text:
    A95A1861.
    ZURICH AMERICAN INSURANCE COMPANY v. DICKS.
    (470 SE2d 279)
   Beasley, Chief Judge.

June Dicks sued Zurich American Insurance Company, her former employer’s workers’ compensation insurer. Dicks suffered a work-related injury and filed a complaint, sounding in tort, alleging that Zurich intentionally and wrongfully terminated her medical benefits, thereby aggravating her injuries. Zurich moved for summary judgment on the ground that Dicks’ complaint was barred by the exclusive remedy provision of the Workers’ Compensation Act. The trial court denied the motion, and we granted Zurich’s application for interlocutory appeal.

The facts are not disputed. On September 26, 1990, Dicks suffered a work-related injury, and Zurich authorized medical treatment. Dicks’ treating physician ordered her not to return to work until he released her to do so. On June 21 of the following year, Zurich ordered Dicks to be examined by Dr. Basil Griffin, Jr., who was not one of her treating physicians. Dr. Griffin concluded that Dicks “should be either terminated from her job or put in a work hardening program where she can get back to work. . . Apparently following Dr. Griffin’s advice, Dicks’ employer suspended medical benefits and terminated her from her job on August 29. As a result of the suspension of benefits, Dicks on October 21 ceased physical therapy which had been ordered by her treating physician. She resumed treatment 71 days later, but in the opinion of her treating physician, “the more than two-month-long delay in treatment exacerbated [her] medical condition, greatly worsened her symptoms, adversely affected her ability to be rehabilitated, caused additional pain behavior and substantially affected her permanent partial impairment rating.”

The ALJ ordered that all benefits be restored to Dicks effective August 29, and upon finding that Zurich’s defense of the claim was unreasonable, awarded attorney fees under OCGA § 34-9-108 (b) (2).

The sole issue is whether Dicks’ common law claim against Zurich is barred by the exclusive remedy provision of the Act.

OCGA § 34-9-11 (a) provides in part that “[t]he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee ... at common law or otherwise, on account of such injury, loss of service, or death. . . .” Not all employee claims against employers for intentional injuries are barred by OCGA § 34-9-11 (a). An insurer might be held liable for certain egregious torts, as pointed out in 8 ALR4th 902, 905 (1981). But where the Act provides a penalty for delayed benefit payments, a claim based on the delay is barred by the exclusive remedy provision.

In Bright v. Nimmo, 253 Ga. 378, 381 (320 SE2d 365) (1984), the Supreme Court held that the intentional delay of workers’ compensation payments does not give rise to an independent cause of action against the employer or its insurer for financial injury. It expressly left open the question of whether the employee could recover in tort for “an alleged intentional physical injury by the employer.” Id. What clearly is foreclosed is additional recovery for the delay itself in making the monetary payments. The reason given by the court is that the Workers’ Compensation Act provides penalties for delay, so the exclusivity feature of the Act excludes the employee’s use of common law remedies to obtain penalties in addition to the “delinquency charge” and attorney fees provided for in the Act.

In Aetna Cas. &c. Co. v. Davis, 253 Ga. 376 (320 SE2d 368) (1984), an employee sued her employer’s workers’ compensation insurer for tortious breach of contract alleging that the insurer breached a board-approved settlement agreement by failing to pay medical benefits awarded under the agreement. Relying on Bright, supra, decided the same day as Davis, the Supreme Court acknowledged that OCGA § 34-9-108 provides for the assessment of attorney fees against a party who unreasonably controverts medical payments. It ruled that “the employee’s use of common law remedies [was therefore] excluded.” Davis, supra at 378.

Distinguishable is Jim Walter Homes v. Roberts, 196 Ga. App. 618 (396 SE2d 787) (1990), cert. denied, 196 Ga. App. 908. The plaintiff suffered a work-related injury and sued her former employer and its workers’ compensation insurer, alleging that they intentionally and wrongfully refused to authorize payment for necessary medical treatment. The court entered judgment against the employer, who on appeal attacked the trial court’s jurisdiction to consider a workers’ compensation claim and the validity of the judgment under the Act’s exclusive remedy provision. Citing Murphy v. ARA Svcs., 164 Ga. App. 859 (298 SE2d 528) (1982) and Cox v. Brazo, 165 Ga. App. 888 (303 SE2d 71) (1983), we found that the alleged injury was “an intentional physical injury resulting from [the employer’s] refusal to authorize necessary treatment ...” and concluded that the complaint set forth a common law cause of action which was not barred by the Act’s exclusive remedy provision. Roberts, supra at 621.

In both Murphy and Cox, an employee sued her employer after being sexually harassed by a supervisor. In both cases, the employee alleged that her employer negligently retained the supervisor, despite repeated complaints of harassment, and in both cases the trial court granted the employers summary judgment, finding that the employees’ claims were barred by the Act’s exclusive remedy provisions. In Murphy, this Court concluded that the injuries involved in that case did not fall within the Act’s definition of “injury,” and the claim thus was “neither covered nor barred by the Workers’ Compensation Act.” Id. at 863. A similar conclusion was reached in Cox, supra at 889.

In her complaint, employee Dicks alleged that the ALJ and board found that defendant insurer’s cessation of benefits was “unconscionable.” She also alleged that defendant’s acts constituted “willful and wanton misconduct and misfeasance” and that its “unlawful controversion of [her] benefits was willful, intentional, [and] with conscious disregard of the consequences.” This comprises the alleged breach of legal duty for which the plaintiff seeks tort damages. She had already obtained against the employer and insurer attorney fees in an amount equal to one-third of the recovery of benefits, as a penalty under OCGA § 34-9-108 (b) for their acting “without reasonable grounds.” This, and the delinquency charges based on a percentage of benefits, which are allowed by OCGA § 34-9-221 (e) and (f), are the only penalties provided under the Workers’ Compensation Act for employer/ insurer recalcitrance.

The Act does not contemplate physical injury flowing from and being caused by wilful and wanton misconduct of an insurer in refusing to make payments. Of course, any refusal to pay would be “intentional.” It is the nature of the injury alleged here, and the nature of defendant’s actions, which plaintiff contends distinguishes her case from those of Bright and Davis. She is not seeking a monetary penalty for the delay but rather compensation for the physical injury she alleges was caused by the tortious delay, a new or exacerbated injury which is not related to employment but rather to the actions of the insurer as the source independent of her work-related injury. This is outside the purview of the Workers’ Compensation Act, as were the alleged acts and injury in Roberts, supra at 620 (2), cert. denied, 196 Ga. App. 908. The distinction was recognized by this Court in Dutton v. Ga. Assoc. &c. Fund, 215 Ga. App. 607, 608 (451 SE2d 504) (1994).

To hold otherwise would leave Dicks and others similarly situated without legal remedy. Assuming she can prove the alleged breach of duty over and above mere delay, and its causative effect on her claimed physical injury, it is not covered by the Workers’ Compensation Act (because it is not work-related) and it would not be compensable at common law. Surely the exclusivity provision of the Workers’ Compensation Act does not embrace this result, which would be contrary to the general law found in OCGA §§ 51-1-6 and 51-1-8.

The trial court should be affirmed, as the insurer is not entitled to summary judgment on the record as it stands.

Judgment affirmed.

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

Ruffin, Judge,

dissenting.

While I agree with much of what the majority holds, I respectfully dissent because I do not believe our Supreme Court’s decision in Aetna Cas. &c. Co. v. Davis, 253 Ga. 376 (320 SE2d 368) (1984), allows such a result. In Davis the Court held that “ ‘[t]he intentional delay of workers’ compensation payments does not give rise to an independent cause of action against the employer or its insurer where penalties for such delay are provided by the act. That is to say, where the Workers’ Compensation Act provides penalties for delay, such penalties exclude the employee’s use of common law remedies.’ In so holding, we considered and declined to adopt decisions of some other jurisdictions finding that intentional delay of compensation payments gives rise to an independent cause of action. See 2A Larson, Workmen’s Compensation Law, § 68.34 (c); ‘Tort Liability of Worker’s Compensation Insurer for Wrongful Delay or Refusal to Make Payments Due,’ 8 ALR 4th 902 (1981).” Davis, supra at 377. After finding that OCGA § 34-9-108 provides for the assessment of attorney fees against a party who unreasonably controverts medical payments, the Court found that “the employee’s use of common law remedies [was] excluded.” Id. at 378. I believe this broad language in Davis expressly bars the cause of action asserted here.

Likewise, I question the soundness of our decision in Jim Walter Homes v. Roberts, 196 Ga. App. 618 (396 SE2d 787) (1990). Neither of the cases relied on in Roberts involved the type of claim that was at issue in that case. See Murphy v. ARA Svcs., 164 Ga. App. 859 (298 SE2d 528) (1982) and Cox v. Brazo, 165 Ga. App. 888 (303 SE2d 71) (1983). While Roberts involved a claim for physical injuries resulting from an intentional delay of compensation payments, both Murphy and Cox involved claims for sexual harassment. Such a claim, as articulated in those cases, clearly falls outside the Act’s definition of “injury.” Moreover, Davis, which was decided at that time, expressly prohibited the cause of action asserted in Roberts.

While the claim in Roberts and in the case at hand arguably fails to meet the Act’s definition of “injury,” I am constrained in my dissent by the broad language in Davis, which bars such claims because penalties for the unreasonable refusal of medical benefits are provided by the Act. Furthermore, although Roberts and subsequent decisions have distinguished between claims for intentional financial injury and those for intentional physical injury, I can discern no reason why such claims should be treated differently where both result from a delay in paying benefits. Because both types of claims are predicated on an intentional and unreasonable delay in paying benefits, in each case the Act provides a penalty. See OCGA §§ 34-9-108 (b) and 34-9-221 (e). Although the majority cites Dutton v. Ga. Assoc. &c. Fund, 215 Ga. App. 607 (451 SE2d 504) (1994), as an example in which this Court has recognized the distinction, in Dutton we concluded that the cause of action asserted there was precluded by our Supreme Court’s decision in Bright v. Nimmo, 253 Ga. 378 (320 SE2d 365) (1984). Dutton, supra at 608.

Finally, while I sympathize with the plaintiff in this case and concede that an award of attorney fees is likely not sufficient to redress injuries such as are involved here, “ ‘[i]t is not our function to enlarge these statutory sanctions; rather, any enlargement of sanctions already available is for the General Assembly.’ [Cit.]” Bright, supra at 381.

Decided March 15, 1996.

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

Jeffrey W. Frazier, for appellee.

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


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A95A2010.
    BRIDGERS et al. v. LMV LEASING, INC. et al.
    (470 SE2d 277)
   Judge Harold R. Banke.

Ed P. Bridgers and Doris A. Bridgers (“the Bridgers”), the lessees of a pickup truck, appeal the trial court’s grant of summary judgment to the lessor, Hub Motor Company (“Hub”) and the lease’s various assignees, LMV Leasing, Inc., LSI Financial Group, and Lendco Acceptance Corporation (collectively “LMV Leasing”).

Viewed in the light most favorable to the Bridgers, the evidence shows that in August 1991, eight months after executing the lease agreement, they returned the truck because they were dissatisfied with the deal they made. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When they entered into the lease, they agreed to make 60 monthly payments of $385.99. They owed $19,629.28 when they returned the truck and informed Hub that they did not intend to make any more payments; the record shows they then ceased making payments. When Ed Bridgers returned the truck, he took a document prepared by his lawyer styled “Acknowledgement of Receipt of Vehicle” which purported to release him from liability and Hub’s employee signed the document. LMV Leasing subsequently resold the truck for $9,255.

LMV Leasing sued the Bridgers seeking recovery of the $10,602.12 deficiency from the truck’s sale, and prejudgment interest and attorney fees provided under the lease. It also sued Hub for breach of contract and negligence for executing the release when the Bridgers returned the truck. In a counterclaim, the Bridgers alleged that LMV Leasing defrauded them with a second lease which changed the terms and conditions of the original lease. The Bridgers also filed a cross-claim against Hub, alleging Hub conspired with LMV Leasing to defraud them. LMV Leasing and Hub both moved for summary judgment, which the trial court summarily granted, awarding LMV Leasing the principal amount of $10,602.13, interest of $6,520.31, and attorney fees of $1,737.24.

To prevail on summary judgment, the moving party must show that no genuine issues of material fact remain to be tried and that the undisputed facts, viewed in the light most favorable to the non-movant, warrant summary judgment as a matter of law. Lau’s Corp., 261 Ga. at 491. Held:

1. The trial court properly granted summary judgment on the contract claim. The lease bound the Bridgers to an agreement to pay an amount certain at a specified time and unequivocally provided for continued liability on default. It contemplated early termination only after 12 months, with 30 days written notice, upon payment of certain fees, taxes, and calculated damages. It is undisputed that the Bridgers failed to comply with the lease’s early termination provisions. Therefore, their unauthorized return of the vehicle had no legal effect on the lease, and when they failed to make their August payment, they defaulted. See Thompson v. Gen. Motors Acceptance Corp., 193 Ga. App. 740, 741 (1) (389 SE2d 20) (1989). “The powerful policy considerations obligating the lessee to the lease of a vehicle hardly bear discussing; [the Bridgers] had no right to obtain the possession and use of the vehicle by promising payment for a specific period, and then renege at pleasure.” Id.

2. Nor did the “Acknowledgement of Receipt of Vehicle” relieve the Bridgers of liability under the lease. Because the lease had been assigned to LMV Leasing and there is no evidence that Hub’s employee had authority to sign it on LMV Leasing’s behalf, this document is a nullity. See Blake v. Hooker-Barnes, Inc., 190 Ga. App. 308, 309 (2) (378 SE2d 716) (1989). Nothing in the record supports the Bridgers’ argument that Hub’s employee was cloaked with apparent authority to bind LMV Leasing because they knew the lease had been assigned to LMV Leasing, which owned the car and had the right to repossess it on default. This right rendered the purported release unenforceable. Thompson, 193 Ga. App. at 741-742.

3. The record also reveals no basis for the Bridgers’ claim of fraud in which they allege that LMV Leasing deceived them with a second lease which changed the terms of their original agreement and defrauded them on the true trade-in value of their car. There is no evidence of a second lease. Moreover, because the Bridgers alleged no fraud which would have prevented them from reading the terms of the purported second lease, they would be bound by its terms in any event. Delta Chevrolet v. Wells, 187 Ga. App. 694, 695 (1) (371 SE2d 250) (1988). Further, the fact that the Bridgers accepted and retained the benefits of the lease for eight months, with knowledge of the trade-in value they received on their car, authorizes summary judgment. Hamilton v. Advance Leasing & Rent-A-Car, 208 Ga. App. 848, 850 (2) (432 SE2d 559) (1993).

Decided March 15, 1996.

Anne H. Orr, E. Graydon Shuford, for appellants.

Kenney & Solomon, Thomas S. Kenney, Levine & Block, Stephen H. Block, for appellees.

4. We observe that the Bridgers asserted all their arguments in a single enumeration of error. “When, as here, an appellant asserts more than one error within a single enumeration, this court in its discretion may elect to review none, or one or more, of the errors asserted within the single enumeration. [Cits.]” (Punctuation omitted.) Toledo v. State, 216 Ga. App. 480, 482 (4) (455 SE2d 595) (1995). Having assured that summary judgment was properly granted, we decline to reach the Bridgers’ remaining arguments.

Judgment affirmed.

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

       The record shows that as part of the lease transaction, Hub paid off the remaining $9,405.97 owed on the Bridgers’ car.


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A95A2072.
    KINES et al. v. CITY OF ROME et al.
    (470 SE2d 311)
   Blackburn, Judge.

The claimants appeal the reversal of the administrative law judge’s (ALJ) award as affirmed by the appellate division of the Workers’ Compensation Board, based on the trial court’s conclusion that there was no competent evidence to support the award.

The issue we are confronted with is whether there was “any” competent and credible evidence to support the finding by the ALJ that deceased’s heart attack was attributable to his employment, and was thus covered by workers’ compensation. See Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408, 411 (224 SE2d 65) (1976).

Kenneth Kines, age 44, a 22-year veteran of the City of Rome Police Department, died after suffering a heart attack while at home, at least 36 hours after his last work shift. As a result, there is no natural inference that the heart attack was work-related. Southwire Co. v. Cato, 250 Ga. 895, 898 (302 SE2d 91) (1983).

Claimants contended that the heart attack resulted from on-the-job stress and offered expert medical testimony to support their claim. In order to establish a causal relationship between the employment and the injury, the claimants produced the depositions of two expert witnesses who had never treated, nor were personally familiar with, the deceased.

In their depositions, the expert witnesses testified that, based on the hypothetical facts submitted to them, they believed that job stress was probably a significant factor in bringing on the deceased’s heart attack.

One expert was told to assume that there was no family history of heart disease, and the other was told to assume that there was only a mild to moderate family history of heart disease. Uncontroverted testimony, however, established that while there might be little family history of heart disease in the deceased’s father’s family, the deceased’s mother’s family had a long history of heart disease. In fact, the deceased’s mother was one of ten children, of which seven died from heart or cardiovascular problems.

This fact was not included in the hypothetical and would likely have resulted in a different response from the experts, whose actual responses are rendered meaningless by the omission.

In finding that the heart attack was work-related, the ALJ stated that his finding was based largely on these depositions. The trial court reversed the award of the ALJ, as affirmed by the appellate division of the Workers’ Compensation Board, ruling that certain hypothetical questions posed to the physicians misstated the facts concerning the deceased’s family history with regard to cardiovascular problems and, therefore, the responses to such questions must be disregarded.

“Testimony of an expert witness should not be admitted in evidence where his opinion is based on facts stated in a hypothetical question which are not proven by other witnesses or other competent evidence.” Ga. Power Co. v. Crutchfield, 125 Ga. App. 488, 489 (188 SE2d 140) (1972). The sufficiency of the facts supporting an expert’s opinion usually goes to the weight, rather then admissibility, of the expert’s testimony. See Krause v. Vance, 207 Ga. App. 615, 616 (428 SE2d 595) (1993). Here however, the facts not supplied to the expert witnesses resulted in questions that were not just insufficient, they were misleading. As a result, the testimony provided in the expert depositions was not competent and credible evidence.

Claimants contend that the circumstantial evidence they offered as to the good health of the deceased, and of his father and siblings, somehow conflicts with the circumstantial evidence that his mother, and her family, had a long history of heart and cardiovascular problems and that the trier of fact resolved this conflict. There was no conflict here to be resolved. The mother’s family history is undisputed, and its absence in the hypothetical question cannot be ignored. The superior court correctly concluded that the ALJ could not base his award upon responses to flawed hypothetical questions. This type of misleading hypothetical question and resultant response is subject to appellate review, as the ALJ’s award on this evidence was clearly erroneous and review is for the correction of errors.

There was testimony that the deceased, as a police officer, had a stressful job involving physical exertion and was demoted several years earlier. There was also evidence that the deceased had been involved in a meretricious relationship for four years and that his wife was pregnant at the time of his death, facts that would reasonably generate far more stress than would a job he had performed without physical problems for 22 years. The evidence of the deceased’s dissatisfaction with his employment does not establish a causal connection between his employment and h(s heart attack.

Accordingly, we affirm the reversal of the ALJ’s award by the superior court.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Smith and Ruffin, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I, respectfully, dissent from the judgment affirming the superior court’s reversal of the appellate division’s award of death benefits to the widowed claimant and her dependents in this workers’ compensation case. In my view, there was competent evidence to support the hypothetical questions posed to claimants’ medical experts. Consequently, the award of death benefits is itself supported by some evidence, and the superior court erred in failing to affirm under the “any evidence” standard of review.

Kenneth Kines, a 22-year veteran of the City of Rome Police Department, died after suffering a heart attack at home at the age of 44. Claimants maintain that the heart attack resulted from on-the-job stress. Claimants’ contention was embraced by the administrative law judge, who awarded the payment of death benefits. The appellate division adopted the award of the administrative law judge. But the superior court reversed the award of the appellate division based on its conclusion that there was no competent evidence which authorized that award. The superior court ruled that certain hypothetical questions posed to the physicians misstated the facts concerning Kenneth Kines’ family history with regard to cardiovascular problems. This discretionary appeal is taken from the superior court’s reversal of the appellate division.

“Georgia law recognizes three forms of competent evidence for establishing a causal connection between work activities and cardiovascular problems such as heart attack and stroke: (1) medical opinion, (2) lay observation and opinion and (3) the ‘natural inference through human experience.’ Hiers and Potter, Ga. Workers’ Compensation — Law and Practice, § 6-2 citing Guye[ v. Home Indem. Co., 241 Ga. 213, 215 (244 SE2d 864)], and Carter v. Kansas City Fire &c. Ins. Co., 138 Ga. App. 601 (226 SE2d 755) (1976).” Reynolds Constr. Co. v. Reynolds, 218 Ga. App. 23, 24 (459 SE2d 612). Claimants primarily utilized the first of these forms, presenting the depositions of two physicians. Neither of the doctors had examined Kenneth Kines but offered their opinions, in response to hypothetical questions, that on-the-job stress could have contributed to the fatal heart attack. “As to hypothetical questions, the answer is not proof that the conclusion reached by the witness applies to or establishes any fact in the case on trial unless it also appears that there is evidence of the salient facts assumed in the hypothetical question. Central R. & Bkg. Co. v. Maltsby, 90 Ga. 630 (5) (16 SE 953).” Norman v. Allen, 118 Ga. App. 394, 396 (2), 397 (163 SE2d 859).

The physicians testified that family history is one of the major factors in determining risk for heart attacks. One physician was asked to assume that there was no family history of heart disease while the other was asked to assume a mild to moderate history, a classification which had earlier been elicited from that physician via a recital of claimants’ evidence on this issue. The claimants presented evidence as to the good health of Kenneth Kines, prior to the heart attack, and of his father and brothers. The claimants’ evidence was not entirely positive since Kenneth Kines’ mother had died of a stroke in her 50’s. As used to establish an inference concerning the family’s overall medical history, this was circumstantial evidence that Kenneth Kines did not have congenital heart problems. In opposition, the employer presented the testimony of a first cousin of Kenneth Kines, who related a significant family history of heart trouble, including genetic heart problems. The mother of Kenneth Kines was one of twelve children, ten of whom survived their infancy. From the ten, four of five males have died with heart trouble, while three of the five females have died from various cardiovascular diseases. Consequently, the circumstantial evidence presented by claimants is contrasted with the circumstantial evidence that defendant had congenital heart problems because four out of five males on his mother’s side had congenital heart problems.

“ ‘(R)eliance may be had upon circumstantial evidence for the proof of an essential fact in the framing of a hypothetical question. . . .’ Wells v. Alderman, 117 Ga. App. 724, 735 (11) (162 SE2d 18) (1968).” Hyles v. Cockrill, 169 Ga. App. 132, 136 (8) (312 SE2d 124). “Generally, ‘(w)here reliance is made upon circumstantial evidence alone for proof of one of the essential facts assumed in the framing of a hypothetical question, the trier of fact may consider the answer to the question only if it has first determined that the assumed fact has been satisfactorily established.’ Travelers Ins. Co. v. Hutchens, 106 Ga. App. 631 (127 SE2d 712) (1962). The trier of fact, and not the court, decides whether the assumed fact is actually proved by the circumstantial evidence. Shannon v. Kaylor, 133 Ga. App. 514 (211 SE2d 368) (1974). Nevertheless, it is for the court to decide whether a conclusion assumed is at least supported by the circumstantial evidence before allowing the matter to go to the jury [or factfinder] for its determination as to whether the evidence actually established the fact. Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga. App. 562 (236 SE2d 550) (1977).” Warmack v. Mini-Skools Ltd., 164 Ga. App. 737 (1), 738 (297 SE2d 365).

Decided March 15, 1996

Mundy & Gammage, Miles L. Gammage, for appellants.

Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert L. Berry, Jr., Hendrick L. Cromartie III, for appellees.

Hamilton, Westby, Marshall & Antonowich, Andrew J. Hamilton, Robert C. Buck, amici curiae.

In my view of the case sub judice, the opposing inferences authorized by the circumstantial evidence of the absence or presence of Kenneth Kines’ genetic heart problems do not vitiate the sufficiency of claimants’ evidence to support the non-existence of such congenital problems. “Although the circumstances proved might also support other conclusions, they were sufficient for the purpose of posing the hypothetical question[s] to the expert witness.” Krause v. Vance, 207 Ga. App. 615, 616 (1) (428 SE2d 595). In my opinion, the superior court erred in concluding that the physicians’ answers to the factually supported questions lacked foundation and any probative value. Since there is circumstantial evidence that Kenneth Kines did not necessarily have cardiovascular disease from his mother’s side of the family, the hypothetical questions put to the physicians by claimants are supported by evidence insofar as they assume a moderate level or absence of heart disease. I would reverse the judgment of the superior court with directions to reinstate the appellate division’s award of death benefits. As my colleagues in the majority would nevertheless affirm the judgment of the superior court in setting aside an award supported by competent evidence, I respectfully dissent.


text:
    A95A2097.
    ROBINSON et al. v. J. SMITH LANIER & COMPANY OF CARROLLTON.
    (470 SE2d 272)
   Blackburn, Judge.

Plaintiffs appeal the trial court’s grant of summary judgment to defendant insurance agent on the basis that no injury could result to plaintiffs as a result of any negligence of defendant in failing to timely procure workers’ compensation coverage as no workers’ compensation claim had been timely filed for benefits under such coverage and the relevant statute of limitation barred any future claim.

Glenn R. Robinson and Ronald C. Robinson d/b/a Robinson & Robinson Construction Company (the Robinsons) appeal the trial court’s grant of summary judgment to J. Smith Lanier & Company of Carrollton (J. Smith Lanier), an insurance agency, on the Robinsons’ claim for negligent failure to procure insurance.

On December 13, 1990, the Robinsons paid a premium to J. Smith Lanier for workers’ compensation insurance. The Robinsons allege that coverage was to begin on December 14, 1990. On that very day, December 14, the Robinsons allege that one of their employees suffered a work-related injury. The Robinsons reported the accident and learned that coverage had been assigned to United States Fidelity & Guaranty (USF&G) and became effective on December 17,1990. USF&G denied coverage, claiming that its insurance was not in effect at the time of the accident. While the Robinsons reported the accident to USF&G, the employee never filed a workers’ compensation claim. Glenn R. Robinson deposed that the employee was given $200 per week or a total of $7,720 during the time that he was not working so that the employee could pay his bills. However, the employee testified to his understanding that the money was a loan, and almost all of the check stubs produced by the Robinsons reflecting these payments were marked as a “loan.” The Robinsons did not pay or promise to pay their employee anything else including medical bills. The Robin-sons’ final payment to the employee occurred in September 1991.

On February 22, 1992, the Robinsons sued J. Smith Lanier for negligently failing “to place the insurance coverage in a timely manner.” Subsequently, the trial court granted J. Smith Lanier’s motion for summary judgment concluding that, as a matter of law, the Robin-sons had not and could not suffer any damages due to the insurance agent’s alleged negligence.

Assuming that J. Smith Lanier failed to procure the coverage in a timely manner, the trial court found no evidence that the Robinsons had been harmed as a result of the alleged error (a) because no workers’ compensation claim had been timely filed and (b) because relevant statutes of limitation barred any such claim in the future. For the reasons outlined below, the trial court did not err in granting defendant’s motion for summary judgment.

1. When an insurance agent negligently fails to procure insurance, he steps into the shoes of the carrier and becomes “liable for loss or damage to the limit of the agreed policy.” (Citations and punctuation omitted.) Ga. Farm Bureau Mut. Ins. Co. v. Arnold, 175 Ga. App. 850, 852 (334 SE2d 733) (1985). Similarly, when an agent negligently fails to procure insurance, his liability is limited to those losses that would have been covered by the agreed policy. Peagler & Manley Ins. Agency v. Studebaker, 156 Ga. App. 786 (275 SE2d 385) (1980) (“[w]here there has been no showing that recovery against the insurance carrier would have been possible, the alleged negligence of the insurance agent in failing to procure . . . coverage has not been shown to have caused the loss”).

Assuming without deciding that defendant was negligent in failing to timely procure the subject coverage, it is undisputed that no workers’ compensation claim was ever filed seeking benefits under such coverage and that all relevant statutes of limitation have expired.

The Robinsons contend that a claim for workers’ compensation benefits is not automatically barred by the statute of limitation. Rather, citing Maryland Cas. Co. v. Smith, 122 Ga. App. 262 (176 SE2d 666) (1970), they argue that an employer must affirmatively raise the statute of limitation before it works to bar a claim. Accordingly, should the Robinsons, as the employer, choose not to assert a statute of limitation defense to any workers’ compensation claim that the injured employee might subsequently file, J. Smith Lanier would be liable should the employee prove his injury was compensable.

While an employer is free to waive its available defenses, it is not free to do so to the detriment of its insurance carrier. Under the Robinsons’ hypothetical, the sole cause of any damage they would sustain would be their failure to assert a viable defense, and thus they could not look to the defendant for relief.

The Robinsons argue that the doctrine of avoidance of consequences is inapplicable. We disagree. It is clear that under Georgia law, one cannot willingly submit to being injured and then seek recompense for that injury from a third party even if that third party was negligent. “It is well-established Georgia law that before an action for a tort will lie, the plaintiff must show he sustained injury or damage as a result of the negligent act or omission to act in some duty owed to him. OCGA § 51-1-8.” (Emphasis supplied.) Whitehead v. Cuffie, 185 Ga. App. 351, 353 (364 SE2d 87) (1987). The injury threatened to the Robinsons in this case is uninsured loss. If such injury should come to pass, it would not be because J. Smith Lanier failed to timely procure insurance coverage over five years ago when the premium was presented. Rather, it would be because at some point in the future, with full knowledge of the consequences, the Robinsons refuse to assert a viable defense that would prevent the loss from occurring.

The Robinsons argue that the trial court’s rejection of their argument regarding the waiver of this defense establishes an unwise policy contrary to the public good. They argue that, under the present facts, they should not be penalized if, in good conscience, they choose to acknowledge liability to their injured employee and forego asserting their statute of limitation defense. This Court must apply the law as it exists, and we have no equitable jurisdiction. We find the willingness of the Robinsons to waive their statute of limitation defense and accept liability for their employee’s injury to be commendable. It is their attempt to require defendant to bear the expense of their charity that the law does not permit. It is easy to take the “high road” if another must bear the cost of the trip.

2. In their second enumeration of error, the Robinsons assert that the trial court erred in granting summary judgment because a question of fact existed as to whether the $7,720 they paid their injured employee was a loan or whether the payments constituted salary in lieu of compensation for the employee’s work-related injury.

The plaintiffs do not contend that the statute of limitation was tolled because of the above facts. Plaintiffs are not raising in this appeal that the payments would toll the running of the statute of limitation since more than two years have passed from the last payment. OCGA § 34-9-82 would permit the filing of a claim within two years of the date of the last payment of weekly benefits to the employee. Viewing the facts in favor of plaintiffs, it is undisputed that more than two years have passed since the last payment by the Robinsons to the employee. Therefore, any claim related to any such payments is barred by the applicable statute of limitation. This enumeration is without merit.

Thus, the trial court did not err in granting summary judgment to defendant, and we therefore affirm.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Smith and Ruffin, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the affirmance of summary judgment in favor of the defendant insurance agency, J. Smith Lanier & Company of Carrollton. In my view, a jury question is presented as to whether an estoppel (or lack of standing) precludes the insurance agency from asserting a defense ordinarily available only to the insurer, i.e., a duty of cooperation that would itself bar the plaintiff employers, Glenn R. Robinson and Ronald C. Robinson, from waiving the statute of limitation defense in any action by their injured but uninsured employee.

According to the complaint and the admitted allegations, on December 13, 1990, plaintiffs submitted a reprinted form application for workers’ compensation insurance, which form identified defendant as the “AGENCY AND PRODUCER.” Plaintiffs tendered a check drawn on the Georgia bank account of R & R Construction for $6,225, constituting one year’s premium. This check was paid that same day and deposited into defendant’s account. Plaintiffs received from Valva Banister, defendant’s authorized representative, a certificate of insurance indicating that coverage was effective as of 12:01 a.m. on December 14, 1990, through December 14, 1991. Also on December 14, 1990, plaintiffs’ employee, Barry Dryden, was injured while within the course and scope of his employment. Plaintiff Glenn Rudolph Robinson confirmed that, while his company paid no hospital bills on behalf of Barry Dryden, “[w]e paid him $200 a week essentially because he couldn’t meet his obligations to pay his bills without it. I told him that we was having some misunderstanding with the insurance company and . . . [defendant] hadn’t started it. ... So I paid him $200 a week until he returned to work just so he would have some sort of income.” This $200 per week represented what the injured employee “needed to get by until Workmen’s Comp got started.” When plaintiffs made a claim against the policy, coverage was denied by the insurer to whom the policy was assigned on the ground that insurance was not effective as of the time of the accident. Plaintiffs allege that defendant negligently failed to place the insurance coverage in a timely manner.

Defendant denied liability and moved for summary judgment, urging that plaintiffs have not suffered any legal damages due to the following circumstances: The injured employee never pursued a workers’ compensation claim and the one-year statute of limitation (plus extensions) established by OCGA § 34-9-82 (a) for filing any such claim has expired. Defendant argued that, since it was too late for the employee to file a workers’ compensation claim against his employers (plaintiffs), plaintiffs are not exposed to any legal liability and, therefore, have not been harmed by any negligence of defendant.

On appeal, plaintiffs contend summary judgment for the insurance agency was inappropriate because they could and would waive any available statute of limitation defense should a workers’ compensation claim be brought by the injured employee.

Plaintiffs correctly argue they could waive the statute of limitation defense to a workers’ compensation claim. Maryland Cas. Co. v. Smith, 122 Ga. App. 262 (1), 263 (176 SE2d 666); Pittman v. Elder, 76 Ga. 371, 376. “ ‘Where an employer or his insurance carrier has furnished or paid for medical and hospital services to an injured employee, it is generally held that this constitutes a payment of compensation, or a waiver which suspends the running of the time for filing a claim for compensation.’ 58 Am. Jur. 850, § 417.” Chevrolet Div., Gen. Motors Corp. v. Dempsey, 212 Ga. 560, 564 (93 SE2d 703). In the case sub judice, the trier of fact could reasonably conclude that the weekly payments of $200 by plaintiffs to their injured employee constituted payments of compensation, subject to a promise to reimburse the employer out of the proceeds of any eventual award. This conduct would operate to toll the running of the statute of limitation even without a waiver, at least until such time as the final payment has been made. But a waiver could come at any time, despite the running of the statutory period. “ ‘The bar of the statute (of limitation) is a privilege to the defendant, the benefit of which he may elect to take advantage of or waive as he pleases. The statute in most instances operates upon the remedy and not the right; and hence if the defendant chooses not to raise the objection of the lapse of the statutory time, the right will be enforced, and will result in a judgment which will possess all the attributes of, and be as effective as, a judgment rendered within the statutory period.’ Parker v. Thompson, 219 Ga. 293, 296 (133 SE2d 28).” Searcy v. Godwin, 129 Ga. App. 827, 829 (1) (201 SE2d 670). In the case sub judice, it is my view that the trial court erred in reasoning that “the employee is barred from initiating a claim at this point,” (emphasis supplied) because the employer can waive the privilege of the statute of limitation defense at any time. Although the majority asserts, without citation of authority, that the employer cannot waive a valid defense “to the detriment of its insurance carrier,” (majority, ante, p. 738) this position overlooks the material fact that this action is against the negligent insurance agency and not the insurer. I am unable to join in the curious proposition that an insured’s duty to cooperate with the insurer (lest coverage be voided) redounds to the benefit of a careless or possibly faithless insurance agency. Here, the employers paid $6,000 for immediate coverage but were denied that benefit owing to the negligence of the insurer’s agent for accepting applications, i.e., the negligent brokerage. In my view, the employer should not bear the financial consequences of the insurer’s agent’s negligence. “When one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury shall bear the loss." (Emphasis supplied.) OCGA § 23-1-14.

Additionally, I would not apply the “avoidance of consequences” doctrine to these circumstances. Under that doctrine, plaintiffs, as the alleged victims of defendant’s negligence, would be under a duty to exercise ordinary care to avoid the consequences of that negligence. Burnsed v. City of Albany, 184 Ga. App. 297, 300 (361 SE2d 275). “ ‘Closely allied to the doctrine of contributory negligence is the rule of “avoidable consequences,” which denies recovery for any damages which could have been avoided by reasonable conduct on the part of the plaintiff. Both rest upon the same fundamental policy of making recovery depend upon the plaintiff’s proper care for the protection of his own interests, and both require of him only the standard of the reasonable man under the circumstances.’ Prosser, [Law of Torts (4th ed.)], at 422; see Harper and James, [Law of Torts, Vol. 2, Ch. XXI], at 1231.” Osburn v. Pilgrim, 246 Ga. 688, 695 (273 SE2d 118). In my view of the case sub judice, this argument confuses plaintiffs as the ostensibly insured employers with the injured employee. Defendant would attribute any default by the employee to the employer-plaintiffs to relieve itself of the consequences of its own negligence. An insurance broker who negligently fails to obtain coverage specified by an insured “could be found liable ‘for any resulting loss. (Cit.)’ Wright Body Works v. Columbus Interstate Ins. Agency, [233 Ga. 268, 270 (210 SE2d 801)]. This means that [plaintiffs] could recover for the resulting uninsured ‘loss or damage to the limit of the agreed policy. (Cits.)’ Beiter v. Decatur Fed. S&L Assn., 222 Ga. 516, 518 (2) (150 SE2d 687) (1966).” England v. Ga.-Fla. Co., 198 Ga. App. 704, 705 (2) (402 SE2d 783). I find no authority that would deny plaintiffs’ recovery against their negligent insurance agent or brokerage because an employee of the insured employer failed to pursue a workers’ compensation claim. To so deny recovery in the case sub judice would have the anomalous result of imposing a penalty upon an employer that did not contest a clear case of coverage under the Georgia Workers’ Compensation Act but extended payments without the formality of a claim. It is the public policy of Georgia to encourage settlements between the employee and the employer, “so long as the amount of compensation and the time and manner of payment are in accordance with [OCGA § 34-9-1 et seq.].” OCGA § 34-9-15. In my opinion, the trial court erred in granting summary judgment to the defendant insurance agency on the ground that plaintiffs have sustained no compensable injury. As my colleagues in the majority would nevertheless affirm that unwarranted grant of summary judgment, I respectfully dissent.

Decided March 15, 1996

Murphy, Murphy & Garner, Stephen E. Garner, for appellants.

Tisinger, Tisinger, Vance & Greer, Robert H. Sullivan, for appellee.


author: McMurray, Presiding Judge.

text:
    A95A2216.
    GREENE et al. v. PIEDMONT JANITORIAL SERVICES, INC.
    (470 SE2d 270)
   McMurray, Presiding Judge.

Plaintiff Barbara L. Greene and her husband, Raymond E. Greene, Sr., brought this tort action against defendant Piedmont Janitorial Services, Inc. (“Piedmont”), alleging that plaintiff Barbara L. Greene slipped and injured herself due to the slippery condition of the floor “resulting from Defendant’s negligence with respect to maintaining the floor of the restroom at the [NationsBank] office where Plaintiff was employed,” at 2059 Northlake Parkway, in Tucker, Georgia. Specifically, Piedmont was alleged to have “applied an excessive amount of cleaning products to the floor. . . .” Piedmont was further “negligent in that it failed to warn ...” plaintiff of the dangerous condition in the rest room. Plaintiff Raymond E. Greene, Sr. claimed loss of consortium.

Piedmont answered, admitting that “it had a contract to provide certain cleaning services in the building where plaintiff is alleged to have fallen,” but denying the material allegations of negligence. The case was tried before a jury. At the close of plaintiffs’ case, Piedmont moved for a directed verdict, which was granted in part and denied in part. The jury subsequently found for the defendant. Plaintiffs appeal from the judgment entered on that defense verdict. Held:

1. Plaintiffs first contend the trial court erred in excluding evidence that Piedmont had been “notified that two persons had slipped and fallen ... in restrooms maintained by [Piedmont] which [were] the same and/or similar to the restroom in which [plaintiff Barbara L. Greene] fell. ...” They proffered Hanson Farmer, the president of Piedmont, who would have confirmed that, “prior to Barbara Greene falling, the building manager reported to you, to Piedmont Janitorial Services that two persons had slipped and fallen in the restrooms in the NationsBank building[.]” Hanson Farmer made it clear, however, that he had no personal knowledge of when, where, or under what circumstances these other spills occurred. To his knowledge, he “wasn’t given a name or a location of anybody falling. [He] was just told that somebody had fallenf.]” Plaintiffs argue that this evidence was admissible to show that Piedmont “was placed on notice that a dangerous condition existed in the restrooms it maintained.”

“Generally, it may be said that it is not permissible, for the purpose of establishing whether a condition at one place is dangerous to show conditions at places other than the one in question.” (Citations and punctuation omitted.) McCoy v. Gay, 165 Ga. App. 590, 592 (302 SE2d 130). “While the relevancy of other occurrences is ordinarily within the sound discretion of the [trial] court, ‘it is necessary that the conditions of the things compared be substantially similar.’ [Cit.] Without a showing of substantial similarity, the evidence is irrelevant as a matter of law and there is nothing upon which the [trial] court’s discretion can operate. Dunn v. Beck, 144 Ga. 148 [(hn. 2)] (86 SE 385); Sammons v. Webb, 86 Ga. App. 382 (6) (71 SE2d 832); Standard Paint &c. Works v. Powell, 27 Ga. App. 691 [(3) (b)] (109 SE 513).” Carlton Co. v. Poss, 124 Ga. App. 154, 155 (3) (183 SE2d 231), aff'd Poss v. Carlton Co., 228 Ga. 402 (185 SE2d 803). In the case sub judice, plaintiffs’ proffer is inadequate to establish the cause of any falls by other persons in other rest rooms maintained by defendant Piedmont. It is sheer speculation to say that evidence of these unrelated and indefinite circumstances is proof of the same negligently excessive use of cleaning products as allegedly caused Barbara L. Greene to fall when and where she did. Barbara L. Greene failed to show that these other “accident[s] occurred under circumstances sufficiently similar to her own so as to constitute relevant evidence. See Denmon v. Rich’s, 103 Ga. App. 818 (120 SE2d 659) (1961).” Sparks v. Pine Forest Enterprises, 174 Ga. App. 598, 600 (331 SE2d 34) (physical precedent). The trial court did not err in excluding this irrelevant evidence of other accidents.

2. At the close of plaintiffs’ case, Piedmont moved for a directed verdict. The trial court granted this motion in part, ruling that plaintiffs failed to adduce “any evidence of [Piedmont’s] failure to police or inspect” the premises. This partial direction of the verdict is enumerated as error. Plaintiffs argue that, “if a party responsible for inspecting premises fail [sic] to have appropriate inspection procedures in place, a material issue of fact is created regarding said party’s constructive knowledge of a hazard,” relying on Parker v. Food Giant, 193 Ga. App. 337 (387 SE2d 615).

OCGA § 51-3-1 imposes upon an owner or occupier of land the nondelegable duty to exercise ordinary care to keep the premises and approaches safe for invitees. Towles v. Cox, 181 Ga. App. 194, 195 (1), 196 (351 SE2d 718). In the case sub judice, defendant Piedmont is neither the owner nor the occupier of the NationsBank office at 2059 Northlake Parkway, in Tucker, Georgia. Likewise, plaintiff Barbara L. Greene was not Piedmont’s invitee. Rather, Piedmont was merely an independent contractor which agreed to provide certain cleaning services in the building where plaintiff Barbara L. Greene fell. See generally Callaham v. Carlson, 85 Ga. App. 4, 16 (3) (67 SE2d 726). Consequently, OCGA § 51-3-1 imposes on the janitorial service no independent duty to inspect the premises of the occupier for the safety of the occupier’s invitees. It follows that plaintiffs’ reliance on Parker v. Food Giant, 193 Ga. App. 337, supra, is misplaced. Moreover, “an agent is ordinarily not liable for mere nonfeasance. Kimbrough v. Boswell, 119 Ga. 201 (1) (45 SE 977); Southern R. Co. v. Grizzle, 124 Ga. 735 (53 SE 244, 110 ASR 191).” Herring v. R. L. Mathis Certified Dairy Co., 118 Ga. App. 132, 140 (5) (162 SE2d 863), overruled in part on other grounds, sub nom., Bourn v. Herring, 225 Ga. 67 (1) (a), 69 (166 SE2d 89). Given the absence of a legal duty in the case sub judice for Piedmont to inspect the premises, the trial court correctly directed the verdict as to this theory of liability.

Decided March 15, 1996.

Cooper, Hewitt & Katz, Robert N. Katz, for appellants.

Webb, Carlock, Copeland, Semler & Stair, David F. Root, Mary K. Smith, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Pope, Presiding Judge.

text:
    A95A2314.
    DAVIS et al. v. DAVIS.
    (470 SE2d 268)
   Pope, Presiding Judge.

Appellant Kenneth Davis and appellee Elizabeth Davis were married in 1978 and divorced in 1991. The parties continued to live in the same household for the next two and one-half years, during which time they shared household expenses. However, Kenneth did not pay child support in accordance with the final judgment and divorce decree during this period.

Kenneth moved out of the household in April 1994, and Elizabeth filed this garnishment action in the State Court of DeKalb County seeking collection of approximately $15,000 in unpaid child support. The garnishee, the Federal Employees Credit Union, paid $11,425.69 into the court registry, and Kenneth Davis filed a traverse to the garnishment. At the hearing on the traverse, Kenneth argued he should be given credit for the monies he contributed during the period the parties continued to reside in the same household, and that he should also be given credit for child care services he provided for the children while Elizabeth worked and attended school. The state court dismissed the traverse on the grounds that it had no authority to modify the terms of the final judgment and divorce decree and that the garnishment was otherwise proper. We granted Kenneth’s application for discretionary appeal, and this appeal followed.

Decided March 15, 1996.

Larry R. Wight, for appellants.

Macklyn A. Smith, for appellee.

The state court did not err by dismissing the traverse. That court had no authority to modify the child support provisions of the final judgment and divorce decree; such a modification must be accomplished by the filing of a petition in superior court pursuant to OCGA § 19-6-18 or § 19-6-19. See, e.g., Daniel v. Daniel, 239 Ga. 466, 467 (2), 469 (238 SE2d 108) (1977). Although our Supreme Court has held that under unusual and exceptional circumstances equity considerations may dictate that the child support payor be given credit for expenditures made on the child’s behalf, those cases would not apply here because the state court lacks equity jurisdiction. Ga. Const., Art. VI, Sec. IV, Par. I. Cf. Brown v. Dept. of Human Resources, 263 Ga. 53, 54-55 (428 SE2d 81) (1993); Daniel, 239 Ga. at 468 (2). It follows that our previous opinions in Bautz v. Best, 170 Ga. App. 219, 221 (2) (316 SE2d 589) (1984); Jennings v. Messman, 157 Ga. App. 35 (276 SE2d 259) (1981), and Clark v. Clark, 150 Ga. App. 602 (258 SE2d 282) (1979), which countenanced the use of this equitable exception by state courts in garnishment cases, were wrongly decided, and should now be overruled.

Judgment affirmed.

Beasley, C. J., McMurray, P. J., Birdsong, P. J., Andrews, Johnson and Smith, JJ., concur. Blackburn and Ruffin, JJ., concur in judgment only.

       Elizabeth Davis first initiated contempt proceedings through the Georgia Department of Human Resources to collect the unpaid child support, but that action was dismissed at her request prior to the filing of this garnishment action.

       Kenneth Davis’s new wife, Mary Rippstine Davis, also traversed the garnishment, contending that money she deposited into the garnished account prior to her marriage to Kenneth should not be subject to garnishment for Kenneth’s child support obligations. She is not a party to this appeal.


author: Ruffin, Judge. Pope, Presiding Judge,

text:
    A95A2380.
    WATKINS v. SALVATION ARMY et al.
    (470 SE2d 477)
   Ruffin, Judge.

This appeal is affirmed without opinion in accordance with Court of Appeals Rule 36 for all of the grounds set forth under the rule.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Andrews, Johnson and Smith, JJ., concur. McMurray, P. J., and Pope, P. J., dissent. Blackburn, J., not participating.

Pope, Presiding Judge,

dissenting.

I respectfully dissent from the affirmance of the trial court’s grant of summary judgment to the Salvation Army on Watkins’ claims for negligent hiring or selection. A claim for negligent selection does not require that the tort have been committed in the scope of employment. Henderson v. Molting First Mtg. Corp., 184 Ga. 724 (2) (193 SE 347) (1937). Even if the Salvation Army did not employ Readdick, it undoubtedly selected him to further its mission just as the nonprofit organization selected its volunteer in Big Brother/Big Sister of Metro Atlanta v. Terrell, 183 Ga. App. 496, 497 (1) (359 SE2d 241) (1987). The undisputed facts as outlined by the trial court create a jury issue as to whether the Salvation Army “knew or should have known of [Readdick’s] criminal propensities.” Terrell, 183 Ga. App. at 497 (1).

The evidence shows Readdick disclosed to the Salvation Army his three years spent in prison for possessing a firearm. A jury might reasonably decide that given this past history of lengthy prison service for a crime involving weapons, the Salvation Army should have probed deeper into Readdick’s background based on this constructive notice. Harvey Freeman & Sons, Inc. v. Stanley, 259 Ga. 233, 234 (2) (378 SE2d 857) (1989); Sparlin Chiropractic Clinic v. TOPS Personnel Svcs., 193 Ga. App. 181, 182 (387 SE2d 411) (1989); Lear Siegler, Inc. v. Stegall, 184 Ga. App. 27, 28 (360 SE2d 619) (1987).

The trial court’s reliance on Terrell, 183 Ga. App. at 497 (1), for the proposition that the Salvation Army did all it could do to screen Readdick is misplaced. Unlike the nonprofit managers in that case, Salvation Army officials did have access to criminal records and had, in other Georgia offices, conducted criminal background checks on “programmers” such as Readdick. The crimes they would have discovered — two burglaries — may show Readdick’s propensity to use his position to enter the dwellings of Salvation Army donors to commit violent felonies such as this rape. See OCGA § 16-7-1. Premises liability cases such as Ritz Carlton Hotel Co. v. Revel, 216 Ga. App. 300 (454 SE2d 183) (1995), cited by the trial court, have no application to a negligent hiring case. Those cases focus on whether all the circumstances surrounding unrelated offenses committed by strangers and unknown assailants at different times placed a landowner on notice to take security precautions against a specific act of violent crime; see J. C. Penney Co. v. Spivey, 215 Ga. App. 680, 682 (1) (452 SE2d 191) (1994). Here, the key is whether the Salvation Army had reason to know Readdick was unsuited for this particular assignment. Green v. Johnston Realty, 212 Ga. App. 656, 659 (1) (442 SE2d 843) (1994).

The Salvation Army may have cloaked Readdick with some degree of apparent authority by giving him an identification badge bearing his name, photograph, and the words “Salvation Army.” It sent him to the homes of Macon residents, including the apartment of this elderly victim, in furtherance of its charitable business of picking up donations. The director of Macon’s Salvation Army testified that similar badges were given to Salvation Army employees to identify them to the public as such. The employee whom Readdick assisted in picking up donated goods from the plaintiff testified he was given such a badge so that when he picked up goods from individuals, “if they see your picture with the badge on it, they won’t be so afraid of everything.” Because this same employee violated Salvation Army regulations, Readdick was allowed to come to Watkins’ door, unaccompanied and wearing a badge identifying himself with this good organization, to retrieve her donated goods. When he later returned to her apartment to attack her, it appears she may have accepted him because of this prior association. Under these circumstances, a jury should determine whether a reasonable investigation would have disclosed Readdick’s violent propensities, and whether Salvation Army officials were in a position to gain “knowledge that the [identification badge] which they were placing in [his] possession might be fraudulently utilized.” Jester v. Hill, 161 Ga. App. 778, 783-784 (2) (288 SE2d 870) (1982). There is evidence that Readdick’s “subsequent tortious and criminal actions against [Watkins] could reasonably have been anticipated, apprehended, or foreseen by [the Salvation Army] . . . as a probable or natural consequence of hiring him.” (Citations and punctuation omitted.) Edwards v. Robinson-Humphrey Co., 164 Ga. App. 876, 881 (3) (298 SE2d 600) (1982).

Decided March 15, 1996

Adams & Jordan, Virgil L. Adams, Walbert & Mathis, Charles A. Mathis, Jr., for appellant.

Miller & Towson, Wallace Miller III, Chambless, Higdon & Carson, Mary M. Katz, for appellees.

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


author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A95A2405.
    WALL et al. v. STEAK & ALE OF GEORGIA, INC. et al.
    (469 SE2d 879)
   Andrews, Judge.

While walking through a parking lot to get to her car, Wall stepped in a stream of liquid flowing through the lot from a dumpster behind an adjacent Steak & Ale restaurant and slipped and fell. Wall and her husband, who brought a loss of consortium claim, sued the proprietor of the parking lot and Steak & Ale for injuries she sustained in the fall claiming the stream was a dangerous condition caused by the defendants’ combined negligence. This appeal is from the trial court’s order granting Steak & Ale’s motion for summary judgment.

Wall described the stream of liquid running continuously through the parking lot as being a foot wide and having a “transparent white” appearance. She conceded it was clearly visible. In granting summary judgment in favor of Steak & Ale, the trial judge found “that by failing to notice a visible stream of liquid during daylight hours, Plaintiff was not exercising her duty to use ordinary care for her own safety.” The trial court rejected Wall’s claim that she did not see the clearly visible hazard because she was distracted at the time by vehicular traffic in the parking lot. The trial court correctly granted summary judgment in this case because: (1) the foot-wide stream of white colored liquid in which Wall slipped and fell was clearly visible and (2) Wall’s deposition testimony indicates that the vehicular traffic in the parking lot which distracted her attention had already passed when she encountered the hazard.

Wall had a duty to exercise ordinary care to discover and avoid the plainly visible hazard in her path as she walked to her car in the parking lot. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). In the absence of any legally recognizable excuse for failing to do so, she is barred from recovery, as a matter of law. Vermont American Corp. v. Day, 217 Ga. App. 65, 66-67 (456 SE2d 618) (1995); Alterman Foods, supra. Here, the only excuse offered by Wall for not seeing and avoiding the plainly visible hazard was that she was distracted by two cars moving in the parking lot.

Wall deposed that, prior to her fall, she was walking to her car down one side of an aisle in the parking lot and that, when she walked across the aisle, she slipped and fell in the stream of liquid near the center of the aisle.

“Q: [A]s you’re walking down this aisle, or this area here where cars would be coming in and out of the parking lot, have cars parked on both sides, and you’re walking down in the area where the cars are generally passing were you not walking in the stream of the sludge before the point where you fell?

“A: No, sir ... I believe I was walking to the left of it the entire way, because as I said, I don’t walk in the center because the cars just come so I was walking to the left.

“Q: So does that mean at the point where you fell you started to go a little bit to the right or to the center where you travel?

“A: Yeah, I had to cross over this way to get to my car, so walking along to avoid automobiles is just something that — you either choose the left or right side that you walk on. I chose to walk on the left side. And as I was crossing over it to get to my car, I slipped and fell.”

When asked if she was distracted by anything at the time of her fall, Wall deposed as follows:

“Q: Did you see the substance that you fell on before you fell?

“A: No. I would have avoided it if I had.

“Q: Was there anything else that you were looking at as you were walking back to your car?

“A: No, just the cars pulling in and out of the lot.

“Q: Was there any particular distraction or anything that caught your attention as you were walking?

“A: Just a car passing by each direction, which is pretty standard, it’s a very busy lot . . .

“Q: Was there a car that was moving through the parking lot, say, in the 15 seconds before you fell?

“A: I can’t say 15 seconds, but within the time limit there were two cars that had just passed.

“Q: Within what time limit? Within 15 seconds?

“A: From the point that I entered through the gate [of the parking lot], to the point when I slipped and fell, two cars had passed me. I can’t say the time limit, ma’am.

“Q: Okay. Can you estimate the time between your noticing one of the cars, and the time that you fell?

“A: The car had passed me.

“Q: lío you know how long after the car passed you that you fell?

“A: A few steps . . .

“Q: You had mentioned that there were two cars that were moving about the parking lot at this time, where was the other car?

“A: The other car passed me when I initially walked in . . .

“Q: So would it be fair to say that the first car passed you before you ever entered the traffic lane [where you fell]?

“A: Yes, ma’am.”

Although Wall stated in general that she had to watch for cars entering and leaving the parking lot, she testified that the only distractions were the two cars moving in the parking lot. The first car passed her before she entered the aisle where she fell. After the second car passed by, she took a few more steps before she slipped and fell. Wall’s testimony shows that, although she had been distracted by two cars that passed by before she crossed the aisle and stepped in the stream of liquid, there was no traffic distracting her immediately before she fell.

We addressed a similar distraction claim in Wiley v. Family Dollar Store &c., 208 Ga. App. 461, 462-463 (430 SE2d 839) (1993). There, Wiley claimed “she did not see the ‘crack’ which allegedly caused her fall because she was distracted by vehicular traffic in the parking lot outside Family Dollar’s store.” Id. at 462. We recognized the rule that, under some circumstances, “[a] possible confrontation with vehicular traffic on the property may be a significant ‘distraction’ for a pedestrian-invitee on the premises.” (Citations and punctuation omitted.) Id. at 463. We concluded, however, that Wiley’s deposition testimony showing “that she observed no danger from traffic immediately before the fall and that her attention was then directed exclusively to ‘getting to (her) car and walking,’ . . . refute [d] any claim that [she] was distracted by concerns over traffic hazards immediately before the fall.” Id.

Decided March 15, 1996.

Fitzgerald & Schultz, John K. Fitzgerald, for appellants.

In the present case, Wall’s deposition testimony clearly shows that any distractions were caused by the two cars which had passed by and that, immediately before she fell, she was simply walking toward her car when she stepped in the plainly visible hazard. Under these circumstances, the trial court correctly concluded that there was no distraction and that Wall was barred from recovery for failing to exercise ordinary care for her own safety.

Judgment affirmed.

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

McMurray, Presiding Judge,

dissenting.

The issue in the present case is whether there are any circumstances which excuse Joanne Wall’s failure to see the stream of liquid before stepping in it. She testified as to being distracted by passing cars shortly before her fall. A possible confrontation with vehicular traffic on the property may be a significant distraction. Magee v. Federated Dept. Stores, 187 Ga. App. 620, 621 (371 SE2d 99). The majority holds this principle to be inapplicable simply because the cars moving in Joanne Wall’s immediate vicinity had already passed by her. Joanne Wall was walking along a narrow passage between parked cars which pedestrians shared with motor vehicles. Moments before her fall, a car had passed within three or four feet of her. The actual danger of physical harm from the car may have passed with it, but the distraction caused by the close passage of a vehicle does not end instantaneously with the passing. Here, the interval between the passage of the car and the fall was only a few seconds. A jury should be allowed to determine whether the recent passage of the car and resulting concern for the passage of others amounted to such a distraction as will excuse Joanne Wall’s failure to see the stream before her fall. Compare Wiley v. Family Dollar Store &c., 208 Ga. App. 461, 463 (430 SE2d 839). See also the two-judge case of Marlowe v. Cabe, 207 Ga. App. 764, 766 (429 SE2d 151).

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

Smith, Gambrell & Russell, Dana M. Richens, for appellees.


text:
    A95A2514.
    FISHER v. HBS MANAGEMENT, INC. et al.
    (469 SE2d 885)
   Andrews, Judge.

Fisher was injured when he slipped and fell in the common area parking lot at the condominium where he resided. He sued HBS Management, Inc., which managed the property, and the Dunwoody Plantation Homeowners Association, Inc. claiming they negligently failed to keep the parking lot in a safe condition. The trial court granted summary judgment in favor of the defendants and Fisher appeals.

The trial court correctly granted summary judgment in favor of the defendants because there is no evidence they had any actual or constructive knowledge of the slippery condition which caused Fisher to slip and fall.

Fisher deposed that, the night before the accident, he heard a weather forecast that there was going to be an ice storm the next day. At approximately 7:45 a.m. the next morning, he went out on his back porch to check the conditions and saw “very little” ice on part of the porch. At about 11:15 a.m., Fisher went out his front door to check the weather conditions again. This time he testified that the walkway outside his front door leading to the parking lot looked wet. Not knowing whether the wet looking walkway might also be icy, he decided to walk on the grass alongside the walkway to the parking lot to check the conditions there. When he got to the curb at the parking lot area, he testified that the area “just looked wet, but it didn’t look icy at all.” He stepped off the curb, took one step into the parking lot, and slipped and fell. Although he never saw any ice and did not recall feeling any ice after he fell, Fisher testified that he must have slipped on ice because “[t]here was absolutely nothing there and I’ve never slipped like that before ... on anything wet or dry.”

Assuming the slippery condition which caused Fisher to slip and fall was invisible ice, there is absolutely no evidence that the defendants had actual or constructive knowledge of the hazard. The only evidence of any visible ice was Fisher’s testimony that he saw “very little” on his back porch earlier in the morning. As to the parking lot, there is no evidence that there was any accumulated or visible ice in the area. There is no evidence that anyone else slipped or fell on ice or any other slippery condition in the parking lot or elsewhere in the condominiums. There is no evidence the defendants received any reports of icy or slippery conditions in the parking lot or elsewhere at the condominiums. Although there is evidence the defendants knew icy conditions had been forecast, the mere forecast of ice was not sufficient to charge the defendants with actual or constructive knowledge of the slippery condition which caused Fisher’s fall.

Moreover, if invisible ice caused Fisher’s fall, it was naturally occurring ice not attributable to any affirmative action on the part of the defendants. Accordingly, this case is similar to Auerbach v. Padgett, 122 Ga. App. 79 (176 SE2d 193) (1970); McIntyre v. Corporate Property Investors, 160 Ga. App. 868 (288 SE2d 584) (1982), and Speaks v. Rouse Co. of Ga., 172 Ga. App. 9 (321 SE2d 774) (1984), where the plaintiffs claimed the defendant proprietors negligently failed to discover and remove naturally occurring but invisible ice on which they slipped and fell. In all of those cases, we found the defendant proprietors were entitled to summary judgment based on the rule that the true ground of liability is the proprietor’s superior knowledge of the alleged hazard and that recovery is permitted only where the hazard is known to the proprietor and not known to the plaintiff. Here, as in those cases, there was no evidence of accumulations of ice creating an obvious hazard of which the defendants knew or should have known. Accordingly, the defendants had no affirmative duty to remove any possible naturally occurring ice. Speaks, supra at 10-11. Since Fisher had equal knowledge of the weather conditions and knowledge at least equal to that of the defendants with respect to the condition of the parking lot, the defendants were entitled to summary judgment. McIntyre, supra at 869.

The case of Martin v. Dunwoody-Shallowford Partners, L. P., 217 Ga. App. 559 (458 SE2d 388) (1995), relied upon by the dissent, has no application to the present facts. In that case, there was evidence the proprietor had at least constructive knowledge of the invisible “black ice” on which the plaintiff slipped and fell because it was created by the proprietor’s operation of a sprinkler system in freezing temperatures. Id.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Johnson, Blackburn, Smith and Ruffin, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I, respectfully, dissent because I believe the case sub judice is controlled by the recent decision in Martin v. Dunwoody-Shallowford Partners, L. P., 217 Ga. App. 559, 560 (2) (458 SE2d 388), where this Court held, under circumstances similar to the incident in the case sub judice, that genuine issues of material fact remain as to whether the proprietor knew or should have known of the danger of transparent ice in its parking lot; whether the plaintiff had knowledge of the hazard because of his prior passage over an icy parking lot, and thus whether plaintiff exercised ordinary care for his own safety. As were the circumstances in Martin, Fisher testified in the case sub judice that he did not see the ice before he fell because it was transparent and, also like Martin, there is proof that Fisher’s landlord (defendants) knew that an ice storm hit the area the night before the incident in question. It is my view, that these circumstances raise genuine issues of material fact as to whether defendants knew or should have known about transparent ice in their parking lot; whether defendants exercised the requisite degree of care in protecting against dangers associated with the accumulation of transparent ice; whether Fisher had knowledge of the hazard because of his prior passage over the affected area, and thus whether Fisher exercised ordinary care for his own safety.

Decided March 15, 1996.

Roy S. Mullman, Teri D. Alpert, for appellant.

Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, Michael E. Hardin, for appellees.


author: Andrews, Judge. Blackburn, Judge, Ruffin, Judge,

text:
    A95A2530.
    ALEX v. THE STATE.
    (470 SE2d 305)
   Andrews, Judge.

After a bench trial, Matthew Michael Alex was found guilty of trafficking in cocaine and simple battery. Alex appeals the trial court’s denial of his motion to suppress.

1. Because the trial court denied Alex’s motion to suppress, in reviewing this decision, “ ‘ “the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them. (Cits.)” ’ Rogers v. State, 206 Ga. App. 654 (426 SE2d 209) (1992).” State v. Foster, 209 Ga. App. 143 (433 SE2d 109) (1993).

Therefore, we address the testimony presented under this standard. At the hearing on Alex’s motion to suppress, Special Agent Robert Johnson with the Drug Enforcement Agency’s (DEA) Atlanta Airport Task Force testified. Agent Johnson had twenty-five years of experience with DEA, including the past ten years during which he had worked drug interdiction at the Atlanta airport. Agent Johnson received information from a “cooperating individual at the airport” that an “individual flying under the name of Matthew Alex was traveling from Los Angeles, California, to Atlanta and continuing on to Mobile, Alabama, on a cash one-way ticket.” Reservations had been made in Los Angeles late on the evening of July 6, 1994, for a 12:10 a.m. flight to Atlanta on July 7, with continuation on to Mobile, Alabama. Based on his experience, Agent Johnson was aware that Los Angeles was a “source city” for cocaine and marijuana; that it was common for drug couriers to make quick trips, due to the “spur of the moment type of demand business” done, and to pay cash for their tickets because no identification is required for such a purchase. Also common to the trade is the use of a call-back number which is not that of the traveler. Agent Johnson further testified that his partner, Agent Perry, called the call-back number and told Agent Johnson that the party answering the phone did not know Matthew Alex.

The officers went to the Mobile gate and asked the agent to page Alex so they could identify him, which they did. They approached, wearing civilian clothing with no weapons in evidence, identified themselves as police, and asked to speak with Alex. It was five to ten minutes prior to boarding for Alex’s flight to Mobile and boarding usually begins twenty to thirty minutes prior to takeoff. Johnson asked to see Alex’s ticket, which Alex gave to him. The ticket was in Alex’s name, but Agent Johnson saw and felt that no baggage claim tickets had been attached to the ticket, which is Delta’s practice when baggage is checked. When asked for identification, Alex responded that “I lost my I.D. in Los Angeles. I was [using the bathroom] and I laid my I.D. on the counter next to me and when I was through it was gone.”

When asked if he had anything else with identification on it, Alex replied negatively. He told the agents if they found his identification, he wanted it back. Johnson also knew from experience that it is common for couriers to travel without identification. Likewise, nervousness such as that displayed by Alex’s trembling hands when the agents asked to see his ticket is also common with intercepted couriers. Asked about his lack of luggage, Alex said he had sent his ahead by “Federal Express or Western Union.”

These events took only a matter of minutes. His ticket was returned to Alex, and he placed it in the left front pocket of his jacket. As he did so, Johnson noticed an “unusual bulge in his right front pocket.” Alex was also wearing loose fitting pants and jacket. Couriers carrying drugs on their body do this in order to conceal any bulges. When asked what was in his right front pocket, Alex responded by tapping this pocket and said it was his ticket, which Johnson knew was incorrect. Alex was then advised that the two officers were narcotics agents and asked if he would consent to a search of his person. He stated he had to catch his flight and “[h]is voice was cracking, he was breathing very, very heavily.” At this point, the officers concluded that the totality of circumstances suggested that Alex was carrying a controlled substance.

Alex turned to walk off, at which time the agents told him he was going to be detained while they attempted to obtain a search warrant.

Alex then pushed past the agents, and when they repeated that he was being detained, Alex shoved Johnson with his forearm and was placed under arrest for simple battery. The agents then obtained the warrant and searched Alex, finding 1,197 grams (about half a kilo) of crack cocaine taped under his armpit with duct tape.

2. “In United States v. Mendenhall, 446 U. S. 544, 550 (100 SC 1870, 64 LE2d 497) (1980) a person’s Fourth Amendment right to be secure from unreasonable searches and seizures was found to apply to the person and effects of travelers in an airport. Except in extremely rare instances the seizure of the person or his effects is considered unreasonable per se unless a warrant has been obtained from a neutral magistrate upon a showing of probable cause. An exception, however, has been made to permit a police officer to conduct a brief investigatory stop without a showing of probable cause where the officer observes unusual conduct which, when viewed in the light of his experience, causes him to conclude that the individual is involved in criminal activity. In other words, this type of stop is permitted based upon an articulable suspicion which is less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment.” (Citations and punctuation omitted.) Pullano v. State, 169 Ga. App. 377, 379 (312 SE2d 857) (1983).

Using this standard, the preliminary brief stop of Alex was certainly reasonable. The issue remains as to whether the detention to allow a magistrate to consider the issue of a warrant was too lengthy.

“In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. [Cits.] A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. [Cit.] A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But ‘(t)he fact that the protection of the public might, in the abstract, have been accomplished by “less intrusive” means does not, by itself, render the search unreasonable.’ Cady v. Dombrowski, 413 U. S. 433, 447, 37 LE2d 706, 93 SC 2523 (1973); [cit.]. The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.” United States v. Sharpe, 470 U. S. 675, 686 (105 SC 1568, 84 LE2d 605) (1985).

Here, Alex manifested four of the seven primary characteristics of the drug courier profile: 1) arrival from a known drug source city on the west coast; 2) traveling across the country with no luggage; 3) purchasing a one-way airline ticket with cash shortly before the flight; and 4) unusual nervousness beyond that ordinarily exhibited by passengers. Additionally, he left a false call-back number with the airline. Bothwell v. State, 250 Ga. 573, 575 (1) (300 SE2d 126) (1983).

After he was approached, Alex’s nervousness increased and he lied about what was in his right front pocket. Seeing a bulge there, the agents were authorized to investigate further. See United States v. Robinson, 414 U. S. 218 (94 SC 467, 38 LE2d 427) (1973) (capsules containing heroin found in crumpled cigarette package); Chappell v. State, 183 Ga. App. 706 (359 SE2d 686) (1987) (bulges in socks were bags containing cocaine).

The Supreme Court has emphasized that, in situations such as the present one, the judgment of seasoned officers should be treated with deference. “ ‘Because of their expertise, these officers are “able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer.” Brown v. Texas, 443 U. S. 47, 52 n. 2 (99 SC 2637, 2641 n. 2, 61 LE2d 357) (1979).’ ” State v. Grant, 195 Ga. App. 859, 862 (2) (394 SE2d 916) (1990).

At the point at which Alex was told the officers were going to attempt to obtain a search warrant since he declined their request that he be searched voluntarily, the officers were authorized to detain him for a reasonable period of time in order to procure a warrant. To hold otherwise would undermine society’s and this Court’s preference in favor of warrants. See State v. Davis, 217 Ga. App. 225, 227 (457 SE2d 194) (1995); Hunter v. State, 198 Ga. App. 41, 42 (1) (400 SE2d 641) (1990); State v. Bassford, 183 Ga. App. 694, 696 (1) (359 SE2d 752) (1987).

3. Additionally, after Alex pushed past the agents, making contact with Johnson, they had probable cause to arrest Alex for battery and obstruction of an officer. OCGA §§ 16-5-22 and 16-10-24. Alex could be fully searched in connection with such an arrest. See, e.g., United States v. Robinson, supra; Gearin v. State, 218 Ga. App. 390, 391 (1) (461 SE2d 562) (1995).

Judgment affirmed.

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

Blackburn, Judge,

dissenting.

I respectfully dissent from the majority as I believe Agent Johnson did not have the requisite probable cause in order to expand a brief Terry (v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968)) stop into a seizure of Alex’s person. While the majority affirms the trial court’s denial of Alex’s motion to suppress, I would reverse it.

In light of the proper standard, I would find that a brief stop of Alex was reasonable; however, “[i]n order to ‘expand the scope’ of intrusion by a law enforcement officer, . . . the officer must have either probable cause or the voluntary consent of the individual detained.” Scott v. State, 253 Ga. 147, 149 (317 SE2d 830) (1984). Alex’s refusal to consent to a search and his indication that he had to catch his flight was sufficient to conclude the initial stop. When Alex was detained, Agent Johnson had some knowledge of the following: Alex was traveling on a cash one-way ticket from Los Angeles to Mobile; the call-back number given with the ticket reservation was incorrect; Alex’s wallet had been stolen in Los Angeles; Alex sent his luggage by Federal Express or Western Union; and Alex was extremely nervous.

The present case is similar to Miranda v. State, 189 Ga. App. 218, 219 (375 SE2d 295) (1988), where the arresting officer was aware of the following: the defendant arrived in Atlanta on a one-way ticket from Miami purchased with cash; the defendant changed clothes from a loose fitting blouse to a tight tank top; the defendant’s ticket had no baggage claim tickets attached to it; and the defendant could not produce any identification. In determining that the officer lacked probable cause to detain the defendant we stated that “[t]hose facts, which the officer explained in light of his experience to be typical of drug couriers, are also equally susceptible of perfectly innocent explanation.” Id. at 220-221.

“The seven primary characteristics of the drug courier profile are: (1) arrival from or departure to an identified source city; (2) carrying little or no luggage, or large quantities of empty suitcases; (3) unusual itinerary, such as rapid turnaround time for a very lengthy airplane trip; (4) use of an alias; (5) carrying unusually large amounts of currency in the many thousands of dollars, usually on their person, in briefcases or bags; (6) purchasing airline tickets with a large amount of small denomination currency; and (7) unusual nervousness beyond that ordinarily exhibited by passengers.

“The secondary characteristics are (1) the almost exclusive use of public transportation, particularly taxicabs, in departing from the airport; (2) immediately making a telephone call after deplaning; (3) leaving a false or fictitious call-back telephone number with the airline being utilized; and (4) excessively frequent travel to source or distribution cities.” (Citation and punctuation omitted.) Bothwell v. State, 250 Ga. 573, 575 (300 SE2d 126) (1983).

Comparing these factors to the present case, I believe that although Alex arrived from a source city, he explained his lack of luggage and identification. Although we are aware that Agent Johnson was told by “a cooperating individual at the airport” that Alex’s ticket was purchased with cash, we know nothing about the cooperating individual, the basis of this person’s knowledge, or whether this person has given reliable information in the past. The only other characteristic that might apply is the false call-back number; however, the agents did not question Alex regarding the accuracy of the number which they apparently received from the cooperating individual. Based on our holding in Miranda, supra, I would find that the agents did not have sufficient cause to seize Alex. Therefore, Agent Johnson’s attempt to keep Alex from boarding his plane was an illegal seizure, which Alex was authorized to resist. See Brooks v. State, 206 Ga. App. 485, 489 (425 SE2d 911) (1992). I believe the trial court was clearly erroneous in denying Alex’s motion to suppress.

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

Ruffin, Judge,

dissenting.

I dissent, as I believe the trial court should have granted Alex’s motion to suppress.

I agree that under the circumstances the agents are permitted to briefly detain Alex. However, it is required that such detention “be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the [agents’] suspicion in a short period of time. [Cits.]” Florida v. Royer, 460 U. S. 491, 500 (103 SC 1319, 75 LE2d 229) (1983). The agents’ conduct in this case violated these requirements.

It is clear from the hearing transcript in this case that although the agents were generally suspicious that Alex may have been a drug courier, it was the “unusual bulge in his right front pocket” that peaked their suspicion. Agent Johnson asked Alex what was in his right front pocket. Agent Johnson was suspicious that Alex “was trying to conceal what was in his right front pocket.” Johnson stated he had no idea what was in the pocket except that it was a bulge. Alex refused to consent to Johnson’s request to “search [his] person[,]” announced that he had to catch his flight, and began to walk towards the gate. The agents detained Alex further in order to obtain a search warrant.

The investigatory stop lasted longer and was broader in scope than was necessary under the circumstances. Because the agents’ suspicions were focused on Alex’s right front pocket, their investigation should have been similarly focused. Thus, it was not necessary for the agents to search Alex’s entire person as requested by the agents. A request for Alex’s consent to search his right front pocket would have served their articulated purpose and would have been less intrusive. In like manner, the agents could have asked Alex to empty the contents of his right front pocket. The agents took neither of these actions, either of which would have confirmed or dispelled their suspicions instantly.

Decided March 15, 1996

William E. Frey, Steve M. Frey, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

While “[t]he subsequent post-arrest search of [Alex] did produce drugs . . . the existence of probable cause cannot be determined on the basis of hindsight.” (Emphasis omitted.) Polke v. State, 203 Ga. App. 306 (1), 309 (417 SE2d 22) (1992). Because the agents could not be sure that Alex possessed contraband, they should have, at least initially, employed these methods.

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