text:
    A94A0947.
    A94A1431.
    CARING HANDS, INC. v. DEPARTMENT OF HUMAN RESOURCES. CARING HANDS, INC. et al. v. DEPARTMENT OF HUMAN RESOURCES.
    (449 SE2d 354)
   Pope, Chief Judge.

Defendant, Caring Hands, Inc., appeals the trial court’s order granting plaintiff, Department of Human Resources (“DHR”), a permanent injunction that prohibits defendant from continuing to oper ate a personal care home or other health care facility above its li censed capacity of six residents, and which compels defendant to tak immediate steps to relocate those residents presently living at th home over and above this licensed capacity. Additionally, defendan and its owners and officers, Wayne Putnam and June Putnam (th “Putnams”), appeal the trial court’s order holding them in wilful cor tempt for failing to obey the permanent injunction.

In 1990, defendant was given approval by DHR to operate a Adult Day Rehabilitation Center (“ADR”) in Ranger, Gordo County, Georgia. The ADR was to provide day services only and nc 24-hour-a-day personal care. Since 1992, defendant also has operate a separate personal care home on the same property as the ADR. Thi personal care home is licensed to provide sleeping, eating and livin quarters for a maximum of six people. In September 1992, defendai built two dormitories adjacent to the ADR building and the personé care home. According to defendant these two dormitories were bui to provide living quarters for its ADR clients. Defendant began usin these dorms to house approximately thirty-five people prior to applj ing for a permit that would allow it to expand its personal care horn from a six resident facility to a forty-two resident facility. DHR firs learned of defendant’s use of the dormitories after an inspection ( the personal care home was conducted by the Gordon County Healt Department on September 15, 1992. The health inspector determine that the home was operating above its licensed capacity and furthé observed that many of the facility’s residents appeared to need se: vices beyond those which a personal care home is authorized to pr< vide. It was not until after this inspection that defendant applied f( an expansion permit.

After receiving defendant’s application to expand its person; care home, DHR did nursing assessments on the home’s residents an conducted inspections of the dormitories. During a nursing asses ment, which occurred on October 29, 1992, DHR determined that ¡ least 19 of the 41 total residents assessed were not appropriate placed in the personal care home because they either needed servia beyond those authorized to be delivered in a personal care home se ting, or because they were unable to recognize or react to an erne gency situation. During an inspection of the premises on March 1 1993, DHR found numerous deficiencies. Specifically, DHR dete mined that several of the residents did not meet the definition “ambulatory adult” and therefore should not have been housed in personal care home. DHR also determined that the dormitories hi an inadequate number of bathing facilities, improper door handl and a lack of adjoining living and sleeping areas. Additionally, DH noted that the dormitories did not meet fire safety requirements. P these deficiencies were recorded in an inspection report which was given to defendant. The inspection report also directed defendant to remove all non-ambulatory residents from the premises within 30 days.

On April 20, 1993, another inspection took place, during which DHR found that defendant had made no improvements to the dormitories and that the characteristics of the residents had not changed. On May 28, 1993, based on the March and April assessments and inspections, DHR denied defendant’s application to expand. Defendant initiated an administrative appeal, but subsequently withdrew this ippeal.

On June 22, 1993, a follow-up inspection took place. Again, DHR found that no changes had been made to the condition of the dormi-;ories. During another follow-up inspection on August 9, 1993, the mly changes DHR found were that the door handles had been replaced and the dorms had obtained a certificate of occupancy from he fire marshal. However, on August 20, 1993, this certificate of occupancy was revoked upon re-inspection by the fire marshal. An addi-;ional nursing assessment during this period revealed that resident haracteristics had remained basically the same except that residents ippeared to be more in need of skilled nursing care. Restraints were found on at least three residents and DHR observed that approxi-nately twenty-eight of the forty-one residents could not respond appropriately to an -emergency situation.

DHR issued a letter on September 3, 1993, requiring defendant ;o submit a plan for the relocation of its residents that would reduce he resident population to its licensed capacity by October 11, 1993. This plan was to be submitted no later than September 10, 1993. Defendant was informed that if it failed to do this then DHR would seek ippropriate injunctive action. DHR also informed defendant that if it leeded assistance in relocating its residents, it should contact the ^dult Protective Services of the Gordon County Department of Famly & Children Services. Defendant failed to provide a relocation plan ;o DHR, but continued to house more than six residents at its facility. Consequently, DHR filed its verified complaint for injunction on Sep-ember 23, 1993, alleging that defendant was operating a personal :are home without the required permit or license contrary to OCGA i 31-7-3. Hearings were held on DHR’s request for preliminary and permanent injunctive relief on October 7,1993 and November 8,1993. 5y order dated November 11, 1993, the trial court granted DHR’s equest for permanent injunction and enjoined defendant from oper-iting a personal care home or other health care facility beyond its icensed capacity of six residents. Defendant was further ordered to nsure that the residents housed in its licensed six person personal are home were appropriate for personal care. Additionally, the court ordered defendant to take immediate steps to have those resident housed in the dormitories relocated from its premises, said relocatio to be completed immediately as allowed by law. Defendant filed it first notice of appeal on November 16, 1993, objecting to the trii court’s November 11, 1993 order granting DHR’s request for an ir junction. This appeal was docketed in this court as Case Nc A94A0947 on January 21, 1994.

On November 23, 1993, DHR learned from the Gordon Count Health Inspector that defendant had not complied with the terms ( the injunction. Subsequently, DHR filed a verified motion for cor tempt against defendant on November 24, 1993. The motion w£ heard on December 7, 1993. In an order dated December 9, 1993, tl trial court held that the defendant and its owners and officers, tl Putnams, were in wilful contempt because they had made no attemi to accomplish relocation of the personal care home’s residents. Di fendant was fined and the Putnams jailed. The contempt proceedir was continued by the court until December 16, 1993. At the Decen ber 16 hearing the court again found defendant and the Putnams i wilful contempt, noting that although some attempt to effect reloc¡ tion had been made, in actuality there were two more residents at tl home as of December 15, 1993, than there were on. December 3, 199 The trial court ordered that defendant be fined and that the Putnan be jailed until such time as they reduced defendant’s resident popul tion to six or until defendant obtained an appropriate license. D fendant and the Putnams filed an application for supersedeas and notice of appeal regarding the trial court’s finding of contempt. Th appeal was docketed in this court as Case No. A94A1431 on Man 17, 1994. To date, the trial court’s final contempt order, which dated December 27, 1993, has not yet been executed. The appeals both cases originally were transferred by this court on March 22, 195 to the Supreme Court of Georgia, this court being of the opinion th Case No. A94A0947, which is from the trial court’s order granting permanent injunction, involves questions of equity, and therefoi falls within the Supreme Court’s jurisdiction under Art. VI, Sec. \ Par. Ill of the Constitution of the State of Georgia. The Suprer Court, however, transferred the cases back to this court on April 1994.

We note that when these appeals were before the Supreme Cou of Georgia, both parties requested that the appeals be expedite Upon transfer of the cases back to this court we attempted to comp with the request for expedited review and scheduled oral argume for June 1, 1994. On May 20, 1994, however, Caring Hands’ attorn* Ralph McCallum, Jr., died. In light of Mr. McCallum’s death tin court, upon Caring Hands’ pro se motion, rescheduled oral argumeiH out of term, for September 6, 1994. Said argument was heard on thH late.

Case No. A94A0947

1. The first appeal turns on the issue of whether the trial court bused its discretion in granting DHR’s request for permanent in-anction. In cases such as this, the standard of review is whether or ot the trial court manifestly abused its discretion. Slaven v. Buford, 57 Ga. 100 (355 SE2d 663) (1987).

In its first two enumerations, defendant argues that the trial ourt, in issuing its November 11, 1993 order requiring defendant to nmediately remove residents from its unlicensed facility, erred by ot taking into consideration evidence as to the feasibility or conse-uences of such an order, and that relocation of the residents under

Eie circumstances was impossible. In its third enumeration, defendant aims that the mandatory injunction is not specific enough in its rms and fails to describe in reasonable detail the act or acts man-ated by the court.

Although we do not specifically address defendant’s first two numerations of error here, we do find that the record in this case emonstrates that the trial court put a great deal of consideration ito its decision to grant the permanent injunction against defendant, loreover, we recognize the trial court’s concern with the fact that efendant has, for well over a year, continued to operate its personal ire home knowing that it lacked the appropriate license and further nowing that many of its residents were inappropriate for personal ire home living. Additionally, we can sympathize with the trial mrt’s frustration with defendant’s continued lack of effort to either itain the appropriate license or otherwise ensure that its residents ere relocated to appropriate facilities based on their individual ieds. Indeed the record supports the statements in the trial court’s ovember 11, 1993 order that defendant’s actions, or lack thereof, >me dangerously close to bad faith in this case. In sum, we wish to ress that we are not in any sense condoning the defendant’s actions . this case. Nevertheless, we are compelled by our paramount con-¡rn for the residents, most of whom are elderly and suffer from vary-g ailments, to hold that the issuance of the trial court’s November ., 1993 order, which mandates that defendant take immediate steps relocate those residents housed in the dormitories and further re-lires that such relocation be completed immediately as allowed by w, constitutes error and a manifest abuse of discretion by that court scause the order provides no detailed guidance to defendant, its resi-Isnts or their families as to how they are to effectuate the relocation, lie order also fails to set out any reasonable timetable within which location should be completed.

OCGA § 9-11-65 (d) provides that, “[e]very order granting an in junction and every restraining order shall be specific in terms; shal describe in reasonable detail, and not by reference to the complaint o: other document, the act or acts sought to be restrained; and is bind ing only upon the parties to the action, their officers, agents, servants employees, and attorneys, and upon those persons in active concert o participation with them who receive notice of the order by persona service or otherwise.” Id. It is only logical to require that orders whicl compel a party to take some action be at least as specific, if not mon so, as orders which seek to restrain some action. Consequently, w hold that the specificity requirement of OCGA § 9-11-65 (d) applie equally to mandated acts, such as those found here, and acts of re straint.

In this case, the trial court’s November 11, 1993 permanent in junction order states as follows: “Defendant should be and is hereb ENJOINED from operation of a personal care home or other healt care facility beyond the six residents for which it is presently licensee Defendant is further ordered to ensure that residents housed in th six person personal care home are appropriate for personal care. De fendant is ORDERED to take immediate steps to have those res dents housed in the dormitories relocated from its premises. Such r« location shall be completed immediately, as allowed by law.” Unde the circumstances set forth in this case, we find that the above orde does not meet the requirements set forth in OCGA § 9-11-65 (d). Th order fails to set forth, in reasonable detail, a plan under,which de fendant’s residents can be orderly, efficiently and safely relocated 1 other facilities suitable to their individual needs. The order also fai to set forth a reasonable time limit in which relocation should 1: completed. Although relocation within ten days is probably possibl our concern is that any attempt at relocation within such a short p< riod of time would place an undue burden on the residents and the families and might otherwise be detrimental to the residents’ healt and well-being.

We therefore remand this case back to the trial court with tl instruction that the court order both parties in this case to subm plans for the orderly, efficient and safe relocation of the residen from defendant’s unlicensed facility. The plans shall set forth in re sonable detail a timetable within which each party reasonably b lieves that relocation can be accomplished. In developing this timetl ble, the parties should take into consideration any foreseen difficulti in said relocation, including, but not limited to, the availability of e ternative facilities and the locations of such facilities. Moreover, a sessments of each resident’s condition and individual needs shall 1 made by the parties, either in conjunction with each other or sep rately, to determine what type of facility is appropriate for each res lent. This information shall be supplied to the trial court along with i list of each resident’s name and a corresponding prognosis of their ondition. The plans also shall contain a list of each resident’s legal ;uardian or next of kin. Additionally, the parties should submit any ither relevant information they believe to be necessary to the orderly, fficient and safe relocation of the residents.

Decided October 18, 1994.

June Putnam, pro se.

Edwin Marger, for appellants.

Michael J. Bowers, Attorney General, William C. Joy, Mary F. ussell, Senior Assistant Attorneys General, Margot M. Cairnes, As-stant Attorney General, Velma C. Tilley, for appellee.

The plans shall be submitted to the trial court within a reasonable time limit set by that court. Upon review of the two plans, the rial court should issue another injunctive order, which shall be spe-ific as to the court’s findings warranting the grant of injunctive relief, nd shall be detailed as to the acts that each party shall perform in ffectuating relocation. The trial court should also set up a specific imetable, within which performance of the acts mandated by the ourt shall be completed. The residents’ next of kin or legal guardians hould be notified of the trial court’s order so that they may assist in re timely relocation of the residents. Failure to comply with the trial ourt’s new order will subject defendant and the Putnams to the ourt’s contempt powers, including the imposition of fines.

Case No. A94A1431

. In the second appeal defendant and the Putnams argue that the rial court’s order of December 27, 1993, finding them in contempt of ourt for failing to comply with the court’s November 11,1993 perma-ent injunction order, constitutes error. Although it is clear from the icord that the Putnams and defendant essentially made no attempt o accomplish relocation of the residents located at the unlicensed ortion of defendant’s facility or otherwise comply with the trial ourt’s order, our holding in Division 1 of this opinion dictates that e reverse the trial court’s finding of contempt.

Case No. A94A0947 remanded with instruction.

Judgment in No. A94A1431 reversed. McMurray, P. J., and Smith, J., concor


source: Caselaw Access Project

author: Pope, Chief Judge.

license: Public Domain

text:
    A94A1168.
    BLECKLEY v. THE STATE.
    (449 SE2d 351)
   Pope, Chief Judge.

Defendant Thomas Carlton Bleckley was charged with aggra vated assault and convicted of the lesser offense of simple battery. H« appeals from the judgment and sentence of conviction, as well as iron the denial of his motion and amended motion for new trial.

1. Defendant first argues that the trial court erred in denying his motion for mistrial after a witness for the State commented while or direct examination that one of the defendant’s children stated, “[de fendant] is killing my mama.” Defendant contends that a mistrial wa¡ mandated because the prosecutor intentionally elicited this imprope: hearsay. However, our review of the transcript shows, and the tria court found, that the complained-of comment was unresponsive t< the question which preceded it, and in fact the witness had airead; answered the question posed by the State when she volunteered tb hearsay statement. The trial court informed the jury that the witnes had been admonished for volunteering the statement and instructe< the jury to disregard the statement. Moreover, there was some ques tion about whether the jury could even hear the improper commen when it was uttered. Under these circumstances, the trial court di< not abuse its discretion in denying the motion for mistrial. See, e.g Jones v. State, 212 Ga. App. 473 (442 SE2d 20) (1994); McDermott v. State, 183 Ga. App. 693 (359 SE2d 750) (1987).

2. Defendant next challenges the denial of his motion for mistru after the prosecutor improperly commented on the veracity of a dt fense witness. The prosecutor conceded the impropriety of the state ment, both at trial and on appeal, and the trial court informed th jury that the prosecutor admitted he should not have made the re mark, that the prosecutor had apologized to the court, and that the should disregard the comment.

“ ‘In passing on a motion for mistrial because of an imprope statement of a prosecutor, the trial judge may take such action as i his judgment will prevent harm to the defendant, and a new trial wi not be granted unless it is clear that such action failed to eliminal the statement from consideration by the jury. (Cits.)’ [Cit.]” Foote State, 184 Ga. App. 900, 901 (2) (363 SE2d 180) (1987). “The refus, to grant a mistrial because of the improper remarks of the prosecute is within the discretion of the trial court pursuant to OCGA § 17-8 75, and the decision will not be disturbed on appeal absent manife abuse. [Cits.]” Henderson v. State, 182 Ga. App. 513, 520 (5) (35 SE2d 241) (1987). We have examined the statement here, which w¡ made by the prosecutor during an exchange with defense counsel co: cerning the admissibility of certain evidence, and find that it was nc as defendant argues, so prejudicial that it could not be cured by i structions. Finding no manifest abuse of discretion in the denial of defendant’s motion for mistrial under the facts of this case, we conclude reversal is not required.

3. Defendant contends that the trial court erred in permitting a non-listed witness to testify over objection. The witness, a physician’s assistant who examined the victim, testified concerning the victim’s injuries. As defendant argues in his brief on appeal, the purpose of OCGA § 17-7-110 is to give defense counsel the opportunity to interview witnesses before trial. However, questioning by the trial court revealed that defense counsel did not interview any of the listed medical personnel who treated the victim prior to trial, and that the unlisted witness’ name appeared on the medical reports which were provided to defendant prior to trial. The record also reveals that counsel lid not request an opportunity to interview the unlisted witness prior ;o his testifying at trial. “[T]he proper remedy when a witness is jailed whose name was not on the list is to request a continuance, not ;he exclusion of the witness’ testimony. [Cit.]” Grace v. State, 210 Ga. App. 718, 721 (5) (437 SE2d 485) (1993). We thus find no merit to ;his enumeration.

4. Contrary to defendant’s fourth enumeration of error, the trial Court did not err in failing to give his requested charge on simple assault under the facts of this case. Arnett v. State, 245 Ga. 470, 472 (2) 265 SE2d 771) (1980); see also Haun v. State, 189 Ga. App. 884 (1) 377 SE2d 878) (1989); Mason v. State, 175 Ga. App. 497, 498 (2) (333 SE2d 694) (1985); Ross v. State, 173 Ga. App 313, 315 (8) (325 SE2d )19) (1985); Jarrard v. State, 152 Ga. App. 553, 554 (4) (263 SE2d 144) (1979).

5. Defendant enumerates as error the court’s charge on expert vitnesses, arguing that no witness had been qualified as an expert and hat the only witness to whom such charge could reasonably apply vas the physician’s assistant who was allowed to testify over defend-nt’s objection. However, upon objection to the charge, the trial court uled that the charge was applicable to the physician’s assistant who estified on behalf of the State. This enumeration is thus without nerit. Morris v. State, 159 Ga. App. 600, 601 (1) (284 SE2d 103) 1981).

6. Defendant urges on appeal that the trial court erred in denying ds motion for directed verdict on the aggravated assault charge be-ause the State failed to show the crime was committed with a deadly weapon. Because defendant was found guilty of the lesser offense of imple battery, this issue is moot. See Jones v. State, 213 Ga. App. 1, 12 (1) (444 SE2d 89) (1994); Cornwell v. State, 193 Ga. App. 561 1) (388 SE2d 353) (1989); Thomas v. State, 184 Ga. App. 131 (1) 161 SE2d 21) (1987).

7. Defendant assigns error to the fact that his motion for new trial was heard by a judge other than the trial judge, arguing that he was prejudiced because the hearing judge was unfamiliar with what occurred at trial. Defendant also urges a violation of Uniform Superior Court Rule 3.3, governing the assignment of cases in the superior courts, and argues that his case had never been reassigned in accordance with that provision. However, either the trial judge or another judge who hears the motion for new trial has access to the trial transcript. Moreover, defendant points to no specific instance where he arguably was prejudiced by the failure of the trial judge to hear his motion and likewise makes no showing as to how he has been harmed by the fact that his case was not formally reassigned pursuant to Rule 3.3. It is axiomatic that harm as well as error must be shown, and having failed to make the requisite showing of harm in this case, reversal is not required.

Decided October 18, 1994.

T. Andrew Dowdy, for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

8. Construed so as to support the verdict, the evidence adduced at trial authorized defendant’s conviction for the lesser included offense of simple battery. Defendant’s eighth enumeration of error is thus without merit.

Judgment affirmed.

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


author: Andrews, Judge.

text:
    A94A1810.
    LONARD v. COOPER & SUGRUE PROPERTIES, INC.
    (449 SE2d 348)
   Andrews, Judge.

While raking leaves from a mobile home lot she rented iron Cooper & Sugrue Properties, Inc., Lonard stepped into a hole coverec up by leaves and fell, sustaining injuries to her wrist. She brought this action for damages claiming that Cooper & Sugrue failed to exercis( ordinary care to keep the property in a safe condition. Lonard appeal! from the trial court’s grant of summary judgment in favor of Coope: & Sugrue.

Lonard testified that she could not see the hole before sh< stepped into it because it was covered up by leaves which had fallei from trees on the wooded lot. After she fell, Lonard discovered tha the hole was one in a line of similar square holes four to five inche wide, all of which were covered with leaves. According to evidenc presented by Lonard, the holes contained remains of broken woode] fence posts which had been removed from the property. Lonard testified that no such fence posts were on the lot or removed from the lot during the time she occupied the premises. A Cooper & Sugrue representative testified that he did not remember any such fence on the property or the removal of any such fence from the property. There vas evidence that the property had been owned by Cooper & Sugrue is a partnership since 1983 and as a corporation since 1990. The accident at issue occurred in June 1990. There was no evidence that any of the parties had any actual knowledge of the existence of the fence post holes on the property. Accordingly, the record on summary judg-nent supports the conclusion that the hole at issue had existed unde-leted on the lot since Cooper & Sugrue acquired the property in L983.

“It has often been held that the true basis for a landlord’s liabilty to a tenant for injuries resulting from a defective or hazardous londition existing on the premises is the landlord’s superior knowledge of the condition and of the danger resulting from it. [Cits.] This s merely a manifestation of the general rule regarding the liability of oroprietors for injuries to invitees occurring on the premises. [Cits.]” Richardson v. Palmour Court Apts., 170 Ga. App. 204, 205 (316 SE2d 770) (1984). In this case, the covered hole was a latent hazard of vhich the parties had no actual knowledge. A landlord may be held iable for injuries caused by failure to repair or remove a latent defect n the premises before leasing it if the landlord knew or, in the exer:ise of ordinary care, should have known of the defect. Elijah A. Brown Co. v. Wilson, 191 Ga. 750, 751 (13 SE2d 779) (1941). In other vords, the landlord’s liability may be predicated on constructive as veil as actual knowledge.

In the absence of any evidence that Cooper & Sugrue had any ictual knowledge of the hazard, Lonard’s cause of action must be dedicated on the claim that Cooper & Sugrue had superior construcive knowledge of the hazard. In general, there are two classes of cases upporting claims that a defendant had constructive knowledge of a lefect. The first class involves a claim that the defendant had a duty o exercise reasonable care to inspect and keep the premises safe and hat the defect had existed for a sufficient period of time to afford the lefendant a reasonable opportunity to conduct such an inspection and discover and remove the defect. The second class does not require any showing that the defect had existed for a sufficient length of time, but involves a claim that an employee of the defendant was in the immediate area of the hazard and had the means and opportunity to have easily seen and removed the hazard. Banks v. Colonial Stores, 117 Ga. App. 581, 584-585 (161 SE2d 366) (1968); Mitchell v. Food Giant, 176 Ga. App. 705, 708-709 (337 SE2d 353) (1985).

There was evidence that an employee of Cooper & Sugrue made a visual inspection of the lot on the day Lonard occupied it and that, at Lonard’s request, another employee graded an uneven portion of the lot and delivered top soil for a garden in areas away from the area where Lonard fell. Neither of these employees saw any hazardous condition of the property. There is no evidence in the record which could support a claim that a Cooper & Sugrue employee had the means and opportunity to have easily seen and removed the latent hazard on the lot.

Although the record shows that Cooper & Sugrue conducted £ general visual inspection of the lot at the time Lonard took possession, the inspection was not sufficient to discover the fence post hol( covered by leaves. The mere presence of leaves on the heavily woodec lot provided no indication of the hazard. There is no evidence that prior to Lonard’s fall, anyone had ever tripped or fallen in the area o the hazard. Even if we construe the record to show that this hazarc had existed on the property since Cooper & Sugrue acquired it ir 1983, there is no evidence to support a claim that Cooper & Sugrue failed to exercise ordinary care in inspecting the property and keeping it in good repair.

“Ordinary care in the fulfillment of the landlord’s duty to keej the premises in repair does not . . . embrace an affirmative duty t< make such an inspection of the premises as will disclose the existenc of any and all latent defects which may actually exist therein. Thi would be but to place upon the landlord an absolute duty ... to ren premises free from latent defects. It follows that a proper applicatioi of the landlord’s duty to keep the premises in repair does not, unde any theory, result in making the landlord liable for a latent defect ii the premises, simply because it existed at the time of the lease.” Eli jah A. Brown Co., supra at 751. “[T]here exists no absolute duty o inspection upon a landlord to discover defects in the premises prior t leasing them, for the reason that ordinary diligence, which is the mea sure of the duty imposed upon the landlord in such case, does nc require an inspection where the landlord has no reason to think a inspection is necessary.” Spires v. Fitzsimmons, 106 Ga. App. 22, 23, 24 (126 SE2d 244) (1962); Horton v. Ammons, 125 Ga. App. 69, 7 (186 SE2d 469) (1971). “What the law requires is not warranty of the safety of everybody from everything, but such diligence toward making the [premises] safe as a good business ... is in such matters accustomed to use.” (Citations and punctuation omitted.) McCrory Stores Corp. v. Ahern, 65 Ga. App. 334, 340 (15 SE2d 797) (1941). To conclude under the facts of this case that Cooper & Sugrue had an absolute duty to conduct an inspection of the property sufficient to discover the fence post hole would be to demand the exercise of an extraordinary degree of diligence. “Thus, where, as here, there was no actual knowledge of the alleged dangerous and unsafe condition, and there is nothing in the [record] to show or indicate the propriety or necessity of making an inspection to ascertain the possible or probable existence of any defect, such as that other people had tripped or hilen [under similar circumstances or in the same area], ordinary diligence did not as a matter of law, under the facts [as shown], require m inspection [sufficient to reveal the defect] where the defendant ad no reason to think [such] an inspection was necessary.” Id. at 40.

Accordingly, there was no evidence to support Lonard’s claim ;hat Cooper & Sugrue had superior constructive knowledge of the íazard on the basis that an employee of the defendant could have sasily seen and removed it or because Cooper & Sugrue failed to con-luct an inspection of the property sufficient to have revealed the hazard. Hughes v. Winn-Dixie Stores, 142 Ga. App. 110, 111 (235 SE2d 619) (1977); Cox v. K-Mart &c., 143 Ga. App. 30, 34 (237 SE2d 432) 1977); Davis v. Smith, 169 Ga. App. 635, 636 (314 SE2d 471) (1984); see Harris v. Sloan, 199 Ga. App. 340, 341-342 (405 SE2d 68) (1991). n the absence of any evidence that Cooper & Sugrue had superior ctual or constructive knowledge of the hazard, the trial court prop-rly granted summary judgment against Lonard. Lau’s Corp. v. Hassins, 261 Ga. 491, 495 (405 SE2d 474) (1991).

Decided October 18, 1994.

Dozier, Akin, Lee & Graham, Neal B. Graham, for appellant.

Jones, Cork & Miller, Brandon A. Oren, Rufus D. Sams III, James I. Warren III, for appellee.

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.

       Although there was testimony from one of Lonard’s neighbors that Cooper & Sugrue amoved a fence from Lonard’s lot after she moved in, this fence was constructed with angled on posts which could be driven into the ground with a hammer. The trial court correctly oncluded that the removal of this fence did not create the fence post hole which Lonard tepped into.

       We do not deal here with a landlord’s liability for defective construction where the tructure was built by the landlord in person or under the landlord’s supervision or direction, ee Flagler Co. v. Savage, 258 Ga. 335, 337 (368 SE2d 504) (1988).

       The landlord’s duty to inspect for defects in this case pertains to the period prior to íe lease of the premises. As to the duty to inspect for defects in the premises which may rise during the term of the lease, “[a] tenant is entitled to exclusive occupancy during the irm of the tenancy, and it is [the tenant’s] duty, if the premises get out of repair, to notify íe landlord of their defective condition. [Unless otherwise agreed,] [t]he landlord is under a duty to inspect the premises while the tenant is in possession in order to keep informed as i their condition.” Ross v. Jackson, 123 Ga. 657, 658 (61 SE 578) (1905); compare Thompson

        Crownover, 259 Ga. 126, 128-129 (381 SE2d 283) (1989) (liability of landlord for failure to ¡pair conditions existing before or arising after the tenant has taken possession of the premes which violate housing codes); Maloof v. Blackmon, 105 Ga. App. 207, 208 (124 SE2d 441) 962) (owner has duty under OCGA § 51-3-1 to keep safe portions of the leased premises signated for common use of all tenants and in which the owner has reserved a qualified jht of possession).

       Lonard also contends the trial court erroneously failed to unseal and consider certain position testimony in ruling on the motion for summary judgment. Although the trial urt’s order granting summary judgment indicates the entire record and all depositions were considered, the court entered another order a few days after granting summary judgmei directing that certain depositions on file be unsealed and transmitted with the record c appeal. Despite the date of the order to unseal the depositions, there is other evidence in tl record indicating that the trial court did in fact review the depositions prior to renderii summary judgment, so the record is unclear. In any event, “[ejven if the record clear! show[ed] that a deposition was not considered below, it may be considered on appellate r view of a ruling on a motion for summary judgment to determine whether the facts of tl case create an issue of material fact for determination below.” Taylor v. Schander, 207 Ga. App. 627, 628 (428 SE2d 806) (1993). Upon review of all the depositions in the record, ¶ conclude no issue of material fact is created by the deposition testimony. Id.


author: McMurray, Presiding Judge.

text:
    A94A1023.
    CHEEVERS v. CLARK.
    (449 SE2d 528)
   McMurray, Presiding Judge.

Frederick L. Clark (plaintiff) brought this tort action against Tracy L. Cheevers (defendant) seeking to recover for injuries allegedly sustained when plaintiff’s vehicle collided with defendant’s truck. According to the complaint, defendant was “parked improperlj on a highway while under the influence of alcohol. . . .” Consequently as plaintiff “proceeded east [on Highway 256], he drove around í curve and crashed into the rear of [defendant’s] vehicle which was parked on the highway.” In a separate count for punitive damages plaintiff alleged that defendant was aware that “the automobile colli sion should have been reported to the local law enforcement agency[ and that defendant] should remain at the scene until the reportinj officer arrived.” Nevertheless, defendant “did not contact any law en forcement agency [. . . and] left the scene of the wreck before a lav enforcement officer arrived.” The evidence adduced at a jury trial ii support of these allegations included defendant’s admission that h had been consuming alcohol throughout the day and that he had blood-alcohol content of .28 grams percent when he was arrested a his home approximately one hour after the collision.

In a bifurcated proceeding, the jury first awarded plaintiff $1,50 in compensatory damages and then returned a verdict against defenc ant awarding plaintiff $60,000 in punitive damages. Defendant af peals from the judgment entered on these verdicts. Held'.

1. In his third enumeration, defendant contends the trial court erred in admitting into evidence the results of the intoximeter test performed on him because the arresting officer could not recall the precise wording in which he gave defendant his implied consent warnings.

Gene Jones, Chief of Police for the City of Poulon, testified that he gave defendant the following implied consent warning: “ ‘Georgia Code 40-5-55 requires you to submit to state administered chemical tests of the blood, breath, urine or other bodily substances for the purpose of determining alcohol or drug contents. The Georgia Code 40-6-392, you have the right to additional tests of the foregoing substances made by a person of your own choosing if you so desire. This additional test in no way satisfies your obligation to submit to the state administered chemical test. Should you refuse my request and sic] submit to the state administered chemical test your driver’s lí-jense will be suspended for a period of six months. Will you submit to ;he state administered test of your breath under the implied consent aw.’ ” Under cross-examination, Chief Jones affirmed that he did not enow “whether this was the revision that was in effect on July 21, .991, [. . . and] if it was a different revision and the wording changed he did not] know[.]” When the officer who administered the intox-meter test was asked to state the results, defendant interposed an Ejection “upon the grounds that the proper foundation has not been aid.”

“Upon the trial of any civil or criminal action or proceeding aris-ng out of acts alleged to have been committed by any person in viola-ion of Code Section 40-6-391, evidence of the amount of alcohol or Irug in a person’s blood, urine, breath, or other bodily substance at he alleged time, as determined by a chemical analysis . . . shall be idmissible.” OCGA § 40-6-392 (a). In order for such chemical analy-is to be admissible in evidence, “[a] defendant is ‘not entitled to a yarning which track(s) the exact language of the implied consent tatute. (Cit.)’ Ivie v. State, 151 Ga. App. 496, 498 (260 SE2d 543) 1979).” (Emphasis in original.) Pryor v. State, 182 Ga. App. 79, 80 2) (354 SE2d 690). In the case sub judice, the warning given by Chief ones advised defendant that independent testing of “blood, breath, rine or other bodily substances . . .” was available. Compare Hulsey v. State, 138 Ga. App. 221 (225 SE2d 752). The trial court did not err i admitting this evidence over defendant’s objection as to founda-ion.

2. In his second enumeration, defendant contends the trial court rred in charging the jury on the presumptions of intoxication at vari-us blood-alcohol levels established by OCGA § 40-6-392 (b). He ar-ues that the charge was not adjusted to the evidence because there was no testimony indicating his blood-alcohol level at the time of the collision. However, given that chemical analysis of defendant’s blood at the time of his arrest approximately one hour after the collision showed a blood-alcohol level of .30 grams percent, the jury was authorized to infer that defendant’s blood-alcohol at the time of the collision was .08 grams percent or greater. The absence of testimony about the metabolic rate of alcohol in the blood so as to permit a calculation of blood-alcohol content at the actual time of the collision does not render the evidence insufficient to support the desired inference. Simon v. State, 182 Ga. App. 210, 211 (3), 212 (355 SE2d 120); Morris v. State, 172 Ga. App. 832, 833 (1) (324 SE2d 793). Consequently, the trial court did not err in charging the jury on the presumptions of OCGA § 40-6-392 (b).

3. Defendant contends in his first enumeration the trial court erred in giving jury instructions on negligence per se arising out oí defendant’s leaving the scene of an accident and his failure to report the accident. He argues that any evidence of his departure from the scene of the accident or his failure to report the accident to author! ties was irrelevant to the issue of liability or any other issue properlj raised during the first phase of the trial. However, this issue has beer determined adversely to defendant’s contentions.

“The conduct of a hit-and-run driver of an automobile in failinj to stop and give his name, etc., and render assistance to the person injured by him in the operation of his automobile along a public high way, may, in that it is in violation of a statute (Ga. L. 1927, pp. 226 238; Code § 68-308 [now OCGA § 40-6-270]), be regarded as negligence as a matter of law. Although when taken alone such conduc may have no causal connection with the act which caused the injuries the conduct of the driver in hitting, running, and failing to stop, etc is a circumstance which may be considered, in connection with hi other acts preceding the injury, as tending to establish his conduct ii causing the injury as being negligence.” Battle v. Kilcrease, 54 Ga. App. 808 (1) (189 SE 573). In the case sub judice, even though de fendant is not a “hit-and-run” driver, the trial court did not err i charging the jury on negligence per se arising out of defendant’s lea\ ing the scene of an accident and in failing to report the accident t the proper authorities.

4. In his fourth and fifth enumerations, defendant contends th trial court erred during the second phase of the trial in admitting ev dence of “defendant’s arrest for unrelated events, on the night of Se¡ tember 26, 1993.” He argues first that evidence of his subsequent ai rest for again driving while under the influence of alcohol, (“DUI” “consumed undue time, unfairly prejudiced jurors against the defencl ant, and diverted the jury’s attention to the resolution of a collateri issue.” Secondly, he claims that evidence of subsequent criminal con duct is inadmissible “where the pending criminal charge had not been resolved and, therefore, no punishment or acquittal could be offered in mitigation or extenuation.”

“[D] riving under the influence of alcohol so as to cause personal injuries to another is an aggravating circumstance in the act which would authorize the jury to give punitive damages to deter the wrongdoer from repeating the act. The extent of the defendant’s wilful misconduct, wantonness and entire want of care in driving under the influence cannot be gauged solely by focusing on the incident in issue. . . . [E]vidence of pleas of guilty to subsequent DUI offenses is . . . admissible. [Cit.]” Moore v. Thompson, 255 Ga. 236, 237 (336 SE2d 749). Evidence that defendant “did harm someone, and still kept driving drunk repeatedly thereafter . . . demonstrates his conscious indifference to the actual consequences of his drunken driving and sheds light on the intention existing when this tort occurred.” Thompson v. Moore, 174 Ga. App. 331, 335 (329 SE2d 914) (Beasley, J., concurring specially), aff’d, Moore v. Thompson, 255 Ga. 236, supra. Consequently, we find to be without merit defendant’s relevancy objection to evidence of his subsequent arrest for DUI.

Nevertheless, defendant contends that it was fundamentally unfair to admit evidence of this subsequent offense prior to the resolution of any criminal proceedings, because he was denied an opportunity to plead any punishment (or acquittal) in mitigation of punitive damages such as he was able to plead with respect to the DUI charge arising out of the collision at issue.

In mitigation of any award of punitive damages, defendant introduced evidence of his guilty pleas to leaving the scene of an accident and impeding traffic as well as his pleas of nolo contendere to DUI and improper lights, indicating the fines and penalties imposed. The trial court further permitted defendant to read to the jury the provisions of OCGA § 40-6-392 (c), including the fines and penalties applicable to a second DUI conviction and the court instructed the jury that this Code section was to be considered as it “may bear upon the question of mitigation in this case.”

The early case of “Cherry v. McCall, 23 Ga. 193, places Georgia among those states which permit [the] use of criminal punishments [to mitigate civil punitive damages arising from the same act].” White v. Taylor, 157 Ga. App. 328, 329 (277 SE2d 321). However, the fact that criminal proceedings had not been brought to a conclusion prior to the introduction of defendant’s behavior in support of plaintiff’s claim for civil punitive damages does not mean that defendant has been unfairly denied an opportunity to present evidence in mitigation of such damages. “ Tn order for a similar transaction to be admissible, it is not required that the transaction resulted in a conviction. (Cit.)’ Tilley v. State, 197 Ga. App. 97, 98 (2) (397 SE2d 506) (1990).” Sar- tin v. State, 203 Ga. App. 293, 295 (3), 296 (3b) (416 SE2d 572). “ ‘ “[Any] acquittal merely exempts him (the defendant) from [criminal] punishment and from another prosecution. It does not necessarily show that he was innocent [but is consistent with the State’s failure to prove guilt beyond a reasonable doubt].” ’ Taylor v. State, 174 Ga. 52, 68 [(162 SE 504), overruled on other grounds, Moore v. State, 254 Ga. 674, 677 (333 SE2d 605)].” Jones v. State, 159 Ga. App. 634 (1), 636 (284 SE2d 651). In the case sub judice, the trial court properly admitted evidence of defendant’s subsequent acts of driving while under the influence of alcohol despite the fact that criminal proceedings remained unresolved where the court also permitted defendant to plead and prove the possible statutory penalties for a second DUI conviction in mitigation of his culpability for punitive damages. “Compare Cherry v. McCall, 23 Ga. 193, 194 (2)[, supra]. The jury, having heard this evidence in mitigation, was nevertheless authorized to return its award of punitive damages based upon [defendant’s] conduct of driving while under the influence. Viau v. Fred Dean, Inc., 203 Ga. App. 801, 804 (4) (418 SE2d 604) (1992).” Clarke v. Cotton, 207 Ga. App. 883 (1) (429 SE2d 291), aff'd, 263 Ga. 861 (440 SE2d 165).

Decided October 6, 1994

Reconsideration denied October 19, 1994 —

Simpson, Gray & Carter, Ralph F. Simpson, Melanie B. Cross, Elizabeth B. Gibbs, for appellant.

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

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


author: Johnson, Judge. Beasley, Presiding Judge,

text:
    A94A1105.
    HATHAWAY v. BISHOP.
    (449 SE2d 318)
   Johnson, Judge.

E. Neil Bishop sued S & H Products, Inc. and one of its officers! Gary Hathaway, alleging breach of a lease agreement. The parties! stipulated that S & H is liable for breaching the lease and that! Bishop’s damages amount to $66,799. The case proceeded to a jur>| trial to determine whether Hathaway is personally liable for thej breach of the lease. The jury returned a verdict in favor of Bishop and the trial court entered judgment on that verdict. Hathaway appeals.

1. Hathaway claims that the court improperly gave jury charges which expressed the court’s opinion as to the evidence. See OCG^ § 9-10-7. The charges complained of were merely the court’s synopsis of Bishop’s contentions. Along with that synopsis, the court instructed the jury that Hathaway opposed each of Bishop’s contentions and that Bishop had the burden of proof. After giving the challenged charges, the court emphasized to the jury “that anything that the court did or said during the trial of the case did not indicate, hint or suggest to you which side should prevail.” In the context of the entire charge, we conclude that the mere synopsis of Bishop’s contentions did not intimate an opinion by the court upon the evidence. See Gen. Wholesale Co. v. Hertz Corp., 120 Ga. App. 319 (2) (170 SE2d 310) (1969); American Trust &c. Co. v. Harris, 18 Ga. App. 610, hn. 3 (89 SE 1095) (1916).

2. Hathaway asserts that the court erred in refusing to charge the jury that under the statute of frauds a promise guaranteeing another’s debt must be in writing to be enforceable. The court refused to give the charge on the ground that Hathaway waived the statute of frauds as an affirmative defense by failing to raise it in the pretrial order which superseded the parties’ pleadings. “[A] pre-trial order should be liberally construed to allow the consideration of all questions fairly within the ambit of contested issues.” (Citation and punctuation omitted.) Fussell v. Carl E. Jones Dev. Co., 207 Ga. App. 521, 522-523 (1) (b) (428 SE2d 426) (1993). In the instant pretrial order, Bishop sets forth two theories of recovery against Hathaway; that both Hathaway and S & H entered into the lease agreement and that Hathaway “agreed to guarantee the obligations of the tenant [S & H] under the lease.” In response, Hathaway states he is not a party to the lease and “he is not individually liable to the Plaintiff in any sum whatsoever.” The pretrial order also provides one of the issues for determination by the jury is, “Did Gary P. Hathaway agree to guarantee the tenant’s obligations under the lease?” Liberally construing the pretrial order, the question of whether Hathaway is personally liable under an enforceable guarantee, which must be in writing, is certainly within the ambit of contested issues. The trial court abused its discretion in finding this issue was not contained in the pretrial order.

Even if the issue was omitted from the pretrial order, the court should have found it was implicitly added to the order by the parties. Omission of an affirmative defense from a pretrial order is not controlling if evidence pertaining to the issue is introduced without objection, the opposing party is not unfairly surprised, and the issue is actually litigated. Bowers v. Howell, 203 Ga. App. 636, 637-638 (1) (417 SE2d 392) (1992); Dunkin’ Donuts of America v. Gebar, Inc., 202 Ga. App. 450, 451 (1) (b) (414 SE2d 683) (1992). Here, Bishop made a motion in limine on the day the trial began, asking the court to exclude any evidence offered by Hathaway on the statute of frauds defense that there is no written guarantee. The court reserved ruling on the motion until the evidence was actually presented. Bishop himself then testified that Hathaway had orally guaranteed the lease. Hathaway denied personally guaranteeing the lease. Bishop never renewed the motion in limine during the presentation of the evidence, although he did reiterate thereafter that he did not want to waive his objection to Hathaway’s statute of frauds defense. Despite Bishop’s objection to that defense, contradictory evidence concerning an alleged oral guarantee was admitted and the issue was actually litigated.

“[T]he test of implied amendment of pleadings should always be whether the opposing party had a fair opportunity to defend, offer evidence or was misled.” (Citations and punctuation omitted.) Bowers v. Howell, supra at 638 (1). Bishop had a fair opportunity to offer evidence and was not misled or unfairly surprised by the defense. Bishop’s attorney remained silent and did not contradict Hathaway’s attorney when he stated in his place to the trial court that they had discussed the statute of frauds defense the week before trial. Bishop also concedes in his appellate brief that he was not surprised by the defense at trial. “The purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what he must meet as a defense.” (Citations and punctuation omitted.) Brown v. Moseley, 175 Ga. App. 282, 283 (1) (333 SE2d 162) (1985). Since the purpose of the pleading requirement was met and the issue of whether there was a valid personal guarantee was actually litigated, the trial court erred in finding that Hathaway waived the statute of frauds defense and in refusing to give the requested jury charge.

3. Hathaway contends that the court compounded the improper refusal to charge on the statute of frauds by erroneously charging the jury that Hathaway could be held liable based on the alleged oral guarantee of S & H’s lease obligations. As noted in Division 2, under the statute of frauds, OCGA § 13-5-30 (2), a promise to answer for the debt of another must be in writing to be binding. OCGA § 13-5-31 (2), (3) provides exceptions to the statute of frauds when there has been performance on one side and acceptance on the other under an oral contract, or when there has been such part performance of the oral contract as would render it a fraud by the party refusing to comply with the contract. Whether there has been such part performance is a question for the jury. Smith v. Cox, 247 Ga. 563, 565 (277 SE2d 512) (1981); White House v. Winkler, 202 Ga. App. 603, 607 (415 SE2d 185) (1992). Although Bishop argued to the lower court and argues on appeal that the exceptions set forth in OCGA § 13-5-31 (2), (3) apply to the instant case, this theory was not presented to the jury. Derbyshire v. United Builders Supplies, 194 Ga. App. 840, 843-844 (2) (a) (392 SE2d 37) (1990). The court never charged the jury that Bishop could recover under the oral guarantee theory only if one of the exceptions set forth in OCGA § 13-5-31 was shown; rather, the court simply instructed the jury that an oral contract of guarantee is as valid as a written guarantee and that Bishop could recover on such an oral guarantee by Hathaway. The charge is erroneous because oral guarantees are unenforceable under the statute of frauds. Archer v. Carson, 213 Ga. App. 161 (4) (444 SE2d 82) (1994).

“When an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record that the error is harmless.... Harmful error results when an inapplicable instruction might reasonably draw the jury away from the true issues in dispute or if the erroneous instruction is inapplicable to a vital issue in the case.” (Citations and punctuation omitted.) Lehman v. Zuckerman, 198 Ga. App. 202, 206 (7) (400 SE2d 704) (1990). Here, the erroneous instruction did not merely draw the jurors away from the true issues in dispute, but actually authorized them to return a verdict in favor of Bishop based on a legally invalid theory of recovery; i.e., an oral promise to answer for another’s debt. Because there is no way to determine from the record whether the jurors based their verdict in favor of Bishop on this illegal theory or on one of the other two theories of recovery presented to them, we find that the misleading charge was harmful error. Ga. Power Co. v. Busbin, 242 Ga. 612, 616-617 (8) (250 SE2d 442) (1978); Cherry v. Ward, 204 Ga. App. 833, 835-836 (1) (c) (420 SE2d 763) (1992).

4. Because of our holdings in Divisions 2 and 3, we need not address Hathaway’s contention that the court erred in denying his motion for a directed verdict as to the claim that he orally guaranteed the lease.

5. Bishop’s motion for imposition of damages for frivolous appeal is denied.

Judgment reversed.

Andrews, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur fully in Divisions 1, 4 and 5. With respect to Division 2, I concur because there was never a reason for defendant Hathaway to affirmatively raise the statute of frauds defense in writing, under OCGA § 9-11-8 (c), either in his answer to the complaint or in the pretrial order.

The complaint did not allege that Hathaway was obligated as a guarantor, only that he and the corporation “jointly and severally entered into a lease of [the] property” and breached it by vacating the premises and failing to pay the rent. So there would be no reason to plead a statute of frauds defense in the answer. In the amended pretrial order, plaintiff alleged that Hathaway “also agreed to guarantee the obligations of the tenant under the lease,” and it was stipulated that one of the issues for trial was whether Hathaway so agreed. Plaintiff did not specify whether it was depending on a written guaranty or an oral guaranty, and Hathaway simply maintained that “he is not individually liable to the Plaintiff in any sum whatsoever.” At that point there was no reason to raise the affirmative defense. If plaintiff had so specified, it might have become incumbent on defendant to also seek an amendment of the pretrial order so as to raise the affirmative defense. See Dumas v. Beasley, 218 Ga. 349 (128 SE2d 59) (1962).

By a second amendment to the order plaintiff added as documentary evidence tó be offered at trial an unsigned guaranty showing Hathaway as a personal guarantor. Again there was no call for notice of a statute of frauds defense, as Hathaway’s defense to this written document was that he did not sign it. His counsel explained that position, at the beginning of trial, when plaintiff sought to exclude any evidence upon which a statute of frauds defense could be mounted. The allegation of an oral guaranty did not surface in the record until trial. The court expressly ruled that defendant could disclaim any oral promises (it not being disputed that he could deny signing a written guaranty) and plaintiff agreed, even though this would be evidence to support a statute of frauds defense, which is what plaintiff urged had been waived. As recognized by Hathaway, the statute of frauds would come up as a question of law at the conclusion of the evidence, and if there was evidence that Hathaway orally guaranteed the obligation and counter evidence that he did not do so, the statute of frauds would be applicable. It was not waived because the assertion that Hathaway orally guaranteed the corporation’s lease obligation was not made until trial. Plaintiff himself pointed out at trial in referring to his pretrial assertions as to guaranty, “what form of agreement that may be may be a question of fact.” There had not been an assertion that it was an oral agreement, so that only if plaintiff offered evidence of such would the affirmative defense of statute of frauds be ripe.

Consequently, defendant Hathaway should not have been deprived of an instruction to the jury on the statute of frauds as relatec to a promise to pay the debt of another.

With respect to Division 3, I concur except with the blanket statement that “oral guarantees are unenforceable under the statute of frauds.” That is true unless there has been a waiver of this defense by failing to affirmatively raise it when required to do so. See OCGA § 9-11-8 (c); Brantley Co. v. Simmons, 196 Ga. App. 233 (395 SE2c 656) (1990). Since the defense was properly raised at trial when the allegation of an oral guarantee was first presented in the record, there was no waiver of the defense provided in OCGA § 13-5-30 (2) and the charge was erroneous.

Decided October 4, 1994

Reconsideration denied October 19, 1994 —

Awtrey & Parker, Dana L. Jackel, Gregg A. Landau, for appellant.

Dorothy H. Bishop, Varner, Stephens, Wingfield & Humphries, William W. Hopson, for appellee.


text:
    A94A1125.
    PARKER v. JOHNSON et al.
    (449 SE2d 344)
   McMurray, Presiding Judge.

Plaintiff Shirley T. Parker brought this tort action against defendants Jerry Johnson d/b/a Johnson Kiddie Rides, Wal-Mart Stores, Inc. (“Wal-Mart”) and North East Hillcroft, Inc. (“Hillcroft”) seeking to recover for personal injuries sustained on February 7, 1991, when she tripped and fell backward while lifting her grandson from an amusement ride. According to the complaint, Johnson owned and operated two such amusement rides placed outside of and adjacent to defendant Wal-Mart’s store in Macon, Georgia. The premises are owned by Hillcroft and leased to Wal-Mart. “Plaintiff placed her grandson in one of the rides (a kiddie car). At the conclusion of the ride, plaintiff removed her grandson. However, due to the location of the amusement rides and the close proximity of the rides to each other, plaintiff had inadequate room to maneuver and fell over a bar [on the ground behind her] extending from one of the two amusement rides.” It was further alleged that the placement of these rides was dangerous because the “customer with a small child becomes essentially trapped and maneuvering becomes difficult. ...” Each defendant answered and denied the material allegations of the complaint. After discovery, defendants Johnson and Wal-Mart jointly moved for summary judgment, urging that “any alleged defects . . . were within the plaintiff’s plain view and were open and obvious. . . .”

The following facts are undisputed: Pursuant to a written agreement, “Wal-Mart agree [d] to provide space for [Johnson]’s kiddie rides (machines) and [Johnson agreed] to provide service and commissions to Wal-Mart. . . .” According to Gary Barnes, the store manager on duty on February 7, 1991, the choice of location for such amusements “would be up to the manager [,]” and that “[o]ther store managers [he] had worked for beforehand . . . generally instructed [him] as to how [amusement rides] should be placed on the . . . sidewalks.” Those instructions were: “Not to block the doorways, to be sure they’re — you know, placed up against the wall and back off the main route of the sidewalks so it wouldn’t block the flow of traffic. . . Johnson placed a “kiddie car” ride on the sidewalk by the exit of Wal-Mart’s store and adjacent to the store wall. A carousel or merry-go-round ride was also on the sidewalk very near the car ride but not immediately next to the wall. The store manager acknowledged that he did not “know the distance between the merry-go-round and the car[,]” and that he “never measured it or estimated it[.]” Nevertheless, when shown photographs of the placement of the two rides, the manager affirmed that he “consider [ed] that [he] met [Wal-Mart] standards keeping [the rides] away from the door and keeping them out of the flow of traffic. . . .” Plaintiff affirmed that the distance between the car ride and the carousel was “[possibly] ... less than two feet...” but agreed that she did not hit or strike anything as she stepped between them to place her grandson in the car ride. At the time, the grandson was approximately 20 months old and weighed about 25 pounds. Plaintiff described her fall in this manner: “When I picked Jonathan up and took him out of the car, my left leg hit the merry-go-round, and the right leg went back and I hit the trip bar, and I fell.” Her reference to the “trip bar” was understood to mean “the bar that protrudes from the carousel or merry-go-round” along the ground and then leads to the coin box. This bar was behind plaintiff while she faced the child in the ride.

In support of their contention that plaintiff failed to exercise due care on her own behalf, defendants point to the following deposition testimony: “[DEFENDANTS’ COUNSEL]: Okay. Was there anything that you came in contact with with this carousel or this extension that you talked about that was something that you couldn’t see if you had been looking at it? [PLAINTIFF]: Well, I wasn’t looking, 1 mean, not down. I was looking — I was concentrating on Jonathan and getting him in the car. ... I was looking straight ahead, you know. I wasn’t looking down.” Cross-examination of the plaintiff continued: “[DEFENDANTS’ COUNSEL]: Is there anything that was - something that you couldn’t have seen had you been looking^ [PLAINTIFF]: Had — had you been looking. [DEFENDANTS! COUNSEL]: You would have seen it? [PLAINTIFF]: If you lookeJ down. [DEFENDANTS’ COUNSEL]: Okay. [PLAINTIFF]: But yoil don’t walk around looking down. [DEFENDANTS’ COUNSEL]! Okay. And I guess it wouldn’t have made any difference to you sinca you weren’t looking what color any of these items on the carousel were painted, is that right? [PLAINTIFF]: You know, the colol wasn’t apparent to me. Like I said, I was concentrating on Jonathan! getting him in the car.” However, when subsequently questioner whether she thought the bar or rod connecting the carousel to thl coin box was “hidden,” plaintiff replied: “Well, it’s not hidden, but its black, it’s hard to see if you were looking.”

The trial court granted defendants’ motion for summary judgment and this appeal followed. Plaintiff contends summary judgment is erroneous because the question whether she exercised ordinary care for her own safety should be resolved by a jury. Held:

“An invitee enters upon the premises under an implied representation, or assurance, that the land has been prepared and made ready and safe for his reception. The invitee is entitled to expect the possessor will exercise reasonable care to make the land safe for his entry. 2 Restatement of Torts 216, § 343.” Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 294 (322 SE2d 737). “ ‘A proprietor owes a duty to invitees to keep the approaches and premises in a safe condition. OCGA § 51-3-1. The basis of a proprietor’s liability for injuries to an invitee resulting from a defective or hazardous condition existing on the premises is the proprietor’s superior knowledge of the condition and of the potential for injury created by it. (Cit.) A proprietor is not an insurer of an invitee’s safety, and an invitee is expected to exercise care for his own safety; however, “an invitee is not obliged to inspect the premises to discover latent defects nor even to observe patent defects.” (Cit.) “ ‘Only in clear and palpable cases, where it appears that one recklessly tests an observed and clearly obvious peril, or voluntarily assumes a position of imminent danger, will he be barred from recovery as a matter of law. . . . (Cits.)’ ” (Cit.)’ Fowler v. Campbell, 191 Ga. App. 872 (1) (383 SE2d 163) (1989).” Lowe v. Macerich Real Estate Co., II, 213 Ga. App. 299, 300 (444 SE2d 389). In the case sub judice, defendants are presumed to have actual knowledge of the allegedly hazardous proximity of the rides to one another since Johnson or his agent actually set them up. See Lindsey v. J. H. Harvey Co., 213 Ga. App. 659 (445 SE2d 810). In light of plaintiff’s testimony that she was concentrating on the child as she backed into the carousel and that the bar behind her when she tripped was “black, it’s hard to see if you were looking[,]” the evidence relied upon by defendants “does not conclusively show a failure of plaintiff to exercise ordinary care for [her] own safety.” Chaves v. Kroger, 213 Ga. App. 348, 350 (444 SE2d 606). Her testimony that she was not looking directly at the ground at the time she fell because she was concentrating on her grandson in the amusement ride provided by defendants “does not alone show that [she] was not exercising ordinary care. See Food Giant v. Cooke, 186 Ga. App. 253, 257 (2) (366 SE2d 781) (1988).” Chaves v. Kroger, 213 Ga. App. 348, 350, supra. “Looking continuously for defects, without interruption, is not required of an invitee. Sears, Roebuck & Co. v. Chandler, 152 Ga. App. 427 (1) (263 SE2d 171).” Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 294, supra. As this court cannot say as a matter of law that plaintiff failed to exercise ordinary care for her safety, the grant of summary judgment on behalf of Johnson and Wal-Mart was erroneous. See Thompson v. Regency Mall Assoc., 209 Ga. App. 1, 2 (1), 3 (432 SE2d 230).

Decided October 7, 1994

Reconsideration denied October 19, 1994 —

Harris & James, William C. Harris, Lisa Neill-Beckmann, for appellant.

Chambless, Higdon & Carson, Thomas F. Richardson, Jeffrey W. Frazier, Kenneth M. Brock, Christopher D. Balch, for appellees.

Judgment reversed.

Pope, C. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A94A1684.
    SEAMAN v. THE STATE.
    (449 SE2d 526)
   Smith, Judge.

Lewis Seaman entered a conditional plea of nolo contendere tc possession of less than an ounce of marijuana after his motion to sup press the contraband was denied. He reserved the right to appeal th< denial of his motion to suppress pursuant to Mims v. State, 201 Ga App. 277, 278-279 (1) (410 SE2d 824) (1991).

The evidence introduced at the hearing on the motion to sup press showed that law enforcement officers executed an arrest warran for Keith Parr at his home in Clayton County. Detective Sergean Steven Kenneth Rose, Jr., of the Fayette County Sheriff’s Depart ment was assigned to the Fayette County Narcotics Suppression Tasl Force. He testified he came to Clayton County, along with seven o eight other officers, to assist in the execution of the warrant. As hi approached the. house, he heard other officers shouting for someone t< stop. One individual was taken into custody outside the house. How ever, Rose was told the officers believed someone had run into th house. Based on that information, he decided to enter the residence

He and another officer knocked on a glass door, and Parr’s wif let them into the house. They proceeded through the house, lookin for the person who had fled. The other officer found Seaman in an other room. Rose then conducted a patdown of Seaman, looking fo weapons. During the patdown, Rose detected a plastic baggie in th pocket of Seaman’s shorts and observed several inches of clear plastic baggie exposed. Rose testified that he knew it was a plastic baggie when he felt it and that he believed it contained contraband. Rose removed the baggie, which contained a green, leafy material later proved to contain marijuana.

Seaman appears to base his contention that the evidence should have been suppressed on two grounds. We do not agree with either contention.

1. First, citing Baez v. State, 206 Ga. App. 522 (425 SE2d 885) (1992), Seaman argues the State failed to meet its burden of proving the search of Seaman and seizure of the contraband were lawful, because the State did not produce at the hearing the arrest warrant for Parr.

However, Baez is distinguished on its facts. There, the accused specifically challenged the validity of the warrant, which the State failed to produce. Baez, supra at 527. In a motion to suppress, an accused must place the State on notice of the issue to be raised at the hearing on the motion, State v. Armstrong, 203 Ga. App. 159, 160 (1) (416 SE2d 537) (1992), and the burden is on the State to produce the warrant only when its validity is challenged. Neither in his motion nor at the hearing did Seaman challenge the validity of the arrest warrant. Moreover, in his motion he admitted the existence of the warrant. The State was not required to produce the warrant under these circumstances.

2. Second, Seaman argues that Rose’s search of his person exceeded the permissible scope of a Terry patdown. In support of this argument, Seaman cites Minnesota v. Dickerson, 508 U. S._(113 SC 2130, 124 LE2d 334) (1993).

In Dickerson, the Supreme Court approved the “plain feel” or “plain touch” corollary to the “plain view” doctrine, holding that if contraband is identified through an officer’s sense of touch in the course of a lawful Terry patdown, it may be seized. 124 LE2d at 345-347. Applying that principle to the facts in Dickerson, however, the Supreme Court found that the officer had overstepped the bounds of a Terry patdown by squeezing, sliding, and manipulating the object in the suspect’s pocket before identifying it, even after determining that the pocket contained no weapon. Id. at 347 (III).

The facts in this case are different. The patdown was properly performed to determine whether Seaman was armed. Rose, who had more than nine years’ experience as a police officer and over four years’ experience working as a narcotics officer, believed the object in Seaman’s pocket was a clear plastic baggie containing contraband upon initially feeling it in Seaman’s pocket, and he then visually observed a portion of the baggie protruding from the pocket. No evidence was presented indicating that Rose manipulated the object in Seaman’s pocket in any way before identifying it. We agree with the trial court that under these circumstances, the “plain feel” principle approved in Dickerson applies. The trial court properly denied Seaman’s motion to suppress.

Decided October 5, 1994

Reconsideration denied October 19, 1994.

Lee Sexton, for appellant.

Keith C. Martin, Solicitor, Michael P. Baird, Assistant Solicitor, for appellee.

Judgment affirmed.

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

       This procedure was still permissible on February 16, 1994, the date the plea was ei] tered, but has since been disapproved. Hooten v. State, 212 Ga. App. 770, 775 (1) (442 SE2 836) (1994). See Jackson v. State, 214 Ga. App. 726 (448 SE2d 761) (1994).


author: McMurray, Judge.

text:
    A94A1859.
    RIVERS v. BMW OF NORTH AMERICA, INC. et al.
    (449 SE2d 337)
   McMurray, Judge.

Pennelope Rivers (plaintiff) brought this tort action against defendants BMW of North America, Inc. (“BMW-NA”), Charles Evans BMW, Inc. (“Charles Evans”), and others, alleging intentional frauc and deceit, reckless misrepresentation, and suppression of materia facts, for selling her a new car which had been damaged by acid rail and repainted. Specifically, the complaint alleged that in “February 1990, Plaintiff purchased a 1990 BMW 535i automobile . . . from th( Defendant Charles Evans BMW, Inc. . . . [which vehicle was] distrib uted by the Defendant BMW of North America, Inc.[; that at] al times prior to the sale of the vehicle to the Plaintiff, the Defendants represented that the vehicle was a brand new vehicle . . . [but tha such] . . . representations by the Defendants were false and the De fendants knew them to be false at the time of their making.” Alterna tively, defendants made false statements “without knowledge of th< true facts . . . [and] recklessly without regard to ascertaining the trutl or falsity of those representations.” Defendants “failed to disclosi the fact that this vehicle had been damaged [in transit by acid rain and repainted prior to selling it to [her].” As a result of defendants failure to disclose this material fact, plaintiff “financed the purchase price of approximately $30,000. ...” She claimed as damages th “[diminution in value of the car,” as well as punitive damages, attor ney fees, and the costs of litigation. In their respective answers, de fendants admitted only that BMW-NA distributed the vehicle plaintiff purchased from Charles Evans and denied all other allegations. After discovery, defendants jointly moved for summary judgment “on all remaining counts of Plaintiffs complaintf, . . . contending that they were] entitled to judgment as a matter of law both by the merger clause and by the transit and/or storage damage disclosure contained in the Buyer’s Order and Bill of Sale.”

In support of their motion, defendants relied on the following undisputed facts: when the car plaintiff purchased as “new” arrived in the United States its exterior paint and finish had been marred “by exposure to environmental conditions during transit and/or storage[; that, at the direction of BMW-NA,] the affected surfaces were refinished according to factory specifications by BMW trained technicians, using BMW approved and installed equipment [at the BMW-NA Vehicle Preparation Center in Brunswick, Georgia, before shipment to a dealership; and that plaintiff] did not ask anyone at Charles Evans whether any repairs were performed on the Automobile, despite the fact that the possibility of transit and/or storage damage was expressly disclosed in the Buyer’s Order.” Defendants argued that plaintiff had affirmed the contract after knowledge of the alleged fraud by failing to rescind the contract. Plaintiff responded, urging that factual issues existed “as to whether the disclaimer and the buyer’s order negates Defendants’ affirmations that the car was new, whether the Plaintiff failed to exercise due diligence as a matter of law and whether the Plaintiff adopted the disclaimer.”

The trial court granted defendants’ motion for summary judgment, concluding that plaintiff had failed to dispute the factual assertions of the defendants and that due to the disclosure of the possibility of transit damage contained in the Buyer’s sales order “no misrepresentation occurred as a matter of law.” The trial court further concluded that plaintiff “failed to exercise due diligence in ascertaining the alleged falsity . . .” of the description of the car. This appeal followed. Held:

1. In related enumerations, plaintiff contends the trial court erred in “ruling as a matter of law that [her claims] are barred . . . [and that she] failed to exercise due diligence.”

Traditionally, where a buyer is induced to enter into a contract for the sale of goods by the fraud of the seller, upon discovery of the fraud he has an election of remedies. See Bill Spreen Toyota v. Jenquin, 163 Ga. App. 855, 856 (1) (294 SE2d 533). “One of such remedies is to rescind the contract, and another is to affirm the contract and sue for damages for the fraud. [Cits.]” Tuttle v. Stovall, 134 Ga. 325, 326 (1), 328 (67 SE 806). The General Assembly did not intend “to erase the tort remedy for fraud and deceit with the adoption of the Uniform Commercial Code in Georgia.” City Dodge v. Gardner, 232 Ga. 766, 769 (208 SE2d 794). Generally, such “tort cases canno be determined by the provisions of the contract sought to be re scinded but must be determined as a question of fact by the jury. It i¡ inconsistent to apply a disclaimer provision of a contract in a tor action brought to determine whether the entire contract is invalid be cause of alleged prior fraud which induced the execution of the con tract. If the contract is invalid because of the antecedent fraud, ther the disclaimer provision therein is ineffectual since, in legal contem plation, there is no contract between the parties.” City Dodge v Gardner, 232 Ga. 766, 770, supra.

In the case sub judice, BMW-NA and Charles Evans each relief on the following language contained in the sales agreement signed h plaintiff to show that no misrepresentation was made at all becausi no material fact was concealed: “5. Purchaser acknowledges that ther< may have been certain transit and or storage damage to the vehicb sold by the Seller herein [defendant Charles Evans] and Purchase: hereby releases the Seller for any and all claims arising out of sucl transit damage and or storage damage. Exceptions are noted on iron of order under SPECIAL NOTICE.” Applying Gen. Motors Corp. v. Green, 173 Ga. App. 188, 191 (2) (325 SE2d 794) by analogy, the tria court concluded that no fraudulent misrepresentation occurred be cause the possibility of transit-related damage was expressly dis closed. In Green, “the manufacturer-defendant's ‘new’ car warrant; specifically disclosed the possible existence of factory damage am factory repairs.” (Emphasis in original.) Macon Chrysler-Plymouth v. Sentell, 179 Ga. App. 754 (1), 755 (347 SE2d 639). That is, in Green the defendant manufacturer was providing a new car warranty bu limiting the definition of “new” so that a breach of warranty woul< not arise out of the bare circumstance that a manufacturing flaw hal been noticed and corrected before the vehicle entered the stream o commerce. In Green, “uncorrected factory defects and damage, in eluding defective factory-repairs to the damaged parts, would be cov ered by the terms of [the manufacturer’s] express repair war ranty. . . .” 173 Ga. App. 188 (1), 190, supra.

In the case sub judice, however, neither the defendant dealershi Charles Evans nor the defendant distributor BMW-NA sought to disj close the fact that BMW-NA had actually repaired transit damag while at the same time extending a warranty which covered negli gence in those repairs. Instead, this sales agreement sought to dig claim all warranties, express or implied, employing in bold text th language “SOLD AS IS.” Nevertheless, defendants submit as conch sive proof that no material fact was concealed the circumstance the this sales agreement mentions on the reverse side in the least conspic uous print employed the bare possibility that transit or storage dan age might have been sustained. However, unlike the provision in Get Motors Corp. v. Green, 173 Ga. App. 188 (1), supra, this clause does not warrant that if there had been such damage it would have been repaired by authorized entities according to factory standards. This disclaimer does not mention the distinct possibility of damage from acid rain fallout or “exposure to environmental conditions,” although there is evidence of record that such damage was foreseen. According to a 1986 Service Information Bulletin: “Paint spotting as a result of [acid rain] fallout is not related to a defect in paint materials or workmanship. For this reason, claims arising from this condition are not considered to be warranty-related.” As the only warranty extended in the case sub judice is the express warranty created by the description of the car as “new” versus “demo” or “used,” the case of Gen. Motors Corp. v. Green, 173 Ga. App. 188, 191 (2), supra, is distinguishable in material respects. That case does not demand a finding that plaintiff in this case has no actionable claim of fraud for the misrepresentation of her car as “new” when in fact it had undergone repairs to correct acid rain damage to the factory finish. Whether the disclaimer relied on here is sufficient to excite the attention of a buyer of ordinary prudence “must be determined as a question of fact by the jury.” City Dodge v. Gardner, 232 Ga. 766, 770, supra. See also OCGA § 23-1-17; Dollar v. Dollar, 214 Ga. 499 (105 SE2d 736). The trial court erred in concluding that the disclaimer in this sales contract was sufficient disclosure of the acid rain damage actually sustained and actually repaired, as a matter of law.

2. The trial court further erred in concluding that the evidence showing plaintiff was aware of a problem with the paint job shortly after she accepted the vehicle demonstrated as a matter of law that she failed to exercise due diligence on her own behalf. There is evidence of record (from a similar case against BMW-NA in Alabama) where plaintiff testified that when she took the car back to Charles Evans, “[t]hey told me that the car had not been repainted.”

“It may be considered an intrinsic quality of a car sold as new that it has been neither damaged nor used to any significant extent. Accord, Rustin Oldsmobile v. Kendricks, 123 Ga. App. 679 (2) (182 SE2d 178) (1971); Gem City Motors v. Minton, 109 Ga. App. 842 (137 SE2d 522) (1964).” Horne v. Claude Ray Ford Sales, 162 Ga. App. 329 (1) (290 SE2d 497). See also Macon Chrysler-Plymouth v. Sentell, 179 Ga. App. 754 (1), 755, supra. Compare Henderson v. Martin Burks Chevrolet, 183 Ga. App. 868, 869 (1) (360 SE2d 430). In the whole court case of Bill Spreen Toyota v. Jenquin, 163 Ga. App. 855, 861 (5), supra, this court approved the following jury instruction as a correct statement of the law: “ ‘Concealment of material facts may amount to fraud when direct inquiry is made, and the truth evaded, or where the concealment is of intrinsic qualities of the article which the other party by the exercise of ordinary prudence and caution could not discover.’ ” With regard to the falsity of a represen tation of an intrinsic quality of a motor vehicle, it was also held thai to be actionable, “the misrepresentations must be made with the in tention of deceiving another, and the defendant at the time must either know they were false or what the law regards as the equivalem of knowledge. McLendon v. Galloway, 216 Ga. 261 (2) (116 SE2d 208 (1960). What one may not do is to turn his head away and blind him self to the truth or falsity of a condition which he recklessly repre sents to his own advantage. Such refusal to know, like admittec knowledge, involves actual, moral guilt. [Cits.]” (Emphasis in original.) Bill Spreen Toyota v. Jenquin, 163 Ga. App. 855, 858 (3), supra

In the case sub judice, we are shown no evidence of record tha BMW-NA took any steps to alert the dealership that acid rain repair! had actually been performed. Nor is there evidence of any procedan whereby the dealership inquired whether foreseeable transit damag< had actually been sustained. “The acid rain damage to the origina finish had been painted over. [If done properly, the repair would hav< been undetectable to the untrained eye.] ... It cannot be said tha due diligence in buying an automobile would require a prospectivi purchaser to make such an inspection as possibly would have dis closed this latent damage. [Cit.] This would seem to be especially tru< where, as here, the purchaser does inquire about the [subsequent!: observed flaws] in the automobile’s finish and is told that [her car ha< not been repainted].” Macon Chrysler-Plymouth v. Sentell, 179 Ga App. 754 (1), 755, supra. In the case sub judice, there is “ample evi dence to raise a jury question as to whether the defendant [distributor, BMW-NA wilfully concealed what it] knew, or [whether the deal ership, Charles Evans,] recklessly failed to ascertain the truth o falsity, of the representation it made as to the [intrinsic quality] o the merchandise sold.” Bill Spreen Toyota v. Jenquin, 163 Ga. App 855, 858 (3), 860, supra.

3. In order to prevail on summary judgment, the defendant-mo vant is required to pierce the allegations of the complaint or other wise show the absence of a triable issue as to an essential element o the nonmovant’s case and must further establish as a matter of la\ that the plaintiff could not recover under any theory fairly draw from the pleadings and the evidence. See Thompson v. Huckabe Auto Co., 190 Ga. App. 540, 541 (1) (379 SE2d 411); Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474). “ ‘A suit for damage by the defrauded party for the fraud committed is not a suit for th violation of the contract, but is one for a tort and involves affirmanc of the contract, and he may keep the fruits of the contract and mair tain an action for the damages suffered by reason of the fraud.’ ” Gem City Motors v. Minton, 109 Ga. App. 842, 845 (1c), 846, supra. Con pare Crews v. Cisco Bros. Ford-Mercury, 201 Ga. App. 589 (1), 590 591 (411 SE2d 518). “Although there is included on the retail sales contract a paragraph which specifically disclaims any express or implied warranties by the seller [Charles Evans], [plaintiff is entitled to rely] on OCGA § 11-2-313 [(1)] (b). It provides that an express warranty is created by the seller upon ‘(a)ny description of the goods which is made part of the basis of the bargain. . . .’ The warranty is that ‘the goods shall conform to the description.’ [In the case sub judice, Charles Evans’] retail sales contract described the car as ‘new.’ The specific disclaimer [of express or implied warranties] will not negate that affirmative statement. Century Dodge v. Mobley, 155 Ga. App. 712, 713 (2) (272 SE2d 502) (1980).” Thompson v. Huckabee Auto Co., 190 Ga. App. 540, 541 (1), 542, supra. The “SOLD AS IS” language also is ineffective to negate the express warranty that the car is “new.” See City Dodge v. Gardner, 232 Ga. 766, 767, supra. “Accordingly, the case [against the defendant seller, Charles Evans, should] also have gone to the jury on the theory of breach of express warranty.” Horne v. Claude Ray Ford Sales, 162 Ga. App. 329, 330 (4), supra.

Decided October 6, 1994

Reconsideration denied October 19, 1994 —

Bird, Ballard & Still, William Q. Bird, for appellant.

Powell, Goldstein, Frazer & Murphy, E. A. Simpson, Jr., Linda G. Birchall, Christopher P. Galanek, for appellees.

Judgment reversed.

Pope, C. J., and Smith, J., concur.

       A fourth count alleging a violation of the Georgia Pair Business Practices Act, OCG. § 10-1-390 et seq. was dismissed as time-barred.

       The parties agree that the duty to disclose known repairs established at OCGA § 40-1 5 is not applicable to this sale.


author: Birdsong, Presiding Judge.

text:
    A94A1986.
    PETERS v. DAVIS.
    (449 SE2d 624)
   Birdsong, Presiding Judge.

Appellant/plaintiff Anthony Eugene Peters appeals from the jury verdict in favor of appellee/defendant Angela D. Davis a/k/a Angela D. Nance, the judgment, and the trial court’s denial of appellant’s motion for new trial. This is a suit for damages. Appellant averred certain injuries arising from an automobile collision when appellee’s car crossed the centerline striking appellant’s on-coming vehicle. Held:

1. Appellant’s enumeration that the trial court erred in denying a lew trial based upon the ground of insufficiency of evidence to support the jury’s verdict is without merit. “A trial judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.” (Citations, punctuation and emphasis omitted.) Estfan v. Poole, 193 Ga. App. 507, 509 (1) (c) (388 SE2d 373). “On appeal, this court must constru the evidence most strongly to support a verdict and judgment, [cit.' and every presumption and inference must be in favor thereof.” In the Interest of E. P. N., 193 Ga. App. 742, 747 (2) (388 SE2d 903 Further, it is not the function of an appellate court to weigh the evidence or to judge witness credibility (Horney v. Lawrence, 189 Ga. App. 376, 377 (3) (375 SE2d 629)); the jury resolves conflict in test: mony and this court will not substitute its judgment for that of th jury. Dade v. Dade, 213 Ga. 533 (1) (100 SE2d 181). There exist some evidence from which the jury could have concluded appellar was not entitled to recover damages for pain and suffering as appe lee’s negligence was not the proximate cause of appellant’s alleged ir juries, or because they did not give any weight to appellant’s evident regarding pain and suffering. Compare Purvis v. Toole, 207 Ga. App. 189 (1) (427 SE2d 565).

2. Appellant also contends the trial court erred in denying hii the right to make opening and concluding argument to the jury. Dui ing an in-chambers conference, appellee asserted the right to mat opening and closing argument on the grounds that “defendant he admitted liability already” and “has admitted a prima facie case.”

The parties have stipulated that, during an off-the-record discus sion, appellant objected that appellee had admitted only liability, bi had not admitted a prima facie case which includes causation an damage in addition to duty and breach. The trial court permitted aj pellee to make both opening and concluding argument; the jury r< turned a verdict for appellee/defendant.

Superior Court Rule 13.4 provides: “In civil actions, where tl burden of proof rests with the plaintiff, the plaintiff is entitled to tl opening and concluding arguments except that if the defendant ir troduces no evidence or admits a prima facie case, he shall be entitle to open and conclude.” Compare OCGA § 51-11-1. A prima facie cas is one “which has proceeded upon sufficient proof to that stage whe] it will support finding if evidence to contrary is disregarded” or “sue as will prevail until contradicted and overcome by other evidence Black’s Law Dictionary (5th ed.). The term “admits a prima fac case” for purposes of Rule 13.4 is an admission by defendant of sue a nature as to place the case in an evidentiary posture which suppori a finding in favor of plaintiff unless said admission is contradict™ and overcome by other evidence. Thus, defendant is entitled to opa and conclude argument only if he either elects not to offer evidence I he admits a prima facie case; mere direct examination of defendaii by his counsel when defendant has been called by plaintiff for crosj examination does not constitute the offering of evidence for this pul pose. See generally Ga. Prac. & Proc. (6th ed.), § 19-21. I

Appellee/defendant offered some evidence in his behalf by read-ng a portion of the deposition testimony of a local sheriff. Moreover, >rior to reading this testimony, appellee conceded on the record that, )y doing so, “I would be calling a witness.” Accordingly, unless appel-ee admitted the existence of a prima facie case, she was not entitled ;o open and conclude argument. Rule 13.4, supra.

“ ‘To state a cause of action for negligence in Georgia, it is necessary to establish the essential elements of duty, breach of that duty, md proximate causation, as well as damages, as a basis for liability or the injuries of another.’ ” Samuelson v. Lord &c., Inc., 205 Ga. App. 568, 572 (2) (b) (423 SE2d 268); Robertson v. MARTA, 199 Ga. App. 681 (405 SE2d 745); see Matthews v. DeKalb County Hosp. Auth., 211 Ga. App. 858 (1) (440 SE2d 743). A prima facie negligence :ase is one which supports findings for a claimant as to these elements.

“The right to open and conclude the argument in a case is an mportant right, and a refusal to accord it to the party entitled hereto is an error.” Ga. Prac. & Proc., supra. Moreover, because it is iuch an important right, “the presumption is that the party to whom t has been improperly denied has been injured.” Phelps v. Thurman, 74 Ga. 837 (a). Thus, as a general rule, the improper denial of the right to open and conclude “will work a reversal.” Chapman v. Atlanta &c. R., 74 Ga. 547 (a); Hart v. State, 88 Ga. App. 334 (2) (76 SE2d 561).

It appears clear from the totality of the record before us that in he case at bar it was appellee’s intent, in addition to her mere con-:ession of simple negligence, to concede a breach of an existing duty lot to injure appellant and that said breach was the direct and proxi-nate cause of certain injury (damages) to appellant. Appellee’s con-:ession of simple negligence in the pretrial order, coupled with the ecitations in the pretrial order that the issue remaining for jury de-ermination was that of “damages, if any” and that the type of dam-iges sought were limited to general damages for pain and suffering md future pain and suffering, is consistent with an intent on the part >f the parties that appellee was in fact admitting “liability” for the ncident and, thus, was conceding the existence of a prima facie case or plaintiff within the meaning of Rule 13.4. Moreover, the record ilso is replete with instances where both appellee and the trial court nade reference to appellee’s admission of liability and appellant’s ac-:eptance of the benefits flowing to him from those remarks. Further, ippellant elected to make no exceptions to the following portion of he trial court’s charge: “In this case . . . the defendant has admitted hat the automobile accident occurred as a result of her negligence. >he has admitted liability.” (Emphasis supplied.) (Further, the harge of the trial court did not include any charge of either direct or proximate cause or the necessity therefor.) By failing to take excej tion to this portion of the charges to the jury, appellant in effect a quiesced in the trial court’s prior tacit rulings that appellee had admitted liability and a prima facie case. See State v. Pattee, 201 Ga. App. 690, 693 (411 SE2d 751); Horan v. Pirkle, 197 Ga. App. 151 (397 SE2d 734). If appellant believed that a prima facie case had n< been admitted by appellee, at least by the time the case was submi ted to the jury, he had the duty to assert his contrary contention c the record in a timely manner. “ ‘A party cannot during the trial i¡ nore what he thinks to be an injustice, taking his chance on favorable verdict, and complain later.’ ” Bolden v. Carroll, 239 Ga. 188, 189 (1) (236 SE2d 270). Moreover, except for one brief instan» where appellant apparently posed a timely objection in an off-the-re ord proceeding in protection of his own interests, he elected as a ma ter of trial tactics consistently to acquiesce in the trial court’s declar tions that appellant had admitted liability and to reap the benefi accruing therefrom. One cannot complain of a ruling that his ov trial procedure and conduct procured or aided in causing. West Nodvin, 196 Ga. App. 825, 829 (3) (e) (397 SE2d 567); accord Perryman v. Rosenbaum, 205 Ga. App. 784, 790 (423 SE2d 673). Accoringly, we find appellant’s enumeration, as crafted, without merit.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.

On Motion for Reconsideration.

Our holding is based on two separate grounds. First, after exar ining the record and transcript in its totality, we have concluded co trary to appellant’s assertion that appellee did under the attenda circumstances admit a prima facie case. Secondly, assuming arguem the trial court had erred in concluding that appellee had admitted prima facie case and in instructing the jury that appellee had adm: ted liability, appellant by his conduct and trial tactics ultimately a cepted the benefits flowing from this determination and acquiesced the ruling. Having aided in and accepted the benefits flowing from ti alleged error appellant cannot now complain. West v. Nodvin, supra Bolden v. Carroll, supra. Appellant’s contention that the trial cou erred in granting appellee/defendant the right to open and close arg ment is without merit for either or both of these reasons.

Appellant contends that he did object on the record to the tri court’s ruling allowing appellee to open and close argument, and cit in support of that contention a certain page of the transcript. T only grounds for appellant’s objection to the trial court’s ruling afl pearing in the cited portion of the record is appellant’s content! that solely by calling a witness appellee had lost the right to open ai close. This objection is without merit. As held in our opinion, app» ¡e/defendant could introduce evidence in her behalf and yet retain re right to open and close by admitting, as in this case, a prima facie ise. Moreover, if counsel desires to preserve an objection upon a spe-fic point, the objection must be entered timely on the record upon íat specific ground. See Norman v. State, 197 Ga. App. 333, 334 (2) 598 SE2d 395).

Decided October 5, 1994

Reconsideration denied October 19, 1994 —

Ronald C. Goulart, for appellant.

Rice, Kreitzer & Winer, Steven W. Kreitzer, for appellee.

Further, assuming arguendo appellant could adequately preserve n objection on other specific grounds merely by making it, as con-sded in appellant’s motion for reconsideration and as shown by the irtified record, during an “off-the-record” discussion, such objection as subsequently waived and abandoned when appellant acquiesced nd accepted the benefits flowing from the trial court’s determination íat appellee had admitted liability. In any event, the trial court did ot err as appellee, by admitting to a prima facie case, was entitled to 3en and close.

Motion for reconsideration denied.