text:
    A95A0791.
    A95A0792.
    A95A0793.
    A95A0794.
    A95A0795.
    A95A0796.
    A95A0797.
    A95A0798.
    A95A0799.
    A95A0800.
    A95A0801.
    A95A0802.
    COBB COUNTY v. JONES GROUP P.L.C. et al. WALTON v. COBB COUNTY. GREENLEES et al. v. COBB COUNTY. ENVIROQUIP, INC. et al. v. COBB COUNTY. WICKLIFFE COMPANY v. JONES GROUP P.L.C. et al. GREENLEES et al. v. WICKLIFFE COMPANY. WALTON v. WICKLIFFE COMPANY. ENVIROQUIP, INC. et al. v. WICKLIFFE COMPANY. MAYES, SUDDERTH & ETHEREDGE, INC. v. JONES GROUP P.L.C. et al. WALTON v. MAYES, SUDDERTH & ETHEREDGE, INC. GREENLEES et al. v. MAYES, SUDDERTH & ETHEREDGE, INC. ENVIROQUIP, INC. et al. v. MAYES, SUDDERTH & ETHEREDGE, INC.
    (460 SE2d 516)
   Blackburn, Judge.

This appeal is a combination of three related actions filed under the Georgia RICO Act, OCGA § 16-14-1 et seq., concerning the development of water treatment facilities in Cobb County, Georgia. The issues on appeal arise from the trial court’s grant or denial of motions to dismiss filed by various defendants in the underlying actions.

Case Nos. A95A0791, A95A0795 and A95A0799

1. Appellants, Cobb County, Georgia, The Wickliffe Company, and Mayes, Sudderth & Etheredge, Inc., appeal the trial court’s grant of defendants’, The Jones Group, P.L.C., Jones U. S. Holdings, Inc., and Jones Environmental, Inc. (referred to collectively as the Jones defendants), motions to dismiss for lack of personal jurisdiction. “Our precedents establish that a defendant who files a motion to dismiss for lack of personal jurisdiction has the burden of proving lack of jurisdiction. A motion to dismiss for lack of personal jurisdiction must be granted if there are insufficient facts to support a reasonable inference that defendant^] can be subjected to the jurisdiction of the court. To demonstrate that the court lacks jurisdiction, defendant^] may raise matters not contained in the pleadings. However, when the outcome of the motion depends on unstipulated facts, it must be accompanied by supporting affidavits or citations to evidentiary material in the record. Further, to the extent that defendant^’] evidence controverts the allegations of the complaint, plaintiff may not rely on mere allegations, but must also submit supporting affidavits or documentary evidence. . . . [I]f a motion is decided on the basis of the written submissions, the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non-deferential standard.” (Citations and punctuation omitted.) Scovill Fasteners v. Sure-Snap Corp., 207 Ga. App. 539, 540 (428 SE2d 435) (1993).

In the present case, jurisdiction over the non-resident defendants allegedly was conferred pursuant to OCGA § 9-10-91 (1), (2) and (3). Based upon the allegations in the complaint, personal jurisdiction of the Jones defendants, if any, rests upon the jurisdiction of Enviroquip, Inc. and Escor, Inc., which have transacted business in Cobb County, Georgia. Enviroquip’s and Escor’s employees, agents, and directors, Bill Walton, Jack Greenlees, and Jim Porteous, allegedly committed acts in Georgia constituting RICO violations. The complaints further alleged: (1) the defendant The Jones Group, P.L.C. is a corporation organized and existing under the laws of the Republic of Ireland, and is a successor corporation or owner of defendants Enviroquip, Inc. and Escor, Inc.; (2) the defendant Jones U. S. Holdings, Inc. is a corporation organized and existing under the laws of the State of Delaware, is a wholly-owned subsidiary of defendant The Jones Group, P.L.C., and is a successor corporation or owner of defendants Enviroquip, Inc. and Escor, Inc.; and (3) the defendant Jones Environmental, Inc. is a wholly-owned subsidiary of or owner of defendants Enviroquip, Inc. and Escor, Inc.

In support of their motions to dismiss, the Jones defendants averred that The Jones Group, P.L.C., an Irish company, invested in companies through Jones U. S. Holdings, Inc., a Delaware corporation, which acted as a holding company for The Jones Group’s American holdings. All of the issued common stock of Jones U. S. is owned by The Jones Group, P.L.C. Jones U. S. acts solely as a holding company, owns no real property, and does not carry on any business activity. From mid-1987 until late 1992, Jones U. S. owned all the shares of Enviroquip, Inc., a Delaware corporation. A controlling interest in Delaware Enviroquip was sold to a management buy-out group in December 1992. From October 1987 to December 1991, Es-cor, Inc., a Delaware corporation, was a wholly-owned subsidiary of Jones U. S.

Jim Porteous averred that he was a director of Enviroquip and Escor, president and a director of Jones Environmental, president and a director of Jones U. S., and until the end of 1992, a director of The Jones Group, P.L.C. Porteous averred that no profits, dividends or revenues were ever paid by Enviroquip to any of the Jones defendants, as it was not profitable enough to pay such from its formation in July 1987 until it was sold at the end of 1992.

Jones Environmental, a wholly-owned subsidiary of Jones U. S., engages in environmental engineering in the United States, and is headquartered in Austin, Texas. Jones Environmental has never had any role or involvement in any project for or related to Cobb County, Georgia. Jones Environmental has never been a successor to or owner of any entity called Enviroquip, Inc. or Escor, Inc.

In Coca-Cola Co. v. Procter & Gamble Co., 595 FSupp. 304, 308 (N.D. Ga. 1983), the court held “that neither the Due Process Clause nor traditional notions of fair play and substantial justice preclude the exercise of personal jurisdiction over a parent corporation if the parent’s control over the subsidiaries’ activities is so complete that, the subsidiary is, in fact, merely a division or department of the parent.” In the present case, there is no evidence indicating the Jones defendants exercised any control over Enviroquip or Escor. The existence of Porteous as an officer and director of various subsidiaries is the only fact presented of common personnel between the companies.

The unrebutted affidavits supporting the Jones defendants’ motion to dismiss establish that they did none of the acts set forth in the Long Arm Statute which would subject them to the personal jurisdiction in Georgia. Under these circumstances, we agree with the trial court’s well-written order, that the Jones defendants lacked the minimum contacts with Georgia that due process requires prior to the exercise of personal jurisdiction.

Case Nos. A95A0794, A95A0798, and A95A0802

Escor and Enviroquip cross appeal the trial court’s denial of their motion to dismiss the complaints brought against them by Cobb County, The Wickliffe Company, and Mayes, Sudderth & Etheredge.

The complaints alleged that Greenlees began representing a Texas company called Enviroquip, in the early 1980s. Enviroquip’s primary business was the design, manufacture, and sale of products and equipment used in water and wastewater treatment facilities. Bill Walton was the president of this Texas company. The complaints contain allegations that Greenlees and Walton worked closely together for many years conspiring to illegally manipulate the procurement process for equipment used in water and wastewater treatment plants. In 1987, Jones U. S. purchased the assets of the Texas company called Enviroquip, and continued its business under a company also named Enviroquip, but one that was incorporated in Delaware. According to the allegations contained in the complaints, after the purchase, Walton continued to work with the new Enviroquip in much the same capacity, at least, from the perspective of the company’s customers.

Escor’s primary business was to provide engineering services, including designing water and wastewater treatment facilities, particularly those implementing Enviroquip’s equipment. The complaints allege that Walton was a director, managerial officer or employee, agent shareholder and/or representative of Escor. However, Porteous averred that Escor was a Delaware corporation incorporated on October 1,1987, as a wholly-owned subsidiary of Jones U. S. Escor, which was dissolved in December 1991, never was a subsidiary of any entity called Enviroquip. Porteous further averred that, “upon information and belief, any dealings with Cobb County by an ‘Escor’ prior to October 1987 must have been by a Texas corporation called ‘Escor, Inc.,’ which was at some time an affiliate of Texas Enviroquip. Delaware Escor was not related to Texas Enviroquip ... or the Texas Escor.” Porteous’ affidavit did not address the capacity, if any, in which Walton worked for Escor.

2. Initially, Enviroquip and Escor contend the complaints brought against them failed to state a claim upon which relief could be granted. “When the sufficiency of the complaint is questioned by a motion to dismiss for failure to state a claim for which relief may be granted, the rules require that it be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed.” (Citations and punctuation omitted.) Time Ins. Co. v. Fulton-DeKalb Hosp. Auth., 211 Ga. App. 34, 35 (438 SE2d 149) (1993).

Enviroquip and Escor argue that in order to set forth a cause of action under the Georgia RICO statute, the complaint must contain allegations regarding the existence of an “enterprise.” The complaint contains allegations that the defendants violated OCGA § 16-14-4 (a), (b) and (c). OCGA § 16-14-4 (a) provides that “[i]t is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money.” In Dover v. State, 192 Ga. App. 429, 431 (385 SE2d 417) (1989), we determined that a violation of OCGA § 16-14-4 (a) “does not require that there be proof of an ‘enterprise,’ but only that the accused ‘through a pattern of racketeering activity or proceeds derived therefrom, . . . acquire or maintain, directly or indirectly, any . . . , real property or personal property of any nature, including money.’ ” See also Kenny and Smith, A Comprehensive Analysis of Georgia RICO, 9 Ga. St. U. L. Rev. 537, 544 (1993).

3. Enviroquip and Escor next argue that the complaint fails to allege any action taken by them, and that they cannot be held responsible for the actions of their employees and agents. Our review of the record convinces us that the trial court appropriately addressed these issues. In its order, it stated: “Although this is a civil suit, RICO predicate acts are criminal offenses. If the court is guided by OCGA § 16-2-22, ‘Criminal Responsibility of Corporations,’ a corporation may be criminally prosecuted as a party to a crime by certain acts of its agents in two situations: (1) where legislative intent clearly imposes criminal liability, (RICO does not contain in its definition any indication of a legislative purpose to impose criminal liability on a corporation) or (2) by certain acts of its directors or managerial officials, OCGA § 16-2-22 (a) (2). State v. Military &c. Inc., 257 Ga. 388, 389 [(360 SE2d 248)] (1987). If the plaintiff can show that Walton performed the predicate acts within the scope of his employment on behalf of the corporation, then defendants thereby engaged in at least two similar or interrelated ‘predicate’ acts as defined by the statute.”

4. Viewed in the light most favorable to the plaintiffs, the complaints adequately address proximate cause and damages.

5. Enviroquip and Escor contend the trial court erred in denying their motion for partial summary judgment, in which they asserted that they could not be held responsible for any racketeering activity prior to their incorporation in 1987. However, if, as alleged, Walton’s racketeering activity, completed prior to 1987, provided benefits to Enviroquip and Escor, then they engaged in prohibited activities as outlined in OCGA § 16-14-4 (a).

6. In their final enumeration of error, Enviroquip and Escor contend the trial court erred in accepting plaintiffs’ untimely response to their motion to dismiss. However, as our review of the denial of Enviroquip’s and Escor’s motions to dismiss was de novo, this enumeration of error is moot.

Case Nos. A95A0792, A95A0797 and A95A0800

Bill Walton cross appeals the trial court’s denial of his motions to dismiss the complaints brought against him by Cobb County, The Wickliffe Company, and Mayes, Sudderth & Etheredge.

7. Initially, Walton contends the complaints brought against him failed to state a claim upon which relief could be granted.

The complaint alleges that Walton, a resident of Texas, was an officer, agent, shareholder, and representative of defendants Escor and Enviroquip; that he acquired or maintained an interest in or control of real and personal property, including money, through the pattern of racketeering activity described in the complaint; and that he conspired with defendant Greenlees and others to acquire or maintain an interest in or control of real and personal property, including money, through the pattern of racketeering activity described in the complaint. The complaint continues to allege that Walton was aware of and participated in acts of bribery and shared in the profits obtained by those acts. Porteous averred that Walton was not an officer or director of Enviroquip, but merely solicited sales and marketing opportunities after the August 1987 purchase.

“Under the state RICO Act, it is unlawful for anyone to acquire an interest in or control of money or property through a pattern of racketeering activity (OCGA § 16-14-4 (a)), and anyone who is injured by reason of any violation of OCGA § 16-14-4 shall have a cause of action for three times the actual damages sustained (OCGA § 16-14-6 (c)). To establish that defendant engaged in racketeering activity, a plaintiff must show that the defendant committed predicate offenses (set forth in OCGA § 16-14-3 (9)) at least twice.” Maddox v. Southern Engineering Co., 216 Ga. App. 6, 7 (453 SE2d 70) (1994). OCGA § 16-14-3 (9) (A) (xiii) defines “racketeering activity” as committing, attempting to commit, or to solicit, coerce, or intimidating another person to commit any crime which is chargeable by indictment under “Code Section 16-10-2, relating to bribery.” Furthermore, the RICO act is violated by any person who conspires to engage in a pattern of racketeering. OCGA § 16-14-4 (c).

Construed in the light most favorable to the plaintiffs, we agree with the trial court that the complaints set forth a claim against defendant Walton upon which relief could be granted.

8. Walton contends the trial court erred in denying his motion to dismiss based on the expiration of the statute of limitation. In Blalock v. Anneewakee, Inc., 206 Ga. App. 676, 678 (426 SE2d 165) (1992), we held that the five-year statute of limitation for RICO actions contained in OCGA § 16-14-8 began “to run when the civil RICO cause of action accrues, which we interpreted] to mean when the plaintiff discovers, or reasonably should have discovered, that he has been injured and that his injury is part of a pattern.”

The trial court determined the complaint involved fraud and excuses for delay in discovering the fraud and, therefore, the question of whether the plaintiffs should have discovered that their injuries were part of a pattern was a mixed question of law and fact which is properly resolved by a jury. See Ga. Power Co. v. Womble, 150 Ga. App. 28 (256 SE2d 640) (1979). We cannot agree that the complaint contains specific allegations of fraud relating to the RICO action.

OCGA § 9-11-9 (b) requires that “all averments of fraud or mistake, the circumstance constituting fraud or mistake shall be stated with particularity.” OCGA § 51-6-2 (a) provides that “willful misrepresentation of a material fact, made to induce another to act, upon which such person acts to his injury, will give him a right of action.” The complaints refer to the use of influence by those persons accepting the bribes, it does not contain specific allegations of misrepresentations of material fact against Walton. The complaints’ specific allegations of bribery do not constitute specific allegations of fraud. Compare OCGA § 51-6-2 with OCGA § 16-10-2; cf. Avery v. Chrysler Motors Corp., 214 Ga. App. 602 (448 SE2d 737) (1994) (Theft by deception and civil fraud have different elements and are not necessarily proved by the same evidence.).

Walton contends that the complaints set forth sufficient allegations which show that Cobb County, The Wickliffe Company, and Mayes, Sudderth & Etheredge discovered, or reasonably should have discovered, that they were injured and that their injuries were part of a pattern, more than five years prior to the filing of the complaint. However, viewing the complaints in favor of the plaintiffs, we find that Walton has failed to establish his defense of the expiration of the statute of limitation. The fact that criminal indictments were filed against certain parties in 1990 might show the plaintiffs’ knowledge; however, the complaints herein were filed within five years of the indictments. See Riverbay Corp. v. Steiner, 544 NYS2d 914 (Sup. 1989) (No factual basis for bribery scheme emerged until prosecutors filed criminal complaints.). Nothing in the complaints establishes that the plaintiffs knew or should have known that they were injured and that their injuries were the result of a pattern of activities directed against them.

9. In Walton’s last enumeration of error, he contends the trial court lacked personal jurisdiction over him and, therefore, should have granted his motion to dismiss. This enumeration is without merit. The allegations of the complaints sufficiently set forth that Walton either committed tortious acts within Georgia or that he committed acts outside of Georgia which caused tortious injury in Georgia. See OCGA § 9-10-91 (2), (3). The trial court correctly denied Walton’s motion to dismiss on this ground.

Case Nos. A95A0793, A95A0796 and A95A0801

Jack U. Greenlees, individually and d/b/a The Jack U. Greenlees Company & Waste Limited, Inc., The Greenlees Company; Lif-Safe, Inc.; Lorette T. Greenlees; and The Jack U. Greenlees Trust (referred to collectively as the Greenlees defendants) cross appeal the trial court’s denial of their motions to dismiss and motion to transfer the complaints brought against them by Cobb County, The Wickliffe Company, and Mayes, Sudderth & Etheredge.

10. The Greenlees defendants contend the trial court erred in denying their motion to dismiss based on the expiration of the statute of limitation. This enumeration is without merit. See Division 8 above.

11. The Greenlees defendants assert the trial court erred in denying their motion to dismiss because the complaint did not contain allegations that any injury was caused “by reason of’ violations of the RICO statute.

“[A]ll such motions to dismiss for failure to state a claim should be granted only where a complaint ‘shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claim.’ [Cit.]” State of Ga. v. Shearson Lehman Bros., 188 Ga. App. 120, 121 (372 SE2d 276) (1988). The complaint contains allegations regarding the Greenlees defendants’ bribery of Cobb County officials in order to illegally manipulate the bidding and procurement processes relating to Cobb County and its water and wastewater departments. Specifically, the complaint contains the allegation that “[b]y virtue of the preferential treatment which he received as a result of the bribes, including being enabled to package his equipment, Greenlees received grossly excessive profits from Cobb County or from contractors for Cobb County, all to the injury and detriment of Cobb County.”

Construed in the light most favorable to the plaintiffs, we agree with the trial court that the complaints set forth a claim against the Greenlees defendants upon which relief could be granted.

12. In their last enumeration of error, the Greenlees defendants allege that the trial court erred in failing to grant Jack U. Greenlees’ motion to transfer based upon improper venue. The complaint alleged that Jack U. Greenlees was a resident of Cobb County. Greenlees denied this allegation, and averred that he had resided and maintained his domicile in Bartow County for the past 29 years. In response, the plaintiffs introduced a certified copy of an answer filed by Greenlees, in an unrelated civil action, in which he admitted he was a resident of Cobb County. Greenlees’ attorney averred that this admission was made for strategy purposes because the attorney felt Cobb County was a favorable county for Greenlees’ counterclaim. Although the trial court recognized a conflict in the facts, it determined that Green-lees’ sworn statements supported a finding that venue was proper in Cobb County.

We find that the trial court’s findings were not clearly erroneous. See Alexander v. DeKalb County, 264 Ga. 362, 365 (444 SE2d 743) (1994).

Judgment affirmed.

Birdsong, P. J., Pope, P. J., Andrews, Johnson and Smith, JJ., concur. Beasley, C. J., McMurray, P. J., and Ruffin, J., concur specially in part and dissent in part.

McMurray, Presiding Judge,

concurring specially in part and dissenting in part.

I respectfully dissent as to Division 1 of the majority opinion affirming dismissal of The Jones Group, P.L.C., the Jones U. S. Holdings, Inc. and Jones Environmental, Inc. (“the Jones defendants”) based on lack of personal jurisdiction as it is my view that there is such an alliance of control, identity and purpose between the Jones defendants and Enviroquip, Inc. and Escor, Inc. that the actions of the latter are attributable to the former for purposes of satisfying requirements under Georgia’s Long Arm Statute as well as “minimum contacts” requirements of the Due Process Clause of the Fourteenth Amendment. With respect to Division 12 of the majority opinion, I am compelled to concur specially as I agree that Cobb County is the appropriate venue for Jack U. Greenlees as an alleged joint tortfeasor, but I do not agree with the majority’s holding that Greenlees waived venue simply by admitting that Cobb County was an appropriate venue for resolving an unrelated divorce action.

1. The evidentiary material relied on by the Jones defendants in support of their motion to dismiss and admissions by the attorney representing the Jones defendants during the hearing on this motion to dismiss reveal that a corporation from the Republic of Ireland known as The Jones Group, P.L.C. sent one of its directors, Jim Porteous, a native of Ireland, to the United States in 1985 for the purpose of developing business in the area of environmental engineering. To this end, Porteous incorporated Jones U. S. Holdings, Inc. as a subsidiary of his Irish principal and then incorporated Jones Environmental, Inc. as a subsidiary to Jones U. S. Holdings, Inc. Porteous set himself up as president and director of both corporations.

In 1987, Porteous formed Enviroquip, Inc. as a second subsidiary of Jones U. S. Holdings, Inc. for the purpose of developing business in the area of environmental engineering. Of course, Porteous was a director of Enviroquip, Inc. and he became president of this subsidiary in 1988. Porteous capitalized Enviroquip, Inc. via acquiring all of the assets of a Texas limited partnership known as Enviroquip, Ltd. These assets included the illegally gained contracts which are subjects of the RICO violations involving defendant Greenlees and allegedly involving defendant Walton.

Porteous then formed Escor, Inc. as a third subsidiary of Jones U. S. Holdings, Inc. This subsidiary was also formed for the purpose of developing environmental engineering in the United States. Porteous was named as a director of Escor, Inc. and defendant Walton, formerly president of Escor, Inc.’s predecessor corporation (also known as Escor, Inc. and involved in the alleged RICO violations), remained as a sales consultant for Jones U. S. Holdings, Inc.’s newest subsidiary.

In 1992, Jones U. S. Holdings, Inc. transferred all of the stock of its first subsidiary, Jones Environmental, Inc., to its second subsidiary, Enviroquip, Inc., and then sold Enviroquip, Inc. to “a buy-out group” which included Porteous. Thereafter, the actions which form the basis of the cases sub judice were filed and Jim Porteous submitted his affidavit and deposed (in pertinent part) as follows: “Cobb County . . . alleges that ‘profits which Enviroquip and Escor derived from their participation in the RICO scheme with Greenlees were channeled up to the Jones Defendants. The Jones Defendants would be hard pressed to deny that allegation, by affidavit or otherwise.’ In fact, no profits, dividends or revenues were ever paid by Delaware Enviroquip to any of the Jones Defendants, for the simple reason that Delaware Enviroquip was never, from its formation in July of 1987 until it was sold at the end of 1992, profitable enough to pay a dividend. Thus contrary to plaintiff’s allegations, none of the Jones Defendants realized ‘great financial gains at the expense of Cobb County.’ ”

“In 1925 the United States Supreme Court held that a corporation in one state did not subject itself to personal jurisdiction in another state simply because it conducted business in that state through a subsidiary corporation. Cannon Manufacturing Co. v. Cudahy Packing Co., 267 U. S. 333, 45 S. Ct. 250, 69 L. Ed. 634 (1925). However, the holding of this case was substantially refined in International Shoe Co. v. Washington, 326 U. S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), and more recently the [United States Supreme] Court recognized that ‘(t)he limits imposed on state jurisdiction by the Due Process Clause, in its role as guarantor against inconvenient litigation has been substantially relaxed over the years.’ World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 292, 100 S. Ct. 559, 563, 62 L.Ed.2d 490 (1980). See also Hanson v. Denckla, 357 U. S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1952). [Considering this trend, Judge Vining of the United States District Court in the Northern District of Georgia concluded] that the harsh strictures of Cannon Manufacturing are no longer applicable [and that] neither the Due Process Clause nor traditional notions of fair play and substantial justice preclude the exercise of personal jurisdiction [under Georgia’s Long Arm Statute] over a parent corporation if the parent’s control over the subsidiaries’ activities is so complete that the subsidiary is, in fact, merely a division or department of the parent. See Katz Agency, Inc. v. Evening News Association, 514 F.Supp. 423 (S.D.N.Y. 1981).” Coca-Cola Co. v. Procter & Gamble Co., 595 FSupp. 304, 307-308 (N.D. Ga. 1983).

The majority holds that the Jones defendants “did none of the acts set forth in the Long Arm statute which would subject them to . . . personal jurisdiction in Georgia” and relies on averments that “no profits, dividends or revenues were ever paid by Enviroquip to any of the Jones defendants”; that Jones Environmental “never had any role or involvement in any project for or related to Cobb County, Georgia” and that “Jones Environmental has never been a successor to or owner of any entity called Enviroquip, Inc. or Escor, Inc.” The problem with this analysis is that it fails to account for the fact that Porteous did not depose that the Jones defendants did not benefit at all via ownership of its subsidiary corporations. Porteous merely deposes that “none of the Jones Defendants realized ‘great financial gains at the expense of Cobb County.’ ” Moreover, I cannot accept any conclusion that a parent corporation does not benefit via ownership of a capitalized subsidiary. At the very least, the value of a parent corporation is increased to the extent of the value of its wholly-owned subsidiary corporations. Further, while quoting from Coca-Cola Co. v. Procter & Gamble Co., supra, the majority misses the mark of Judge Vining’s decision by failing to consider the relationship between the Jones defendants and the remaining subsidiary or affiliate corporate defendants. In fact, the majority completely discounts proof regarding the Jones defendants’ complete control over Enviroquip, Inc. and Escor, Inc. via the mutual agent of the defendant corporations, Jim Porteous.

There is no question but that Jim Porteous was seeking to develop business in the area of environmental engineering on behalf of his corporate principals, i.e., the Jones defendants, Enviroquip, Inc. and Escor, Inc. It is my view, that such singularity of purpose would authorize a finding that Porteous exercised complete control over Enviroquip, Inc. and Escor, Inc. on behalf of The Jones Group, P.L.C. and its corporate subsidiaries (Jones U. S. Holdings, Inc. and Jones Environmental, Inc.) so as to impute the acts of Enviroquip, Inc. and Escor, Inc. to the Jones defendants for purposes of establishing jurisdiction under Georgia’s Long Arm Statute, OCGA § 9-10-91 (1), (2) and (3), and satisfying notions of fair play and substantial justice under the Due Process Clause of the Fourteenth Amendment. See Coca-Cola Co. v. Procter & Gamble Co., supra at 308. In other words, I agree with this Court’s holding that “[t]o permit a foreign [corporation] to insulate itself from foreseeable liability by setting up a separate but wholly-owned subsidiary for conducting its business in the United States would deny the notion of fair play to [citizens] of this state.” Showa Denko K.K. v. Pangle, 202 Ga. App. 245, 248 (2) (414 SE2d 658).

Decided June 26, 1995

Reconsideration denied July 26, 1995

Cofer, Beauchamp & Butler, Larry K. Butler, Bryant K. Smith, John L. Lindsay, for Cobb County, The Wickliffe Company & Mayes, Sudderth & Etheredge, Inc.

Alston & Bird, Robert D. McCallum, Jr., David M. Maxwell, H. Suzanne Smith, Hughes, Hubbard & Reed, John M. Townsend, Mark H. Duesenberg, for The Jones Group & Enviroquip, Inc.

Adele Grubbs, for Walton.,

Boyce, Ekonomou & Atkinson, Andrew J. Ekonomou, William M. Coolidge III, Custer & Hill, Lawrence B. Custer, for Greenlee.

2. With respect to Division 12 of the majority opinion, I am compelled to concur specially as I agree that Cobb County is an appropriate venue for Jack U. Greenlees in light of allegations indicating that Greenlees is a joint tortfeasor with at least one other defendant over which venue is proper in Cobb County. See Ray v. Atkins, 205 Ga. App. 85, 90 (4) (421 SE2d 317). However, I do not agree with the majority’s holding that Greenlees waived venue simply by admitting that Cobb County was an appropriate venue for resolving an unrelated divorce action. The majority cites no authority for this holding and I do not think it prudent to engage such a rule when it is unnecessary to do so.

I am authorized to state that Chief Judge Beasley and Judge Ruffin join in this opinion.

       OCGA § 9-10-91 provides in part: “A court of this state may exercise personal jurisdiction over any nonresident or his executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner as if he were a resident of the state, if in person or through an agent, he: (1) Transacts any business within this state; (2) Commits a tortious act or omission within this state, except as to a cause of action for defamation of character arising from the act; (3) Commits a tortious injury in this state caused by an act or omission outside this state if the tort-feasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state.”

       This court recognizes that personal jurisdiction can be freely waived by a defendant without the necessity of requiring a party to verify false factual allegations.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A95A0805.
    OWENS v. BARCLAYSAMERICAN/MORTGAGE CORPORATION.
    (460 SE2d 835)
   Ruffin, Judge.

Gordon Owens sued BarclaysAmerican/Mortgage Corporation (“Barclays”) alleging Barclays wrongfully dispossessed him from the condominium he was renting. Barclays filed a motion for summary judgment asserting that if Owens was wrongfully dispossessed of the condominium, it was by Barclays’ independent contractor, Capital Securing Company, Inc. (“Capital”). Owens appeals from the grant of Barclays’ motion and the denial of his motion for partial summary judgment.

The record shows that after foreclosing on the condominium, Barclays hired Capital “to inspect [the] property on 5/8/92 and advise our office of the occupancy status within 24 hours of the inspection.” In a report dated May 11, 1992, Capital reported to Barclays that the property was vacant. On May 12, 1992, Barclays sent Capital a work order requesting that Capital “secure the property for final conveyance” in accordance with the Department of Housing and Urban Development’s instructions for the State of Georgia, with the further instruction that “if the property is occupied, advise our office immediately.” On May 14, 1992, three individuals retained by Capital arrived at the condominium and found it open with no furniture inside. They reported to Capital that the condominium did not appear occupied and that a neighbor of Owens’ who was in the condominium removing the curtains told them Owens had moved and given her the curtains. The individuals disposed of dirty clothes which were strewn about the floor and removed and stored “everything which appeared to be salvageable.” At some point thereafter, Capital reported to Bar-clays that the property was abandoned and the premises had been cleaned and secured.

When Owens returned to the condominium later that day, he discovered the locks were changed. In his deposition, Owens testified that he then contacted Barclays and Capital to find out what happened and informed them “it was a mistake” and that “it was wrong . . . what they did to me.” He further testified that he was still living in the condominium and that he had paid the current month’s rent. Although the items in storage were returned to Owens, he contends much of his property is still missing and that many of the returned items have been damaged.

1. Owens contends the trial court erred in concluding that Bar-clays was not liable to him because Capital was an independent contractor of Barclays.

“Generally, an employer is not responsible under the theory of respondeat superior for the torts of one employed as an independent contractor. [Cit.] An employer-employee relationship exists when the employment agreement gives, or the employer assumes, the right to control the time and manner of executing the work. In an employer-independent contractor relationship, the employer has the right merely to require results in conformity with the employment agreement, and the independent contractor retains the right to perform the work by his own means, method and manner. [Cit.]” McDaniel v. Peterborough Cablevision, 206 Ga. App. 437, 438 (425 SE2d 424) (1992).

In this case, the record shows that Capital was an independent contractor and not an employee of Barclays’. In support of its motion for summary judgment, Barclays submitted the affidavit of its foreclosure supervisor who averred that Barclays occasionally hired Capital as an independent contractor to secure properties following foreclosure, that it had no control over the method or manner in which Capital inspected, cleaned and secured the property in this case, and it did not direct or participate in these activities.

After Barclays denied the existence of an employer-employee relationship, Owens could not rest on his pleadings but was required to set forth specific facts revealing a genuine issue for trial. See id. at 439. Not only did Owens fail to set forth such facts, but the record shows he admitted that he knew of no evidence that would show Bar-clays controlled the time, manner and method of executing the work in which his personal property was removed from the condominium. Accordingly, the trial court correctly ruled as a matter of law that the relationship between Barclays and Capital was that of an employer/ independent contractor.

2. There are, however, exceptions to the general rule that an employer is not responsible under the theory of respondeat superior for the torts of one employed as an independent contractor. One such exception relied on by Owens provides for liability of the employer if the wrongful act of a contractor is the violation of a duty imposed by statute. See OCGA § 51-2-5 (4). In this case, Owens contends that Barclays was under a statutory duty to dispossess him in accordance with OCGA § 44-7-50.

Under OCGA § 44-7-50 (which was revised effective July 1, 1995), an owner taking possession of the premises from his tenant is required to follow certain procedures. Specifically, the owner must “by himself, his agent, his attorney in fact, or his attorney at law, demand the possession of the property. ...” If, after demand, the tenant refuses to deliver possession and the owner still desires to dispossess him, the owner must by himself, “his agent, his attorney at law, or his attorney in fact. . .” make and file an affidavit for possession. OCGA § 44-7-50. If the owner “forcibly [dispossesses] a tenant” without following these procedures, the owner is subject to an action for trespass. Swift Loan &c. v. Duncan, 195 Ga. App. 556, 557 (1) (394 SE2d 356) (1990). And, while OCGA § 44-7-50 allows an owner to accomplish these statutory duties through his agent or attorney, we find nothing in the statute that would allow an owner to avoid liability for a wrongful eviction by delegating these duties to an independent contractor. Hence, if a jury found that Owens was forcibly dispossessed of the condominium in violation of the statute, Barclays would be chargeable with that wrongful dispossession since it was the violation of a duty imposed by statute. See Royal Frozen Foods Co. v. Garrett, 119 Ga. App. 424 (1) (167 SE2d 400) (1969). Accordingly, the trial court erred in granting summary judgment to Barclays.

3. Since a factual issue remains as to whether Owens abandoned the condominium or was forcibly dispossessed, the trial court did not err in denying his motion for partial summary judgment. See generally Bennett v. Shipman, 153 Ga. App. 876 (267 SE2d 271) (1980).

Judgment affirmed in part and reversed in part.

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

Decided July 13, 1995

Reconsideration denied July 26, 1995

James Brantley, for appellant.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Linda S. Finley, McLain & Merritt, William S. Sutton, for appellee.


text:
    A95A0811.
    GIBSON v. LINDALE MANUFACTURING COMPANY.
    (460 SE2d 543)
   Ruffin, Judge.

We granted Janie Gibson’s application for discretionary appeal to determine whether the superior court erred in reversing an award of the appellate division of the workers’ compensation board (“the board”). The court based its ruling on the ground that the board exceeded its authority in revising its initial award on motion for reconsideration based on additional findings of fact. The court held that under OCGA § 34-9-103 (b) the board’s authority is limited to revising, amending or reconsidering to correct “facially apparent errors or omissions.”

The record shows that the ALJ denied Gibson’s claim for benefits, finding that her proof was circumstantial and established nothing more than a possible connection between her injury and her work-related duties. The appellate division affirmed the award. Gibson then moved the board to reconsider its award pursuant to OCGA § 34-9-103 (b), arguing that the award was based on apparent error and omission given the fact that there was medical evidence in the record which Gibson contended supported her claim. Relying on Asplundh Tree Expert Co. v. Gibson, 204 Ga. App. 853 (420 SE2d 797) (1992), the board agreed and granted the motion for reconsideration. Based “upon de novo consideration of all evidence,” the board then substituted new findings of fact and conclusions of law for the ALJ’s findings and conclusions and held that the combination of the medical reports in the record and Gibson’s testimony provided a preponderance of evidence that her disability was work-related and that her employer offered no credible evidence to the contrary. The board vacated its original award and issued another award which granted Gibson’s claim for benefits. Lindale Manufacturing Company (“Lin-dale”), Gibson’s employer, then appealed to the superior court.

The question to be answered in this case is whether under Asplundh, supra, the board’s reconsideration was authorized. In As plundh, this court interpreted OCGA § 34-9-103 (b) to authorize reconsideration of an award to correct any purported error whether factual or legal as long as the error appears on the face of the existing record. Asplundh, supra at 854. The board, however, cannot “ignore the res judicata effect of its prior award, so as to readdress and redetermine the issue of compensability based upon a new hearing and consideration of new evidence.” Id. Lindale argues that the entry of the additional findings of fact on reconsideration represented an unlawful de novo review of the compensability issue. It appears, however, that the board did not conduct a new hearing but confined its reconsideration to the existing record and certain facts it erroneously omitted in its initial consideration of Gibson’s claim. The board then issued a revised award “which purports to comply, legally and factually, with the previously considered record. [Cit.]” Id. Such exercise of authority is consistent with OCGA § 34-9-103 (b) as interpreted in Asplundh. Accordingly, the superior court erred in reversing the award of benefits granted to Gibson and reinstating the board’s initial award. The case shall be remanded to the superior court for review of the board’s award on the merits.

Decided July 10, 1995

Reconsideration denied July 26, 1995

Mundy & Gammage, E. Lamar Gammage, Jr., for appellant.

Shaw, Maddox, Graham, Monk & Boling, Jo H. Stegall III, for appellee.

Judgment reversed and remanded.

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


author:
McMurray, Presiding Judge.
      Andrews, Judge,

text:
    A95A0827.
    JACKSON v. CAMILLA TRADING POST, INC.
    (460 SE2d 849)
   McMurray, Presiding Judge.

Mary Ann Jackson filed an action against Camilla Trading Post, Inc. (defendant) for injuries she allegedly sustained when she slipped and fell while shopping at defendant’s retail appliance store. Specifically, Jackson alleged that she “fell on a concrete floor because a foreign substance was located thereon which caused the floor to be slick and slippery [and that defendant] breached its duty to keep and maintain its premises in a safe condition. . . .” Defendant denied the material allegations of the complaint and filed a motion for summary judgment along with the supporting affidavit of Treavor Pollock, the salesperson who was assisting Jackson when she fell. Defendant also filed the affidavit of Hilda Cason, a patron who came to Jackson’s aid after the fall. Mary Ann Jackson responded by filing her own affidavit and the affidavit of another eyewitness, Sammy Lee Gilbert.

Jackson deposed that Sammy Lee Gilbert drove her to defendant’s store on November 2,1992, and waited in the car while she went inside to shop for a refrigerator. Defendant’s salesperson, Treavor Pollock, greeted Jackson when she entered the store and showed her a new refrigerator. After calculating the cost, however, Jackson determined that she could not afford the new appliance so she asked about purchasing a used model. Pollock responded by guiding Jackson from the carpeted showroom through “a door marked ‘personnel only’ [and] across a concrete floor into a carpeted showroom [where a used refrigerator was located].” Jackson examined the appliance and found it acceptable. A bargain was reached, and Pollock directed Jackson back to the main showroom to complete the deal. Plaintiff turned and headed back across the concrete floor. Pollock followed, but before Jackson took “no more than three steps from the refrigerator,” she slipped on the concrete floor and fell. Pollock tried to catch his customer, but her bulk was too much for him to handle. Jackson hit the concrete slab and “sustained a severe fracture of her thigh which necessitated surgery and the installation of steel pins.”

Sammy Lee Gilbert remained in the car until he noticed an ambulance arrive at defendant’s store. He went inside to investigate and discovered “Ms. Jackson on the floor in the back section of the store.” Gilbert deposed that “[w]hen [he] went to Ms. Jackson, [he] observed on the concrete floor a slick, oily substance where Ms. Jackson had fallenf; that the] substance on the floor appeared to be oil and [that] it was located directly underneath and around Ms. Jackson.” Gilbert further deposed that “[immediately after Ms. Jackson was removed from the floor by ambulance attendants, [he] observed one of the employees of the Defendant move a chain saw from the immediate area where Ms. Jackson fell [and that he] concluded that the oily substance on the floor where Ms. Jackson fell probably leaked from the chainsaw.” Gilbert deposed that “[t]he oily substance [he] observed . . . was visible to [him], and should have been visible to any employee of Defendant who was in the immediate area at the time Ms. Jackson fell.” Treavor Pollock and Hilda Cason disputed Gilbert’s observations, deposing (in identical fashion) that they examined “the floor [immediately after the fall] and there were no liquids, oils, or anything on the floor that would cause [Jackson] to fall.”

Mary Ann Jackson deposed that she later discovered “an oily substance on her skirt and slip . . .,” and Gilbert corroborated this observation, deposing that “[a]fter Ms. Jackson was taken to the hospital, [I] observed the same oily substance on Ms. Jackson’s skirt and slip.”

The trial court granted defendant’s motion for summary judgment, finding (in pertinent part) as follows: “In this case, the Plaintiff and the Defendant’s employee were walking closely together when the Plaintiff fell. The Plaintiff did not know that a substance was present on the floor before the fall, nor did the employee, walking only a split second in front of the Plaintiff, realize that a substance was on the floor. There is no evidence in the record of the length of time the substance was on the floor, nor is there any evidence that an employee was in the vicinity before the fall other than the one escorting the Plaintiff. This Court finds no indication that if a foreign substance existed Defendant’s employee had any more opportunity to observe and avoid the substance than did Plaintiff. Consequently, this Court will not impute constructive knowledge of the substance to the Defendant under these circumstances.” This appeal followed. Held:

“An owner/occupier of premises has a duty to keep those premises safe for its invitees. OCGA § 51-3-1; Thompson v. Regency Mall Assoc., 209 Ga. App. 1 (432 SE2d 230) (1993). ‘An invitee enters upon the premises under an implied representation, or assurance, that the land has been prepared and made ready and safe for his reception. The invitee is entitled to expect the possessor will exercise reasonable care to make the land safe for his entry. (Cit.) It is this implied representation that is made to the public, by holding the land open to them, that it has been prepared for their reception, that it is safe, that is the basis for the possessor’s liability. (Cit.)’ Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 294 (322 SE2d 737) (1984).

“In order to recover for a slip and fall due to a foreign substance on the floor, the plaintiff must show that the defendant had actual or constructive knowledge of the hazard, and that the plaintiff was without equal knowledge of such. Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980). ‘Liability for injuries resulting from an invitee’s slip and fall on a proprietor’s premises is determined by the relative knowledge possessed by the proprietor and the invitee of the condition or hazard which resulted in the injury. The basis of the proprietor’s liability is his superior knowledge. . . .’ Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (422 SE2d 305) (1992).” Burke v. Bi-Lo, 212 Ga. App. 115, 116 (441 SE2d 429). And in weighing the parties’ relative knowledge of any such hazard on summary judgment, “ ‘the party opposing the motion ... is entitled to all favorable inferences and the benefit of every doubt, and the evidence is construed most strongly in (her) favor. (Cit.)’ Dixieland Truck Brokers v. Intl. Indem. Co., 210 Ga. App. 160, 163 (2) (435 SE2d 520) (1993). [Moreover,] ‘[a]t summary judgment [the] party who will not bear the burden of proof at trial . . . must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case.’ Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).” Salmon v. Pearson & Assoc., 214 Ga. App. 11 (446 SE2d 762).

Although defendant in the case sub judice presented proof refuting actual knowledge or even the existence of an oil slick in the area where Jackson fell, Gilbert deposed that Jackson was lying in a slick of oil immediately after the fall and that defendant’s employee removed a chain saw from this area as soon as Jackson was removed from the scene. These unexplained differences in proof along with a statement in Pollock’s affidavit that he guided Jackson into an area of defendant’s store reserved for store “ ‘personnel only’ ” not only raise genuine issues of material fact as to the existence of a hazard which triggered Jackson’s fall, but also as to defendant’s constructive knowledge of the oil slick (as imputed by the activities of employees in the restricted area of defendant’s store or the employee who stored the chain saw in this restricted area) which allegedly flowed from the chain saw and precipitated plaintiff’s fall. Indeed, giving Jackson the benefit of all favorable inferences as non-moving party on summary judgment, the parties’ radically opposing proof would authorize a finding that defendant is attempting to cover up the existence of an oil spill which caused Jackson’s fall. And, for purposes of weighing the propriety of summary adjudication, the possibility of any such finding along with an absence of proof by defendant regarding inspection of the area allegedly affected by the oil slick before Jackson’s fall does not “negate the possibility that [defendant] did not exercise reasonable care in this case, even if the store had a general inspection routine. See Hilsman v. Kroger Co., 187 Ga. App. 570 (370 SE2d 755) (1988); Flood v. Camp Oil Co., 201 Ga. App. 451 (411 SE2d 348) (1991). Further, in the absence of any evidence that [defendant] conducted a reasonable inspection of the premises prior to the fall, [Jackson] was not required to establish how long the spill had remained on the floor. Jackson v. Wal-Mart Stores, 206 Ga. App. 165, 169 (424 SE2d 845) (1992).” Burke v. Bi-Lo, 212 Ga. App. 115, 117, supra.

Finally, we observe that the record reveals no evidence with respect to Jackson’s actual knowledge of the alleged hazard. In fact, Jackson’s affidavit refutes open visibility of any such hazard, and Pollock deposed that he never saw an oil slick in the affected area of his employer’s store. Further, there is no conclusive proof that Jackson even had equal opportunity to detect the alleged hazard. To this extent, it is undisputed that Pollock was walking directly in front of Jackson during their initial excursion over the concrete floor, and defendant presented no proof regarding the conditions of this allegedly affected area. Moreover, while Sammy Lee Gilbert deposed that “[t]he oily substance . . . was visible to [him],” a jury would be authorized in finding that the oil he observed was readily visible only because he was focused to the area where Jackson’s body was sprawled. “Thus, the facts of this case are distinguishable from those cases cited by the trial court in support of its [apparent] conclusion that [Jackson] is precluded from recovering because of her equal knowledge. See, e.g., Kersey v. C. S. R. A. &c. Auth., 195 Ga. App. 94 (392 SE2d 305) (1990) (in which plaintiff alleged no defect or foreign substance, but merely that defendant was negligent in sending her down a stairway while she was carrying a heavy load); Gyles, Inc. v. Turner, 184 Ga. App. 376 (361 SE2d 538) (1987) (in which plaintiff was aware of the discernible object which caused the hazard); Harris v. Star Svc. &c. Co., 170 Ga. App. 816 (318 SE2d 239) (1984) (in which plaintiff knew he was traversing ice and snow accumulated on the premises of defendant gas station). [And even assuming Jackson could have observed the existence of the oily substance Gilbert observed after the fall, a] jury could conclude that the alleged hazard from a leaking [chain saw] was greater than the general hazard perceived by [Jackson]. It could also conclude, then, that [Jackson’s] knowledge of the hazard was not equal to that the defendant had or, in the exercise of reasonable care, should have had. A finding that [Jackson] is precluded from recovering in a slip and fall case because of her own equal or superior knowledge of the hazard is, in essence, a finding that [her] own negligence preponderated in causing the injury. Cf. Alterman Foods v. Ligon, 246 Ga. 620, 623[, supra]. ‘The trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable.’ Ellington v. Tolar Constr. Co., 237 Ga. 235, 237 (II) (227 SE2d 336) (1976). In our opinion, the issue of [Jackson’s] knowledge of the hazard alleged in [the] case [sub judice] is not so plain and indisputable that it may be decided as a matter of law.” Flood v. Camp Oil Co., 201 Ga. App. 451, 452, supra. See also Van Dyke v. Emro Mktg. Co., 211 Ga. App. 744 (440 SE2d 469) (1993), where this Court reversed summary judgment even though there was evidence that plaintiff had prior knowledge of the hazard which allegedly caused his fall.

The trial court erred in granting defendant’s motion for summary judgment.

Judgment reversed.

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

Andrews, Judge,

dissenting.

The trial court correctly granted summary judgment in favor of defendant Camilla Trading Post because the record shows that the substance in which Jackson slipped was clearly visible on the floor of the defendant’s store and she should have seen it in the exercise of ordinary care.

In opposition to the defendant’s motion for summary judgment, Jackson produced her own affidavit and the affidavit of her friend, Gilbert, who drove her to the store.

In her affidavit, Jackson stated that, after she looked át a refrigerator and agreed to purchase it, she started toward the front of the store and within about three or four feet from the refrigerator slipped and fell when she stepped in a slick and slippery substance on the floor of the store. She stated that, at the time of her fall, she “did not pay any attention to or notice any particular substance located on the floor in Defendant’s store.” However, she stated that she later observed and smelled an oily substance on her skirt and slip after she fell. She stated that the salesman who had shown her the refrigerator “was in a position to observe whatever the defect was which caused the floor to be slick and slippery,” but that, at the time she fell, the salesman was directly behind her.

In his affidavit, Gilbert stated that when he saw Jackson on the floor of the store: “[He] observed on the concrete floor a slick, oily substance where Ms. Jackson had fallen. The substance on the floor appeared to be oil and it was located directly underneath and around Ms. Jackson.” He further stated that the oily substance was visible to him “and should have been visible to any employee of Defendant who was in the immediate area at the time Ms. Jackson fell.” He concluded that: “[I]t is apparent to undersigned that Ms. Jackson fell on the slick oily substance located on the floor where she fell which was observed by undersigned. The floor where the oily substance was observed by the undersigned was discolored by the presence of the oil.”

“[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). Even if we assume, as Jackson contends, that the defendant had constructive knowledge of the substance on the floor because an employee of the defendant was in the area and had the means and opportunity to have seen and removed the hazard (see Banks v. Colonial Stores, 117 Ga. App. 581, 584-585 (161 SE2d 366) (1968)), Jackson cannot recover under the second prong of the two-part Alterman Foods, supra, test.

Decided July 14, 1995

Reconsideration denied July 26, 1995

Geer & Rentz, Donald D. Rentz, Jack F. Varner, for appellant.

Moore, Clarke, Duvall & Rodgers, Luanne Clarke, for appellee.

Under the second prong of the Alterman Foods test, the defendant is entitled to summary judgment if the facts show that Jackson knew about the substance on the floor or in the exercise of ordinary care should have discovered it, unless the defendant somehow prevented her from discovering it. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991). “The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” Alterman Foods, supra at 623.

Jackson’s own affidavits in opposition to summary judgment establish that she slipped and fell in a large area of oily substance on the floor that was observed by Gilbert at the time of the fall, which was visible to others in the area, and which clearly discolored the concrete floor. There is nothing in the record showing that the defendant prevented Jackson from discovering the clearly visible hazard. Since the hazard was clearly visible, and Jackson should have seen it in the exercise of ordinary care, the defendant was entitled to summary judgment. Smith, supra; Alterman Foods, supra; Bruno’s, Inc. v. Pendley, 215 Ga. App. 108 (449 SE2d 637) (1994).

Even though the trial court granted summary judgment on another basis, a judgment right for any reason will be affirmed. Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74, 78 (441 SE2d 421) (1994).

I am authorized to state that Presiding Judge Birdsong and Judge Smith join in this dissent.

       The same proof would authorize a similar finding of deceit or mistake as to Gilbert’s perceptions. It simply depends on whom the factfinder believes. In any case, however, such factual disputes are for resolution at trial (by the trier of fact), not the trial court or an appellate court upon summary adjudication. Hester v. Baker, 180 Ga. App. 627, 629 (3), 630 (349 SE2d 834).

       Although the majority quotes from the trial court’s order finding that the store employee was walking immediately in front of Jackson when she slipped and fell, this finding is not supported by the record, which clearly shows that Jackson was walking in front of the employee when she slipped and fell.


author: Pope, Presiding Judge.

text:
    A95A0840.
    SHONEY’S, INC. v. HUDSON.
    (460 SE2d 809)
   Pope, Presiding Judge.

At dusk on Sunday, November 15, 1992, plaintiff Sue Hudson was injured when an unknown assailant attacked and robbed her in the parking lot of one of defendant Shoney’s, Inc.’s restaurants located in Savannah, Georgia. Plaintiff filed a complaint against defendant alleging that it negligently maintained its premises and failed to provide adequate security for the protection of its patrons. Defendant answered the complaint denying liability and thereafter moved for summary judgment contending that the assailant’s conduct was an unforeseeable criminal act for which it could not be held responsible. The case is before us on interlocutory appeal from the trial court’s denial of defendant’s motion. Construing the facts most favorably to plaintiff, we conclude that a jury issue remains as to any negligence on defendant’s part and as to whether defendant had reason to anticipate the criminal attack. Thus, we affirm the trial court’s judgment.

In support of its motion for summary judgment, defendant relied on testimony from two of its employees and the president of the restaurant next door to it. Defendant used this testimony in an attempt to demonstrate that the attack on plaintiff was not reasonably foreseeable because it was unaware of any prior substantially similar incidents on its property or any surrounding property. In opposition to this testimony, plaintiff relied on police printouts showing that between 1988 and 1992 fourteen other criminal offenses had been reported at defendant’s address and that numerous other criminal offenses had been reported in the surrounding area. Plaintiff also relied on various police reports, and several affidavits, including one from a security expert (George Fedak) and one from a former management employee of defendant (Jeffrey Schroder), in support of its contention that summary judgment was inappropriate in this case.

1. Defendant contends that the trial court erred in considering the above-mentioned police reports. We disagree. The record demonstrates that the police reports were attached as exhibits to the deposition of a police officer, who was the custodian of the reports. “There can be no real doubt that the [reports] were business records and that the officer laid a proper foundation for [their] admission. . . . Thereafter, the officer simply laid before the [trial court] the contents of the [reports]. The fact that he had no personal knowledge of the entries on the [reports], after an appropriate foundation was laid, does not affect the admissibility of the evidence though it may go to its weight.” (Citations omitted.) Reed v. Heffernan, 171 Ga. App. 83, 84 (1) (318 SE2d 700) (1984). Moreover, the trial court’s reliance on the content of four of the reports, all of which involved incidents occurring on defendant’s property, was not error because the information contained in those reports “was merely cumulative of other evidence to the same effect.” See Johnson v. State, 168 Ga. App. 271, 272 (1) (308 SE2d 681) (1983). Additionally, it appears that the trial court merely considered the remainder of the reports as reflective of an act, occurrence or event, in reaching its conclusion that an issue of fact existed regarding whether defendant knew that its restaurant was located in a “high crime” area. The reports were admissible for that purpose. Id. Consequently, we find no merit in the argument that the trial court erred in refusing to strike the reports from the record.

2. We also find no merit in defendant’s contention that the trial court erred in denying its motion for summary judgment. It is undisputed in this case that plaintiff was a business invitee of defendant at the time of her attack. “A proprietor’s duty to invitees is to exercise ordinary care in keeping the premises and approaches safe. The proprietor is not the insurer of the invitee’s safety, but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge. If the proprietor has reason to anticipate a criminal act, he or she then has a duty to exercise ordinary care to guard against injury from dangerous characters.” (Citations and punctuation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991); see Days Inns of America v. Matt, 265 Ga. 235, 236 (454 SE2d 507) (1995). “Exactly what constitutes ‘ordinary care’ varies with the circumstances and the magnitude of the danger to be guarded against. Since it is impossible to prescribe definite rules in advance for every combination of circumstances which may arise, the details of the standard must be filled in each particular case. But, to be negligent, the conduct must be unreasonable in light of the recognizable risk of harm.” (Citation and punctuation omitted.) Matt v. Days Inns of America, 212 Ga. App. 792, 794 (443 SE2d 290) (1994).

Evidence of substantially similar prior criminal acts may be used to demonstrate the existence of a recognizable risk of harm. As the trial court noted, defendant knew about at least four prior acts of violence at its restaurant. The record shows that in 1990, at approximately 2:00 a.m., an armed man robbed defendant’s manager in the parking lot of the restaurant. In 1991, a cashier was shot in the face during an armed robbery in which the gunman held the restaurant’s patrons at bay by brandishing his weapon. As a result of these two incidents, defendant hired security to work at the restaurant, seven days a week, during the evening hours. But, the use of security guards was discontinued when defendant installed video cameras near the cash register in its new restaurant, which was built immediately adjacent to the old restaurant. The record also demonstrates that in 1992, another cashier was attacked and robbed within a few feet of the restaurant’s front door. After this incident, defendant hired security for Friday and Saturday nights and to escort employees with bank deposits from the restaurant through the parking lot.

Defendant argues that the above incidents were not substantially similar to the attack and robbery of plaintiff and therefore that no recognizable risk of harm to plaintiff was foreseeable. We cannot agree. In determining whether a prior criminal act is substantially similar, we note that “substantially similar does not mean identical, and it is not a question whether a weapon was used, but whether the prior crimes should have put an ordinarily prudent person on notice that the [invitees] were facing increased risks. All that is required is that the prior incident be sufficient to attract the [proprietor’s] attention to the dangerous condition which resulted in the litigated incident.” (Citation and punctuation omitted.) Matt, 212 Ga. App. at 794.

Based on the above, it cannot be said that because none of the prior incidents was a robbery of a customer in the parking lot, said incidents were not substantially similar to the one involving plaintiff. Nor can it be said that the prior incidents are not substantially similar merely because plaintiff’s assailant used physical force rather than a weapon during the robbery. “To reach that result would require the conclusion that a [restaurant] somehow would safeguard its [customers] differently to protect them from robberies by force and violence than from armed robberies, or protect them differently from armed robbers with firearms than those with knives, or protect [customers] differently from assaults than from armed robberies.” Id. at 795. Additionally, under the rationale used in Matt, we reject any contention that the prior criminal acts in this case are not substantially similar as a matter of law because they were perpetrated against restaurant employees. To hold otherwise would require a conclusion that defendant would somehow protect its employees from robbery or attack differently than it would protect its customers. Consequently, we cannot conclude as a matter of law that the prior incidents on defendant’s premises were not substantially similar to the incident at issue here.

Additionally, we note that a showing of prior similar incidents on a proprietor’s premises is not always required to establish that a danger was reasonably foreseeable. “An absolute requirement of this nature would create the equivalent of a ‘one free bite rule’ for premises liability, even if the [proprietor] otherwise knew that the danger existed.” Wallace v. Boys Club of Albany, 211 Ga. App. 534, 536 n. 2 (439 SE2d 746) (1993). In the instant case there is other evidence of record that defendant had knowledge, that its customers were in danger of criminal attack at its restaurant. According to Schroder’s affidavit testimony, it was common knowledge that the restaurant in question was located in the highest crime area of any of the Shoney’s restaurants in Savannah. Schroder also testified that discussions involving upper level management took place before November 1992, during which defendant acknowledged that there was a potential for attacks on customers in the restaurant’s parking lot. This testimony clearly presents an issue of material fact regarding whether the criminal attack on plaintiff was reasonably foreseeable.

Decided July 10, 1995

Reconsideration denied July 26, 1995

Bouhan, Williams & Levy, Frank W. Seiler, Peter D. Muller, for appellant.

Jones, Boykin & Associates, Noble L. Boykin, Jr., for appellee.

In light of the above evidence, and construing all inferences therefrom in favor of plaintiff, we conclude that an issue of material fact remains regarding whether defendant was negligent in failing to provide adequate security for plaintiff’s protection. We find further support for this conclusion in the affidavit testimony of plaintiff’s expert, George Fedak. Specifically, Fedak testified that defendant should have provided uniformed security from dusk until closing time at the restaurant every day of the week. He also testified that in his opinion security guards should patrol the parking lot because it was located in a high crime area and was surrounded by areas of dark shadows. Although it is true that the grant of summary judgment cannot be supported by opinion evidence, “mere opinion evidence by the opposing party can be sufficient to preclude an award of summary judgment. Brygider v. Atkinson, 192 Ga. App. 424, 426 (385 SE2d 95) (1989).” Barlow v. Orkin Exterminating Co., 196 Ga. App. 822, 823 (397 SE2d 170) (1990).

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.

       Shoney’s store logs demonstrate that it was also aware of an armed robbery that occurred in June 1992 in the parking lot next door to its restaurant.


author: McMurray, Presiding Judge.

text:
    A95A1264.
    DOSTER v. THE STATE.
    (460 SE2d 818)
   McMurray, Presiding Judge.

Defendant Doster appeals his conviction of carrying a concealed weapon. The sole enumeration of error contends the trial court erred in denying defendant’s motion to suppress evidence. Held:

The notice of appeal requested that a transcript of the hearing on defendant’s motion to suppress be filed in this Court and that any transcript of the trial be omitted from the record on appeal. The record forwarded to this Court contains the trial transcript but does not contain a transcript of the motion to suppress hearing. Noting this discrepancy, we requested the trial court clerk to forward, to this Court, the transcript of the motion to suppress hearing. Some time thereafter, we received from defense counsel, a letter explaining that subsequent to the filing of the notice of appeal, he had been told by the court reporter that there was no transcript of the motion to suppress hearing and had requested that a transcript of the trial be filed in lieu thereof. There has apparently been no objection submitted concerning the absence of a court reporter’s transcript of the motion to suppress hearing nor any attempt to provide one of the alternative records permitted by statute such as a stipulated transcript. Additionally, defense counsel’s letter clearly indicates acquiescence with the record now before this Court.

Decided July 10, 1995

Reconsideration denied July 26, 1995.

John W. Donnelly, for appellant.

Kenneth W. Mauldin, Solicitor, Ethelyn N. Simpson, Assistant Solicitor, for appellee.

Appellate review of the sole enumeration of error submitted on this appeal requires an examination of the evidence submitted at the hearing on defendant’s motion to suppress. In the absence of a transcript of the motion to suppress hearing, this Court must assume that the evidence at that hearing supported the trial court’s denial of defendant’s motion to suppress evidence. It is the burden of the appellant to compile a complete record of what happened at the trial level, and when this is not done, there is nothing for review on appeal. Wright v. State, 215 Ga. App. 569 (2), 570 (452 SE2d 118); Ross v. State, 195 Ga. App. 624, 625 (2) (394 SE2d 418); Reedman v. State, 193 Ga. App. 688, 689 (2) (388 SE2d 763); Mindock v. State, 187 Ga. App. 508 (1) (370 SE2d 670).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Blackburn, Judge.

text:
    A95A1423.
    A95A1528.
    GWINNETT COUNTY BOARD OF TAX ASSESSORS v. MAKITA CORPORATION OF AMERICA. GWINNETT COUNTY BOARD OF TAX ASSESSORS v. MAKITA U.S.A., INC.
    (460 SE2d 538)
   Blackburn, Judge.

These two appeals are from the trial court’s grant of summary judgment in favor of Makita U.S.A., Inc., and its subsidiary, Makita Corporation of America (hereinafter collectively referred to as Makita) in their respective actions for exemption from ad valorem taxation. Both appeals have been consolidated because of the identical issues involved therein.

On April 1, 1993, a tax specialist employed by the parent corporation deposited in the corporation’s mailbox two separate applications for freeport exemptions under OCGA §§ 48-5-48.1 and 48-5-48.2 for Makita’s personal property located in Gwinnett County. The envelopes containing the applications were addressed to the appellant, Gwinnett County Board of Tax Assessors (Gwinnett BTA), and exhibited private postage meter stamps of April 1, 1993. The applications were not received by Gwinnett County BTA personnel until April 6, 1993, five days after the April 1 deadline provided on the request form and allowed by Gwinnett BTA. Both the Gwinnett BTA and the Gwinnett Board of Equalization denied the exemption because the applications were not timely received, but the superior court allowed the exemption.

Under OCGA § 48-5-48.1, any person, firm, or corporation seeking an exemption must file a written application with the tax commissioner in the year in which the exemption is sought but no later than the date on which the commissioner closes the books for the return of taxes. The failure to properly file the application waives the exemption. OCGA § 48-5-48.1 (c). Although neither the statute nor the chapter of the Code concerning ad valorem taxation defines the term “filed,” it has long been recognized under Georgia law that a document is considered filed when it is delivered to and received by the proper official to be kept on file. Valentine v. Hammill, 258 Ga. 582 (372 SE2d 435) (1988). Since the statute provides for an exemption from taxation, it must be strictly construed. Brandywine Townhouses v. Joint City-County Bd. of Tax Assessors, 231 Ga. 585 (203 SE2d 222) (1974).

It is undisputed that the Gwinnett County commissioner closes the books for the return of taxes on the first day of April of each year. It is likewise undisputed that the tax specialist employed by the parent corporation deposited the envelopes containing the exemption applications in Business Assets Reporting Forms 101 in the corporation’s mailbox on April 1, 1993. The cover of both Business Reporting Forms specifically conspicuously delineates — in capitalized white lettering on a black background — that the forms should be filed on or before April 1, 1993. The back of the front cover of the forms further states that the form must be completed and returned by April 1, 1993, that no extensions of time are granted for returning the application, and that the applicant should use certified mail as proof that the application was returned by the due date. In addition, the top of the application for the freeport exemption specifically provides in bold print: “THIS FORM MUST BE RETURNED TO THIS OFFICE BY APRIL 1, 1993 TO RECEIVE EXEMPTION. FAILURE TO FILE WITHIN THIS TIME PERIOD WILL AUTOMATICALLY VOID THE EXEMPTION REQUEST, AS PER CODE 48-5-48.1, 48-5-48.2.” The last page of the form additionally indicates in two separate places that the form should be filed by and returned to Gwinnett BTA by April 1, 1993. Page three of the form further provides that “[listings submitted by mail shall be deemed to be filed when received in the office of the assessor.”

An employee of the Gwinnett BTA averred that under the internal policy of the board, which is contained in its rules and regulations, an application for exemption is accepted as timely filed if it is postmarked with a U. S. postal stamp by April 1, 1993. It was also the policy of the Gwinnett BTA to accept a cancellation strike with an accompanying date as evidence of the filing of the request. The Gwinnett BTA did not accept private meter stamps as evidence of proof of mailing of the application. Makita’s freeport exemption applications were not received until April 6, 1993, and the envelopes containing the applications were not imprinted with a U. S. Postal Service postmark but contained private postage meter stamps dated April 1,1993.

The evidence of record does not show that Makita returned the application to Gwinnett BTA on or before the April 1,1993, due date or otherwise complied with the Gwinnett BTA’s internal policy. The only proof presented that the application was mailed on the due date is the affidavit of the tax specialist who averred that she placed the envelope in the mailbox located in the corporation’s home office in California. As the appellant before the superior court, the burden of proof was on Makita to show that the applications were timely filed in light of the applicable statutory provisions, Gwinnett BTA’s rules and regulations, and the business assets form, which clearly mandated the return of or mailing of the application by certified mail by April 1, 1993. See Georgian Art Lighting Designs v. Gwinnett County Bd. of Tax Assessors, 211 Ga. App. 510 (439 SE2d 687) (1993). The record indisputably shows that Makita failed to do so. Gwinnett BTA specifically requires evidence of a U. S. postal service postmark to show that an exemption application was mailed timely and Makita’s evidence was insufficient to establish that fact. See DeKalb County Bd. of Tax Assessors v. Lanier Worldwide, 208 Ga. App. 435 (430 SE2d 595) (1993). Consequently, the trial court erred in concluding that Makita was entitled to freeport exemptions from ad valorem taxation and erred in granting summary judgments in favor of Makita on this issue.

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.

Decided July 7, 1995

Reconsideration denied July 26, 1995

Karen G. Thomas, Caryl B. Sumner, for appellant.

Ragsdale, Beals, Hooper & Seigler, D. Kent Beals, Gary W. Hatch, for appellee.


author: Johnson, Judge.

text:
    A95A0035.
    DEPARTMENT OF TRANSPORTATION v. BROWN.
    (460 SE2d 812)
   Johnson, Judge.

The Georgia Department of Transportation (DOT) decided to design and construct an extension of Georgia Highway 365, converting it to a four-lane, divided highway. Highway 365 had previously ended at State Road 17 (formerly U. S. 123), forming a “T” intersection controlled by stop signs in all three directions. The plans for the new road, which would intersect the existing State Road 17, called for installation of a traffic light signal to control traffic in both directions. The project was scheduled for completion on August 31, 1991. However, the DOT rejected the original bid for the installation of the traffic lights and the subsequent bid projected a completion date for the installation of the traffic lights of November 30, 1991. Rather than delay the opening of the intersection, the DOT erected temporary stop signs to control the traffic in both directions on State Road 17, and made the new Georgia State Route 365, temporarily, a through highway without any traffic control signs or signals.

The new intersection, as described, opened to the public on September 4, 1991. On September 28, 1991, Elsie Wheeler Colbert was driving her daughters, Shirley Hunter and Anika Colbert, on State Road 17. After entering the intersection, the car in which the women were riding was struck by a dump truck. All three women were killed on impact.

Mildred C. Brown, administratrix of the estate of Anika Colbert, brought this wrongful death action against the DOT and others. The case against the DOT was tried before a jury which returned a verdict in the amount of $1,505,000 against the DOT. The trial court reduced the jury’s verdict to $1,000,000, the statutory limit of recovery under the Georgia Tort Claims Act, and entered judgment in that amount against the DOT.

1. The DOT asserts the trial court erred in denying its motions for summary judgment and a directed verdict based on the design standards exception to the Georgia Tort Claims Act (OCGA § 50-21-24 (10)). The Georgia Tort Claims Act provides a waiver of the state’s sovereign immunity for torts of state officers and employees while acting within the scope of their official duties unless the alleged tortious act falls within one of the exceptions set forth in OCGA § 50-21-24. OCGA § 50-21-23 (a); see City of Thomaston v. Bridges, 264 Ga. 4 (439 SE2d 906) (1994); Collier v. Whitworth, 205 Ga. App. 758, 759 (423 SE2d 440) (1992). The highway design standards exception provides: “The state shall have no liability for losses resulting from . . . (t)he plan or design for construction of or improvement to highways, roads, streets, bridges, or other public works where such plan or design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design.” OCGA § 50-21-24 (10).

The trial court denied the DOT’s motion for summary judgment on this issue without explanation. At trial, the DOT moved for a directed verdict on the issue, which the trial court also denied. “After verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case.” (Citations and punctuation omitted.) Brown Realty Assoc. v. Thomas, 193 Ga. App. 847 (1) (389 SE2d 505) (1989). Therefore, as to the denial of DOT’s motion for summary judgment, this enumeration of error cannot be considered on the merits.

However, the denial of a directed verdict motion is reviewable after entry of judgment. Keenan v. Hill, 190 Ga. App. 108, 110 (5) (378 SE2d 344) (1989). “In considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion; and a verdict shall be directed only where there is no conflict in the evidence as to any material issue, and the evidence introduced with all reasonable deductions therefrom, shall demand a particular verdict. . . . [Cit.]” Strong v. Wachovia Bank of Ga., 215 Ga. App. 572, 573 (3) (451 SE2d 524) (1994). The highway design exception to the Georgia Tort Claims Act requires that expert testimony or other competent evidence be submitted to show that the plan or design was not prepared in substantial compliance with generally accepted engineering or design standards at the time such plan was prepared. The DOT asserts that there was no evidence that the plan or design of the road, as opened, deviated from generally accepted engineering or design standards in effect at the time the road was constructed. In support of that assertion, the DOT notes that the Manual on Uniform Traffic Control Devices (MUTCD), which has been accepted by statute (OCGA § 32-6-50) as authoritative, although not exclusively so, neither addresses nor sets a standard for transitioning traffic from an all-way stop configuration to a two-way stop intersection. Because no standard has been established, the DOT reasons, there can be no evidence of a deviation from an existing standard.

At trial, Brown’s engineering expert acknowledged that no specific provision regarding such a transition exists in MUTCD, but opined that the DOT had deviated from generally accepted engineering and design standards in numerous ways. These deviations include failing to conduct additional engineering studies assessing the feasibility of opening the road with stop signs rather than the traffic light signals called for in the original plan; failing to establish a transition period from an all-way stop to a two-way stop; and failing to monitor the intersection in view of the change in plans to determine whether the modification was acceptable. Construing this testimony most favorably to Brown, as the opponent of the DOT’s motion for directed verdict, we find that there was sufficient evidence regarding whether the DOT had substantially complied with generally accepted engineering or design standards in opening the road with the two-way stop configuration to submit this issue to the jury. The trial court did not err in denying the motion for directed verdict regarding the highway design exception to the sovereign immunity waiver provision of the Georgia Tort Claims Act.

2. The DOT argues that the trial court erred in denying its motions for summary judgment and a directed verdict based on immunity pursuant to the discretionary function exception to the Georgia Tort Claims Act. This exception is codified as OCGA § 50-21-24 (2), which reads: “The state shall have no liability for losses resulting from . . . [t]he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused.” We again limit our discussion to the denial of the motion for a directed verdict, as the denial of the motion for summary judgment may not be reviewed for the reasons discussed in Division 1 of this opinion.

The Georgia Tort Claims Act defines discretionary function or duty as one “requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political or economic factors.” OCGA § 50-21-22 (2). “ ‘[T]he cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law and then to give it that construction which will effectuate the legislative intent and purpose.’. . . [Cits.]” City of Calhoun v. North Ga. EMC, 233 Ga. 759, 761 (1) (213 SE2d 596) (1975). See OCGA § 1-3-1. The stated intent of the Georgia Tort Claims Act, which was enacted in response to a 1991 amendment to the Georgia Constitution, is to reexamine the terms of the state’s waiver of sovereign immunity, while recognizing the harsh results which occur as a result of strict application of the traditional doctrine of sovereign immunity. Curtis v. Bd. of Regents &c., 262 Ga. 226, 227-228 (416 SE2d 510) (1992). Keeping the legislative intent of the Georgia Tort Claims Act in mind, a second applicable rule of statutory construction provides that where there is, in the same statute, a specific provision as well as a general one which in its most comprehensive sense would also include matters addressed in the specific, the particular provision must control. Schwartz v. Black, 200 Ga. App. 735, 736 (409 SE2d 681) (1991). The statute at issue in this case includes a highway design exception which applies to “plan or design for construction of or improvement to highways, roads, streets, bridge, or other public works. ...” Any decision made with regard to these functions should be evaluated in terms of the specific provision dealing with highway design rather than the more general statutory exception to sovereign immunity for discretionary acts.

Even if we consider the decision to open the road with two-way stop signs instead of four-way traffic light signals under the discretionary function exception rather than under the planning or design exception, we still conclude that this exception to the limited waiver of sovereign immunity is inapplicable. Although the DOT asserts that the decision to open the road on schedule, rather than when complete, was based on “social and economic” considerations, thus tracking the language of the statute, for the reasons discussed below we are not persuaded that this decision falls within the ambit of policy determinations contemplated by the discretionary functions exception to the Georgia Tort Claims Act.

While this is an issue of first impression in Georgia, the courts of numerous other states have examined the question whether the discretionary function exception to state tort claims acts is applicable to decisions affecting highways and have concluded that it is not. See, e.g., Japan Air Lines Co. v. State, 628 P2d 934, 938 (4) (Alaska 1981) in which the Supreme Court of Alaska held that design matters were not protected by the discretionary function exception in Alaska’s Tort Claims Act because the design of an airport runway did not involve a basic governmental policy decision; Stewart v. State, 597 P2d 101, 106-107 (7), (8) (Wash. 1979), in which the alleged negligence by the state in the design and lighting of a bridge was not immune under the discretionary function exception; and Andrus v. State, 541 P2d 1117, 1120 (1-3) (Utah 1975) in which the Supreme Court of Utah held that while a decision to build a highway, and choices as to its general location are discretionary functions, the preparation of plans and specifications and the supervision of the manner in which the work is carried out are not considered discretionary so as to allow assertion of state immunity from liability. Similarly, in construing the discretionary functions exception to the Federal Tort Claims Act, a United States District Court recently held that “[A]ny discretion exercised by the government with respect to where and how to post signs warning of dangerous road conditions did not implicate ‘political, social, or economic’ policy choices of the sort that Congress intended to protect from suits under the FTCA.” Cope v. Scott, 45 F3d 445, 446 (D.C. Cir. 1995).

OCGA § 50-21-24 (2) should insulate the DOT from liability with regard to policy matters such as the underlying initial decision to extend Georgia Highway 365. The decision to open the road prior to completion with an alternative traffic control system which relied on two-way stop signs rather than on four-way traffic light signals is not a policy decision entitling the DOT to immunity under the discretionary functions exception to the Georgia Tort Claims Act. The trial court did not err in denying the DOT’s motion for directed verdict on this issue.

3. The DOT is obligated by statute to plan, construct and maintain public highways. OCGA § 32-2-2 (a) (1). This obligation is intended to benefit all of the citizens of the state. Pointing to the Supreme Court’s decision in City of Rome v. Jordan, 263 Ga. 26 (426 SE2d 861) (1993), the DOT asserts that it has a duty to the public at large but had no special relationship with Anika Colbert, and that, therefore, the trial court erred in denying its motion for directed verdict on this issue. This court recently declined to address the merits of this issue in the context of a motion to strike a defense. Dept. of Transp. v. Taunton, 217 Ga. App. 232, 234 (2) (457 SE2d 570) (1995). Now the issue is squarely before us, and we hold that the adoption of the public duty doctrine in City of Rome, supra, does not require that a special relationship be shown between an injured individual and a governmental tortfeasor where the legislature, by statute, creates exposure of the state to potential liability for losses, as it did in OCGA § 50-21-24 (10). The express purpose of the enactment of the Georgia Tort Claims Act is to create a remedy for citizens injured by a governmental tortfeasor when in the past such a remedy was unavailable as a result of “the strict application of the traditional doctrine of sovereign immunity.” OCGA § 50-21-21 (a).

Even if the City of Rome is interpreted broadly so as to bar statutory rights of action as well as those arising by common law, “ ‘where a constitutional or statute law has received a given construction by the courts of last resort. . . vested rights (may not be) impaired by a change of construction made by a subsequent decision.’ [Cits.]” Dept. of Transp. v. Kendricks, 150 Ga. App. 9, 10 (2) (A) (256 SE2d 610) (1979). The accident giving rise to this action occurred two years prior to the Supreme Court’s decision in City of Rome, supra. The trial court did not err in denying the DOT’s motion for directed verdict based on application of the public duty doctrine.

4. The DOT alleges the trial court erred in denying its motion in limine seeking to exclude evidence of other collisions at the intersection including seven accidents which occurred between the date it opened, September 4, 1991, and the date of this accident, September 28, 1991, as well as evidence of two additional accidents which occurred between September 28, 1991 and October 9, 1991, when the DOT began installing traffic signals. The DOT argues that the only exception to the general rule that similar accidents are inadmissible is to show that the defendant had knowledge of a certain condition. Pembrook Mgmt. v. Cossaboon, 157 Ga. App. 675, 677 (3) (278 SE2d 100) (1981). There are other bases for the inclusion of such evidence. Evidence of other accidents or near accidents at the same intersection at other times under the same or similar circumstances are admissible to show the existence of a dangerous condition. Wright v. Dilbeck, 122 Ga. App. 214, 217 (4) (176 SE2d 715) (1970).

Brown offered the evidence to show that the intersection — as opened, not as planned — was dangerous, and to show that the DOT knew or should have known of the accidents occurring at the intersection. The DOT’s attempt to factually distinguish this accident from the others on the basis of the speed or direction of the cars involved is unavailing as there is no requirement that the other accidents be identical. See Doster v. Central of Ga. R. Co., 177 Ga. App. 393, 398 (5) (339 SE2d 619) (1985). “The relevancy of other occurrences and thus the admissibility of such evidence lies within the sound discretion of the trial court, and may have probative value if the conditions of the other occurrence are substantially similar and may explain the occurrence under examination by the jury.” Reed v. Heffernan, 171 Ga. App. 83, 85 (1) (318 SE2d 700) (1984). The trial court did not abuse its discretion in allowing the evidence of other accidents at the intersection to be heard by the jury.

5. The trial court’s instruction to the jury regarding the limited purpose for which evidence of other collisions was allowed was a correct statement of the law, and was properly given. See Mutual Benefit Health &c. v. Hickman, 100 Ga. App. 348, 365 (4) (111 SE2d 380) (1959).

6. Finally, the trial court’s charge on concurrent negligence was not error. The DOT suggests a governmental entity cannot be a joint tortfeasor because that status would constitute an impermissible gratuity in contravention of Art. Ill, Sec. VI, Par. VI (a) of the Georgia Constitution, which prohibits the General Assembly from granting any donation or gratuity, or to forgive any debt or obligation owing to the public. The Supreme Court, however, has held that the DOT may be a joint tortfeasor. See Dept. of Transp. v. Land, 257 Ga. 657 (362 SE2d 372) (1987). Nothing in the Georgia Tort Claims Act, enacted after Land, supra, necessitates a different conclusion. The Act provides that “the state . . . shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances.” OCGA § 50-21-23 (a). Because a jury could find an individual liable as a joint tortfeasor, the state can be liable in the same manner.

Decided July 10, 1995

Reconsideration denied July 27, 1995

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, C. Latain Kell, Assistant Attorney General, for appellant.

Johnson & Ward, William C. Lanham, Clark H. McGehee, for appellee.

Franklin, Taulbee, Rushing & Bunce, Elizabeth F. Bunce, Craig T. Jones, Cathey & Strain, Dennis T. Cathey, J. Edward Staples, Samuel W. Oates, Jr., amici curiae.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.

       The rule adopted by the Supreme Court, known as the public duty doctrine provides: “[L]¡ability does not attach where the duty owed by the governmental unit runs to the public in general and not to any particular member of the public, except where there is a special relationship between the governmental unit and the individual giving rise to a particular duty owed to that individual.” (Punctuation omitted.) City of Rome, supra at 27.