore up or slope the sides of the trench. If they did not have the material to build the trench properly and if Cracker Barrel refused to advance them the money to supply that material, they were not required to keep working in the trench. There is no evidence cited to us that Cracker Barrel refused to allow Master Plumbing to take the proper safety precautions and forced its employees to continue working in the unshored trench.

As a general rule, a proprietor may be liable for injury caused to an invitee where the proprietor knows of a dangerous condition and the invitee cannot reasonably discover it, the basis of liability being the proprietor’s superior knowledge of the danger. Amear v. Hall, 164 Ga. App. 163, 167-168 (296 SE2d 611); Ramsey v. Mercer, 142 Ga. App. 827, 829 (237 SE2d 450). However, an exception to the general rule exists where workers are hired to perform work which makes safe a place known to be dangerous or which in its progress necessarily changes the character for safety of the place in which it is performed as the work progresses. Elsberry v. Ivey, 209 Ga. App. 620, 621 (434 SE2d 158).

Another exception to the general rule of proprietor’s liability arises with the doctrine of assumption of risk. This doctrine applies where the plaintiff, with a full appreciation of the danger and without restriction from his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct. Moore v. Svc. Merchandise Co., 200 Ga. App. 463, 465 (408 SE2d 480). If the plaintiff’s actions were voluntary and he was not coerced by any compelling circumstances or emergency, he cannot recover damages from another. Roberts v. Carter, 214 Ga. App. 540, 541 (448 SE2d 239). The danger of the trench proximally existed because Master Plumbing failed to shore up the trench, not because Cracker Barrel built the pipe in a wet place. If Batts felt coerced to get in a trench which had already caved in five or six times and had not been shored up or sloped, the evidence discloses beyond any material issue of fact that it was not Cracker Barrel’s agent who coerced him. As a general rule, such questions are for the jury, unless as a matter of law, the plain, palpable and indisputable evidence shows the cause of the injury was negligence of one party. See Kitchens v. Winter Co. Builders, 161 Ga. App. 701 (289 SE2d 807). Reasonable minds cannot differ that by refusing to advance funds to buy materials to shore up the trench sides and by telling Master Plumbing to keep digging, Cracker Barrel’s agent did not “coerce” Batts to keep digging in the trench, for there is no evidence that Cracker Barrel’s agent actually curtailed or removed Batts’ freedom of choice. “A person cannot undertake to do what obviously is a dangerous thing, even if he is directed by another, without assuming the risks incident thereto and without himself being guilty of such lack of due care for his own safety as to bar him from recovery.” (Emphasis supplied.) Forde v. Citizens & Southern Ga. Corp., 178 Ga. App. 400, 402-403 (343 SE2d 164); Roberts, supra at 541. In any case, it was not Cracker Barrel’s agent but Batts’ employer who had the say-so whether Batts should stay in the trench. Batts and his employer knew the trench was particularly dangerous because it had caved in many times before, but they deliberately chose to continue in the task. Cracker Barrel’s failure to advance funds and its directive to keep digging did not remove Batts’ freedom of choice.

Decided November 9, 1995

Reconsideration denied December 5, 1995.

Sell & Melton, Doye E. Green, Jr., for appellants.

Anderson, Walker & Reichert, Robert A. B. Reichert, for appel-

Judgment affirmed.

Johnson and Smith, JJ., concur.


source: Caselaw Access Project

author: Ruffin, Judge. Beasley, Chief Judge,

license: Public Domain

text:
    A95A0903.
    WOODWARD v. THE STATE.
    (465 SE2d 511)
   Ruffin, Judge.

Glenda Jo Woodward was indicted for felony obstruction of a law enforcement officer under OCGA § 16-10-24 (b). She appeals the judgment of conviction and sentence and the denial of her motion for new trial. For reasons which follow, we reverse.

The evidence at trial showed that during the day of July 8, 1993, Woodward called the Gwinnett County Sheriff’s Department several times to arrange for personal delivery of certain papers to Sheriff James Carsten. Eventually she spoke with Deputy J. Forest who advised her that Sheriff Carsten could not receive the papers personally and that per Carsten’s orders, Woodward could either deliver them to Deputy Forest on the second floor of the building housing the sheriff’s department, or leave them at the desk in the lobby of the administrative offices of the sheriff’s department. The record shows that Woodward’s manner during the calls devolved into belligerence.

When Woodward arrived at the sheriff’s department to deliver the papers, Deputy Edward Marsden was on duty. Marsden testified he went looking for Woodward because he heard she was in the building. Woodward was writing a note to the sheriff when she was approached by Marsden and arrested. She was writing the note after the clerk at the window asked “[m]ay I help you?” Marsden himself admitted that when he arrived Woodward was simply “at the window writing on an envelope.” Shortly thereafter, Deputy Marsden arrived and insisted that Woodward immediately leave the paperwork with him and exit the building. Woodward subsequently produced identification as Marsden requested but did not leave, even after a second order by Marsden to do so. Marsden again demanded that Woodward leave and told her she would be arrested if she did not. Woodward then asked Marsden to call Sheriff Carsten before arresting her to confirm that she was simply following the sheriff’s instructions. Although Marsden testified that his grounds for arresting Woodward at that point would have been criminal trespass or disorderly conduct, he admitted and the clerk testified that the disorderly conduct occurred after Marsden put his hands on Woodward and arrested her. We note parenthetically that Marsden refused to answer Woodward’s question about the grounds for her arrest.

When Woodward did not leave, Marsden arrested her and attempted to physically remove her from the lobby window. Woodward resisted the arrest and an altercation ensued during which she kicked and bit Marsden. Woodward was cited for disorderly conduct and indicted for obstruction of a law enforcement officer.

1. Woodward contends the trial court erred in denying her motion for new trial because the evidence was insufficient to show that she obstructed a law enforcement officer in the lawful discharge of his duties. We agree.

An essential element of the offense of obstruction of an officer is that the State prove beyond a reasonable doubt that the obstruction occurred while the officer was in “the lawful discharge of his official duties.” OCGA § 16-10-24 (b). See Powell v. State, 192 Ga. App. 688 (3) (385 SE2d 772) (1989). “[A] police officer is not discharging his lawful duty when he arrests an individual without reasonable or probable cause.” Brown v. State, 163 Ga. App. 209, 212 (4) (c) (294 SE2d 305) (1982). If there is probable cause to believe a person committed a crime, if a crime is committed in the officer’s presence or within his knowledge, or if there is a likely failure of justice, an arrest without a warrant is authorized; otherwise it is not. OCGA § 17-4-20. See Smith v. State, 84 Ga. App. 79 (65 SE2d 709) (1951).

Here, there is no evidence that Deputy Marsden was in the lawful discharge of his duties when he arrested Woodward. Marsden testified that there was no sign warning of a restricted area which would have prevented Woodward from entering the sheriff’s department and that with the exception of one secured area, the facility is a public building. It is undisputed that the administrative offices and the lobby of the sheriff’s department are public areas of a county facility to which access is not limited. Nor was there a criminal trespass warrant prohibiting Woodward’s entry.

Although the State contends that Marsden was in the lawful discharge of his duties when he arrested Woodward because security of the building was one of his responsibilities, there was no evidence at trial that Woodward presented a security threat, that it was unlawful for her to be in the building, or that Deputy Forest had instructed her not to enter the second floor. Nor did the State show that Marsden had the authority to demand that she leave. Compare Powell, supra.

Moreover, a lawful arrest was not in progress when Woodward resisted Marsden for disorderly conduct. A belligerent telephone call earlier in the day, without more, is not disorderly conduct and does not constitute probable cause for an arrest. In order for the jury to determine whether there was sufficient evidence to convict Woodward of obstruction of a law enforcement officer, it had to determine if there was sufficient evidence to prove that Woodward’s arrest for disorderly conduct was lawful. This the jury could not do because “no [county] ordinance was offered in evidence. . . . Courts cannot take judicial cognizance of the existence of [county] ordinances. [Cit.]” Smith v. State, supra at 82. Although the jury was charged on the content of Gwinnett County’s disorderly conduct ordinance, a jury charge is not evidence. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, 2d ed., p. 11, which sets forth those items constituting evidence. The jury’s concern about why Woodward was arrested was evidenced by the note it sent the court asking: “May we have, in writing, a legal description of a lawful arrest?” In response, the court instructed the jury to “rely on the instructions read to you as the complete body of law applicable to the case. ...”

As there is no evidence showing Woodward’s arrest was lawful, she “had the right to resist with all force necessary for that purpose. [Cit.]” Smith v. State, supra at 81. Accordingly, “the conviction of [Woodward] for the offense of obstruction of a law enforcement officer was not authorized by the evidence. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Brooks v. State, 206 Ga. App. 485, 489 (2) (425 SE2d 911) (1992).

2. Given our holding above, we need not address Woodward’s remaining enumerations of error.

Judgment reversed.

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

Beasley, Chief Judge,

dissenting.

I first note that the transcript does not record the circumstances of the court’s written answer to the jury question, but the record contains the court’s written response, indicating that the court had discussed the jury’s question with counsel before responding that the jury should rely on its collective recollection of the court’s charge as the complete body of law applicable to the case.

The question is whether defendant was committing the crime of disorderly conduct in violation of the Gwinnett County ordinance in deputy sheriff Marsden’s presence when he arrested her. Whether she was committing criminal trespass, given the evidence, is not relevant at this stage, because that is not what he arrested her for and charged her with, and the jury was only charged with the elements of disorderly conduct. The deputy did testify that when he finally advised her that she would have to leave the building or be placed under arrest, at that point he would have arrested her for criminal trespass or disorderly conduct. Defendant asked for a jury charge on criminal trespass, which was not given, but did not seek a charge on disorderly conduct.

The record does not contain a certified copy of the ordinance, but it is set out in the state’s Request to Charge No. 2 and identified as Section 9-1005 of the Code of Gwinnett County. The court gave this charge, and it was not objected to by either counsel except that defense counsel noted that an immaterial portion of it had been left out. A copy of the citation, which referenced this Code section, was admitted into evidence at trial. See Mayor &c. of Savannah v. TWA, Inc., 233 Ga. 885, 886 (214 SE2d 370) (1975); Williamson v. City of Tallapoosa, 238 Ga. 522, 525 (233 SE2d 777) (1977).

The court charged: “Disorderly conduct is defined as follows: It shall be unlaw [sic] for any person or persons to create any disturbance that is contrary to the peace and tranquility enjoyed by the people, or inferred — or interfere with the lawful movement of a vehicular [sic] or disobey a lawful command from a law enforcement officer in the lawful performances of his duties, or engage in any of the following acts:

“One, any person who shall act in a violent or an argumentative manner to another person whereby that person is placed in fear of bodily harm, or property of another is placed in danger of being damaged or destroyed.”

The only prohibited act of disorderly conduct which was at issue in this case was disobedience of a lawful command from a law enforcement officer in the lawful performance of his duties. It is this alleged act which constituted the basis for the arrest, which when attempted led to defendant’s holding on to the counter and then screaming, biting the officer, breaking the chain on his neck, ripping his badge off, and trying to bite him again before she was subdued by five officers. The commission of violence to the person of the officer, by biting him on the hand, is what constituted the knowing and wilful obstruction of the officer for which defendant was indicted and convicted pursuant to OCGA § 16-10-24 (b), a felony.

We are obliged to consider the evidence in the light most favorable to the jury’s verdict. Wilkie v. State, 216 Ga. App. 557 (455 SE2d 103) (1995). The sheriff’s office was advised by defendant by phone that she wanted to deliver some papers to the sheriff personally. She called several times that day and talked to his secretary but was not satisfied with the responses. The next time she called, the secretary referred her to deputy Forest, the sheriff’s administrator and personal assistant, who often handles people who cannot be served in the ordinary course. He told her the sheriff was not present and gave her the options of leaving her papers at the front desk on the first floor or bringing them to him on the second floor and he would deliver them to the sheriff. She indicated she was not satisfied with these options and became loud and abusive and advised she was going to make delivery to the sheriff under any circumstances. He told her that was not an option, the conversation deteriorated, and he finally hung up.

Ms. Woodward did not come while deputy Forest was there, so when he left to go home sometime after the normal business day ended at 5:00, he directed the deputy at the front desk that he should receive her papers if she came in, and he told him that she had been belligerent on the phone.

Deputy Marsden was on duty at the front desk on the first floor when Ms. Woodward came, but he did not see her until he was called up to the second floor at about 8:45 p.m. because she was there. He had been instructed to receive her papers, but that he was not to permit her access to the second floor lobby because she had been harassing the staff by phone. She had gained access by the stairs rather than by the public elevator. The stairwell was for restricted use with a sign that it was for authorized personnel only.

Marsden, whose responsibilities included security of the building, did not know Ms. Woodward, so when he approached her thinking she was the woman writing on an envelope at the window, he asked for identification. She did not respond until he asked the fourth time. She told him in a challenging manner that he knew who she was and that if he did not, “[he] had no excuse for being.” He asked if she had some papers for the sheriff and told her he had been authorized to accept them and to come down to the first floor. At first she ignored him. Although he told her this two or three times, including that she could come back another day if she did not want to leave the papers with him for the sheriff, she kept insisting on seeing the sheriff personally.

Finally, he told her that whether she left the papers with him or brought them back another day, she would have to leave the building. She refused to comply, so he told her she would have to leave or he would arrest her. She refused, so he told her she was under arrest. She then screamed, grabbed the window ledge with both hands and would not let go, and then bit the officer and so on until subdued. He testified that he would not have arrested her if she had given him the papers or left them at the desk on the second floor. He charged her with disorderly conduct.

Whether a defendant impeded an officer in carrying out his lawful duties is usually a jury question. Logan v. State, 136 Ga. App. 567 (222 SE2d 124) (1975).

Defendant was arrested for refusing to leave the public building, after having been directed to do so either after transacting her business in one of the manners offered or to await a day when the sheriff was present. Having already exhibited earlier in the day a harassing, belligerent and abusive attitude towards sheriffs department person-

Decided December 5, 1995.

Leslie J. Cardin, for appellant.

Daniel J. Porter, District Attorney, George F. Hutchinson III, Assistant District Attorney, for appellee.

nel in connection with this delivery, she had no right to remain on the premises until the sheriff returned at some unknown time. It was lawful for the deputy, in fulfilling his duty to maintain security in the building, see Powell v. State, 192 Ga. App. 688, 689 (3) (385 SE2d 772) (1989), to direct her to leave because she refused to conduct her lawful business in a reasonable manner. “If the . . . arrest was legal, [as it was in this case, defendant] had no right whatever to resist it. . . .” Smith v. State, 84 Ga. App. 79, 81 (65 SE2d 709) (1951). See also Onwuzuruoha v. State, 217 Ga. App. 645, 646 (458 SE2d 675) (1995); Mapp v. State, 204 Ga. App. 647, 650 (6) (420 SE2d 615) (1992); Johnson v. State, 201 Ga. App. 88 (1) (410 SE2d 189) (1991); Whaley v. State, 175 Ga. App. 493, 494 (333 SE2d 691) (1985).

Thus, the conviction was authorized by the evidence. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

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


author: Pope, Presiding Judge.

text:
    A95A1086.
    A95A1087.
    THE MEDICAL CENTER, INC. v. STATE HEALTH PLANNING AGENCY et al. COLUMBUS DOCTORS HOSPITAL, INC. v. THE MEDICAL CENTER, INC.
    (464 SE2d 925)
   Pope, Presiding Judge.

The Medical Center, Inc. (“TMC”) provides obstetric and neonatal services to residents of Columbus, Georgia and the surrounding area. In January 1991, the State Health Planning Agency (“SHPA”) approved TMC’s application for a certificate of need to renovate certain areas of its hospital, including its obstetric unit. One month later, SHPA denied two applications for new perinatal services, which were filed by Columbus Doctors Hospital, Inc. (“Doctors”) and St. Francis Hospital, Inc. (“St. Francis”).

Doctors and St. Francis appealed the denial of their applications and the approval of TMC’s application to the State Health Planning Review Board (“Board”). On February 20, 1992, after conducting a consolidated hearing on all three applications, a three-member panel of the Board affirmed SHPA’s approval of TMC’s application and the denial of St. Francis’ application. The panel, however, reversed SHPA’s denial of Doctors’ application.

In March 1992, TMC and St. Francis appealed the Board’s decision to the Superior Court of Muscogee County. The superior court ruled that SHPA had erred in failing to conduct a consolidated review of all three applications, and that the error had not been cured by the Board’s consolidated review of the applications. Consequently, on February 15, 1993, the superior court reversed the award of TMC’s and Doctors’ certificates of need and remanded all three hospitals’ applications to SHPA for a comparative review to be conducted “as though none of the parties had been previously granted a certificate of need for their proposed perinatal projects.”

The parties amended their applications, and on July 7, 1993, following completion of its review of the amended applications, SHPA rendered its second decision, wherein it again granted TMC’s application and denied Doctors’ and St. Francis’ applications. Doctors and St. Francis again appealed to the Board. On August 9, 1993, prior to the Board’s review of SHPA’s second decision, SHPA adopted a new perinatal services rule (“New Rule”). See SHPA Rule 272-2-.09 (5). Following the adoption of the New Rule, St. Francis withdrew its application.

On May 12, 1994, the Board’s Chairman ordered the commencement of a hearing before a three-member review panel including himself. Prior to the hearing, the Chairman determined that the New Rule governed Doctors’ amended application. On June 30, 1994, the two other members of the panel (the “Board Majority”) reversed SHPA’s second decision and granted Doctors’ application based on “unusual circumstances.” The Chairman dissented on the grounds that Doctors did not have a past record of service to the underprivileged as required by the New Rule; that it did not meet the numerical need requirement of the New Rule; and that it did not meet the “urban county exception” to the need requirement. It is undisputed that the panel unanimously affirmed SHPA’s approval of TMC’s application.

TMC appealed the Board’s decision regarding Doctors’ application to the superior court on the ground that Doctors’ application did not meet the requirements of the New Rule for the reasons stated in the Chairman’s dissent. By order dated October 3, 1994, the superior court reversed the Board Majority’s determination that there was a numerical need for Doctors’ proposed perinatal services, but concluded that Doctors satisfied the urban county exception. The superior court also specifically found that Doctors’ past record of service to the underprivileged was dismal. However, it declined to reverse the Board Majority’s decision on that basis, and thus it subsequently affirmed the award of a certificate of need to Doctors.

We granted TMC’s application for leave to appeal the superior court’s October 3, 1994 order. TMC’s appeal of that order was docketed as Case No. A95A1086. Doctors filed a timely notice of cross-appeal, and its cross-appeal was subsequently docketed as Case No. A95A1087.

Case No. A95A1086

1. TMC contends that the superior court erred in affirming the Board Majority’s decision that Doctors had met the requirements set forth in the New Rule. Before reaching this issue, however, we must first determine whether the superior court was correct in finding that the New Rule was applicable to Doctors’ amended application.

The record in this case demonstrates that the New Rule was adopted after SHPA’s 1993 decision to deny Doctors’ amended application, but before the Board had conducted its review of that decision. Under such circumstances, the superior court correctly determined that the Board was required to apply the New Rule to Doctors’ amended application. In Georgia it is well settled that “a reviewing [tribunal] should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review.” (Citation and punctuation omitted.) Health Help Sues, of Gainesville v. State Health Planning Agency, 174 Ga. App. 640, 641 (1) (329 SE2d 628) (1985); see former OCGA § 31-6-21.1 (i).

2. Having reached this conclusion, we now address TMC’s argument that the superior court erred in determining that Doctors had complied with the requirements of the New Rule. Specifically, TMC argues that Doctors failed to comply with Standard 8 (v) of the New Rule and that this alone was sufficient to reverse the Board Majority’s decision. We cannot agree.

Standard 8 of the New Rule provides that: “An applicant for new or expanded Basic Perinatal Service or Neonatal Intermediate Care or Neonatal Intensive Care Service shall foster an environment which assures access to services to individuals unable to pay and regardless of payment source or circumstances by the following: (i) providing evidence of written administrative policies and directives related to the provision of services on a nondiscriminatory basis; (ii) providing a written commitment that unreimbursed services for indigent and charity patients in the services will be offered at a standard which meets or exceeds three percent of annual gross revenues for the service after Medicare and Medicaid contractual adjustments and bad debt have been deducted; (iii) providing a written commitment to participate in the Medicaid program; (iv) providing a written commitment to participate in any other public reimbursement programs available for perinatal and neonatal services for which the hospital is eligible; and (v) providing documentation of the demonstrated performance of the applicant... of providing services to individuals unable to pay based on the past record of service to Medicare, Medicaid, and indigent and charity patients, including the level of unreimbursed indigent charity care.” SHPA Rule 272-2-.09 (5) (c) (8).

In interpreting Standard 8 (v), it is undisputed that the superior court, like every agency or tribunal previously involved in this matter, unequivocally recognized Doctors’ dismal record of past service to the underprivileged. Yet the superior court nevertheless determined that Doctors was in substantial compliance with Standard 8. We agree.

There is substantial evidence that Doctors complied with four of the five subparts of Standard 8. Although it is true that Standard 8 is written in the conjunctive, this fact is not determinative of the issue of whether each of its subparts must be met before an applicant can be awarded a certificate of need. The language included in the New Rule itself indicates where there is a requirement of strict compliance. For example, Standards 1, 3, 4, 6 and 11 each specify that the applicant shall comply with their provisions. Standard 8, however, does not contain such mandatory language, but instead only the vague instruction that the “applicant . . . shall foster an environment which assures access to services to” indigents. As the superior court noted, rigid and precise adherence to a standard, which by its terms does not demand such, may be relaxed in the reasonable discretion of the Board. See American Med. Intl. v. Charter Lake Hosp., 186 Ga. App. 204 (366 SE2d 795) (1988).

Furthermore, we note that the environment that SHPA seeks to enforce will be fostered by compliance with any or all of the subparts of Standard 8. The Board Majority, in its discretion, was therefore free to conclude that the decision as to whether such an environment would be fostered in this case could be made by using the totality of the circumstances test. Id. at 206-207. Accordingly, it also was free to consider completion of one of Standard 8’s subparts to be more important than another or to require less than full compliance with a particular subpart. This is especially true in light of the fact that SHPA has the authority to revoke a certificate of need if an applicant fails to continue to comply with Standard 8 after it first obtains its certificate. See OCGA § 31-6-40.2.

3. We reject TMC’s contention that the trial court erred in determining that under Standard 5 (ii) of the New Rule Doctors fell within the “urban county exception” to the numerical need formula set forth in Standard 1. See SHPA Rule 272-2-.09 (5) (c) (1) and (5) (c) (5) (ii). Under Standard 5 (ii) “[e]xceptions to numerical need for a new Basic Perinatal Service may be considered by the Agency ... to expand geographic access in an urban county where the county’s projected female population ages 15 to 44 for the horizon year is less than 100,000 and the number of births in facilities in that county during the most recent year for which data are available at the time the application is filed is at least 10 percent greater than the number of births at such facilities in the fifth year preceding the most recent year; provided, however, that no more than 50 percent of such an increase in births shall have occurred in the most recent year and no more than 75 percent of such an increase in births shall have occurred in the most recent two years.”

Pointing to outreach and education programs, the Board Majority found that Doctors’ application for a new 16-bed obstetrics service should be approved under the above exception because it would improve geographic access to such programs. The superior court agreed. TMC argues, however, that Standard 5’s use of the phrase “Basic Perinatal Service” is restricted to inpatient services, and therefore, outreach and educational programs should not have been considered by the Board Majority or the superior court in determining whether the exception was applicable. We find no merit to this argument. Hospitals can and do provide outpatient and education services in addition to inpatient care, and the term “inpatient services” is not used by SHPA as a restrictive term under the New Rule.

We also conclude that the Board Majority and superior court did not err in accepting Doctors’ showing of a 9.93 percent increase in births as evidence of substantial compliance with the ten percent figure contained in the urban county exception. In determining whether a given application is consistent with the considerations set forth in OCGA § 31-6-42 and SHPA’s rules, the Board Majority was entitled to place more emphasis on one consideration than another absent some mandatory language to the contrary. See Hosp. Auth. of Gwinnett County v. State Health Planning Agency, 211 Ga. App. 407 (438 SE2d 912) (1993). Moreover, such emphasis is entitled to great deference by a reviewing court. Id. In this case, the language found in Standard 5 (ii) was not mandatory, and thus we conclude that the Board Majority was entitled to forego a literal reading of the ten percent requirement. See American Med. Intl., 186 Ga. App. at 206-207. The Board Majority’s determination that the goal of Standard 5 (ii) was furthered as equally by a 9.93 percent birth rate increase as it would be by a ten percent increase was a rational exercise of discretion and is entitled to due deference by this Court. See Clark v. Ga. Kraft Co., 178 Ga. App. 884 (345 SE2d 61) (1986).

4. Finally, we reject TMC’s contention that the superior court should have reversed the Board Majority’s award of a certificate of need to Doctors under the New Rule because Doctors failed to demonstrate that the costs associated with its proposed project were less than the current certificate of need threshold, as required by Standard 10. See SHPA Rule 272-2-.09 (5) (c) (10). Doctors included its cost figures in its application, which was filed under the Old Rule, and it is undisputed that those figures were in compliance with the Old Rule. The requirement that cost be below the current certificate of need threshold was established by the New Rule, yet under that rule Doctors is prevented from amending its application to include cost figures that would satisfy the New Rule’s cost threshold. Under such “Catch-22” circumstances, we conclude that the Board Majority did not err in failing to demand compliance with Standard 10 in determining that Doctors was entitled to a certificate of need. Moreover, we note that it is questionable whether Standard 10 is directly applicable to Doctors’ application for Neonatal Intermediate (Level II) Service based on the service definitions found in SHPA Rule 272-2-.09 (5) (b) (1) and (5) (b) (3).

Decided December 5, 1995.

King & Spalding, Richard L. Shackleford, Frank C. Jones, Rothschild & Morgan, Jerome M. Rothschild, for The Medical Center, Inc.

Michael J. Bowers, Attorney General, William W. Calhoun, Patricia Guilday, Assistant Attorneys General, for State Health Planning Agency.

Nelson, Mullins, Riley & Scarborough, Stanley S. Jones, Jr., Edward C. Brewer III, Page & Scrantom, W. G. Scrantom, Jr., Fleming, Drumond & Ray, Jennifer D. Malinovsky, for Columbus Doctors Hospital, Inc.

Parker, Hudson, Rainer & Dobbs, John H. Parker, Jr., Armando L. Basarrate, amici curiae.

Case No. A95A1087

5. Based on our holding above that the superior court did not err in affirming the Board Majority’s decision to award a certificate of need to Doctors, we need not address the enumerations of error found in Doctors’ cross-appeal.

Judgments affirmed.

Ruffin, J., concurs. Beasley, C. J., concurs in judgment only.


text:
    A95A1262.
    JENKINS v. THE STATE.
    (465 SE2d 296)
   Ruffin, Judge.

Nadine Jenkins was convicted of voluntary manslaughter and possession of a firearm during the commission of a felony. On appeal, she challenges both the admission and exclusion of certain trial evidence. Jenkins claims the court erred by admitting certain incriminating statements she made to the police without Miranda warnings and by excluding both the victim’s blood alcohol report and expert witness testimony as to whether she acted in fear for her life. For reasons which follow, we affirm.

The evidence shows that during a domestic altercation, Jenkins shot her husband four times, once in the upper left chest, and three times in the back. Following the shooting, Jenkins telephoned 911 and reported the shooting. Officer Rosalyn Hall told the 911 dispatcher to call Jenkins back and tell her to stand in the driveway without the weapon and with her hands up. Officer Hall and Officer Howard Johnson arrived on the scene first. Officer Hall testified that when she arrived at the Jenkins’ residence, Jenkins was standing in the driveway crying and waving her arms. She admitted shooting her husband and directed the police inside her home. Officer Hall testified she asked Jenkins only two questions — the location of the gun and her relationship to the victim. During the next several minutes, Officer Johnson and Jenkins, a registered nurse, jointly administered CPR to the victim. As they attempted to stabilize the victim, Jenkins, upset and praying, babbled incessantly about how she shot her husband, hoped he would not die, and questioning why he beat her all the time. Hall testified that during this time, Jenkins was not free to leave. Hall admitted she did not advise Jenkins of her rights and that she listened to all of Jenkins’ statements. A short time later, Detective James McClenton arrived and after listening to Jenkins’ statements, he read to her the Miranda rights. Jenkins gave no indication she understood her rights, and continued to talk as McClenton read the Miranda warnings to her.

The trial court conducted two Jackson-Denno hearings and admitted Jenkins’ statements, finding them to be spontaneous and not the result of any police questioning.

1. Jenkins contends the court erred in allowing Officers Hall and McClenton to testify about her statements because at the time she made her statements she was in custody and had not been given Miranda warnings. Jenkins claims police should have given her Miranda warnings when they arrived on the scene but did not do so. Jenkins argues that police encouraged her to continue her narrative regarding the events that transpired and points out that McClenton allowed her to make a long detailed statement regarding the incident without ascertaining whether she understood her rights.

“[T]he necessity of administering Miranda warnings exists only when the individual is interrogated while in custody. [Cits.]” (Emphasis in original.) Ramos v. State, 198 Ga. App. 65, 66 (2) (400 SE2d 353) (1990). “Miranda warnings are not a prerequisite to the admission of evidence concerning voluntary statements not made in response to any form of custodial questioning or interrogation. [Cit.]” Syfrett v. State, 210 Ga. App. 185, 186 (3) (435 SE2d 470) (1993). Voluntary, spontaneous admissions made by a defendant prior to any interrogation are admissible at trial. Smith v. State, 264 Ga. 857 (3) (452 SE2d 494) (1995). Accordingly, we find that Jenkins’ spontaneous outbursts, made in her front yard, that she shot her husband were admissible. No Miranda warnings are required unless and until the police commence questioning, and the record indicates the police asked only two questions while outside in her front yard — the location of the weapon and Jenkins’ relationship to the victim.

As to Jenkins’ subsequent statements made at her home before Miranda rights were given, she contends the statements were not voluntary because several officers told her that if she answered their questions, she would be allowed to go to the hospital to be with her husband. Jenkins also contends that she never knowingly and voluntarily waived her rights, even when she signed the waiver form, and consequently, any statements made after she was officially taken into custody should have been excluded. However, the record demonstrates that none of Jenkins’ subsequent statements differed materially from her earlier admissions. Furthermore, although the transcript shows she was hysterical, continuously talking, and gave no indication of understanding her rights, McClenton testified that after Jenkins signed the waiver form, he was not able to obtain any intelligible information from her. Therefore, the trial court did not err in permitting Officers Hall and McClenton to offer essentially cumulative testimony. See generally Lynn v. State, 181 Ga. App. 461 (2) (352 SE2d 602) (1986).

2. Jenkins contends the trial court erred by excluding the victim’s blood alcohol test results which purportedly showed the victim was legally intoxicated. Jenkins argues these data were essential to her defense of justification — that she reasonably feared for her life at the hands of her intoxicated husband and had suffered a sustained pattern of abuse culminating in his death. She argues that the trial court erred in failing to admit the report under the business record exception to the hearsay rule.

This court has determined that a blood alcohol test is admissible “when the party seeking to admit the test results lays a proper foundation by offering the testimony of a witness who is familiar with the method of record keeping, who can therefore testify that the entry of the test result was made in the regular course of business at the time the test was conducted or within a reasonable time thereafter. [Cits.] It is not necessary to have the person who performed the test or the person who ordered the test to testify, because the test results are purely factual data.” Oldham v. State, 205 Ga. App. 268, 270 (1) (422 SE2d 38) (1992).

In this case, however, Jenkins failed to lay any foundation for either the admission of the report or the expert’s testimony regarding the test results contained in the report by showing that the witness was familiar with the method of record keeping or that he could testify that the entry of the test results was made in the regular course of business at the time the test was conducted or within a reasonable time thereafter. See id. Thus, we find no error in the exclusion of the report.

3. Jenkins claims the court erred by not permitting a defense expert witness to testify as to whether Jenkins shot her husband in fear for her life.

The court allowed the expert witness to testify that Jenkins was the victim of extensive psychological abuse, suffered from battered woman syndrome, and exhibited the symptoms of post traumatic stress disorder. Counsel was permitted to ask the expert witness whether at the time of the struggle Jenkins truly believed she was going to die. The court did not, however, allow counsel to ask: “And have you formed an opinion as to whether she at that time really believed that she was defending her life?” We agree the question was improper. Whether Jenkins shot her husband in self-defense and was defending her life is not a question outside the ken of the average juror. In Pugh v. State, 260 Ga. 874 (2) (401 SE2d 270) (1991), the Supreme Court affirmed the trial court’s exclusion of a nearly identical question. Based on the Court’s holding in Pugh, we find no merit in this enumeration.

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Blackburn and Smith, JJ., concur. Beasley, C. J., concurs in part and dissents in part.

Beasley, Chief Judge,

concurring in part and dissenting in part.

I concur in Divisions 1 and 2. With respect to Division 3, the question is not like the question which was ruled properly excluded in Pugh v. State, 260 Ga. 874, 875 (2) (401 SE2d 270) (1991).

In Pugh, the expert was not permitted to answer whether defendant shot her husband in self-defense. That was the ultimate question, as it is here, and the jury did not need the expert’s opinion on that as though the expert was a thirteenth juror.

In this case, the expert held a doctorate in social psychology, was an expert on the battered woman syndrome, and had evaluated several hundred women in this regard. She evaluated defendant, using a number of diagnostic tools, and concluded that she “had and has a severe case of the battered woman syndrome” and also “a very strong case of the post traumatic stress disorder.” Symptoms included: “a great deal of fear for her life during her relationship with Mr. Jenkins,” her husband. After extensive testimony, the question at issue was asked. The defendant sought to elicit the expert’s opinion as to whether defendant believed, at the time of the shooting, that she was defending her life.

Decided December 5, 1995

Robert L. Wadkins, for appellant.

Douglas C. Pullen, District Attorney, Roger H. Anderson, Assistant District Attorney, for appellee.

This is not the ultimate issue and is quite different from asking whether it was the expert’s opinion that defendant shot the victim in self-defense. That was the properly excluded question in Pugh. The expert’s training, experience, research, and extensively performed evaluation of defendant qualified her to reach an opinion on the state of defendant’s mind at the time of the shooting. This was beyond the ken of the average juror, who would be hard pressed to draw their own conclusion as to the belief defendant held when she committed the act. Defendant was entitled to present the aid of the expert to assist the jury. Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981).


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

text:
    A95A1411.
    CLANTON et al. v. GWINNETT COUNTY SCHOOL DISTRICT et al.
    (464 SE2d 918)
   Beasley, Chief Judge.

Jimmy Clanton III, by and through his parents, sued the Gwinnett County School District and Jo Ann Rosselle alleging that as a result of their negligence Jimmy was injured. The incident occurred when Jimmy, who was five years and ten and one-half months old, was being supervised by Ms. Rosselle in a kindergarten class at a school in Gwinnett. Part of the planned activities for the kindergarten class was candlemaking. According to the Clantons, Jimmy tripped on the electric cord of a hot plate, caused boiling water to spill, and suffered first and second degree burns. A jury returned a defendants’ verdict.

1. In four enumerations of error, the Clantons claim that the trial court erred in failing to charge the jury upon request that a child under six years old is presumed incapable of contributory negligence; that the court erred in charging the jury regarding contributory and comparative negligence; and that the court erred in denying their motion for a directed verdict on the issue of contributory negligence.

(a) First we note that appellants’ separate enumerations of error, filed in accordance with Court of Appeals Rule 22, state five enumerations. Their brief, however, in the part set out as specified in Rule 27 (a) (2), lists only four. But there are five sections in the brief, corresponding to the five enumerations in the separate document. The Court should not be called upon to decipher the structure of parties’ submissions so as to match items up. Such sidetracks consume limited time better spent on the substantive issues.

(b) Second, it is notable that plaintiffs did not properly object to the court instructing the jury on the law as set out in OCGA § 51-1-5, which the court did verbatim. Actually, there was a discussion of it at the pretrial conference, plaintiffs taking the position that it applied only to children between the ages of six and fourteen. Earlier in the conference, plaintiffs had substantially offered it as a substitute for part of defendant’s Request to Charge No. 15, which the court accepted by striking the objectionable part of the request and giving OCGA § 51-1-5. When asked for exceptions after the charge was given, plaintiffs did not mention the recitation of OCGA § 51-1-5. Thus the jury had the statutory principle, without objection, as an instruction for their deliberations in measuring the child’s conduct.

And that is as it should have been. The trial court did not err but rather followed the mandate given by the Georgia Supreme Court in Ashbaugh v. Trotter, 237 Ga. 46 (226 SE2d 736) (1976), which governs the issue adversely to appellants. It construes and applies the statute which is now designated OCGA § 51-1-5.

The Court, neither in that case nor in any other Georgia case that we have read, had for consideration any expert opinion on child capacities so as to allow a reasoned cut-off age of six to be judicially established for negligence. Absent such, the question is properly left to the jury, which can size up all the particular evidence in the case and bring its collective common knowledge of children’s capacities to bear in determining first, whether the child was capable of negligence in the premises and second, whether the child was negligent. Hilburn v. Hilburn, 163 Ga. 23 (3) (135 SE 427) (1926); American Oil Co. v. Floyd, 136 Ga. App. 804, 805 (3) (222 SE2d 208) (1975). See, as related in theory, OCGA § 24-1-1 (6) (1975). This sensible attitude underlying the Supreme Court’s opinion in Ashbaugh comports more with justice than does the pronouncement of an arbitrary age, on one side of which a child is held responsible for behavior, regardless of what it relates to, and on the other side of which no legal responsibility attaches.

In this instance the kindergarten child lacked his sixth birthday by less than one and one-half months. He was bright, in that in the approximately four years between the incident and the trial, he had earned all A’s at school except for one B. When he fell over the cord, he was returning to the area where the children played housekeeping. He had gone to the teacher, apparently with the toy truck he had been playing with, to report that there were too many children in housekeeping, and she had told him what to do about it, to tell everybody to get out. The cord over which he tripped was on the floor. It was up to the jury to find whether this child of tender years exercised “such care as [his] mental and physical capacities enable[d] him to exercise in the actual circumstances of [this] occasion and situation. . . .” OCGA § 51-1-5.

In Ashbaugh, the child was four and one-half months older than Jimmy Clanton, and the Supreme Court gave no indication whatsoever that the Code section would not control if the child was under age six. It did not regard as controlling Red Top Cab Co. v. Cochran, 100 Ga. App. 707 (112 SE2d 229) (1959), but rather declined to follow it because it did not even mention the Code section. Red Top is one of the two cases relied on by appellants here in requesting a charge on conclusive presumption. Instead, the Court in Ashbaugh held, “the plain language of the Code section must be applied . . . the question of the infant’s alleged negligence is one for the jury in this case under appropriate instructions from the tried court.” Ashbaugh, supra at 47. The Court had undertaken a nationwide search and found this to be “the widely held view,” specifically reciting the Restatement of Torts 2d, § 283A. Neither the statute nor the Restatement gives an automatic age cut-off, recognizing that children naturally mature and develop their faculties and capacities at different speeds and ages.

As Bleckley, C. J., wrote for the Court in Western & Atlantic R. Co. v. Young, 81 Ga. 397, 416 (2) (7 SE 912) (1888), concerning the standard of due care applicable to children: “Capacity (which includes personal experience as well as natural gifts) is the main thing. Age is of no significance except as a mark or sign of capacity.” Thus, “[d]ue care on the part of this [nine-year-old] boy might fall far short of that of a prudent man, and yet exceed that of average boys of his own age. According to the evidence as to his standing at school, he was much above the average of his class.” Id. at 417.

After the second trial in the Young case, the Court reiterated: “We distinctly held, and again hold, that due care, according to its age and capacity, is all that can be exacted of a child of tender years. This we did and again do with full knowledge that the code, in general language, exacts ordinary care, with no express exception as to children; but as ordinary care means, in our law, the care of every prudent man, there must be an implied exception as to children, for it would be absurd to require the same measure of diligence from a child as from a man. The principle of the code is preserved when the same consequence is made to follow the omission of due diligence by a child which would follow the omission of ordinary diligence by an adult. Unless law is to have no amicable terms with reason whatever, this must be a sound view of the subject.” Western & Atlantic R. Co. v. Young, 83 Ga. 512, 518-519 (7) (10 SE 197) (1889). The statute was originally derived in part from this language. Code 1895, § 2901.

It is doubtless that at some early stages of infancy the issue of negligence will be a matter of law for the court. See, e.g., Reed v. Dixon, 153 Ga. App. 604 (1), (5) (266 SE2d 286) (1980), where a child “slightly over a year old” was not chargeable, as a matter of law, with contributory negligence in wandering into the street where there was no crosswalk. Id. at 608. But this is not such a case. Whether we would agree with the jury as a matter of fact is not relevant.

It is true that in 1899, the Georgia Supreme Court concluded as a matter of law that a child age four and one-half was incapable of contributory negligence, but as in Red Top Cab Co., the statute was not mentioned. Crawford v. Southern R. Co., 106 Ga. 870, 877 (33 SE 826) (1899). It cited cases from other jurisdictions where contributory negligence was precluded because children were seven and six, ages clearly subject to the rule in OCGA § 51-1-5, according to Ashbaugh.

In Davis v. Webb, 149 Ga. App. 144 (253 SE2d 820) (1979), the child was almost the same age as Jimmy in this case, five years and ten months. The court held that the trial court correctly followed Ashbaugh by giving the statutory principle and refusing to charge that the child was too young to be chargeable with due care for his own safety or with contributory negligence.

Young v. Wal-Mart Stores, 209 Ga. App. 199 (433 SE2d 121) (1993), involved an eight-year-old. The court applied OCGA § 51-1-5 and considered the question of the child’s negligence one for the jury, citing Hobson v. Kroger Co., 204 Ga. App. 417 (419 SE2d 492) (1992). Hobson involved a child a little younger than Jimmy, i.e., five years and eight months. He was subject to the standard in OCGA § 51-1-5, and summary judgment to defendant was upheld because “the child was aware in fact of the existence of the hazard” yet advanced upon it. The court stated there was only “some shadowy semblance” of an issue regarding the child’s ability to appreciate the existence and scope of danger posed by spilled Sprite and a broken Sprite bottle on the grocery store floor. Id. at 420.

In Blackwell v. Cantrell, 169 Ga. App. 795 (3) (315 SE2d 29) (1984), the child was age six, and it was deemed not error to refuse a request to charge that the child was incapable of contributory or primary negligence and to charge OCGA § 51-1-5, “the correct standard,” instead. Ashbaugh is cited.

The age of the “minor ... of tender years” is not stated in Lequire v. Youmans, 147 Ga. App. 174 (248 SE2d 235) (1978), but the court held that the trial court correctly followed Ashbaugh. The court rejected appellant’s invitation to narrow it.

Commerce Prop. v. Linthicum, 209 Ga. App. 853 (434 SE2d 769) (1993), does not mention the statute and ignores Ashbaugh, and its statement that Crawford’s presumption of incapability applied to the four-year-old child is merely dictum. Valdosta Housing Auth. v. Finnessee, 160 Ga. App. 552 (1) (287 SE2d 569) (1981), applied a conclusive presumption of negligence incapability in the instance of a child age two and one-half, who was bitten by a rat at home in a housing project.

In this case it was properly a jury question.

2. The remaining enumeration complains of the court’s charge on an aspect of damages. It is moot because the jury found no liability. Pouncey v. Adams, 206 Ga. App. 126, 127 (1) (424 SE2d 376) (1992).

Judgment affirmed.

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

Pope, Presiding Judge,

dissenting.

I respectfully dissent. First, contrary to the majority’s conclusion, I think the Clantons did preserve the arguments raised for review by this Court. Though they did not specifically except to the court’s recitation of OCGA § 51-1-5, the Clantons repeatedly argued that the jury should be instructed that Jimmy Clanton was incapable of contributory negligence. Both at the charge conference and again when asked for exceptions to the charge, the Clantons argued that the jury should have been charged that a child under six was conclusively presumed incapable of contributory negligence.

Furthermore, although I am mindful of our Supreme Court’s decision in Ashbaugh v. Trotter, 237 Ga. 46 (226 SE2d 736) (1976), Ashbaugh must be narrowly construed. The determination from Ashbaugh that a plaintiff age six years and three months may be capable of contributory negligence should not be extended to a child who is five years and ten and one-half months old, as Jimmy Clanton was at the time of the accident here. In this case, the court should have concluded as a matter of law that Jimmy Clanton was too young to be contributorily negligent.

This conclusion is supported by those cases which were not explicitly overruled by Ashbaugh. See, e.g., Christian v. Smith, 78 Ga. App. 603 (51 SE2d 857) (1949) (child under six years of age not chargeable with negligence). In Crawford v. Southern R. Co., 106 Ga. 870 (2) (33 SE 826) (1899), which was not directly overruled by Ash baugh, the Supreme Court stated: “[w]here from the age of the child there can be no doubt as to its want of capacity to avoid danger, the court will decide this question as a matter of law. ... We think that there can be no doubt as to the soundness of the proposition that a child only four and a half years of age is incapable of being guilty of contributory negligence.” Id. at 877-878.

Decided December 5, 1995

Weinstock & Scavo, Michael Weinstock, J. Bertram Levy, for appellants.

Gorby & Reeves, Michael J. Gorby, Blakely H. Frye, Thompson & Sweeny, E. Victoria Sweeny, for appellees.

Similarly here, there can be no doubt as to the soundness of the proposition that Jimmy Clanton, who was less than six years old, was incapable of being guilty of contributory negligence. Although the recognition that children naturally mature and develop their faculties and capacities at different speeds and ages is sound, it is also true that there is an age under which children are not deemed capable of contributing to their own injuries. The majority recognizes this principle, stating that “[i]t is doubtless that at some early stages of infancy the issue of negligence will be a matter of law for the court.” Nonetheless, the majority concludes that a jury should resolve the question when the injured party is a child five years and ten and one-half months old. Unlike the majority, I conclude that a child younger than six years old is too young for the jury to resolve this issue. In other words, a child under six years old is presumptively incapable of contributory negligence.

Accordingly, the court should have instructed the jury that Jimmy Clanton was presumed to be incapable of contributory negligence. See, e.g., Commerce Prop. v. Linthicum, 209 Ga. App. 853 (434 SE2d 769) (1993); Valdosta Housing Auth. v. Finnessee, 160 Ga. App. 552 (1) (287 SE2d 569) (1981); Reed v. Dixon, 153 Ga. App. 604 (1) (266 SE2d 286) (1980). In my opinion, the court’s failure to do so was reversible error.

I am authorized to state that Presiding Judge McMurray and Judge Ruffin join in this dissent.

       In their complaint, they had alleged that the incident “was not the result of any negligence on the part of’ Jimmy.


author: Ruffin, Judge.

text:
    A95A1426.
    A95A1427.
    SEARS MORTGAGE CORPORATION et al. v. LEEDS BUILDING PRODUCTS, INC. WEIBLEN v. LEEDS BUILDING PRODUCTS, INC.
    (464 SE2d 907)
   Ruffin, Judge.

Sears Mortgage Corporation and other plaintiffs (“Sears plaintiffs”) including Albert Weiblen (collectively “plaintiffs”) purchased or financed purchases of homes (“properties”) from residential builder Peach Communities, Inc. (“Peach”). Peach built the properties with construction materials purchased on credit from Leeds Building Products, Inc. (“Leeds”). In connection with the credit transactions, Peach executed security deeds on each of the properties to serve as collateral for the construction materials purchased for each home. Rita Taylor, a Leeds credit manager, stated that after a Peach representative executed the deeds, she collected them from Peach’s office, and as Leeds admits in its brief, “[s]he would add her signature as the unofficial witness and send them to Leeds’ attorneys for filing.”

When plaintiffs closed on the purchases of the properties from Peach, they had no actual knowledge of the Leeds security deeds, and as a result the security deeds were not satisfied at closing. Problems arose after the closings on the properties when Peach encountered financial problems and could not satisfy its debts to Leeds. Leeds thereafter demanded that plaintiffs satisfy the debts secured by the security deeds. When plaintiffs refused, Leeds threatened foreclosure and advertised notices of sale under the power of sale provisions contained in the deeds. Sears plaintiffs filed the instant action against Leeds seeking to enjoin Leeds from foreclosing on the properties and for damages allegedly resulting from fraud and wrongful foreclosure. In a separate suit, Weiblen sued Leeds to enjoin the foreclosure and for fraud.

The parties in both suits moved for summary judgment. The trial court granted Leeds’ motion for summary judgment and denied plaintiffs’ motion. In Case No. A95A1426, Sears plaintiffs appealed, asserting that the security deeds were not properly recorded and did not provide constructive notice because they were improperly witnessed. Sears plaintiffs also assert that the trial court erred in denying summary judgment on their claims against Leeds for fraud and wrongful foreclosure. In Case No. A95A1427, Weiblen asserts essentially the same errors but has no claim for wrongful foreclosure. We consider both appeals jointly, and because we find that the court properly found no evidence of fraud, but erroneously found that the deeds provided constructive notice to plaintiffs, we affirm in part and reverse in part.

1. In order to record a security deed, it must be “attested by or acknowledged before an officer as prescribed for the attestation or acknowledgment of deeds of bargain and sale,” and must also be attested or acknowledged by one additional witness. OCGA §§ 44-14-61 and 44-14-33. “Attestation is the act of witnessing the actual execution of a paper, and subscribing one’s name as a witness to that fact. ... A witness to an instrument can not know that the signature of the maker thereto is his signature unless he either sees the maker sign the instrument, or unless the maker acknowledges to the witness that the signature thereto is his signature.” (Citations omitted.) Wood v. Davis, 161 Ga. 690, 694 (1) (131 SE 885) (1926) (interpreting former Civil Code 1910, § 3846). See also Bloodworth v. McCook, 193 Ga. 53 (1) (17 SE2d 73) (1941). “Acknowledgment is the act of a grantor in going before some competent officer and declaring the paper to be his deed; and to make such acknowledgment good in law, it must be accompanied by the certificate of the officer that it has been made.” White & Co. v. Magarahan, 87 Ga. 217, 219 (1) (13 SE 509) (1891). “[A] deed not properly attested or acknowledged, as required by statute, is ineligible for recording and, even if recorded, does not constitute constructive notice. [Cit.]” Higdon v. Gates, 238 Ga. 105, 107 (231 SE2d 345) (1976). If the property is subsequently purchased without actual notice of the improperly recorded security deed, the subsequent purchaser’s title is superior to the improperly recorded security deed. See OCGA § 44-2-1. See also Donalson v. Thomason, 137 Ga. 848 (5) (74 SE 762) (1912).

In this case, Leeds admitted that the unofficial witness was not present when Peach executed the security deeds and there is no evidence that the Peach representative who executed the deeds acknowledged the deeds were Peach’s in the manner prescribed. Accordingly, the deeds were not properly attested or acknowledged, and although recorded, they did not provide plaintiffs constructive notice of their content. Thus, because plaintiffs had no actual or constructive knowledge of the security deeds, the security deeds lost whatever priority they may have had over plaintiffs’ title. See OCGA § 44-2-1. There being no issues of material fact to contradict the superiority of plaintiffs’ title to the properties over the Leeds security deeds, Leeds has no right to sell the properties under the power of sale provisions contained in the security deeds. Accordingly, the trial court erred in granting Leeds summary judgment and denying plaintiffs’ motion for summary judgment to enjoin Leeds from foreclosing on the properties.

2. Having ruled in Division 1 that Leeds has no right to foreclose on the properties, we are constrained to find that its actions in initiating foreclosure proceedings against the Sears plaintiffs were also improper. While the trial court correctly ruled that no evidence of fraud appears in the record supporting a claim of wrongful foreclosure, a claim for wrongful foreclosure need not be based on fraud. Rather, “ ‘[t]here exists a statutory duty upon a mortgagee to exercise fairly and in good faith the power of sale in a deed to secure debt. OCGA § 23-2-114. . . . [Cits.]”’ Tower Financial Svcs. v. Smith, 204 Ga. App. 910, 916 (2) (423 SE2d 257) (1992). Damages resulting from a wrongful foreclosure, whether arising in tort or contract, are compensable at law. Id. See also Calhoun First Nat. Bank v. Dickens, 264 Ga. 285 (1) (443 SE2d 837) (1994); Clark v. West, 196 Ga. App. 456 (a) (395 SE2d 884) (1990). Furthermore, contrary to Leeds’ arguments, it is not necessary that the foreclosure be completed to bring an action for wrongful foreclosure. The fact that Leeds initiated foreclosure proceedings by advertising the properties for sale is sufficient to support a claim for wrongful foreclosure. See Sale City &c. Co. v. Planters & Citizens Bank, 107 Ga. App. 463 (130 SE2d 518) (1963) (interpreting former Code Ann. § 37-608). Accordingly, because Leeds advertised the properties for foreclosure without the right to do so, the trial court erred in denying plaintiffs’ motion for summary judgment as to Leeds’ liability for wrongful foreclosure. However, because it is unclear from the record what damages Sears plaintiffs suffered from the wrongful foreclosure, the case must be remanded for a determination of damages.

3. Plaintiffs also contend the trial court erred in granting Leeds summary judgment on plaintiffs’ fraud claim. In its order the court found that plaintiffs “presented no evidence that Leeds made misrepresentations to them upon which they relied, nor that Leeds intended to defraud them.” Plaintiffs contend the trial court used an impermissibly narrow standard in assessing their fraud claim because a showing of fraud can be made without evidence of affirmative misrepresentations. In their briefs, plaintiffs present several types of fraud that do not require affirmative misrepresentations and cite facts which purportedly demonstrate that material issues of fact remain as to their fraud claim. However, none of the facts cited would support a claim for fraud of any type.

“ ‘The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. [Cit.] . . . [Cit.]”’ Cobb County School Dist. v. MAT Factory, 215 Ga. App. 697, 700-701 (2) (a) (452 SE2d 140) (1994). The first element of fraud does not necessarily require a showing of an affirmative misrepresentation, and may be shown in appropriate cases by evidence of suppression of a material fact or surprise. See OCGA §§ 23-2-51 through 23-2-54. However, “ ‘[f]or an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort.’ [Cit.]” MAT Factory, supra.

Decided December 5, 1995.

Glen E. Stinson, for appellants (case no. A95A1426).

Perrie, Buker, Stagg & Jones, Robert E. Stagg, Jr., Cheryl V. Shaw, for appellant (case no. A95A1427).

Siegel & Golder, Mark L. Golder, for appellee.

In this case plaintiffs have not demonstrated, and we do not see, how any of the recited facts show even the first element of fraud, by false representation, omission or surprise. The facts merely demonstrate that Leeds and Peach had a creditor/debtor relationship and that when Peach could not satisfy its debts, Leeds turned to plaintiffs for payment. Although we concluded in Division 1 that plaintiffs are entitled to summary judgment on their claim for injunctive relief, because the deeds were improperly recorded, we find nothing in the facts cited in the briefs that amounts to fraud by Leeds. Although the trial court may not have considered plaintiffs’ assertions of fraud by omission or surprise, no genuine issues of material fact exist which support those assertions. “A grant of summary judgment must be affirmed if it is right for any reason. [Cit.]” Young v. Faulkner, 217 Ga. App. 321, 325 (3) (457 SE2d 584) (1995). We thus affirm the trial court’s grant of summary judgment to Leeds on plaintiffs’ fraud claims.

Judgment affirmed in part and reversed in part.

Beasley, C. J., and Pope, P. J., concur in Division 2 and in the judgment.


author: McMurray, Presiding Judge. Andrews, Judge,

text:
    A95A1634.
    FOOD LION, INC. v. WILLIAMS.
    (464 SE2d 913)
   McMurray, Presiding Judge.

Plaintiff Ollie Mae Williams brought this tort action seeking to recover for personal injuries sustained when she slipped and fell in the public rest room of a grocery store owned and operated by defendant Food Lion, Inc., in Savannah, Georgia. The evidence showed that the floor of this rest room was covered with water from a commode. In a special verdict, the jury found for plaintiff, awarding her $4,317.98 for past medical expenses, $25,920 in past lost wages, $6,000 for past, present and future pain and suffering, $10,500 for future medical expenses, and $55,000 for future lost wages. Defendant appeals directly from the judgment entered on that special verdict. Held:

1. Defendant first enumerates the denial of its motion for directed verdict on the issue of liability, arguing that it could not have superior knowledge of the hazardous spill because its employee “became aware of the water on the floor only moments before [plaintiff] entered the bathroom.” (Emphasis in original.) “If there is no conflict in the evidence as to any material issue and the evidence introduced, with all favorable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” OCGA § 9-11-50 (a). “In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the ‘any evidence’ test. [Cit.]” Southern R. Co. v. Lawson, 256 Ga. 798, 799-800 (1) (a) (353 SE2d 491).

The evidence in the case sub judice, when reviewed in the light most favorable to the party opposing the motion for directed verdict, indisputably establishes that defendant’s employee, Elizabeth Kirkland, was in the rest room before plaintiff entered. Elizabeth Kirkland admitted her actual knowledge of a large amount of water on the floor, “ ‘enough water there to indicate that it could have covered that area from the commode to the door.’ ” Elizabeth Kirkland was a reluctant witness, whose recollection at trial, especially her estimates of time, was constantly refreshed with her deposition testimony. She thought this water came from the first of two commodes because she knew it had overflowed several times before. Elizabeth Kirkland passed this first stall when she used the second. She was trained to pick up things from the floor or else summon someone else to clean up the floor. The assistant store manager, Jasper King, confirmed that a mop room, containing warning signs, was “right down from the bathrooms.” Douglas Joseph Gertsweiler, the store manager, conceded that the existence of a store “policy of inspecting every four hours does not necessarily mean that the actual inspections were, in fact, done every four hours.” He also confirmed that store policy with respect to water spilled on the floor is that “the store employee is supposed to place themselves in a location so as to block access by customers to any area where there is a spill.” When plaintiff entered the rest room, “Ms. Kirkland didn’t say anything. She didn’t utter a word.” Nor “did she try to block the door to prevent [plaintiff] from coming in.”

The favorable estimate of the time elapsed from when she discovered the water on the floor and when plaintiff entered the rest room, took one step and fell to the floor on her back, was at least “a minute or two. [She did not] think it was like five or ten, fifteen minutes.” Contrary to the unfavorable testimony relied upon by the defendant and the dissent, Elizabeth Kirkland “stood there and looked at it and [although she] wanted to go get someone to clean it up, or find someone who could clean it up, . . . before [she] got to the door to get someone, Mrs. Williams had opened the door and she came in at an angle, and before [Elizabeth Kirkland] could tell her not to come in, she slipped down.” (Emphasis supplied.) This conflicting testimony as to the exact amount of time Elizabeth Kirkland had to stand and look at the large accumulation of water on the floor created a jury question as to Elizabeth Kirkland’s credibility and whether she was diligent or dilatory in using such time as she had to prevent just the type of injury sustained by plaintiff in this case. It was not necessary that defendant’s employee have sufficient time to remove the accumulated water; she could have simply stood in the doorway and warned patrons of the hazard as she contemplated the best path to a complete remedy or summoned help. That response is defendant’s policy. Consequently, the defendant and the dissent err in relying on cases such as Mitchell v. Food Giant, 176 Ga. App. 705, 708 (337 SE2d 353). In Mitchell, the hazardous condition was a “radish on the floor of [defendant’s] grocery store.” Id. Undoubtedly, that hazardous radish could have been completely removed by stooping to pick it up. That remedy simply is not available to address a floor covered with water from an overflowing commode. The case sub judice falls within the general rule that “ ‘ “(q)uestions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases.” ’ Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448 (224 SE2d 25). Added to that list are related issues of assumption of risk, lack of ordinary care for one’s own safety, lack of ordinary care in failing to foresee a condition which could cause injury (Cowart v. Five Star Mobile Homes, 161 Ga. App. 278, 279 (291 SE2d 13)), and even where there is no dispute as to the facts, it is usually for the jury to say whether the conduct in question met the standard of the reasonable man. [(Emphasis supplied.)] James v. Sears, Roebuck & Co., 140 Ga. App. 859 (232 SE2d 274)[, applying the whole court decision of Wakefield v. A. R. Winter Company, Inc., 121 Ga. App. 259, 260 (174 SE2d 178)]. ‘ “Unless no other conclusion is permissible, questions of negligence are matters for jury resolution and are not ordinarily susceptible to summary adjudication.” ’ Epps Air Svc. v. DeKalb County, 147 Ga. App. 195, 196 (248 SE2d 300).” Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 836 (331 SE2d 899). The evidence in the case sub judice supports the reasonable inference that defendant’s employee did not act with dispatch to warn patrons when she confronted a known and obvious hazard, as required by store policy. Consequently, the trial court correctly denied defendant’s motion for directed verdict as to liability.

2. Defendant next enumerates the denial of its motion for a partial directed verdict as to future medical expenses as an item of recoverable damages. Defendant acknowledges that plaintiff’s treating neurosurgeon, James G. Lindley, M. D., testified that an uncomplicated two-day hospitalization for a discetomy [sic] with fusion would cost “probably about $20,000.” This is sufficient evidence to authorize the jury’s award in the amount of $10,500 for future medical expenses. See generally Massie v. Ross, 211 Ga. App. 354 (1), 355 (439 SE2d 3). Nevertheless, defendant argues in its brief that no award is authorized because there was no evidence “from any medical provider that [plaintiff] needed surgery on her neck.” We disagree.

While Dr. Lindley testified that plaintiffs leg, low back, and thoracic pain were, in his medical opinion, susceptible to nearly complete remedy by physical therapy, he was further of the opinion that plaintiff’s neck “condition was becoming chronic. . . .” He testified that plaintiff’s “neck problem may get worse, and that’s generally because . . . there is a disc abnormality, [. . . which is] more likely to develop more arthritis. . . .” Subsequent examination, after physical therapy, showed that “the prognosis from the thoracic pain and low back and left leg pain was very good, and that she would probably improve and that would go away. . . . From the neck and right arm pain, [however,] she certainly continued to have symptoms and [even] if she did improve, there’s still a chance of re-injury.” Plaintiff “might even need surgery on her neck if she continued to have neck problems.” Specifically, if plaintiff “continued to demonstrate abnormalities such as a Spurling sign, then [Dr. Lindley] would recommend surgery.”

“In all cases, necessary expenses consequent upon an injury are a legitimate item in the estimate of damages.” OCGA § 51-12-7. Since Dr. Lindley had already testified that plaintiff’s neck pain was chronic, i.e., continuing, and was susceptible to reinjury, and that he would recommend surgery if plaintiff failed to improve through physical therapy alone, the jury in the case sub judice was not left to determine the need for future surgery based on speculation and conjecture alone. Bennett v. Haley, 132 Ga. App. 512, 514 (1) (208 SE2d 302). Compare Daugherty v. Vick, 127 Ga. App. 767, 769 (3) (195 SE2d 208). The trial court correctly denied defendant’s motion for partial directed verdict as to this special item in the estimate of damages.

3. In the final enumeration, defendant contends the trial court erred in its charge on pain and suffering. The trial court instructed the jury that, “in evaluating the plaintiff’s mental pain and suffering, you may consider the following factors: Interference with normal living, interference with enjoyment of life, loss of capacity to labor and earn money, impairment of bodily health and vigor, the fear of extent of injury, shock of impact, actual pain and suffering, past and future, mental anguish, past and future, must limit activities.” On appeal, defendant argues that these factors are suitable only for closing argument and are not the basis of a proper jury instruction. This contention is without merit. The trial court’s charge in the case sub judice substantially tracked the pattern charge on damages, including mental pain and suffering, and was a correct statement of the law. See Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol. I: Civil Cases, Section XI (7) (b) (3rd ed. 1991). The itemization of these permissible factors by the trial court was not itself argumentative or unduly suggestive. If counsel believed that certain factors were unsupported by the evidence, that circumstance was a matter for reply in closing argument. See CSX Transp. v. Darling, 189 Ga. App. 719, 723 (3) (377 SE2d 217). Consequently, the trial court did not err in its instruction to the jury on mental pain and suffering as an element of recoverable damages.

Judgment affirmed.

Beasley, C. J., Pope, P. J., Johnson, Blackburn, Smith and Ruffin, JJ., concur. Birdsong, P. J., concurs in the judgment only. Andrews, J., dissents.

Andrews, Judge,

dissenting.

Because I find that Williams cannot prove an essential element of her cause of action, namely, that an employee had an opportunity to remove the water or to warn customers of the hazard, I must respectfully dissent.

“ ‘ “In reviewing the overruling of a motion for a directed verdict, the proper standard to be utilized by the appellate court is the any evidence test.” ’ ” Amberley Suite Hotel v. Soto, 214 Ga. App. 72, 73 (446 SE2d 778) (1994) (quoting Re/Max of Ga. v. Real Estate Group on Peachtree, 201 Ga. App. 787, 788 (412 SE2d 543) (1991). Viewed in the light most favorable to Williams, the party opposing the motion, the evidence was as follows.

On February 28, 1992, at approximately 6:50 p.m., Williams slipped and fell as she was entering the ladies’ room in the Food Lion store. Water from an overflowing toilet caused the fall. A store cashier, Ms. Kirkland, was in the rest room when Williams entered. Kirkland testified that she had just come out of one of the stalls when she noticed the water on the floor. Kirkland said that she discovered the water a minute or two before Williams entered and she was leaving the rest room to take care of the problem when Williams opened the door. Kirkland further testified that she tried to warn Williams but Williams slipped and fell before she could do so.

“ ‘ “For [Williams] to recover under a common law negligence theory, there must have been a defective condition on [Food Lion’s] premises, which defect was the cause of [Williams’] fall and of which [Food Lion] had superior knowledge.” ’ ” Froman v. George L. Smith, Ga. World Congress Auth., 197 Ga. App. 338, 339 (398 SE2d 413) (1990).

Williams claims that Food Lion had actual knowledge of the hazard and failed to warn her of the dangerous condition. However, Kirkland’s uncontroverted testimony was that she had discovered the water only a minute or two before Williams entered.

Decided December 5, 1995.

Painter, Ratterree & Bart, R. Clay Ratterree, Sarah B. Akins, for appellant.

Jones, Boykin & Associates, Noble L. Boykin, Jr., Charles W. Snyder, for appellee.

“Q. Now, do you recall how long it had been from the time you noticed the water on the floor until the time Mrs. Williams entered the restroom? A. It could have been about a minute. It wasn’t really longer than that. I didn’t really have time to stand there and look at it before she came in.”

“[T]here never has been a rule in this state that liability can be shown by nothing more than the fact that the defendant’s employee was in the immediate area of the hazardous substance. In every case, the rule that states that proposition also requires a finding that the defendant’s employee ‘had an opportunity to discover and remove the hazard,’ . . .” (Emphasis supplied.) Mitchell v. Food Giant, 176 Ga. App. 705, 709 (337 SE2d 353) (1985). Accordingly, although Kirkland was aware of the water on the floor, Williams cannot show that she had an opportunity to clean it up or warn anyone of the hazard. Indeed, Kirkland testified that as she was leaving to get someone to clean up the water, Williams opened the door. Further, before Kirkland could stop her, Williams entered and fell. Thus, although Williams has shown that, at the moment of her fall, a Food Lion employee had knowledge of the water on the floor, she cannot show that the employee had an opportunity to remove the water or warn customers of the hazard. Therefore, because Williams failed to establish one of the essential elements of her cause of action, I believe the trial court erred when it overruled Food Lion’s motion for directed verdict on the issue of liability.


author: Beasley, Chief Judge. Ruffin, Judge,

text:
    A95A1674.
    ALTERMATTS PAINTING et al. v. SUBSEQUENT INJURY TRUST FUND.
    (464 SE2d 922)
   Beasley, Chief Judge.

We granted Altermatts Painting and Selective Insurance Company discretionary appeal in this workers’ compensation case to address the following question regarding the construction of OCGA § 34-9-363.1 (b): When a reimbursement agreement between an employer and the Subsequent Injury Trust Fund has been submitted to, but not yet approved, by the State Board of Workers’ Compensation, must the employer submit a settlement with its employee first to the Fund for approval or may the settlement be submitted directly to the Board? The answer is that the settlement must first be submitted to the Fund for approval.

Pursuant to OCGA § 34-9-363, Altermatts entered into an agreement with the Fund for reimbursement of its employee’s workers’ compensation claim on September 23, 1993. On October 29, prior to the Board’s approval of the reimbursement agreement, Altermatts entered into a settlement with the employee. That settlement was submitted to the Board for approval on November 10, the very same day the Board approved Altermatts’ reimbursement agreement with the Fund.

The Fund subsequently petitioned the Board to rescind the reimbursement agreement on the ground that Altermatts did not comply with the provisions of OCGA § 34-9-363.1 (b) because it failed to obtain the Fund’s approval of the employee settlement prior to submitting that settlement to the Board. The ALJ agreed, declared the reimbursement agreement null and void as provided for in OCGA § 34-9-363.1 (b), and ordered Altermatts to reimburse the Fund for any monies it had previously received under the agreement. The Board affirmed the ALJ’s order and the superior court affirmed the Board.

OCGA § 34-9-363.1 (a) provides that “[a]fter the employer or insurer and the . . . Fund reach an agreement with respect to reimbursement and either the reimbursement agreement is approved by the . . . Board of Workers’ Compensation or the . . . Board ... orders reimbursement . . . , the employer or the insurer shall have a continuing obligation to keep the . . . Fund informed as to any proposed settlement agreement . . . between the employee and the employer. . . .” Subsection (b) of the statute provides that “[t]he employer or the insurer shall obtain the approval from the . . . Fund for any and all settlement agreements between the employee and the employer ... in all cases where a reimbursement agreement . . . exists prior to the submitting of the settlement to the . . . Board ... for approval; provided, however, that if the employer . . . fails to obtain the approval from the . . . Fund for such a settlement agreement, but the . . . Board . . . approves such agreement, the reimbursement agreement between the employer . . . and the . . . Fund shall become null and void, and the . . . Board . . . shall . . . [rescind] the reimbursement agreement. . . .”

The Subsequent Injury Trust Fund was created by the State to protect employers and insurers from excess liability for compensation paid to disabled workers whose job injury caused a greater disability than if the worker had not been previously disabled. OCGA § 34-9-350. It protects employers and insurers by reimbursing them for paying such compensation to the injured employee, according to a statutory scheme. OCGA § 34-9-360.

Reimbursement is based on payment of workers’ compensation benefits in accordance with OCGA § 34-9-221 or a Board award, and the Fund is to reimburse only certain weekly income benefits and a prescribed portion of “only those indemnity, medical, and rehabilitation expenses that the employer or insurer was legally obligated to pay to the employee or claimant.” OCGA § 34-9-360 (f).

To carry out this program, the law provides for agreements to be entered into between the Fund and the employer or insurer with respect to reimbursement, and if an agreement cannot be reached, for the Workers’ Compensation Board to decide the employer or insurer’s right to reimbursement. OCGA § 34-9-363. Compromise settlements are also permitted. Id.

To assure that reimbursement is made for no more than the Fund’s portion of what the employer or insurer is obligated to pay the injured worker, the law imposes a duty on the employer/insurer to notify the Fund administrator of proposed settlement agreements made with the employee. OCGA § 34-9-363.1. Evidencing the legislature’s realization that these settlements may occur at different times as the employer/insurer works out its agreement with the Fund and negotiates with the worker, the statute prescribes particular duties depending on the scenario.

In this instance, the employer/Fund reimbursement agreement was executed on September 23; the employer/employee settlement was reached on October 21 and executed on October 29; the employer/Fund reimbursement agreement, having been submitted by the employer to the Workers’ Compensation Board, was approved by it on November 10; by happenstance on the same day, the employer submitted to the Board its settlement agreement with the employee, without notifying the Fund of this agreement; and the employer/employee settlement agreement, of which the Fund still had not been notified, was approved by the Board on November 16.

By the terms of the approved reimbursement agreement, the Fund was obligated to reimburse the employer for more than the employer was entitled to under OCGA § 34-9-360. The Fund had no opportunity to adjust the reimbursement agreement based on the employer’s settlement agreement with the employee.

We must consider the purpose of the Fund and the apparent intent of OCGA § 34-9-363.1 to handle the respective rights and responsibilities of the three contracting parties (Fund, employer, employee) when the special requirement of Board approval of the two contracts (Fund/employer and employer/employee) must be fit into the scheme.

With that in mind, and giving words their ordinary meaning, we agree with the ALJ, Board, and the superior court. The employer and the Fund “reached an agreement” on September 23, on which date it “existed,” binding them both; only a third entity, the Workers’ Compensation Board, need approve it before it could be enforced. A term of the agreement itself is that: “Prior to the Employer/Insurer entering into a settlement agreement with the Employee, the Employer/ Insurer shall obtain approval from the Administrator of the Subsequent Injury Trust Fund. OCGA § 34-9-363.1 (b).” From September 23, both contractually and by statute, the employer had “a continuing obligation to keep the administrator of the . . . Fund informed as to any proposed settlement agreement” with the employee. This was required so the Fund could give or withhold its “approval” of the settlement agreement before it was submitted by the employer to the Workers’ Compensation Board. The Fund was given this statutory opportunity to protest an agreement to which it was not a party, because of the settlement agreement’s effect on the reimbursement agreement to which it was already conditionally bound. It is the entity financially responsible ultimately for payment based on the settlement agreement.

The objective of the Fund is to provide a limited, discernible amount of reimbursement to the employer or insurer, no more. A contrary resolution of the issue would allow more. The declaration that the reimbursement agreement was null and void, and the order for reimbursement of the Fund, is upheld. Bekaert Steel Wire Corp. v. Ga. Subsequent Injury Trust Fund, 191 Ga. App. 490 (382 SE2d 197) (1989). Settlements must be submitted first to the Fund even when the reimbursement agreement has not been approved.

Judgment affirmed.

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

Ruffin, Judge,

dissenting.

I respectfully dissent because I agree with Altermatts that the reimbursement agreement did not exist prior to its approval by the Board on November 10. Webster’s Collegiate Dictionary (9th ed.) defines “exist” as “to have real being . . .” and “to have life or the functions of vitality.” Here, the agreement had no material being until it was approved by the Board because there was no obligation for the Fund to make payments until such approval was achieved. See OCGA § 34-9-363 which provides that after an agreement has been reached with respect to reimbursement, “it shall be . . . submitted to the . . . [bjoard ... for approval. The board shall consider [the reimbursement] agreement upon receipt thereof and, if it finds it to meet the provisions of this article, shall approve the agreement and issue its order directing the agreed reimbursement.”

It is my opinion that this interpretation of the statute is reinforced by the fact that subsections (a) and (b) of the current OCGA § 34-9-363.1 are sequential. In other words, it would make little sense for the General Assembly to set forth in subsection (a) the specification that the reimbursement agreement must not only be reached but also approved by the Board before an obligation with respect to settlement is imposed, only to follow in subsection (b) with the imposition of an additional obligation (obtaining pre-approval) during a period in which the reimbursement agreement has been entered into but not yet approved. This, the majority ignores. See Gilbert v. Richardson, 264 Ga. 744 (3) (452 SE2d 476) (1994) (reiterating that a statute should be construed to make all its parts harmonize and give sensible effect to each part). Bekaert Steel Wire Corp. v. Ga. Subsequent Injury Trust Fund, 191 Ga. App. 490 (382 SE2d 197) (1989), cited by both the superior court and the majority, is inapplicable because it addressed a completely different factual situation — the negotiation of a settlement agreement after the reimbursement agreement was approved — than the instant case.

Decided December 5, 1995

Lowendick, Speed & Donahue, Charles G. Hoey, Sharon W. Ware & Associates, Reynolds E. Pitts, Jr., for appellants.

Michael J. Bowers, Attorney General, Rita J. Hop, for appellee.

Swift, Currie, McGhee & Hiers, Joseph A. Munger, amicus curiae.

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