text:
    A95A1827.
    ALLEN v. THE STATE.
    (463 SE2d 522)
   Birdsong, Presiding Judge.

Linda D. Allen appeals her convictions for driving under the influence of alcohol, speeding and weaving on the roadway. The State-administered test showed her blood alcohol content as .14 percent. She contends the trial court erred in denying her motion to suppress, as she is hearing impaired and was not provided with an interpreter in accordance with OCGA § 24-9-103.

When police officer Gandee first spoke with appellant after stopping her, appellant informed him that she was hearing impaired, but she told him she read lips. After she completed three field tests at Gandee’s request, he put her in the police car and read her the implied consent rights. Gandee testified he handed her the implied consent card from which he had read, and she read the card and wrote “that she understands” on it. The implied consent card produced by the State contains no writings. The discussions regarding implied consent occurred after she was placed under arrest and placed in the patrol car. When Gandee reached the police station at about 4:45 a.m., another officer, Stubbs, noticed that Gandee was dealing with a hearing impaired person and went to help. Officer Stubbs was the arresting officer (see State v. Webb, 212 Ga. App. 872 (443 SE2d 630)), and he was generally familiar with the hearing impaired persons’ law at OCGA § 24-9-101 et seq. Gandee and Stubbs took appellant to the intox room, and appellant gave Gandee a card which states: “U.S.A. Law for the Deaf . . . The law says you must have an interpreter if you are arrested for a felony or a misdemeanor (Breaking the law — including a traffic violation). You should not talk, write or sign any papers, except to demand a certified interpreter and a lawyer. Tell the officer or court to look up this law of ‘Code of Criminal Procedure’ . . . Federal Law No. 504 for the Deaf.” Gandee gave appellant a Clayton County implied consent form and read it to her. At the bottom of the implied consent form, she wrote, as a note to Stubbs: “Tell him I require an interpter [sic].” Stubbs told Gandee he would try to call the Department of Human Resources and get a qualified interpreter. He located the number and called but got “a recording stating that you must call during regular business hours.” He so informed Gandee.

Meanwhile, Gandee had written on the back of the implied consent form “in little layman’s terms” what little parts appellant said she “didn’t understand in the arrest for DUI.” This exhibit shows large block letters on the back of the implied consent form: “ARREST FOR DUI, STATE LAW REQUIRES TESTS, BLOOD, BREATH, URINE, OTHER BODILY SUBSTANCE. I WANT BREATH TEST. YES OR NO. IF NO, YOUR LICENSE WILL BE SUSPENDED FOR 1 YEAR, AND REFUSAL HELD AGAINST YOU IN COURT. AND NO OTHER TESTS OF CHOICE. [Above “SUSPENDED” appear the words “(TAKEN) (LOSE) (LOST).”] IF YES, YOU HAVE RIGHT TO OTHER TESTS, BLOOD, BREATH, URINE/SUBSTANCE FROM PERSONS OF YOUR CHOICE.” Appellant circled “YES.” On the front of the form, appellant signed her name and initialed this language: “I [signed: Linda Allen] understand the above Implied Consent Right: [initialed LDA] I agree to take the required test(s).”

Appellant then told Gandee she wanted him to pick a test for her, but he refused. To Stubbs, on the back of the form, appellant wrote, “Is he being fair with me?” Gandee could not remember whether she wrote this before or after she signed and initialed the form. A State-administered test was taken. No additional test was made. No interpreter ever arrived.

The trial court, in an effort to construe this case under State v. Webb, supra, concluded that Officer Gandee could communicate with appellant and did communicate with her, and the trial court therefore denied her motion to suppress. Held:

1. OCGA § 24-9-103 (b) (1) provides: “No interrogation, warning, informing of rights, taking of statements, or other investigatory procedures shall be undertaken until a qualified interpreter has been provided; and no . . . evidence acquired from the hearing impaired person shall be admissible in any criminal. . . proceeding unless such was knowingly and voluntarily given through and in the presence of a qualified interpreter.” (Emphasis supplied.)

The trial court erred in its construction of Webb. In Webb, we concluded that all drivers are subject to the “implied consent” law; that the most the law now requires for hearing persons is that the arresting officer must convey to a driver his right to an additional test; and that the law does not require that the hearing driver actually understand the rights advised. We then concluded that the requirement of a “qualified” interpreter by the hearing impaired law is “not absolute” (id. at 874) so as to vitiate the hearing impaired person’s “implied consent” and that hearing impaired persons are entitled to no greater privileges than hearing persons. As with hearing persons, the implied consent rights must be conveyed to the hearing impaired person; the only means of conveying those rights sanctioned by the hearing impaired law is by a sign language interpreter. The specific reason we reversed the suppression in Webb’s case was that a sign language interpreter conveyed the officer’s warnings to Webb, and the officer thus “conveyed Webb’s implied consent rights to him within the meaning of the implied consent law.” (Emphasis supplied.) Id. at 874. The sign language interpreter was with Webb when he was stopped and it was not contended that the interpreter was not competent in sign language. Thus, “the spirit and intent of the law giving the hearing impaired the right to have an interpreter present was satisfied.” Id. at 875.

A later case, State v. Woody, 215 Ga. App. 448, 450 (449 SE2d 615), inferred that Webb merely held that the presence of a qualified interpreter is not absolutely required as long as the officer “conveys” the information to the hearing impaired person in some manner. This interpretation of Webb is imprecise. Based on State v. Tosar, 180 Ga. App. 885 (350 SE2d 811) and Snelling v. State, 176 Ga. App. 192, 193 (335 SE2d 475), we concluded in Webb that the most the law now requires is that the officer convey to the driver his right to an additional test (id. at 873), but the sole reason we found the officer “conveyed” to Webb his implied consent rights was that a sign language interpreter was present and conveyed the officer’s advice and requests to Webb “within the meaning of the implied consent law.” Webb at 874. We specifically concluded that “the spirit and intent of the law giving the hearing impaired the right to have an interpreter present was satisfied.” (Emphasis supplied.) Id. at 875. The result in Webb is not in conflict with the result in Woody; there was no sign language interpreter present in Woody to convey the officer’s warnings, and therefore, the State’s test results were properly suppressed in Woody.

The intent of OCGA § 24-9-101 et seq. is to provide qualified interpreters to convey to hearing impaired persons their implied consent warnings and rights before any questioning or advice is given. OCGA § 24-9-103 (b) (2). But hearing impaired persons have no greater implied consent rights than hearing persons, for the law deems all drivers subject to the implied consent law. Public policy requires all persons suspected of driving under the influence of alcohol to be prosecuted and investigated to the fullest extent consistent with due process because, as a matter of law, they are “a direct and immediate threat to the welfare and safety of the general public.” OCGA § 40-5-55 (a); Webb at 873. We concluded the same rules apply as with hearing persons: that the court is required only to find that the implied consent law was conveyed to the suspect driver. The spirit and intent of the hearing impaired law is that the information be conveyed through an interpreter. Id. at 875.

The trial court was therefore incorrect in stating that despite the “one difference” between this case and Webb (that in Webb there was an interpreter present), Webb controls this case. That “one difference” in Webb — that a person competent in sign language interpretation conveyed to Webb his implied consent rights within the meaning of the implied consent law — is the entire reason we held that the officer “conveyed” Webb’s rights to him. That element being absent in this case, Webb requires that the State’s evidence be suppressed.

2. The implied consent advice written by Gandee on the back of the implied consent form for appellant to read was inaccurate. State v. Causey, 215 Ga. App. 85 (449 SE2d 639). In particular, it advised appellant that if she did not “want [a] breath test,” her license would be suspended for a year, and she could have “no other tests of choice.” This erroneous advice was misleading and requires suppression of the State’s test result.

3. Even assuming appellant understood her entitlement to an independent test via lip-reading or reading the block letters written on the back of the implied consent form, she clearly did not understand how to choose an independent test. She asked the officer to choose a test for her, and he refused. She did not waive this right by refusing to choose the test she wanted, because the officer never “conveyed” to her the means by which she could choose an independent testing facility. She was thus denied her expressly stated desire to have an independent test.

4. OCGA § 24-9-103 (b) (2) provides that if no qualified interpreter is available an hour after one is requested, an officer may “interrogate” the accused.

Immediately on taking appellant to the police station, the officers did everything they could do to comply with OCGA § 24-9-103 (b) (1). They called the prescribed telephone number to get “[a] person certified as an interpreter by the National Registry of Interpreters for the Deaf or approved as an interpreter by the Georgia Registry of Interpreters for the Deaf.” OCGA § 24-9-101 (6). They learned immediately that no such person was available. They were then left to their own devices in communicating with a hearing impaired person whom they had determined was “a direct and immediate threat to the welfare and safety of the general public” under the implied consent law. OCGA § 40-5-55 (a); Webb at 873. They did so in such reasonable means as were available to them. But, even if they had conveyed to her in writing the correct advice, under OCGA § 24-9-103 (b) (2) as presently written their efforts would not have been legal because they did not wait an hour before “interrogating” appellant. Officers should not be required to wait an hour for a “qualified interpreter” when they know none is available. In this waited hour, valuable evidence could be lost. The hearing impaired law thus gives hearing impaired persons a right of delay — a right sufficient in many cases to defeat the criminal prosecution — which hearing persons are not given. Although we recognize the necessity to “convey” the proper advice to the hearing impaired in a fair manner, in our view it is not reasonable to condition admissibility of DUI evidence on the presence of a “qualified interpreter” (OCGA § 24-9-103 (b) (1)) when it is a near certainty that none will be available at the times most DUIs occur. This is especially unreasonable when the information may be reasonably conveyed by other means. Nevertheless, it seems to be the law that a “qualified interpreter” must be present to convey the advice, or an hour must be awaited. The police are hamstrung by the absurdities in this law. The license and impunity it ultimately gives to hearing impaired DUI drivers create a menace to society which the responsible hearing impaired community must find an embarrassment and a hindrance to their just cause.

A sort of balance has been struck, but it is insufficient from both points of view. In Webb, the trial court had held that “ ‘if [Webb] had not understood the warnings after reading them more than one hour from the time that an interpreter was requested . . . then the warnings and the results of the Intoximeter would have been admissible.’ ” (Emphasis supplied.) Id. at 873. In Woody, supra at 450, we held that if the procedure in OCGA § 24-9-103 (b) (1) requiring police to request a qualified interpreter had been followed and a qualified interpreter “was not available within one hour after [the defendant] was taken into custody, the arresting officer could have proceeded with his investigation and the blood test under OCGA § 24-9-103 (b) (2).”

Decided October 26, 1995.

William H. Turner, Jr., for appellant.

Keith C. Martin, Solicitor, Elizabeth A. Baker-Cofer, Assistant Solicitor, for appellee.

As we held in Webb, supra at 874, subsection (b) (2) of OCGA § 24-9-103, allowing the police after one hour to “interrogate or take a statement” proves that the requirement of a qualified interpreter is “not absolute.” The requirement of a qualified interpreter and the unavailability of one do not vitiate the defendant’s implied consent under OCGA § 40-5-55. So long as his rights are conveyed to him {Webb at 873) “[t]he State is under no duty to prove the suspect driver fully understood his rights under the implied consent law.” Id. The hearing impaired law cannot constitutionally revoke the hearing impaired driver’s implied consent. Therefore, under OCGA § 24-9-103 (b) (2), when the request has been made for an interpreter and none has been provided, the police may proceed under the implied consent law, as they have complied with the spirit and intent of the hearing impaired law. But they must wait that hour.

A law which requires police to wait one hour before proceeding with an investigation under the implied consent laws when it becomes obvious, from the first phone call to request an interpreter, that none will be forthcoming creates a problem. The legislature should change this law. If it wishes to give hearing impaired persons more rights than hearing persons, it may do so if it can do it constitutionally, but beyond adhering to the one-hour delay, we cannot do it. Thus we hold that under OCGA § 24-9-103 (b) (2), when the one-hour waiting period lapses, the police may proceed with their investigation under the implied consent laws. If, however, the impaired person intelligently waives the one-hour requirement as set forth in OCGA § 24-9-103 (b) (2), then the officer may proceed with written interrogatories and the impaired person should answer in writing, and the officer may then proceed under the implied consent law.

This appellant’s rights under the implied consent law were not at least “conveyed” to her by a competent sign language interpreter within the meaning of the implied consent law; police did not wait one hour after requesting an interpreter before proceeding with their investigation; the advice given to appellant was inaccurate and misleading and she was denied her express request to have an independent test. The State’s test in this case must therefore be suppressed.

Judgment reversed.

Johnson and Smith, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A95A1429.
    NELSON et al. v. C. M. CITY, INC. et al.
    (463 SE2d 902)
   Birdsong, Presiding Judge.

A fire caused extensive damage to the home of Arthur and Kathy Nelson. They contend the fire was caused by a defect in the Curtis Mathes television which they had bought 15 months before, and they filed suit against C. M. City, Inc. d/b/a Curtis Mathes Home Entertainment Center; Curtis Mathes Corporation; and NEC Technologies, Inc.

The trial court assumed for the purpose of summary judgment that the fire was caused by the television and granted summary judgment to the defendants, as follows: “[When the general public] sees a product label on a piece of merchandise they think the manufacturer has with pride placed the label on its product. This isn’t so in Georgia any more because the General Assembly has created what it calls a ‘product seller’ which has taken the place of what previously was known as a ‘manufacturer.’ ... At first blush one would conclude that CM [Curtis Mathes] manufactured the TV; however, it seeks exemption from this products liability claim as a ‘products seller.’ [See OCGA §§ 51-1-11 (b) (1) and 51-1-11.1 (a) and (b).] ... CM did not provide any design information to the other entities for the TV. It did not have an ‘active role in the production, design or assembly’ of the television set, its chassis or any of its component parts. It did not inspect the product during or after its assembly. It was not aware of any problems or defects in it. Harvey Industries, Inc. (Harvey) received the imported chassis and component parts from importer NEC Technologies, Inc. (NEC). CM paid Harvey to put a cabinet on the chassis which had been assembled by NEC Home Electronics (USA), Ltd. [‘NEC Ltd.’] Harvey shipped the finished product directly to C. M. City, in a closed cardboard carton. C. M. City sold the TV to the plaintiffs. . . . Therefore, CM was a product seller of the TV under Georgia law [and] was not a manufacturer of the TV for purposes of strict liability as contemplated by OCGA § 51-1-11. . . . [CM] was not a manufacturer which functioned also as a product seller [OCGA § 51-1-11.1 (a)] because it played no active role in the production, design or assembly of the TV. . . . Alltrade, Inc. v. McDonald, 213 Ga. App. 758 [(445 SE2d 856)].”

The trial court also found plaintiffs had shown no negligence of Curtis Mathes or C. M. City and that Curtis Mathes and C. M. City are not liable beyond the express provisions of this six-year warranty given to the plaintiffs, which limited any warranty to damages to the television set itself: “This warranty excludes all incidental and consequential damages.” Citing Apex Supply Co. v. Benbow Indus., 189 Ga. App. 598, 600 (1) (376 SE2d 694) and other cases, the trial court found this warranty exclusion was not unconscionable per se and not unconscionable in fact. The trial court also found Curtis Mathes and C. M. City were not liable for negligence of Harvey or NEC as they were independent contractors.

The trial court found that NEC “may not be considered the ostensible manufacturer of the TV chassis . . . simply because of its exclusive importation, marketing and distribution of the product. It is not the alter ego of NEC Home Electronics (USA), Ltd. which manufactured the component chassis. NEC did not design, assemble or manufacture the chassis or any component part of it. . . . NEC as a distributor or a product seller is not liable to the plaintiffs as a matter of law [and is not a party to the warranty between Curtis Mathes and plaintiffs].”

This ruling left only Curtis Mathes and C. M. City in the suit to the extent of the warranty on the television itself. The Nelsons enumerate seven errors. Held:

1. Appellants Nelson contend, and there is evidence, that Curtis Mathes had an active role in the assembling and manufacture of the television because it designed the television: that is, it conceived the idea to have a 46-inch screen projection television built and to have it then assembled in a cabinet, and it made those specifications to others and formulated a plan to have it assembled according to its certain specifications. Further, although Harvey physically assembled the television, the Nelsons contend it did so only at Curtis Mathes’s direction and according to Curtis Mathes’s intention, design, specifications, and formulation.

It is true, as stated regretfully by the trial judge, that Georgia law — specifically Alltrade, supra — seems to say that one who merely labels a product and sells it under his name does not stand by that name, even though the public may be led to purchase that product only because of the quality implied and represented by the name so used; and that an entity is not, merely because it labeled a product as its own and sells it, strictly liable for damages caused by that product. But the trial judge, bowing so respectfully to Alltrade, leaned too far.

What we actually said in Alltrade is “one who merely labels a product as its own prior to its sale but has no input into its making, either by design or manufacture or assembly, is a product seller and not a manufacturer.” (Emphasis supplied.) Id. at 759-760. There is a big difference between the “input” and “role” which Alltrade had in merely having its name stamped on ladders and which Home Depot had in selling them, and the role Curtis Mathes and C. M. City had in conceiving, specifying, ordering, labelling and warranting this television as having been made by Curtis Mathes. Alltrade’s name was stamped on the ladder as the “ostensible manufacturer” (id. at 758), but “Alltrade did not provide any design information. . . . Nor did it make or assemble the ladders or any of the component parts. . . . Alltrade received the ladders from [the importer] in closed cardboard cartons and in turn sold the ladders in the unopened cartons to [the retailer]. . . . Alltrade did not affix any warnings, warranties or instructions to any of the ladders or the cartons in which the ladders were received, nor did it participate in the preparation or drafting of any such instructions, warranties or warnings which were or might have been affixed to the ladders or cartons which were received and subsequently shipped by Alltrade.” (Emphasis supplied.) Id. The ladder sold by Home Depot in Alltrade could have been sold by any retailer and could have been stamped with the name of any “ostensible manufacturer” and was not purchased because of a strong public perception of quality evidenced by the name of “Alltrade” stamped on the ladder.

2. OCGA § 51-1-11.1 provides that a “product seller” is one who “leases or sells and distributes; installs; prepares; blends; packages; labels; markets; or assembles pursuant to a manufacturer’s plan, intention, design, specifications; or formulation.” (Emphasis supplied.) In other words, one is not a manufacturer if it merely sells (or assembles) a product made according to “[another] manufacturer’s plan, intention, design, specifications, or formulation.” Id. In this case, the television was manufactured, prepared, assembled, and packaged according to Curtis Mathes’s own “plan, intention, design, specifications, [and] formulation.” Id. Curtis Mathes was not a “mere” product seller (see Ream Tool Co. v. Newton, 209 Ga. App. 226, 227 (3) (a) (433 SE2d 67)) merely because the product it sold through its agent, C. M. City, was assembled by others according to Curtis Mathes’s plan, intention, design, specifications, and formulation.

One who merely sells a product is a “product seller” (id.) but one who sells a product and has “input” or is actively involved in the conception, design, or specification of the product is a manufacturer. OCGA § 51-1-11.1 (a). Curtis Mathes “[had] input into [the] making, either by design or manufacture or assembly” of this television. All-trade, supra at 759-760. Moreover, Curtis Mathes did not merely stamp its name on this television. It had this television made and assembled pursuant to its own plans, intentions, and specifications and not “pursuant to [another] manufacturer’s plan, intention, design, specifications, or formulation.” OCGA § 51-1-11.1 (a). These statutes are strictly construed to encourage commerce, but the General Assembly did not intend to ignore the commercial reality that products of certain names are advertised for quality and are purchased for that reason, nor did it intend to make every “quality” trade name worthless to the public while retaining its vast benefit to the trade name owner. The legislature did not intend to immunize a “seller” who conceives and formulates a certain product, represents to the public that this product is of high quality because it manufactured it, puts its name on the product, and as evidence and confirmation thereof, affixes to it warranties, warnings, or instructions. Cf. Alltrade at 758.

Chief Judge Pope, in his special concurrence to Alltrade said that an erroneous reading of OCGA § 51-1-11.1 is unfair, “where a company has put its own trade name on a product, thus leading the public to believe it manufactured the product even though it did not. Other states which statutorily immunize or limit the liability of nonmanufacturers . . . nonetheless provide in their statutes that nonmanufacturers have the liability of manufacturers if they market the product under their label, trade name or brand name. See Ohio Rev. Code Ann., § 2307.78 (B) (7) (Anderson 1991); Wash. Rev. Code Ann., § 7.72.040 (2) (e) (1992).” Id. at 761. Chief Judge Pope recommended that our legislature “fine tune” our law to eradicate such unfairness. The fair result advocated by Chief Judge Pope is reached in this case, however, by focusing more precisely on the exact language of OCGA § 51-1-11.1, so that it is “ ‘strictly construed or limited strictly to the meaning of the language employed and not extended beyond plain and explicit terms.’ ” Daniel v. American Optical Corp., 251 Ga. 166, 168 (1) (304 SE2d 383), quoted in AUtrade. As noted above, a product seller is one who sells, installs, etc. or assembles “pursuant to a manufacturer’s plan, intention, design, specifications, or formulation” (emphasis supplied) (OCGA § 51-1-11.1); that is, pursuant to some other’s plan, intention, design, specifications, or formulation. Curtis Mathes sold a product made and assembled pursuant to its own “plan, intention, design, specifications, or formulation.”

It may not be insignificant in the jury’s inquiry to consider whether Curtis Mathes must comply with federal or state regulatory standards or must report such compliance for that product, or did report such compliance or affixed a label indicating such compliance. These may be deemed by the jury to be “active roles” in the manufacture of the product.

The trial court erred in granting partial summary judgment to Curtis Mathes and C. M. City on the issue of strict liability. C. M. City may be liable as the exclusive special agent of Curtis Mathes for sale of this television, unlike the mass retailer Home Depot, Inc. in Alltrade.

3. Even if C. M. City did not offer an express warranty on the purchase of this television, it may be liable for breach of an implied warranty of fitness. See OCGA § 11-2-315; Fiat Auto USA v. Hollums, 185 Ga. App. 113, 114 (1) (363 SE2d 312).

4. The trial court erred in concluding as a matter of law that Curtis Mathes’s warranty which excluded consequential damages was not unconscionable in fact. The test of unconscionability is whether in the light of the commercial background and needs of the trade or cáse, the warranty clauses are so one-sided as to be unconscionable under the circumstances extant at the making of the contract. Zepp v. Mayor &c. of Athens, 180 Ga. App. 72 (348 SE2d 673). The evidence judged in favor of the plaintiffs as respondents in summary judgment (Smith v. Ga. Kaolin Co., 264 Ga. 755, 756-757 (449 SE2d 85)) fairly and by reasonable inference shows the Nelsons bought this television because of Curtis Mathes’s name and reputation for manufacturing quality, non-defective products “backed” by Curtis Mathes. The warranty exclusion in this case was imposed by Curtis Mathes as the only condition by which appellants could acquire the reputedly high-quality Curtis Mathes product, and it resembled a law more than a meeting of the minds. See Laswell v. Chrysler Corp., 181 Ga. App. 219, 223 (351 SE2d 675) (special concurrence). It may have been deemed by the buyers that because Curtis Mathes manufactured the television, a provision for consequential damages such as fire damage to their home was superfluous. Thus, in the jury’s view it may be unconscionable for Curtis Mathes to take advantage of its name to conceive, to have assembled, and to sell through its agent C. M. City a product as a high-quality product while failing to disclose that it did not actually manufacture that product, and then, by using a one-sided warranty, immunize itself from liability for damages arising out of such defective product sold in that manner.

In Sharpe v. General Motors Corp., 198 Ga. App. 313, 315 (5) (401 SE2d 328) and in Fiat Auto USA, supra at (2), we held the warranty exclusions to be not unconscionable; no reason was given for that conclusion in either case, but we implicitly found the clause to be “not unreasonable” in the facts of those cases. See A-larms, Inc. v. Alarms Device Mfg. Co., 165 Ga. App. 382, 385 (2) (300 SE2d 311). We have specifically found in the facts of the case, however, that the exclusion of consequential damages is unreasonable, given the manufacturer’s (Curtis Mathes’s) use of its name and reputation as the manufacturer of superior quality products, while failing to disclose that it did not actually manufacture the product and yet seeking to shield itself from liability for damages consequential to a defective product; by drafting a one-sided warranty rendering the actual value of the name worthless to the buyers; and by rendering the “quality” they purchased non-existent and even dangerous. To uphold this exclusion as “not unconscionable” would ultimately make the Curtis Mathes name worthless; it is not reasonable to suppose that even Curtis Mathes intended this effect. It is reasonable to presume that Curtis Mathes intends to stand behind the products which it purports to manufacture, and it is reasonable to presume these buyers were induced to buy this high-quality product upon the belief that Curtis Mathes stood behind it. To say otherwise by ruling this exclusion to be reasonable and not unconscionable would do damage to both parties.

Decided October 11, 1995

Reconsiderations denied October 27, 1995

Newton, Smith, Durden, Kaufold & Rice, Howard C. Kaufold, Jr., for appellants.

Howard & Racz, Wayne S. Racz, Dillard, Bower & East, Bryant H. Bower, Jr., Hunter, MacLean, Exley & Dunn, Glen M. Darbyshire, Jones & Smith, Julian B. Smith, Jr., Robert B. Sullivan, for appellees.

5. Curtis Mathes may be liable for negligence even though the chassis was built by another, if such negligence is a violation of Curtis Mathes’s express warranty that the television would be free of defects for six years. OCGA § 51-2-5 (3).

6. It is a question of fact whether NEC is an alter ego of NEC Ltd. According to appellants Nelson, NEC Ltd. performed its business in the United States through NEC, and there is evidence that the two entities are so intertwined that Curtis Mathes’s agent could not distinguish them. The evidence is to be construed most favorably to the party opposing summary judgment (Smith v. Ga. Kaolin Co., supra), and the benefit of all reasonable inferences and doubts is awarded to them. In that light, the summary judgments of the trial court are incorrect.

Judgment reversed.

Johnson and Smith, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A95A1356.
    HERRING v. CONDIT et al.
    (463 SE2d 532)
   McMurray, Presiding Judge.

On the morning of August 13, 1992, Jimmy Lee Steed lost control of his car while driving in heavy rain on a three-lane highway, 1-185 near Columbus, Georgia. After spinning, Steed’s vehicle came to rest in the center lane, causing a multi-car pileup (in the center lane) which included vehicles driven by Joey Dee Owens, Earl P. Maddox, Stanley M. Condit and William Casaday. A Mercedes automobile stopped in the far left lane of the highway about 40 or 50 yards behind this bottleneck and Janie Herring stopped her vehicle behind the Mercedes. Two or three minutes later, Patrick Dunning drove his car into the rear of Herring’s vehicle, propelling it into the Mercedes. Plaintiff Herring brought suit against defendants Dunning, Steed, Owens, Maddox, Condit and Casaday, alleging that their negligence was the proximate cause of injuries she sustained in the collision. Herring settled with Dunning, a matter which is the subject of Her ring v. Dunning, 213 Ga. App. 695 (446 SE2d 199), and filed this appeal after the trial court granted summary judgment in favor of Steed, Owens, Maddox, Condit and Casaday. Held:

Decided October 27, 1995

In Tucker v. Star Laundry &c., 100 Ga. App. 175 (110 SE2d 416), Pauline Tucker was forced to stop in the roadway when the truck she was following suddenly and unexpectedly (without signal) stopped in reaction to other vehicular traffic. Tucker and her mother, a passenger, were allegedly injured when a car struck the Tucker vehicle from behind. The trial court sustained demurrers to the complaints and this Court affirmed, holding that the truck driver’s alleged negligence “was too remote to constitute a concurring proximate cause of the injuries.” Id. at 177 (1). The controlling factor was that Pauline Tucker had time to affirmatively avoid the “complete and static” hazard allegedly precipitated by the truck driver. This Court explained that “[o]ne of the principal proximate causes of the injuries alleged was the negligence of [the driver, who approached Tucker from the rear,] in not having his automobile under control and stopping it in the exercise of ordinary care upon signal by the driver of the Tucker car.” Id. The circumstances in the case sub judice are no different. In fact, the bottleneck that was caused by defendants’ alleged negligence was not even the reason Herring stopped in the roadway. She stopped in deference to the Mercedes, which (Mercedes) could have easily bypassed the multi-car pileup by continuing (rather than stopping) in the unobstructed left lane of traffic.

In any event, it is undisputed that Herring waited behind the Mercedes two or three minutes before Dunning collided with her vehicle. Under these circumstances, we cannot say the essential causal link was present between the defendants’ alleged negligent acts and Herring’s injuries. Herring’s injuries were caused, if at all, by the alleged reckless driving of Dunning. Accordingly, the trial court did not err in granting summary judgment in favor of Steed, Owens, Maddox, Condit and Casaday since “[n]egligence is not actionable unless it is the proximate or concurring proximate cause of the injuries received. Georgia Power Co. v. Blum, 80 Ga. App. 618, 628 (57 SE2d 18); Southeastern Liquid Fertilizer Co. v. Mock, 92 Ga. App. 270 (88 SE2d 531).” Tucker v. Star Laundry &c., 100 Ga. App. 175, 177 (1), supra. Compare Perry v. Lyons, 124 Ga. App. 211, 214 (1) (183 SE2d 467), where genuine issues of material fact remained as to whether the original act of negligence was “complete and static” so as to insulate the original wrongdoers from liability.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

L. B. Kent, for appellant.

Divine, Wilkin, Raulerson & Fields, Richard W. Fields, Self, Mullins, Robinson, Marchetti & Kamensky, Ronald W. Self, Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, Virgil T. Theus, for appellees.


author: Smith, Judge.

text:
    A95A1438.
    W. D. ENTERPRISES, INC. v. BARTON.
    (463 SE2d 529)
   Smith, Judge.

This case arose following an altercation between appellee Don Barton and William Anderson while both were patrons at a restaurant and bar known as the “Three Dollar Cafe” in the Buckhead area of Atlanta. Barton sued both Anderson and Three Dollar Cafe but settled with and dismissed Anderson prior to trial. Three Dollar Cafe filed a motion for summary judgment which was denied by the trial court. The case was heard by a jury, which returned a verdict in Barton’s favor against Three Dollar Cafe. Three Dollar Cafe appeals, contending the trial court erroneously denied its motion for directed verdict.

The evidence, construed in Barton’s favor, shows that Barton and several friends went to Three Dollar Cafe on August 3, 1991, a Saturday night, and sat at a table on the crowded deck of the restaurant. They noticed a group at a nearby table, whom they described as “loud,” “rowdy,” “joking,” and “wasted.” Members of the other group, which included Anderson, were yelling and “having a good time.” Barton testified he mentioned to the waitress that the other group was “out of hand” after one of its loud outbursts. The waitress allegedly called the other group “jerks.” People at Anderson’s table were arm wrestling, chanting, and pounding on the table. Barton testified the members of the other group were not arguing but were joking with one another.

At one point during the short time between Barton’s arrival and the altercation, Barton saw a member of Anderson’s group walk quickly across the deck, “butt” through people with his chest, and pick up a chair. He brought the chair back to his table, and as he was putting it down, he nudged another patron. When the patron turned to look behind him, it appeared to Barton that Anderson intimidated the patron and said to him “don’t say another word.” Although Barton suspected a fight was about to begin, he did not see any employee of Three Dollar Cafe observe the incident, and he did not report the incident to any employee.

When the actual altercation between Anderson and Barton occurred, Barton heard a loud crash, and his friend, Tom Bossott, turned to look at the source of the crash. Immediately after Bossott turned, Anderson rushed toward him “like a linebacker” and knocked Bossott to the ground, yelling “what are you looking at?” Barton stood up and Anderson struck him, knocking him to the ground and injuring him. Barton, as well as his friends, acknowledged that the altercation was “sudden,” “shocking,” “unprovoked,” “out of the blue,” and an “unanticipated, sudden eruption of violence.” Barton had no knowledge of a propensity by Anderson to act recklessly and did not feel physically threatened by him. Bossott similarly testified he did not feel threatened.

The waitress who served Anderson’s party testified that after she took their order, she informed two of the managers that Anderson’s group appeared to be intoxicated. After talking with the group, one of the managers told her to serve them food and non-alcoholic drinks. Anderson’s party was not served any alcohol. The waitress testified she heard Anderson yell, “What the h_are you looking at?” and that “in a matter of seconds” he ran to Barton’s table and hit him. During the approximately 15 minutes between the time she took their order and the altercation, nothing had happened to cause the waitress to report that Anderson or the members of his group had been aggressive or threatening.

A proprietor is not liable for injuries to an invitee caused by unforeseeable, “remote or unusual events” such as the intervening acts of a third party. Levangie v. Dunn, 182 Ga. App. 439, 440 (1) (356 SE2d 88) (1987). A proprietor having “no notice of dangerous conduct on the part of customers or third persons on the occasion in question . . . cannot be held liable for injuries to an invitee resulting from that conduct.” Belk-Hudson Co. v. Davis, 132 Ga. App. 237, 238 (3) (207 SE2d 528) (1974).

Although Anderson’s table was loud, boisterous, and perhaps even rude to the waitress, Barton introduced no evidence that any employee had notice that Anderson would attack another patron. No evidence was shown of animosity between Barton’s group and Anderson’s group, as in Confetti Atlanta, Ltd. v. Gray, 202 Ga. App. 241 (414 SE2d 265) (1991), that would have given Three Dollar Cafe personnel reason to anticipate a possible altercation between the two parties. Unlike the facts in Good Ol' Days Downtown v. Yancey, 209 Ga. App. 696 (434 SE2d 740) (1993), no evidence was presented that an employee had time to react to Anderson’s outburst before he attacked Bossott and Barton. The waitress who testified stated she saw no signs of abusive behavior by any member of Anderson’s group before the altercation. Although some testimony was given that Anderson “had words” with another customer earlier, Barton presented no evidence that Three Dollar Cafe personnel were aware of this incident. Barton himself noticed the loud group and heard several loud noises but did not feel threatened by Anderson and noticed no “dangerous propensity” on Anderson’s part. Barton simply did not introduce evidence that Three Dollar Cafe had notice of any aggressive behavior on Anderson’s part.

Decided October 27, 1995

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., T. Andrew Graham, for appellant.

Wilson, Strickland & Benson, Warner R. Wilson, Jr., F. Robert Slotkin, Jr., for appellee.

The fact that the incident occurred at a drinking establishment did not make the incident somehow “foreseeable.” Knudson v. Lenny’s, Inc., 202 Ga. App. 85, 86 (413 SE2d 258) (1991). First, Three Dollar Cáfe personnel did not serve alcohol to Anderson. More importantly, there was no evidence that Three Dollar Cafe personnel were aware or should have been aware that Anderson might react with violence to Bossott and then to Barton after Bossott looked at him. Id. at 86.

Further, it may not be inferred from Three Dollar Cafe’s adoption of a policy to train employees to identify and manage intoxicated patrons and its refusal to serve alcohol to Anderson’s group that Three Dollar Cafe had notice that Anderson might attack another patron. See Knudson at 86. In fact, the waitress had been trained to identify intoxicated patrons and their behaviors, but she saw no aggressive behavior on the part of Anderson prior to the altercation.

“It is not error to direct a verdict if the evidence and all reasonable deductions therefrom, considered in the light most favorable to the respondent to the motion, demands the verdict and fails to disclose any material issue for jury resolution.” (Citations and punctuation omitted.) Wilson v. Southern R. Co., 208 Ga. App. 598, 600 (431 SE2d 383) (1993). Negligence cannot be presumed but must be proved. Id. Construing the evidence in Barton’s favor, the evidence presented on Barton’s behalf demanded a verdict in favor of Three Dollar Cafe. While foreseeability as an element of negligence usually is a jury question, the evidence in this case was “plain, palpable, and undisputable” that Three Dollar Cafe had no notice of Anderson’s aggressive behavior. See Levangie, Knudson, supra. Consequently, the trial court should have granted Three Dollar Cafe’s motion for directed verdict. Three Dollar Cafe’s other enumerations are moot.

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.


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

text:
    A95A1565.
    ROBERTS v. LEDBETTER et al.
    (463 SE2d 533)
   Pope, Presiding Judge.

Plaintiff Dorothy Roberts appeals from the trial court’s grant of summary judgment to defendant Steven Ledbetter and his employer, defendant Jones Piping, Inc. We reverse.

Construed in a light most favorable to plaintiff, the evidence shows that on September 21, 1993, plaintiff was traveling west on Felder Street in Americus, Georgia. She attempted to make a left-hand turn onto a side street and failed to yield the right-of-way to Ledbetter, who was driving a Jones Piping truck. When Ledbetter applied his truck’s brakes, some of the pipes he was carrying on the rack attached to the truck slid forward and off the truck into plaintiff’s car. Thereafter, Ledbetter’s truck collided with the right rear quarter panel of the car. The actual collision caused only minor damage to both vehicles, but some of the pipes that came off the truck struck plaintiff in the face. The police cited plaintiff for failure to yield the right-of-way. See OCGA § 40-6-71. They also cited Ledbetter for failing to properly secure his truck’s load. See OCGA § 32-6-21.

In her complaint, plaintiff alleged that Ledbetter was negligent per se for failing to properly secure his truck’s load in violation of Georgia law, and that Jones Piping was liable under the doctrine of respondeat superior. Defendants answered the complaint denying liability, and subsequently moved for summary judgment. In granting defendants’ motion, the trial court found that there were issues of material fact concerning whether defendants properly secured the pipe, but, as a matter of law, plaintiff was the proximate cause of her own injuries.

1. We agree with the trial court that issues of fact exist regarding negligence on defendants’ part. It is undisputed that Ledbetter was cited for violating OCGA § 32-6-21, and he admits that he did not appear to contest the citation at the designated time and place. Under such circumstances, “plaintiff has established negligence per se in the violation of a statute, which is a prima facie showing of negligence. This means that the burden [is on] the defendant^] to show that the violation was unintentional and in the exercise of ordinary care.” (Citations omitted.) Williams v. Calhoun, 175 Ga. App. 332, 333 (333 SE2d 408) (1985). Defendants attempt to meet their burden by presenting evidence that the pipes were secured in accordance with industry standards, but this evidence is in conflict with the affidavit of Jimmy Blalock. Blalock testified that the rack on which defendants secured the pipes did not conform with industry standards as it did not have a wire mesh guard at the front to prevent the pipes from sliding forward. He also stated that merely securing the pipes to the rack with metal bands, as defendants had done, would not prevent the pipes from flying forward during a sudden stop. Thus, there are issues of fact regarding defendants’ alleged negligence.

2. We cannot agree with the trial court’s ruling that plaintiff was the sole proximate cause of her injuries as a matter of law. “[Questions of negligence, of contributory negligence, of cause and proximate cause, and of whose negligence or of what negligence constitutes the proximate cause of an injury are, except in plain, palpable and indisputable cases, solely for the jury.” Johns v. Secress, 106 Ga. App. 96, 97-98 (126 SE2d 296) (1962); see Atlanta Obstetrics &c. Group v. Coleman, 260 Ga. 569, 570 (398 SE2d 16) (1990). In the instant case, “[i]f the defendant^] [were] not negligent in [the manner] set forth in the [complaint], of course there can be no recovery. However, if the defendant^] [were] guilty of . . . the act[ ] of negligence as alleged, and it does not appear that some other cause, such as the negligence, if any there was, of the plaintiff, so preponderated in bringing about the result, that the human probabilities are that the injury would just as likely have ensued, if the negligent act[ ] of the defendant^] had not occurred, the plaintiff should recover. If it does appear that plaintiff was negligent, and that although the defendants] might also have been guilty of negligence, that plaintiffs negligence so preponderated in bringing about the result that the human probabilities are that the injury would just as likely have ensued if the negligent act[ ] of defendant [s] had not occurred, the plaintiff should not recover. However, if both were negligent and their negligence stands so related that neither would have produced the harmful result, and the negligence of one has not so intervened as to make it the preponderating cause, and the negligence of both consist [s] of such acts as, according to the general course of human probabilities, produce some injurious effect as that which did in fact ensue, in such case, both are guilty of concurring negligence, and the recovery of the plaintiff should be reduced in the proportion that her negligence contributed to the injury, except of course, if that proportion be one-half or more, there should be no recovery.” (Citation omitted.) Carter v. Powell, 57 Ga. App. 360, 369-370 (1) (195 SE 466) (1938); see Storer Communications v. Burns, 195 Ga. App. 230, 232 (393 SE2d 92) (1990).

Because the answers to the above questions in this case are not plain, palpable and indisputable, and therefore, must be decided by a jury, we hold that the trial court erred in granting summary judgment to defendants. We also conclude that a jury should consider whether plaintiff assumed the risk of her injuries by failing to yield the right-of-way to Ledbetter. See Yandle v. Alexander, 116 Ga. App. 165, 167-168 (156 SE2d 504) (1967).

Judgment reversed.

Ruffin, J., concurs. Beasley, C. J., concurs specially.

Decided October 30, 1995.

Robert M. Beauchamp, for appellant.

Young, Thagard, Hoffman, Scott & Smith, Daniel C. Hoffman, Ellis & Easterlin, John V. Harper, for appellees.

Beasley, Chief Judge,

concurring specially.

I concur because the defendants have not precluded the finding that their alleged negligence in failing to properly secure the pipes, of which there is some evidence, was not the possible proximate cause of plaintiff’s injuries. True, the evidence is conclusive that this was not a proximate cause of the collision; her own negligence in suddenly and without warning turning in front of the oncoming vehicle when it was close to the intersection proximately caused the truck driver to brake, the pipes to shoot forward, and the collision to occur. But the issue of proximate cause relates to the injuries, not the collision. “ ‘ “The proximate cause of an injury is that cause which immediately precedes and directly produces the injury, without which the injury would not have happened.” ’ ” Locke v. Vonalt, 189 Ga. App. 783, 788 (7) (377 SE2d 696) (1989).


author: Pope, Presiding Judge.

text:
    A95A1184.
    EVERETT v. NORFOLK SOUTHERN RAILWAY COMPANY.
    (464 SE2d 385)
   Pope, Presiding Judge.

Thomas Everett, a railroad worker who suffered a hearing loss from exposure to excessively loud noises at work, brought this action against his employer under the Federal Employers’ Liability Act (FELA), 45 USC § 51 et seq. The trial court entered a judgment for the employer, ruling that Everett’s primary claim to recover for his hearing loss was barred by his failure to file suit within three years of the time his cause of action accrued, see 45 USC § 56, and that his secondary claim for aggravation of his hearing loss did not state a viable cause of action. We agree with the trial court that Everett’s primary claim is untimely, and therefore affirm the grant of summary judgment on that issue. Because a claim for aggravation of an occupational disease or injury does present a viable cause of action under FELA, however, we reverse the trial court’s dismissal of Everett’s secondary aggravation claim.

1. Everett first argues that a question of fact remains regarding when the limitation period on his hearing loss began to run. A FELA action must be brought within three years from the time the cause of action accrues, see 45 USC § 56, and “[a] claim accrues under FELA when the plaintiff possesses sufficient critical facts from which the injury and its cause, including its work-relatedness, should be plainly known. [Cit.]” CSX Transp. v. Adkins, 264 Ga. 203 (442 SE2d 737) (1994); see also Lutz v. CSX Transp., 208 Ga. App. 894 (432 SE2d 569) (1993). As this suit was brought November 29, 1993, it is untimely if Everett’s cause of action accrued prior to November 29, 1990.

Everett concedes that his cause of action accrued when his employer provided him with hearing protectors to wear. Thus, the pertinent question in reviewing the grant of summary judgment is whether there is a genuine issue of material fact regarding when the employer provided Everett with hearing protectors. Everett testified in his deposition that the employer gave him hearing protectors “around 1989 or 1990.” But the employer was able to pinpoint the date, with a document showing it gave Everett the hearing protectors on September 14, 1989. Everett argues that we must give him the benefit of any doubt, and that a jury could choose to disregard the documentary evidence and find, based on the “around 1989 or 1990,” that he did not in fact receive the hearing protectors until after November 29, 1990. Everett’s testimony that he received the protectors “around 1989 or 1990” does not rebut the employer’s document, however; and even though we view the evidence in a light favorable to Everett, we cannot ignore the employer’s unrefuted document showing it gave Everett the hearing protectors in September 1989.

Everett suggests the trial court improperly disregarded his testimony that he received the protectors “around 1989 or 1990” based on Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). We agree with Everett that Prophecy was not applicable because his deposition testimony was not contradictory. As explained above, however, even if Everett’s testimony is not disregarded or construed against him, it is not sufficient to create a genuine issue of material fact and withstand summary judgment.

2. Everett further argues that even if his claim based on his hearing loss is barred by the statute of limitation, he should be allowed to recover for any aggravation of the hearing loss which occurred as the result of the employer’s negligence after November 29, 1990. We agree.

Decided August 15, 1995

Reconsideration denied October 31, 1995.

Gary F. Easom, for appellant.

Branch, Pike & Ganz, Eileen M. Crowley, Tanya M. Lawson, for appellee.

An employer’s duty to provide a safe workplace includes providing a workplace which does not aggravate a preexisting injury. Currin v. Seaboard System R., 187 Ga. App. 751, 752 (371 SE2d 142) (1988). Recognizing this duty, the Oregon Court of Appeals affirmed a judgment for a railroad worker for aggravation of his hearing loss under circumstances almost identical to those alleged here: “We perceive no reason why plaintiff must be denied all relief if his hearing loss became worse because of his work exposure during the three years preceding the filing of this action. If, for example, hearing loss had originated before he commenced work for defendant, and he then worked for defendant for three years, during which time loud noises at work increased his loss, we believe that plaintiff would be entitled to recover for the aggravation of his condition, if he filed his action timely. That situation would be analogous to a plaintiff who had a preexisting back problem that was aggravated as a result of an automobile accident.” McCoy v. Union Pacific R. Co., 796 P2d 646, 650 (Or. App. 1990). The Third Circuit of the United States Court of Appeals has also recognized a claim for aggravation of an occupational disease similar to Everett’s, even though the employee’s primary claim was untimely. See Kichline v. Consolidated Rail Corp., 800 F2d 356 (3rd Cir. 1986). A United States District Court in California has rejected a similar claim, and the trial court in this case relied on its opinion. See Frasure v. Union Pacific R. Co., 782 FSupp. 477 (C. D. Cal. 1991). Because Frasure fails to even address the employer’s duty to provide a workplace which does not aggravate an employee’s preexisting injury, however, we find it unpersuasive.

We emphasize that under this theory Everett can only recover for aggravation of his hearing loss resulting from negligence of the employer after November 29, 1990. In other words, Everett has the burden of proving (1) that the employer was negligent after November 29, 1990 (despite having given Everett the hearing protectors in September 1989); (2) that that negligence did in fact aggravate his hearing problem; and (3) the degree to which it aggravated his hearing problem. These things probably will be quite difficult to prove, but Everett should have the opportunity to prove them. Accordingly, the trial court’s dismissal of Everett’s aggravation claim is reversed.

Judgment affirmed in part and reversed in part.

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

       This document is in the record as an exhibit to Everett’s deposition. Although it would have been preferable for the employer to file the document with an affidavit authenticating it, this Court has held that an excerpt from a plaintiff’s personnel file which is in the record as an exhibit may be considered on summary judgment even if it is unauthenticated — at least if the nonmoving party did not move to strike it or otherwise object to its being made a part of the record below. See Glisson v. Morton, 203 Ga. App. 77 (2) (416 SE2d 134) (1992).


author: Ruffin, Judge.

text:
    A95A1440.
    UNITED REFRIGERATED SERVICES, INC. v. EMMER.
    (463 SE2d 535)
   Ruffin, Judge.

Mary Emmer was injured when the tractor-trailer truck in which she was a passenger collided with a CSX train at the intersection of the railroad track and LaGrange Boulevard in LaGrange, Georgia. United Refrigerated Services, Inc. (“United”) owned and maintained the property adjacent to LaGrange Boulevard over which the train traveled prior to the collision. United planted a row of pine trees on the edge of its property which bordered LaGrange Boulevard. Emmer sued United, contending that because United failed to maintain the trees, they blocked the truck driver’s view of the approaching train and thus constituted a public nuisance as well as the proximate cause of the collision. The trial court denied United’s motion for summary and we granted its application for interlocutory appeal to determine whether the trial court erred in failing to apply OCGA § 32-6-51 to this case. For reasons which follow, we reverse.

1. United contends the trial court erred in denying its motion for summary judgment on the negligence claim because at the time of the accident Emmer was a licensee, and its duty to her was merely to refrain from causing her wilful or wanton injury. Emmer, on the other hand, argues that United owes her a general duty of care. But this case does not turn on the issue of a landowner’s duty to a licensee who goes upon its property and is injured. In Williams v. Scruggs Co., 213 Ga. App. 470 (445 SE2d 287) (1994), we held that cases such as this involving a landowner’s liability for vision-obstructing objects on property abutting a railroad crossing are governed by OCGA § 32-6-51. OCGA § 32-6-51 (b) (3) states that “[i]t shall be unlawful for any person to erect, place, or maintain in a place or position visible from any public road any unauthorized sign, signal, device, or other structure which . . . [obstructs a clear view from any public road. . . .” In Williams, we upheld summary judgment for a property owner because the plaintiff failed to show that the obstruction was unauthorized and “structures on private property adjoining road rights-of-way only become unlawful under OCGA § 32-6-51 if they obstruct a clear view of roads in such a manner as to constitute a traffic hazard, and they are unauthorized.” (Citation and punctuation omitted; emphasis in original.) Id. at 471.

United also contends that the number and placement of trees on its property were required under a Fulton County Tree Preservation Ordinance and Landscaping Plan; therefore, it cannot be liable to Emmer on her negligence claim under OCGA § 32-6-51. Emmer argues that OCGA § 32-6-51 is inapplicable because a tree is not a structure. See Webster’s Collegiate Dictionary (9th ed.) which defines structure as “something (as a building) that is constructed.” But in Williams, supra, we found that vision-obstructing debris on the defendant’s property fell within the ambit of the statute. That being the case, we are constrained to hold that the statute also applies to allegedly vision-obstructing trees. Thus, Emmer was required to show the trees on United’s property were unauthorized. This she did not do, and the trial court therefore erred in denying United’s motion for summary judgment on the negligence claim.

Decided October 31, 1995.

Freeman & Hawkins, Warner S. Fox, Sharon W. Ware & Associates, Kathryn A. Thurman, for appellant.

Casey, Gilson & Williams, James E. Gilson, J. Wayne Pierce, for appellee.

2. United also contends the trial court erred in denying summary judgment on Emmer’s nuisance claim. We agree.

In Zellers v. Theater of the Stars, 171 Ga. App. 406 (319 SE2d 553) (1984), we held that “[a] public nuisance is one which damages all persons who come within the sphere of its operation. . . . This language is not used in the sense that every person in the area must have been actually hurt or injured in order to show a public nuisance. ... It is sufficient if it injures those of the public who may actually come in contact with it.” (Citation and punctuation omitted; emphasis in original.) Id. at 408 (3). United filed an affidavit showing it had no knowledge of any previous accidents. “Inasmuch as a public nuisance must injure all members of the public who come in contact with it, the evidence to the contrary effectively erased [Emmer’s] public nuisance cause of action.” (Citation and punctuation omitted; emphasis in original.) Id. at 409. Accordingly, the trial court erred in denying United summary judgment with respect to Emmer’s nuisance claim.

3. Based on our holding above, we need not address United’s remaining enumerations of error concerning its motion for summary judgment.

Judgment reversed.

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


author: Beasley, Chief Judge.

text:
    A95A1890.
    JORDAN v. THE STATE.
    (463 SE2d 537)
   Beasley, Chief Judge.

Jordan appeals his conviction of violation of the Georgia Controlled Substances Act for possession and sale of cocaine. OCGA § 16-13-30. In his sole enumeration of error, he contends that the court erred in granting a motion in limine brought by the State and thereby limiting his cross-examination of an undercover officer concerning a confidential informant.

The State sought to prohibit Jordan from questioning State’s witnesses concerning the reliability, history, and identity of the informant. The prosecuting attorney argued that such facts concerning the informant were not relevant, because the informant’s only involvement in the case consisted of his having introduced Jordan to the undercover officer who made the drug buy and provided the tip that resulted in Jordan’s arrest. The court preliminarily granted the State’s motion to the extent that it concerned the reliability of the informant.

The officer who made the buy and other officers conducting surveillance of the transaction appeared as State’s witnesses. The officer testified that on the day of the buy, the confidential informant introduced him to Jordan, whom the informant referred to as “Damien.” Pursuant to prior discussions, the officer brought $950 to the pool room to purchase an ounce of cocaine from Jordan. When the officer met Jordan, Jordan told the informant in the officer’s presence that he did not have the cocaine but would go get it.

Jordan left the pool room in his car. One of the surveilling officers testified that he followed Jordan to a tire shop. He observed Jordan enter the shop, stay for two or three minutes, and then return to the pool room. He went in and then exited with the undercover officer and the informant. The officer and a surveilling officer observed Jordan retrieve a package from his car, so the undercover officer retrieved the $950 from his car. Jordan reentered the pool room, as did the undercover officer along with the informant.

Another surveilling officer observed Jordan walk to the last pool table and kneel down in front of the compartment where the pool balls are stored. The undercover officer testified that although he did not observe Jordan place the package in the compartment of the pool table, the informant told him to look there after the informant had conversed with Jordan, and Jordan nodded in the direction of the compartment after the officer began to walk there. The officer testified that he retrieved the package containing cocaine from the pool table compartment and left the money there. He observed Jordan retrieve the money and leave the pool room with an approving nod in the officer’s direction.

Jordan was not arrested immediately because the undercover officer wanted to make additional drug buys from him. However, the officer was not able to re-establish contact. The police later received information that Jordan would be in the area of the pool room and driving a described vehicle. He was arrested nearby while driving the vehicle, and cocaine was found under the driver’s seat. He was acquitted in this case of trafficking in cocaine and possession of cocaine with intent to distribute as a result of this latter incident.

At trial, the informant was identified in a videotape of the first incident which was played to the jury. Jordan testified, admitting that he was at the pool room on the day in question but denying that he sold drugs or was given money. He maintained that when he left the pool room, he went to a lounge to eat lunch.

Over the State’s objection, the trial court allowed Jordan to cross-examine the undercover officer as to the informant’s history and reliability. When Jordan asked the officer whether he had attempted to locate the informant and whether the informant was going to testify, the State again objected. Jordan argued that he should be permitted to engage in further questioning of the officer concerning the informant, because the informant’s identity had been revealed in the videotape, he was a participant in the transaction as well as a witness to it, and he should therefore be in court. Noting that the name of the informant had not been disclosed so that his identity was still confidential, the court sustained the State’s objection and refused further questioning about the informant.

Although the evidence does show that the informant arranged, facilitated, and witnessed the drug buy, Jordan does not claim that he was entrapped by the informant, and the videotape enabled the jury to determine the accuracy of the undercover officer’s identification of Jordan. Under these circumstances, the informant’s testimony was not both material and necessary to the defense. See generally Glover v. State, 203 Ga. App. 853 (1) (418 SE2d 127) (1992); Smith v. State, 192 Ga. App. 144 (1) (384 SE2d 677) (1989); compare Jones v. State, 192 Ga. App. 186 (384 SE2d 273) (1989) and cits.

Jordan argues otherwise, based upon the assertion that the informant was the only witness to his allegedly placing the cocaine in the compartment of the pool table. The transcript does not show whether the informant witnessed this or whether Jordan merely told him he had done it. The transcript does show that the surveilling officer observed Jordan go to the compartment before the undercover officer removed the cocaine, and the undercover officer observed Jordan take the money from the compartment after the officer had removed the cocaine.

Moreover, Jordan did not file a motion for disclosure of the identity of the informant (compare Jones, supra, and cits.), nor does it appear from the record that he sought to secure the informant’s appearance at trial as a defense witness.

Decided October 31, 1995.

Michael M. Sheffield, for appellant.

J. Tom Morgan, District Attorney, Desiree S. Peagler, Elisabeth G. Macnamara, Assistant District Attorneys, for appellee.

Therefore, whether the undercover officer had attempted to locate the informant was not a relevant or material issue. As to whether the informant would be called by the State to testify, Jordan should have been apprised of that through the State’s response to his demand for a list of its witnesses. There is no merit in Jordan’s contention that the defense was severely limited in its right to cross-examine the officer concerning the informant in any regard. The transcript shows cross-examination concerning the informant’s history and reliability. Jordan has not shown how he was harmed by the limitation on questioning directed towards what was neither relevant nor material. Consequently, the court did not abuse its discretion in refusing to allow Jordan to ask the officer these questions. See Bates v. State, 216 Ga. App. 597 (454 SE2d 811) (1995).

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: Andrews, Judge.

text:
    A95A1157.
    EARLY v. THE STATE.
    (463 SE2d 706)
   Andrews, Judge.

Thomas Early appeals, pro se, from the denial of his motion for j.n.o.v. and motion for new trial after a jury verdict finding him guilty of one count of aggravated child molestation and three counts of child molestation. We affirm in part and reverse in part.

Early was indicted and tried on one count of aggravated child molestation, four counts of child molestation, and one count of cruelty to children. The jury found him guilty on the one count of aggravated child molestation and three counts of child molestation. The trial court sentenced him to five years each on Counts 1 and 2, to run consecutively, and five years each on Counts 3 and 6, to run concurrently.

Early filed a motion for j.n.o.v. and motion for new trial claiming the jury charge on the statute of limitation was erroneous and ineffective assistance of counsel. On July 20, 1994, the trial court denied the motion for new trial on all grounds, and this appeal followed.

1. In his first enumeration of error, Early contends that the trial court erred by charging the jury with an incorrect statement of law regarding the statute of limitation. The court charged the jury as follows: “Now, in this case, the state is required to prove to you beyond a reasonable doubt the acts charged in this indictment were committed by the Defendant within seven years prior to the date the indictment was returned into this Court.”

Early was indicted on April 1, 1993, and the counts under which he was convicted were as follows: Count 1 alleged aggravated child molestation between October 1, 1986, and April 6, 1992; Counts 2 and 3 alleged child molestation between October 1, 1986, and April 6, 1992; and Count 6 alleged child molestation from November 1, 1986, through December 31, 1986. Prior to July 1, 1987, OCGA § 17-3-1 provided that the statute of limitation for child molestation was four years. However, effective July 1, 1987, the time changed to seven years, but only as to those offenses committed after July 1, 1987. Early contends the charge was clearly erroneous as to Count 6, and he also claims that it was erroneous as to the other counts as well because the only specific incidents testified to at trial all occurred before December 1986.

After giving the jury charge, the court inquired whether defense counsel had any objections, and counsel stated that he did not. This failure to object in a criminal case constitutes a waiver unless there has been substantial error which was harmful as a matter of law. OCGA § 5-5-24 (c); Barnett v. State, 178 Ga. App. 685, 686 (344 SE2d 665) (1986). The test is whether the charge was so blatantly apparent and prejudicial that it raises the issue as to whether or not the defendant received a fair trial. Maynard v. State, 171 Ga. App. 605, 606 (320 SE2d 806) (1984).

There is no doubt that the statute of limitation as to the act alleged in Count 6 was only four years. While the State concedes that the charge was erroneous as to Count 6, it contends that the statute of limitation is a waivable defense and since counsel did not object at trial to the charge, the issue was not preserved for appeal.

In Georgia, there is “no absolute bar to a defendant’s waiver of the protection afforded him by the statutes of limitation.” State v. Barrett, 215 Ga. App. 401, 405 (451 SE2d 82) (1994). However, after determining that a defendant may waive the statute of limitation, the inquiry then becomes whether the waiver was effective. Barrett, supra at 406. The court in Barrett determined that the waiver was effective because it “was knowingly and voluntarily made.” Barrett, supra.

Here, the waiver was not knowingly or voluntarily made. The trial judge, the prosecutor, and defense counsel all seem to have been mistaken as to the correct statute of limitation. Therefore, the issue here is not waiver as it appears in the case law cited above, but rather, more closely resembles those cases in which the court’s charge to the jury is a clear misstatement of applicable law. See Jackson v. State, 205 Ga. App. 513, 515 (422 SE2d 673) (1992).

Decided October 18, 1995

Reconsideration denied November 1, 1995.

Thomas A. Early, pro se.

Not only was there clear error in the charge as to Count 6, this error was also harmful as a matter of law since the jury could not have found Early guilty under Count 6 if the correct charge had been given. Accordingly, the judgment of the court sentencing Early to five years on Count 6 is hereby vacated, and this case is remanded to the trial court.

We decline to review the charge under OCGA § 5-5-24 (c) as to the other counts. Not only did counsel not object to the charge, he specifically acquiesced in the charge. In addition, there was testimony at trial of an ongoing pattern of molestation that spanned a period of time well into the seven-year statute of limitation. Thus, the charge was not blatantly apparent as to the other counts, nor do we find that it was harmful as a matter of law. Maynard, supra.

2. Next, Early argues that even if the charge on the statute of limitation is not reviewable under OCGA § 5-5-24 (c), he received ineffective assistance of counsel because defense counsel did not object to the erroneous jury charge on the statute of limitation. We need not address counsel’s failure to object to the charge as it relates to Count 6 since we reviewed the charge under OCGA § 5-5-24 (c) and the judgment on Count 6 has been reversed. As to Early’s claim that counsel was ineffective for failing to object to the statute of limitation charge on the other counts, we find that this was not ineffective assistance. As previously stated, there was testimony at trial that the acts alleged under the remaining counts were part of an ongoing pattern of molestation up until 1992. Further, although the trial court’s order denying Early’s motion for new trial on all grounds states that a hearing was held on the motion on July 19, 1994, we have ascertained that the hearing was not transcribed. Accordingly, we are unable to address this enumeration because we have no transcript of the hearing in the record. “Absent a transcript, we must assume the ruling of the trial court is supported by the evidence.” (Citation and punctuation omitted.) Jackson v. State, 205 Ga. App. 827, 829 (424 SE2d 6) (1992).

3. We find the remaining enumerations of error to be without merit.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Blackburn, J., concur.

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


author: Blackburn, Judge.

text:
    A95A2233.
    ANDERSON v. THE STATE.
    (463 SE2d 502)
   Blackburn, Judge.

Jody Anderson, who was sentenced to life imprisonment upon his second conviction for selling drugs, seeks to have his sentence vacated or modified on the grounds that it was racially discriminatory.

Anderson was indicted in three counts for violation of the Georgia Controlled Substances Act, sale of cocaine, in January 1993. As appellant had previously pled guilty to one count of the same offense in April 1991, the State filed a notice of intent to seek life sentence pursuant to OCGA § 16-13-30 (d). On February 9, 1993, with the assistance of counsel, appellant entered his plea of guilty to one count of violation of the Georgia Controlled Substances Act, sale of cocaine. Pursuant to a negotiated agreement, the other two charges were then dismissed. Prior to entering his plea, Anderson was informed by the trial court no less than five times that a life sentence would be imposed should appellant plead guilty. Anderson was also questioned at length about the services supplied by his counsel, and Anderson expressed no displeasure whatsoever with the advice or investigation performed by his attorney. After determining that Anderson understood the charges against him and that his guilty plea was made freely and voluntarily, the trial court imposed a life sentence.

Over two years later, on May 1, 1995, Anderson, proceeding pro se, filed a motion to modify or vacate sentence or petition for writ of prohibition or in the alternative motion for leave for an interlocutory appeal in forma pauperis to the Georgia Supreme Court. The trial court denied the motion, determining that it failed to state a claim upon which relief could be granted. The matter was initially appealed to the Georgia Supreme Court and was subsequently transferred here on jurisdictional grounds.

1. Anderson, who is black, asserts his life sentence was “motivated by evil intent and vindictive prosecution.” Particularly, he asserts that OCGA § 16-13-30 (d), which permits life imprisonment upon a second conviction for certain drug-related offenses, is applied in a racially discriminatory manner. Anderson makes the unsupported assertion that 99 percent of the persons sentenced to life imprisonment in Colquitt County pursuant to OCGA § 16-13-30 (d) are black. Assuming arguendo that appellant’s statistic was properly supported in the record, this statistic alone would be insufficient to prove intentional discrimination. Stephens v. State, 265 Ga. 356 (456 SE2d 560) (1995); see also Cain v. State, 262 Ga. 598 (422 SE2d 535) (1992). As no evidence has been offered that (1) blacks in general or (2) appellant in particular has been selectively prosecuted under this statute in Colquitt County, appellant’s claim fails. Stephens, supra.

Decided October 2, 1995

Reconsideration dismissed November 1, 1995.

Jody Anderson, pro se.

H. Lamar Cole, District Attorney, A. Scott Gunn, J. David Miller, Assistant District Attorneys, for appellee.

2. Appellant also asserts that he received ineffective assistance of counsel at the time he entered his plea. “In Hill v. Lockhart, 474 U. S. 52, 56 (106 SC 366, 88 LE2d 203) (1985), the Supreme Court held that the test enunciated in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), applies when guilty pleas are challenged based on ineffectiveness of counsel. Under these circumstances, to satisfy the second prong of the Strickland test a defendant must show there is a reasonable probability that but for counsel’s deficiency he would not have pled guilty, but would have insisted upon going to trial. Hill, supra, 466 U. S. at 59.” Edmond v. State, 214 Ga. App. 707, 708 (448 SE2d 775) (1994). In this case, Anderson does not disclaim his guilty plea but asserts that he was not provided effective assistance of counsel at the “critical stage” of his sentencing. In light of the unequivocal testimony offered at his plea and sentencing hearing that he understood that a life sentence would be imposed should he plead guilty, and he had no complaints with the quality of his attorney’s representation, Anderson made an informed choice not to go to trial. See Edmond, supra. As it is apparent as a matter of law that Anderson cannot meet the requirements necessary to demonstrate ineffective assistance of counsel as outlined in Strickland, we need not remand for an evidentiary hearing on whether his counsel was effective. Id.

Judgment affirmed.

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


text:
    A95A1210.
    HARTSFIELD v. UNION CITY CHRYSLER-PLYMOUTH et al.
    (463 SE2d 713)
   Blackburn, Judge.

Jo Anne Hartsfield appeals the trial court’s dismissal of her complaint against a car dealership and its salesmen for failure to state a claim. Hartsfield was suing the defendants for fraud and malicious prosecution.

“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.” (Punctuation omitted.) Morgan v. Ga. Vitrified Brick &c. Co., 196 Ga. App. 779, 780 (397 SE2d 49) (1990).

The facts, in the light most favorable to Hartsfield, are that on June 30, 1992, Hartsfield purchased a new automobile from appellee Union City Chrysler-Plymouth, Inc. (Union City). While Hartsfield told Union City she did not have the money, Hartsfield tendered a check in the amount of $19,000 for the purchase of the vehicle based on Union City’s representation that it would hold the check until she was able to secure financing. Union City held the check for three weeks, but before Hartsfield could obtain financing, Union City cashed the check whereupon Hartsfield’s bank returned it for insufficient funds. Union City alleges that pursuant to OCGA § 16-9-20 (a) (2) (B), it sent a certified letter notifying Hartsfield that the check had been dishonored. While Hartsfield admits to receiving a certified letter from Union City, she claims the envelope addressed to her contained a letter written to someone else regarding an entirely different transaction. After Hartsfield failed to tender the face amount of the check and the applicable service charges demanded in the letter allegedly sent her, Union City swore out a warrant for her arrest. The charges were dismissed following a probable cause hearing.

Union City subsequently located a lender, World Omni Finance Corporation (Omni), willing to loan Hartsfield money for the bulk of the car’s cost. In order to get the loan, Hartsfield had to pay some money down and trade in her old car. Union City demanded Harts-field’s signature on the loan papers, misrepresenting their terms and preventing Hartsfield from reviewing the document. Subsequently, Hartsfield learned that the interest rate on the loan was thirty-five percent and that over the four-year length of the loan she was obligated to pay $19,377.60 in interest on the $21,581.28 she was borrowing. She then offered to return the car to Union City but Union City refused, telling Hartsfield that she would be charged with storage costs should she leave the car. Hartsfield then returned the car to Omni. She never received the approximately $800 she paid or the old car that she traded in at the time she signed the loan papers.

Hartsfield commenced the instant action against Union City and two of its employees. The defendants answered the complaint and filed a motion to dismiss asserting that Hartsfield’s malicious prosecution and fraud claims failed to state a cause of action. The trial court granted defendants’ motion to dismiss, finding the allegations contained in the complaint lacked merit. Although Hartsfield responded to the motion two weeks prior to the dismissal, the trial court’s order erroneously stated that no response had been filed. Neither did the order indicate that any consideration had been given to Hartsfield’s amended complaint that was filed with the court on the same day as her response to defendants’ motion.

1. Even considering Hartsfield’s response to the motion and assuming all allegations in the complaint and amended complaint are true, Hartsfield can prove no set of facts that would entitle her to relief on her claim of malicious prosecution. In order to successfully assert a cause of action for malicious prosecution, the plaintiff must demonstrate, among other things, that the defendant pursued criminal prosecution against the plaintiff without probable cause and with malice. See Wal-Mart Stores v. Blackford, 264 Ga. 612 (449 SE2d 293) (1994). Hartsfield asserts that Union City acted without probable cause and with malice in criminally prosecuting her for issuing a bad check. According to Hartsfield, she only wrote the check upon Union City’s agreement that it would not be cashed until she obtained the funds necessary to cover it. Hartsfield did not have sufficient funds in the bank to cover the check, and this fact was known by Union City at the time she wrote the check. See Russell v. State, 155 Ga. App. 555 (271 SE2d 689) (1980) (offense of issuing a bad check is completed when the check is delivered, and it is the criminal intent to defraud present at that moment which the law proscribes). Thus, Hartsfield claims that Union City acted without probable cause and with malice in subsequently prosecuting her for writing the bad check when Union City induced her to write it and accepted it with the knowledge that the funds did not presently exist to pay it.

We find that the trial court properly dismissed this claim. Georgia law formerly permitted malicious prosecution claims arising from bad check prosecutions where the facts and circumstances reflected that the check’s drawer had no intent to defraud the check’s recipient; however, in 1989, the Georgia legislature revised the law governing the issuance of bad checks. The new law drastically limited the circumstances under which a separate agreement made concerning a check may support a malicious prosecution action. In particular, OCGA § 16-9-20 (h) (2) provides: “In any civil action for damages which may be brought by the person who made, drew, uttered, executed, or delivered such [bad check, draft, or order], no evidence of statements or representations as to the status of the [check, draft, or order] involved or of any collateral agreement with reference to the [check, draft, or order] shall be admissible unless such statements, representations, or collateral agreement shall be written simultaneously with or upon the [check, draft, or order] at the time it is delivered by the maker thereof.”

The check tendered by Hartsfield reflects no such statement, representation or collateral agreement, and Hartsfield’s pleadings make no reference to a simultaneous separate writing regarding the check. Thus, Hartsfield’s claim for malicious prosecution is, by statute, without evidentiary support. The trial court did not err in dismissing that portion of Hartsfield’s complaint. In light of the above, it is not necessary to determine whether the notice allegedly provided by Union City pursuant to OCGA § 16-9-20 (a) rendered it immune from suit for malicious prosecution.

2. Hartsfield claims that the trial court erred in dismissing her fraud claim. We disagree. The contract signed by Hartsfield reflects that immediately above her signature, in bold type, is the warning not to sign the contract before reading it. At the top of the page, clearly visible, are the annual percentage rate, finance charge, amount financed, total of payments and total sales prices.

Fraud cannot be the basis of an action if it appears that the party alleging the fraud had equal and ample opportunity to prevent it and yet made it possible through the failure to exercise due diligence. Hill v. Century 21 Max Standi Realty, 187 Ga. App. 754, 756 (371 SE2d 217) (1988); Lorick v. NaChurs Plant Food Co., 150 Ga. App. 209, 210 (257 SE2d 332) (1979). “When the means of knowledge are at hand and equally available to both parties to a contract of sale, if the purchaser does not avail himself of these means, he will not be heard to say, in impeachment of the contract, that he was deceived by the representations of the seller.” (Punctuation omitted.) Hill, supra. Harts-field’s “blind reliance” on defendants’ representations as to the terms of the contract shows a lack of due diligence which is unjustified as a matter of law. See Bennett v. Clark, 192 Ga. App. 698, 699 (385 SE2d 780) (1989); Moran v. NAV Svcs., 189 Ga. App. 825 (377 SE2d 909) (1989).

Judgment affirmed.

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

Decided November 1, 1995.

J. Eugene Wilson, for appellant.

Smith, Gambrell & Russell, Bruce D. Cohen, Matthew S. Coles, for appellees.

       In Barnes v. Gossett Oil Co., 56 Ga. App. 220 (192 SE 254) (1937), the recipient of a bad check prosecuted the check’s drawer. After being acquitted, the drawer then sued the recipient for malicious prosecution. The trial court dismissed the action, but this Court permitted the suit to stand as the evidence reflected that the check’s writer and the check’s recipient understood that funds did not exist to cover the check at the time it was written. This Court reasoned a jury could determine that, despite the terms of the check, the parties actually had an agreement for future payment. Thus, the check’s drawer did not write the check with the intent to defraud, a necessary element in a bad check prosecution. “The gravamen of the offense [of writing a bad check] was an intent to defraud which is not shown where there is an extension of credit at the time the check is given; and the question whether or not the criminal process was instituted without probable cause and with malice . . . should have been submitted to the jury.” (Citation omitted.) Id.


author: Johnson, Judge.

text:
    A95A1386.
    MARRIOTT CORPORATION v. ALLEN.
    (463 SE2d 716)
   Johnson, Judge.

Neal Allen cashed three separate $100 checks on his First Los Angeles Bank account at Marriott Corporation’s hotel. The bank returned the three checks to Marriott due to insufficient funds in the account. Marriott resubmitted the checks to the bank, which again returned them due to insufficient funds. About three weeks after cashing those three checks, Allen cashed another $100 check at Marriott which was drawn on an account at First Interstate Bank of California. That bank also returned that check to Marriott due to insufficient funds in the account. Two days after cashing this latest check, Allen tried to cash another $100 check on the First Interstate account at Marriott. Marriott refused to cash that check and told Allen about the four returned checks. He claimed there was sufficient money in both the First Interstate and First Los Angeles accounts to cover the checks. Marriott telephoned First Los Angeles, which verified that at that time there was enough money in Allen’s account to cover the three returned checks. Marriott then called First Interstate, which indicated that there were still insufficient funds in that account to cover the check it had returned and the most recent check that Allen tried to cash. Based on these two First Interstate checks, Marriott had Allen arrested and charged with issuing a bad check and attempting to issue a bad check. Four days after Allen’s arrest, there was enough money in the First Interstate account to pay Marriott for the returned check. Six days later, the state entered nolle prosequis on the bad check charges. Allen then sued Marriott for malicious prosecution and intentional infliction of emotional distress. Marriott moved for summary judgment. The trial court granted the motion as to the emotional distress claim, but denied it as to the malicious prosecution claim. This court granted Marriott’s application for interlocutory review.

Marriott correctly asserts that the court erred in denying its motion for summary judgment on the malicious prosecution claim. “Among the essential elements of a claim for malicious prosecution are (1) a prosecution instituted maliciously and (2) without probable cause which (3) has terminated favorably to the plaintiff. [Cits.]” J. C. Penney Co. v. Miller, 182 Ga. App. 64, 66 (2) (354 SE2d 682) (1987); OCGA § 51-7-40. Although Marriott’s bad check prosecution terminated favorably to Allen, there is no evidence that Marriott instituted the prosecution without probable cause or with malice.

“Probable cause is absent ‘when the circumstances are such as to satisfy a reasonable (person) that the accuser had no ground for proceeding but his desire to injure the accused.’ [Cit.] The determination is dependent upon whether the facts as they appeared at the time of instituting the prosecution were such as to lead a person of ordinary caution to entertain a belief that the accused was guilty of the offense charged. The civil action fails if probable cause for the criminal prosecution is shown. [Cits.]” Wal-Mart Stores v. Blackford, 264 Ga. 612, 613-614 (449 SE2d 293) (1994). In the present case, the facts as they appeared to Marriott at the time it instituted the prosecution were that all three of the First Los Angeles checks had twice been returned due to insufficient funds, although there was finally enough money in the account to cover them; that the initial First Interstate check had been dishonored due to insufficient funds; that Allen was presenting another $100 check drawn on the First Interstate account; and that there still was not enough money in the First Interstate account to cover the two checks presented by Allen. These facts would not lead a reasonable person to believe that Marriott had no ground for proceeding other than a desire to injure Allen, but would instead lead a person of ordinary caution to believe that Allen was guilty of issuing bad checks, which crime occurs at the time the check is issued. See Calhoon v. Mr. Locksmith Co., 200 Ga. App. 618, 620 (2) (409 SE2d 226) (1991). Accordingly, Marriott had probable cause to initiate the prosecution of Allen. See Wilson v. Home Depot, 180 Ga. App. 218, 219-220 (1) (348 SE2d 588) (1986).

Furthermore, Marriott did not prosecute Allen maliciously. “Malice in an action for malicious prosecution . . . consists ‘in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual injured.’ [Cits.]” Barber v. H & H Muller Enterprises, 197 Ga. App. 126, 130 (2) (b) (397 SE2d 563) (1990). There is no evidence in the instant case that Marriott acted out of personal spite toward Allen, or in general disregard of the right consideration of mankind. Rather, the evidence suggests that Marriott acted only out of motivation to protect its own property. See Lolmaugh v. T.O.C. Retail, 210 Ga. App. 605, 606 (2) (436 SE2d 708) (1993). Because Marriott prosecuted Allen with probable cause and without malice, the trial court erred in denying Marriott’s motion for summary judgment on the malicious prosecution claim. See Smith v. Trust Co. Bank, 215 Ga. App. 413, 415-416 (1) (450 SE2d 866) (1994).

Judgment reversed.

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

Decided November 1, 1995.

Gorby & Reeves, Michael J. Gorby, Blakely H. Frye, for appellant.

James M. Thomas, for appellee.