text:
    A98A0481.
    HARDEE’S FOOD SYSTEMS, INC. v. GREEN.
    (502 SE2d 738)
   Beasley, Judge.

After observing an employee at a Hardee’s restaurant put up a wet floor sign and mop the floor, Gena Green traversed the area she was aware had just been mopped and was still wet. She knew, from her work and from cleaning her own house, that a mopped floor would stay wet and water-slippery for a short time. She slipped and fell on what she described as being “water-wet” and “grease-slippery,” which left her side “completely soaked.” Ms. Green sued the proprietor, Hardee’s Food Systems, Inc. An interlocutory appeal brings for review the trial court’s denial of Hardee’s motion for summary judgment.

Last year the Supreme Court reaffirmed in Robinson v. Kroger Co. that “in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Citing Alterman Foods v. Ligon and OCGA § 51-3-1, Robinson emphasized “the fundamental basis for an owner or occupier’s liability — that party’s superior knowledge of the hazard encountered by the plaintiff.”

Robinson also confirmed that under Lau’s Corp. v. Haskins a defendant moving for summary judgment “need no longer affirmatively disprove the nonmoving party’s case; instead the burden on the moving party may be discharged by pointing out by reference to the record that there is an absence of evidence to support the nonmoving party’s case.” Although Robinson readjusted this burden with regard to the second element of the cause of action (whether plaintiff lacked knowledge of hazard despite ordinary care), the burden remained the same with regard to the first element. Where defendant points to an absence of evidence on the first element, plaintiff must present evidence the defendant had superior actual or constructive knowledge of the hazard, or else suffer summary judgment.

Green’s theory is that she slipped on the combination of water and an invisible greasy substance that had leaked from the trash can to which she was walking to empty her tray, that she did not know of the leak and believed there was only water on the floor, and that the proprietor knew or should have known of the greasy substance and cleaned it up. As to this latter point, it is unclear whether Green means the mopping was undertaken for the purpose of removing what leaked and did not fully succeed in doing so or whether the employee should have seen the greasy substance while mopping generally and removed it.

For the purpose of this appeal, it does not matter. In either event, plaintiff has offered only nonprobative hearsay evidence that something slippery from the trash can had leaked onto the floor. She cannot assert the proprietor had superior actual knowledge as to water, and she cannot prove it had constructive knowledge of a greasy substance being on the floor. Although the testimony of plaintiff and her mother on the one hand and the restaurant employee on the other hand raises an issue of fact whether Green fell on water or on water mixed with a greasy substance, resolution of this factual issue is not necessary on the question of liability because it is not a material fact, given the undisputed evidence. The reason is that plaintiff cannot prove Hardee’s had any knowledge of a greasy spot either before or after the mopping.

1. Actual Knowledge.

Hardee’s submitted the affidavit of the employee who mopped the floor only minutes before the incident. She testified she did not see or detect a greasy or otherwise slippery substance on the floor. Green countered with (i) her own testimony that shortly after her fall, an unidentified employee of Hardee’s stated that the mopping employee had been mopping up spilled grease or soda and (ii) her mother’s testimony that later the same day, “an unknown employee stated that the garbage receptacle where Ms. Green fell was leaking.”

“Evidence offered on motion for summary judgment is held to the same standards of admissibility as evidence at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment. Hearsay is never admissible and has no probative value unless it comes within a recognized exception to the rule.”

Statements by unidentified store employees are not part of an exception to the hearsay rule. “[S]ince the alleged utterer is unknown, it cannot be shown that [the statements] qualify as being free from all suspicion of device or afterthought. Moreover, the putting forward of some unidentified, unspecific person as an employee, who allegedly made certain remarks that would bind or incriminate the employer, and as to whom there is no showing the person can be brought forth at trial or even located, or in fact exists, is not enough to raise a genuine issue of material fact controverting the defendant’s positive testimony that there was no defect of which it had actual or constructive superior knowledge.”

2. Constructive Knowledge.

Nor did Green show competent evidence of constructive knowledge. Constructive knowledge can be established in one of two ways: (1) by evidence that employees were in the immediate vicinity and easily could have noticed and removed the hazard, or (2) by evidence that the substance had been on the floor for such a time that (a) it would have been discovered had the proprietor exercised reasonable care in inspecting its premises, and (b) upon being discovered, it would have been cleaned up had the proprietor exercised reasonable care in its method of cleaning its premises.

(a) As to the first possibility, Green argues that the mopping employee “had, within minutes of the Appellee’s fall, cleaned the area where the Appellee fell and therefore should have known of the presence of any invisible, yet greasy, substance on the floor.”

But “[s]howing that an employee was merely working in the immediate area of a foreign substance is not enough; the employee must have been in a position to have easily seen the substance and removed it.” As stated in Haskins v. Piggly Wiggly Southern (affirming summary judgment), “[ijnasmuch as the purported hazard was not readily visible to [plaintiff], she did not establish that [defendant’s] employee could have easily seen and removed it.”

Rodriquez v. City of Augusta approximates the facts of this case. Five or ten minutes before Rodriquez slipped and fell in an airport restroom, an airport employee had cleaned the restroom and checked its floor. A second airport employee was in the restroom while Rodriquez was there and also testified the floor appeared free of any foreign substance. Rodriquez testified he slipped on something on the floor that was slimy to the touch but not visible to the eye.

Affirming summary judgment to defendant, we explained: “Rodriquez’s claim that an employee should have noticed the alleged hazard is not factually supported by any evidence. Constructive knowledge can only be inferred where there is evidence that an employee was in the immediate vicinity of the dangerous condition and could have easily discovered and removed the hazard. The fact that Rodriquez admitted that the alleged dangerous substance was not visible precludes finding that the City’s employee could have easily noticed and corrected it.”

(b) The second possibility of showing constructive knowledge is foreclosed for three reasons. First, Green’s own evidence showed Hardee’s had inspected and cleaned the floor only minutes before she traversed it. Second, Green submitted no evidence that the grease was on the floor for any length of time. Third, Green’s own evidence showed the grease was invisible and thus would not be discovered through a reasonable visual inspection. Fourth, Hardee’s method of cleaning its premises cannot be criticized for failing to clean up something invisible that it had not otherwise discerned. As stated in Division 1, supra, the only evidence that Hardee’s may have known of the invisible substance is inadmissible hearsay.

We note that the recently decided case of Straughter v. J. H. Harvey Co., 232 Ga. App. 29 (500 SE2d 353) (1998), stated that “a plaintiff, in order to withstand a motion for summary judgment, need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident. [Cits.]” Straughter and the cases it cites are distinguishable in that Green herself testified that Hardee’s had inspected and cleaned the relevant area only minutes before she traversed it.

Decided May 7, 1998

Reconsideration denied June 16, 1998.

Miller & Towson, James V. Towson, Peter R. Cates, John D. Raines III, for appellant.

Joseph I. Carter, for appellee.

Because there was no competent evidence that Hardee’s had either actual or constructive knowledge of the hazard, the trial court erred in denying Hardee’s motion for summary judgment.

Judgment reversed.

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

       268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997).

       246 Ga. 620 (272 SE2d 327) (1980).

        Robinson, supra, 268 Ga. at 736; see Haskins v. Piggly Wiggly Southern, 230 Ga. App. 350, 351 (496 SE2d 471) (1998) (“the true ground of liability is the owner or occupier’s superior knowledge of the hazard and the danger therefrom”).

       261 Ga. 491 (405 SE2d 474) (1991).

       (Citations and punctuation omitted.) Robinson, supra, 268 Ga. at 747; see Durrence v. Durrence, 267 Ga. 280 (476 SE2d 741) (1996) (defendant need only point out absence of evidence).

        Robinson, supra, 268 Ga. at 747-748.

       See Kelley v. Piggly Wiggly Southern, 230 Ga. App. 508, 509-511 (2) (496 SE2d 732) (1997); Haskins v. Piggly Wiggly Southern, supra, 230 Ga. App. at 352.

       (Citations and punctuation omitted.) Hagan v. Goody’s Family Clothing, 227 Ga. App. 585, 586 (490 SE2d 107) (1997).

       Id. at 586-587; but see Stouffer Corp. v. Henkel, 170 Ga. App. 383, 385 (1) (317 SE2d 222) (1984). Although the author of the present opinion dissented to the Hagan decision, Hagan, a seven-judge decision, takes precedence over conflicting panel decisions and is binding on this Court. OCGA § 15-3-1 (d); see Court of Appeals Rule 33 (a).

       (Citations and punctuation omitted.) Hagan, supra, 227 Ga. App. at 587; see Johnston v. Grand Union Co., 189 Ga. App. 270, 272 (1) (375 SE2d 249) (1988).

        Alterman Foods v. Ligon, supra, 246 Ga. at 622, modified on other grounds, Robinson, supra; Kelley, supra, 230 Ga. App. at 510; see Haskins v. Piggly Wiggly Southern, supra, 230 Ga. App. at 351-352.

       (Citation and punctuation omitted.) Id. at 352.

       (Citations omitted.) Id.

       222 Ga. App. 383 (474 SE2d 278) (1996).

       Id. at 383.

       (Citations and punctuation omitted; emphasis in original.) Id. at 384; see Blake v. Kroger Co., 224 Ga. App. 140, 145 (2) (480 SE2d 199) (1996) (“since appellant insists the substance was invisible and he could not have seen it if he had been ‘crawling’ on the floor, there exists no reasonable basis from which to conclude that [a nearby] employee should have discovered and removed this particular hazard”) (citation omitted).

       See Haskins v. Piggly Wiggly Southern, supra, 230 Ga. App. at 351.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A98A0106.
    ANDERSON et al. v. REYNOLDS.
    (502 SE2d 782)
   Ruffin, Judge.

Alyenne Ainsworth Reynolds sued William Aaron Anderson and Allegra R. Anderson after she slipped and fell while attending to plants and flowers at the Andersons’ residence while they were on vacation. Reynolds alleged that while she attempted to remove a soaker hose from the water spigot, as the Andersons instructed, she stepped on some rocks or bricks, lost her footing and fell to the ground. After discovery, the trial court denied the Andersons’ motion for summary judgment. We granted the Andersons’ application for interlocutory appeal from the trial court’s order denying their motion for summary judgment. For reasons which follow, we reverse.

“It is well established that on an appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. [Cit.]” Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

Viewed in the light most favorable to Reynolds, as the nonmovant, the evidence shows that the Andersons asked Reynolds, their next-door neighbor, to maintain and care for their plants while they were on vacation. Prior to leaving home, the Andersons positioned several potted houseplants on top of some rocks at the rear of their home and instructed Reynolds how to water them. The plants’ foliage covered the rocks on which the plants were placed.

Reynolds wore rubber sole shoes as she stood on the rocks in order to reach over the potted plants and disconnect a soaker hose. Reynolds disconnected the soaker hose and then connected the nozzle of another hose before she turned on the water and watered the potted plants. After Reynolds watered the potted plants, she walked around the house and watered some other plants and flowers and then returned to the water spigot to disconnect the hose she used to water the plants and reconnect the soaker hose. Reynolds watered the plants in this same manner two days prior to the date of the incident. On the second occasion of caring for the plants she lost her footing and fell. Reynolds testified at deposition that as she stood up and turned around, her feet came out from under her and she fell.

The record shows that Reynolds is uncertain about what actually caused her fall. Reynolds testified that the slippery and wet condition of the rocks may have contributed to the incident. Reynolds also testified that she felt the rocks move when she fell. Reynolds was certain only of the fact that her “feet went out” from under her and she fell. Reynolds injured her hip as a result of her fall.

In support of the motion for summary judgment, the Andersons relied on Reynolds’ deposition testimony. The testimony showed that Reynolds successfully negotiated the alleged hazardous area where the plants and water spigot were located on two days prior to the slip and fall, as well as once on the date of the incident. The evidence also established that she knew the rocks that she stood upon were wet because she had just watered the plants. The Andersons argued that there was no evidence that they knew or should have known of the alleged hazardous or slippery condition of the rocks where Reynolds fell because they were on vacation when the incident occurred. Under these circumstances, we agree.

Because Reynolds entered the Andersons’ residential property by express invitation for the purpose of caring for their plants and shrubs, she occupied the status of an invitee. Thus, the Andersons, as the homeowners, had the duty to exercise ordinary care to keep the premises and approaches safe. OCGA § 51-3-1. “[T]he true ground of liability is the owner’s superior knowledge of the peril and the danger therefrom. [Cit.]” Clemmons v. Griffin, 230 Ga. App. 721, 722 (498 SE2d 99) (1998). “[I]n order to recover for injuries sustained in a slip- and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/ occupier.” Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997).

“The proprietor has the duty to take reasonable precautions to make its premises safe, but the invitee also has a duty to exercise ordinary care for his own safety, so, where the proprietor fails to exercise reasonable care to make the premises safe, nevertheless if the invitee by exercising ordinary care could have discovered and avoided the dangerous condition, his knowledge of the danger is deemed equal to the proprietor’s knowledge. The determining factor in most cases is, therefore, whether in the exercise of ordinary care the plaintiff could have discovered a dangerous condition, including one created by the proprietor. [Cit.]” Stephens v. Ernie’s Steakhouse &c., 215 Ga. App. 166, 168 (1) (450 SE2d 275) (1994).

It is undisputed that the Andersons were on vacation when the incident occurred. Because there is no evidence in the record that the Andersons had actual knowledge of the alleged hazardous condition, Reynolds must establish that the Andersons had constructive knowledge of the dangerous condition. In addition, at summary judgment, Reynolds had the burden of also showing the Andersons’ constructive knowledge of the potential hazard was superior to her knowledge. Echols v. Whisker’s Food &c., 229 Ga. App. 240 (493 SE2d 722) (1997). Reynolds failed to make this showing.

In her deposition, Reynolds admitted that two days prior to her fall, she successfully stood on the same rocks from which her fall eventually resulted. Reynolds also admitted that she traversed this area three times before the incident occurred. “When a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom.” Rossano v. American Legion Post No. 29, 189 Ga. App. 610, 612 (3) (376 SE2d 698) (1988). “In cases where this rule has been applied, however, the defect causing the fall invariably has been a static condition readily discernible to a person exercising reasonable care for his own safety. . . .” Martin v. Dunwoody-Shallowford Partners, 217 Ga. App. 559, 561 (2) (b) (458 SE2d 388) (1995).

Reynolds successfully watered the plants two days previously; she slipped and fell while she attempted the same task on the next occasion. Reynolds testified at her deposition that she “had to kind of get in there to reach over to where the hose was.” Reynolds admitted that there were rocks where she stood and that the rocks were wet because “[I] had just watered the plants.” Even though Reynolds testified she did not notice that the rocks were unstable when she stood on the rocks to turn the water on and off, she stood in the same area to reach the water spigot on both occasions. Thus, Reynolds was familiar with the alleged hazardous condition and “could not have been ignorant of the [existence of the rocks beneath the plants] but was inevitably required to negotiate [them],” Echols, supra at 241, where she had successfully traversed them immediately before she fell. Accordingly, the trial court erred in denying the Andersons’ motion for summary judgment.

Decided June 16, 1998

Downey & Cleveland, Y. Kevin Williams, James S. Weston, for appellants.

Theodore P. Bianco, Charles A. Mullinax, for appellee.

Judgment reversed.

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


author: Smith, Judge.

text:
    A98A0371.
    HADLEY et al. v. CITY OF ATLANTA.
    (502 SE2d 784)
   Smith, Judge.

The issue in this appeal is the validity of an annual renewal charge imposed by the City of Atlanta beginning in 1995 upon the holders of city-issued Certificatés of Public Necessity and Convenience (CPNC). Lee Hadley, a taxicab driver, taxicab company owner, and the holder of such a certificate, and the Atlanta Taxicab Owners Association, Inc., a voluntary trade association whose members hold such certificates, challenged the propriety of the charge, alleging that it was unlawful for several reasons. Cross-motions for summary judgment were filed. The trial court denied the plaintiffs’ motion and granted the City’s motion in part and denied it in part. The plaintiffs appeal from the trial court’s grant of partial summary judgment to the City. Upon review, we find that the trial court correctly concluded that the renewal charge was a fee and not a tax and that its imposition was lawful. We therefore affirm the judgment below.

The total number of vehicles for hire within the City is limited by the City, and every such vehicle must have a valid CPNC to operate within the City. The initial cost of a CPNC is $6,000. Prior to 1995, no annual renewal fee existed. In 1995, the City amended several provisions of Chapter 162 of its Code of Ordinances. As amended, § 162-61.1 imposed a new annual “renewal fee” of $150 upon the holder of a city-issued CPNC.

Hadley has been the holder of a CPNC for a number of years. He is the registered owner of one CPNC, and his company is the registered owner of three other certificates. Hadley also pays a business license tax, a motor vehicle for hire driver’s permit fee, and a company permit fee.

1. Plaintiffs contend the trial court erred in concluding that the annual renewal charge on CPNCs is a regulatory fee and not a tax.

It is well established that the basic power to tax belongs to the State. A municipality may levy taxes only when the power to do so is expressly conferred upon it in plain and unmistakable terms either directly in the Constitution or by statute. Camden Tel. &c. Co. v. City of St. Marys, 247 Ga. 687, 688-689 (2) (279 SE2d 200) (1981). The City is authorized under OCGA § 48-13-6 to levy occupation taxes, and it does so. It is also authorized under OCGA § 48-13-9 (b) (3) to impose regulatory fees upon taxicab and limousine operators.

The distinction between a tax and a fee is that a tax is imposed primarily as a revenue-raising measure, while a regulatory fee, or license, is imposed under the police power and is intended primarily as a means of or an aid in regulating a particular occupation or activity. Richmond County Business Assn. v. Richmond County, 224 Ga. 854, 856 (1) (165 SE2d 293) (1968); Publix-Lucas Theaters v. City of Brunswick, 206 Ga. 206, 212 (56 SE2d 254) (1949).

Although it is often important to decide whether a particular charge is a tax or a fee, it is frequently difficult to discern whether a given enactment provides for a regulatory fee or authorizes simply a tax. Publix-Lucas Theaters, supra. In analyzing whether a charge is a tax or a fee, the inquiry must be whether the ordinance operates merely as a means to generate revenue or whether it acts effectively as a precondition, or license, for engaging in the occupation.

OCGA § 48-13-9 (a) provides: “A local government is authorized to require a business or practitioner of a profession or occupation to pay a regulatory fee only if the local government customarily performs investigation or inspection of such businesses or practitioners of such profession or occupation as protection of the public health, safety, or welfare or in the course of enforcing a state or local building, health, or safety code, but no local government is authorized to use regulatory fees as a means of raising revenue for general purposes; provided that the amount of a regulatory fee shall approximate the reasonable cost of the actual regulatory activity performed by the local government.”

Vehicles for hire operating within the City come under the jurisdiction of the City’s Bureau of Taxicabs & Vehicles for Hire. From the funds appropriated by the City, the Bureau pays salaries and other expenses associated with its various regulatory activities. It is undisputed that the Bureau is the entity charged with responsibility for enforcing city regulations governing vehicles for hire. The Bureau issues applicable permits for the operation of cab companies and controls the suspension and revocation of such permits. Company permits cost $100, with an annual renewal fee of $50. The Bureau investigates each company to ensure that requirements for such companies, set forth in the City Code, are met. It also issues permits to drivers of vehicles for hire. Such permits cost $30 with an annual renewal fee of $20. The Bureau investigates all drivers, to ensure their compliance with Code requirements. Driving records and criminal records are inspected; in cases where cab drivers are not U. S. citizens, their immigration status must be checked.

The Bureau also issues and regulates City-issued CPNCs. Biannual inspections of all vehicles are performed to ensure that the vehicles are maintained pursuant to City Code regulations. Noncomplying vehicles must be repaired and re-inspected. The Bureau issues monthly stickers bearing the CPNC number to each vehicle to which a CPNC has been assigned. These stickers identify vehicles permitted to operate within the City and distinguish them from “gypsy” cabs unlicensed by the City and aid the City in regulating the operation of unlicensed vehicles.

Plaintiffs’ principal argument in support of their contention that the annual renewal fee on the CPNC is a tax, rather than a fee, rests on the fact that the monies collected, like all monies collected from each of these fees, are deposited into the City’s general fund and are not earmarked specifically for operations of the Bureau. Plaintiffs maintain that because the Bureau’s annual budget does not fluctuate in accordance with the amounts collected, the renewal fee does not “approximate the reasonable cost of the actual regulatory activity performed,” and the charge therefore must be a tax, rather than a fee.

It is undisputed, however, that the Bureau receives the lion’s share of its operating funds from the City’s general fund (with a small portion coming from airport revenues), and that the yearly appropriations from the general fund exceed the amounts collected from CPNC renewal fees.

We agree with the trial court that although the CPNC renewal charges are not earmarked specifically for use by the Bureau, it is clear that monies at least equal to those collected as CPNC renewal fees are given to the Bureau and used to defray the actual cost of the regulatory activities with which it is charged. Because it is clear that the cost of regulation exceeds the fees collected, the activities and businesses regulated are within the City’s authority, and it is clear that the Bureau performs actual regulatory services, we conclude that the trial court correctly determined that the annual renewal charge is not a tax but a regulatory fee.

2. Plaintiffs also maintain that the annual renewal charge is unlawful because the City is authorized by OCGA § 48-13-9 (a) to regulate only professions, occupations, or businesses, and the annual renewal fee is imposed upon the holder of a CPNC, which is not a profession, occupation, or trade. The City concedes that holding a CPNC is not a separate occupation or business. But the City is authorized to regulate the occupation or trade in which OPNCs are used: the business of operating taxicabs and vehicles for hire. In regulating that business, the City may lawfully enact ordinances that impose fees for CPNCs, so long as the fees approximate the costs of regulating the business in which the CPNC is used.

3. In a related enumeration of error, plaintiffs assert that even if the City has authority to impose a fee upon the taxicab business, it has no authority to charge several regulatory fees in connection with one business or occupation. Relying upon the authority of Publix-Lucas Theaters, supra, plaintiffs contend the City “ ‘may not divide the business or occupation into its constituent elements, parts, or incidents and levy a separate tax on each or any element.’ [Cit.]” Id. at 213. But Publix-Lucas Theaters involved an occupation tax, not a regulatory fee. Id. And that is a crucial difference.

Confusion arises from the indiscriminate use, in many cases, of the terms “license,” “tax,” “occupation tax,” and various combinations of these terms. The cases make clear, however, that this holding in Publix-Lucas Theaters refers to taxes, not to regulatory fees; the authority of a municipal corporation to classify businesses for taxing purposes does not allow them to divide businesses into separate constituent elements that are taxed separately. See, e.g., Derst Baking Co. v. Mayor &c. of Savannah, 180 Ga. 510 (179 SE 763) (1935) (tax on use of city streets for business purposes not a tax on deliveries or sales from trucks but privilege tax for use to carry on business on streets, and did not impermissibly divide business into constituent elements for tax purposes); Steuer v. City of Atlanta, 176 Ga. 433 (168 SE 7) (1933) (ordinance taxing rental libraries on graduated scale according to number of books did not attempt to divide business into constituent elements for purposes of taxation); Underwriters Salvage Co. &c. v. City of Atlanta, 174 Ga. 678, 684-685 (163 SE 893) (1932) (although company was agent of insurance companies, its entire business was salvage and therefore tax on those conducting salvage business in City did not impermissibly divide business into constituent elements for tax purposes); Hewin v. City of Atlanta, 121 Ga. 723, 733-734 (49 SE 765) (1905) (giving customers trading stamps is a “mere incident” of mercantile business and may not be taxed separately).

This principle is eminently reasonable. When a tax to engage in a general business is exacted, another tax may not be imposed upon the doing of a particular portion of the business already taxed. But the purpose of fees is not to raise revenue; it is to cover the cost of regulating certain activities for the protection of the public. And their lawfulness and validity are analyzed differently. If the authority exists to regulate the particular occupation or trade, various regulatory activities are necessary for the public’s protection, and as long as the fees charged approximate the costs of the necessary regulatory activity, they are not prohibited. For example, municipal corporations are authorized under OCGA § 48-13-9 (b) (23) to regulate hotels and motels. Various regulatory activities may be necessary to protect the public adequately in connection with that business; hotels commonly include food service establishments on their premises and often include newspaper vending boxes and health clubs, all of which are also listed in the statute. OCGA § 48-13-9 (b) (9), (15), (26). Since regulatory activity is necessary in connection with all these parts of the hotel, a city is authorized to impose regulatory fees on the hotel’s owner to cover the regulatory costs involved.

So, too, with a taxicab or vehicles for hire business. Several regulatory activities are involved. The City is legitimately concerned with the qualifications and records of drivers of the vehicles for hire; with the location, accessibility, and insured state of the companies; and with the safety and comfort of vehicles. Separate fees cover the City’s costs of inspecting and regulating the various aspects of the business. As long as these fees approximate the regulatory costs involved, they are appropriate and lawful.

The trial court did not err in granting partial summary judgment to the City.

Decided June 16, 1998.

George Spears, for appellants.

Clifford E. Hardwick IV, Lisa S. Morchower, Michael H. Hilliard, for appellee.

Judgment affirmed.

Johnson, P. J., and Senior Appellate Judge Harold R. Banke concur.

       This appeal was filed in the Supreme Court. The Supreme Court found that its exclusive appellate jurisdiction had not been invoked because the constitutionality of the city ordinance had not been drawn into question and the trial court had not specifically passed upon its constitutionality. Marr v. Dept. of Ed., 264 Ga. 841 (452 SE2d 112) (1995). The Supreme Court also found that because the equitable relief sought by appellants and denied by the trial court was merely ancillary to the legal questions in issue, its general jurisdiction was not invoked. The case was therefore transferred to this Court.

       The Code requires that the company maintain an office within the City, have at least 25 vehicles in its fleet, be accessible 24 hours a day, and maintain and furnish to the City a list of drivers.

       We note that the question of whether the amount charged, for the renewal fee complies with the requirement in OCGA §§ 48-13-5 (6) and 48-13-9 (a) that it “approximate” the cost of regulation is a separate issue. That issue was excepted by the trial court from its grant of summary judgment to the City and remains to be tried by a jury. The trial court’s denial of summary judgment to the City on this issue was not appealed by the City.

       Plaintiffs have not challenged the initial cost of a CPNC in this action; they challenge only that portion of the amended ordinance imposing an annual renewal charge on the CPNC. But our analysis of this argument necessarily addresses the City’s imposition of any regulatory fee, including the initial charge, on a CPNC.

       As mentioned in n. 3, supra, the trial court found that the City had not adequately shown whether this renewal fee approximated the regulatory cost involved and denied the City’s motion for summary judgment on this point, leaving it to be determined by a jury. No appeal was filed from this ruling.


text:
    A98A0452.
    In the Interest of J. S. et al., children.
    (502 SE2d 788)
   Smith, Judge.

This is an appeal by a mother from an order of the juvenile court terminating her parental rights. Appellant contends that, based on the evidence, the trial court could not have found all the facts required to support a termination of her parental rights. She also contends she did not receive adequate notice of the citizen review panel findings or the case plan goals. We disagree with appellant’s contentions and affirm.

1. Before considering whether to enter an order terminating parental rights, the trial court must first determine whether there exists “clear and convincing evidence of parental misconduct or inability.” OCGA § 15-11-81 (a). To reach this determination, the court must find that the child is deprived within the meaning of OCGA § 15-11-2 (8) due to a lack of proper parental care or control by the parent in question, that this state of affairs is likely to continue or is not likely to be remedied, and that such deprivation will or is likely to cause the child serious physical, mental, emotional, or moral harm. OCGA § 15-11-81 (b) (4) (A). If the court makes this preliminary determination based on clear and convincing evidence, termination of parental rights is authorized if the court likewise finds such action will best serve the child’s interest and needs, “including the need for a secure and stable home.” OCGA § 15-11-81 (a). Alternatively, the court may conclude that the child’s interest and needs will be served best by disposition under OCGA § 15-11-34. OCGA § 15-11-81 (c).

On appeal of a termination of parental rights, we view the evidence in the light most favorable to the appellee. In the Interest of A. M. V., 222 Ga. App. 528, 529 (474 SE2d 723) (1996). Viewed in this light, the evidence shows that child welfare authorities investigated appellant’s family in Texas in early 1995. Responding to a report that the infant S. S. was severely undernourished, a caseworker with the Texas Department of Protective & Regulatory Services met with appellant and S. S. at the Department offices. The infant was dirty and obviously small for her age, and appellant was unable to tell the caseworker her feeding schedule. A physician who examined S. S. testified that she was “skin and bone.” His diagnosis was failure to thrive, marasmus (absence of body fat), cachexia (absence of muscle), emaciation, and malnutrition. He testified that S. S.’s condition was “very serious, life threatening” if left untreated.

As part of the investigation, Texas caseworkers visited the paternal grandmother’s house, where appellant and the father were living with J. S. and S. S. Another caseworker investigated the case of an elderly, mentally handicapped man who had been abused and neglected and was confined in a shed-like structure under the house. These caseworkers testified to conditions that can only be described as squalid. The yard was strewn with rusting junk, and “real big dogs” were on chains or loose in the yard. At least ten people, including a “child sexual abuse perpetrator,” were living in the four-room structure. The rooms and furniture were extremely dirty, with “a strange odor” and animal waste. Animals, including a calf, were allowed to wander through the house at will. The nearby trailer in which appellant falsely claimed she and the father were living was in total disrepair and uninhabitable, with no utilities, rooms boarded off, sections of the floor missing, and a doorless refrigerator, sink, and toilet in the middle of the living room floor.

When the caseworkers attempted to discuss these conditions with the parents, they became very hostile and uncooperative, blaming S. S.’s condition on others, including her doctor and the Texas authorities. The father told the caseworkers that they would go to Georgia to avoid dealing with the Texas authorities, even though S. S. had been released from the hospital only a few hours earlier. The caseworkers left the scene to obtain an emergency custody order from a judge. When they returned, the parents had fled with the children. The grandmother told them, “We knew what was going on. We knew you were going to do that so they just took off and left.”

The family was located in Georgia, and the Whitfield County Department of Family & Children Services obtained an order removing the children from the home. DFACS obtained temporary legal custody of the children based on a finding of deprivation. A case plan was developed pursuant to former OCGA § 15-11-41 (c) (l)-(6) and incorporated in the custody order in May 1995.

In August 1995, the children were returned to their parents for a trial placement. Despite the court order placing legal custody in Whitfield County, the parents in October 1995 fled again with the children, returning to Texas. Appellant acknowledged that she knew they were not supposed to take the children to Texas. Texas authorities retrieved the children, they were returned to Georgia, and they have been in foster care since that time.

S. S.’s malnutrition has been remedied in foster care, but she has remaining problems with hyperactivity, communication skills, and attention span. Her older brother, J. S., is blind, autistic, and suffers from severe developmental delay. He “cannot be left unattended, period,” because of his extremely destructive behavior that poses a risk of harm to himself and to others.

While the children were in foster care, appellant and the father returned to Georgia, then left the state again and returned to Texas, moving back and forth between Texas and Florida until the father was arrested on an outstanding warrant. While in Florida, appellant was sexually involved with two other men and became pregnant again.

After J. S. and S. S. were placed in foster care, a judicial citizen review panel adopted recommendations in accord with the DFACS case plan, requiring among other goals that the parents cooperate with DFACS, learn parenting skills, obtain permanent, suitable, and safe housing and steady employment, and visit their children regularly. The panel’s recommendations were appealed and affirmed by the juvenile court. Regular reviews of the case plan goals were held to monitor appellant’s progress.

Testimony was presented at the termination hearing that appellant had made little progress on the case plan. She was instructed to maintain a stable job and residence, but was unemployed for three months and then worked at six jobs in ten months; she was fired or “just quit.” Although appellant informed DFACS that she would be living at her mother’s house in Florida, she had lived in at least three other locations by the time of the hearing. She acknowledged that she never lived in one place for more than a few months and moved from job to job.

Appellant visited the children only once in the year of the termination hearing and four times in the previous year. She missed numerous scheduled visitation appointments, and she also failed to keep three appointments for therapeutic programs designed to help J. S. Appellant contended she could not travel from Florida while pregnant, but she did not call the children for months at a time and did not send any clothing or gifts for them. Other than one occasion on which she sent the children’s foster parent $30 in cash, she sent three money orders totaling $64 in child support, but only after the petition to terminate parental rights was filed.

As to the first two factors required in the trial court’s decision, the evidence clearly showed that the children were deprived due to parental inability. “[T]here was clear and convincing evidence of these two factors by virtue of the fact that the mother failed to comply with virtually every condition of the reunification plans. Finally, no appeal was taken from the order of the juvenile court... and thus the mother is bound by that determination.” (Citations and punctuation omitted.) In the Interest of L. S. F., 217 Ga. App. 478, 480 (458 SE2d 370) (1995).

Having found that the children are deprived and that such deprivation is caused by appellant, we next consider whether the deprivation of the children is likely to continue and have a detrimental effect on them. In addition to evidence of present parental misconduct or inability, evidence of past conduct may be considered in determining whether the deprivation is likely to continue and cause harm to the children. In the Interest of T. B. R., 224 Ga. App. 470, 474 (480 SE2d 901) (1997); In the Interest of A. M. V., supra, 222 Ga. App. at 531-532.

Appellant presented evidence that she has now married the father of her third child and is living with him. She contends this demonstrates stability and a change in her situation refuting previous evidence of parental unfitness. But marriage and relocation, standing alone, do not constitute conclusive evidence of newly acquired fitness. See, e.g., In the Interest of W. J. G., 216 Ga. App. 168, 172 (4) (453 SE2d 768) (1995).

Appellant also contends that the evidence was insufficient to show present unfitness because much of the evidence at the hearing concerned events that took place some time before the termination hearing. We disagree. “In a termination case, evidence that is one or two years old is not outdated. There will necessarily be some passage of time between the date the children are taken from the parents’ home and the date of the termination hearing. . . . The lapse of time in this case was not inordinate.” In the Interest of A. M. V., supra, 222 Ga. App. at 531. In addition, the juvenile court is not required to reunite the children with appellant “in order to obtain current evidence of deprivation or neglect. [Cit.]” In the Interest of E. C., 225 Ga. App. 12, 16 (482 SE2d 522) (1997). This is particularly true when appellant has fled the jurisdiction of the court with the children on two previous occasions.

Moreover, sufficient evidence exists that detrimental deprivation is likely to continue. The record is replete with examples of appellant’s failure to cooperate with both Texas and Georgia authorities in obtaining medical care and special services for the children. This pattern has continued; appellant obtained a certificate of completion from a child care course but testified that she was unable to remember anything she had learned. At the time of the hearing, she had made no effort to learn about J. S.’s profound special needs or the skills necessary to care for him. This is clear and convincing evidence from which the trial court could find that appellant’s inability or unwillingness to address her children’s needs was likely to continue and likely to cause serious harm to the children.

Appellant made no significant attempts to comply with the case plan until after a decision was made to terminate parental rights. The trial court was authorized to assign less weight to “assertions of sudden parental fitness” based on belated efforts to comply with a case plan after termination proceedings begin. In the Interest of T. B. R., supra, 224 Ga. App. at 475. “While this may indicate an attempt to comply with the DFCS reunification plan, it falls very short of negating years of abandonment and harmful neglect. [Cit.]” Id. The trial court correctly observed that “[a] few months of partial stability does not establish for the court that the parents are capable of maintaining the progress.”

Appellant also has continued to blame others for her problems, asserting at the hearing as she did to Texas authorities and the citizen review panel that the children were not neglected and should not have been removed from her custody. This lack of recognition of her own responsibility is properly considered by the trial court in determining whether deprivation is likely to continue. See, e.g., In the Interest of E. C., supra, 225 Ga. App. at 16. Appellant blames the father for the violence in the family, but the incidents of violence did not end with that relationship. Her relationship with her subsequent sexual partner was also abusive, and she has personally been involved in other violent episodes including an altercation with her husband’s former girl friend and a confrontation with the paternal grandmother at a supervised visit.

The record also contains considerable evidence of appellant’s lack of credibility. Testimony was presented that she lied to caseworkers and to a citizen review panel regarding her most recent pregnancy, her criminal history, her involvement with men, her residence, and the whereabouts of the father. Appellant claimed to have sent an additional $700 in cash to the foster parent, but the foster parent denied this. Appellant also claimed a caseworker told her to move to Florida in order to regain custody of the children; the caseworker denied this. Finally, evidence was presented that appellant and the father fabricated a separation in order to “fool” the authorities and regain custody. The trial court was authorized to consider appellant’s lies, deceptive conduct, or conflicting statements in weighing her testimony and determining the chances of her successful rehabilitation. In the Interest of E. C., supra, 225 Ga. App. at 19, n. 5. See also In the Interest of T. B. R., supra, 224 Ga. App. at 475.

Appellant has demonstrated continued inability or unwillingness to address the children’s special needs, particularly those of the profoundly needy J. S. Over a two-year period, she not only failed to comply with most of the goals of the case plan but engaged in an active pattern of misrepresentation, concealment, and flight from the jurisdiction, actively frustrating these goals. Appellant clearly placed her own wishes and desires above the stable home, visits, and medical and developmental care needed by the children. This evidence supports the trial court’s determination that deprivation is both likely to continue and to cause serious harm to J. S. and S. S. See In the Interest of L. S. F., supra.

Finally, after finding “parental misconduct or inability” under OCGA § 15-11-81 (a), the trial court then must determine whether terminating parental rights is in the best interest of the child. “Those same factors which show the existence of parental misconduct or inability can also- support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.” (Citations and punctuation omitted.) In the Interest of E. C., supra, 225 Ga. App. at 18. Viewing the evidence, as presented above, in the light most favorable to the appellee, there is more than sufficient clear and convincing evidence that the termination of appellant’s parental rights is in the children’s best interests. The children are well cared for together in a foster home and have formed an emotional bond. Education and therapeutic services are being provided for J. S., and he has made improvement in all areas. In contrast, there is no evidence that the children, particularly J. S., will receive adequate care from appellant; there is evidence that appellant is unprepared to care for them.

“The question on appeal is whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” (Citations and punctuation omitted.) In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997). There is more than sufficient clear and convincing evidence in this case for a rational factfinder to conclude that appellant’s parental rights should be terminated and that such termination is in the best interests of J. S. and S. S.

2. We disagree with appellant’s assertion that the trial court erred in terminating her parental rights because DFACS failed to define clearly her reunification goals as required by OCGA § 15-11-41 (d) (3). The record shows that the mother signed the DFACS case plan and attended the judicial citizen review panel meeting at which the reunification plan was established. She signed a copy of the plan, acknowledging “that the above statements have been fully explained and any questions fully answered.” She attended many subsequent panel meetings at which she signed the same statement. All versions of the plan required that appellant cooperate with DFACS, learn parenting skills, maintain “permanent, suitable and safe housing,” maintain steady employment, and visit the children. The DFACS case plan, as part of the requirement that appellant maintain steady employment, required that she “pay the appropriate amount of child support.” Appellant acknowledged at the termination hearing that she understood she was required to establish a stable residence, maintain a job, and visit her children.

Decided June 16, 1998.

Jerry W. Moncus, for appellant.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Waycaster, Morris, Johnson & Dean, Cynthia N. Johnson, Michael R. McCarthy, James M. Barnes, for appellee.

As noted in Division 1, supra, appellant failed to comply with most of the requirements of the plan. “In short, it is clear that the mother’s failure to comply with the reunification plans was not the result of any ambiguities in the stated goals, but a consequence of her own actions. The goals were sufficiently clear to comport with the requirements of due process.” (Citations and punctuation omitted.) In the Interest of J. B. A., 230 Ga. App. 181, 185 (495 SE2d 636) (1998).

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

       The order also terminated the father’s parental rights, but he does not join in this appeal.


author: Judge Harold R. Banke.

text:
    A98A0633.
    DAVIS v. THE STATE.
    (502 SE2d 779)
   Judge Harold R. Banke.

Stacey Lamar Davis appeals his convictions of armed robbery (two counts), kidnapping, burglary, and possession of a firearm during the commission of the unlawful entry into a building. He contends the evidence was insufficient to support the verdict and that the trial court erred in failing to instruct the jury not to read any newspaper articles relating to the case prior to allowing the jury to disperse pending the beginning of trial. Held:

1. Davis contends the evidence was insufficient to support his convictions because he was coerced into committing these offenses. On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict. Moreover, the appellant no longer enjoys the presumption of innocence, and the appellate court does not weigh the sufficiency of the evidence or judge the credibility of the witnesses. Grant v. State, 195 Ga. App. 463 (393 SE2d 737) (1990).

OCGA § 16-3-26 precludes a person from being guilty of any crime except murder “if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury.” Coercion is an affirmative defense, see OCGA § 16-3-28, and the burden rests upon the State to disprove coercion beyond a reasonable doubt. Aleman v. State, 227 Ga. App. 607, 608 (489 SE2d 867) (1997).

According to Davis, co-defendant Micah Ivey grabbed him from behind, handed him a BB gun, and told him he knew of a trailer he had been watching. Also, Davis testified repeatedly that he was very scared of Ivey and that Ivey threatened to kill him if he did not cooperate. Finally, Davis testified that Ivey displayed a silver, .25 caliber handgun when he was attempting to coerce Davis into helping with the crimes.

To disprove Davis’ coercion defense, the State offered the testimony of the victims’ neighbor, Alfrieda Savage. Savage testified that she saw Davis and another individual, who was later identified as Davis’ co-defendant, walking together earlier in the day and walking together again about two hours later. Savage also testified she saw Davis coming out of the victim’s living room window along with Ivey about 4:00 p.m. that same day. The victim, Alfred Clay, testified that Davis and Ivey acted in concert. They both tied him up, they both had guns, and they both carried him to the back of his trailer. Clay listened to them talk for approximately four hours while Davis and Ivey waited to ambush Mrs. Clay. Clay testified that he recognized Davis’ voice. Lastly, Detective Porter testified that he apprehended Davis and Ivey not far from the Clays’ residence while they seemed to be walking together. After his arrest, Davis gave a statement to Detective Porter, but never mentioned coercion. Although Davis’ and the State’s versions of the facts are in contravention, “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” Jessup v. State, 224 Ga. App. 176, 177 (480 SE2d 232) (1996). Moreover, whether the State has met its burden of disproving coercion is a question for the jury. Harris v. State, 223 Ga. App. 661 (478 SE2d 458) (1996). The jury resolved this issue against Davis, and as its verdict meets the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), it will not be disturbed on appeal.

Decided June 16, 1998.

Lon P. Kemeness, for appellant.

C. Paul Bowden, District Attorney, Nancy G. R. Smith, Assistant District Attorney, for appellee.

2. Davis asserts the trial court erred in denying his motion for a continuance based on the trial court’s failure to instruct the jury not to read any newspaper articles relating to the case prior to allowing them to disperse prior to the trial. Whether to grant a request for continuance based upon alleged pretrial publicity is within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of abuse. Curtis v. State, 212 Ga. App. 237 (2) (441 SE2d 776) (1994). Here, a single factual newspaper article appeared on the eve of trial in the Tifton Gazette. The trial court conducted an extensive voir dire of the individual jurors which disclosed no suggestion that the jurors had formed any fixed opinion as to the guilt or innocence of Davis based on any pretrial publicity. See Page v. State, 159 Ga. App. 344 (283 SE2d 310) (1981). Based on the foregoing, we cannot conclude the trial court abused its discretion in denying Davis’ motion for continuance.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.


text:
    A98A0752.
    BLACKWELL v. THE STATE.
    (502 SE2d 774)
   Judge Harold R. Banke.

After a motor vehicle accident occurring on July 15, 1996, Nathan Blackwell was cited for hit and run, running a red light, and no tag. About ten days later, an arrest warrant was issued at the victim’s request, after the victim discovered that Blackwell had no insurance. On September 6, 1996, Blackwell filed a demand for a speedy/jury trial “in the above styled case” which asked that “this demand be placed upon the minutes, and that he/she be tried at this term of [sic] the next, and in default of a trial, that he/she be fully acquitted and discharged of said offense.” Blackwell’s demand failed to specify any accusation number, court date, term of court, or any other identifying information of the “said offense” at issue. On October 14, 1996, the trial court accepted Blackwell’s nolo contendere plea to the charge of no insurance. About ten months later, an assistant solicitor filed a three-count accusation against Blackwell for the original three traffic offenses. Blackwell then filed joint motions in autrefois convict and acquit claiming that any prosecution by the State for the hit and run, running a red light, and no tag offenses had been foreclosed by the entry of his plea in the no insurance case. Held:

In two enumerations of error, Blackwell contends that the State was obligated to prosecute him for all four charges in a single action because the offenses arose from the same incident and because the solicitor, Terry Stringer, had knowledge of all four offenses.

Multiple convictions and successive prosecutions for the same conduct are prohibited by OCGA § 16-1-7 (b). “If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.” OCGA § 16-1-7 (b). However, the crimes must actually be known by the prosecuting officer who is actually handling the proceedings. Zater v. State, 197 Ga. App. 648, 649 (1) (399 SE2d 222) (1990).

In order to prevail on his plea of former jeopardy, Blackwell bore the burden of showing the proper prosecuting attorney had actual knowledge of all the charges. Rowe v. State, 218 Ga. App. 746, 748 (463 SE2d 21) (1995). See Baker v. State, 257 Ga. 567, 568 (361 SE2d 808) (1987) (constructive knowledge standard rejected). Blackwell did not establish that fact by the evidence. Blackwell argued that an unsigned state court form titled “Waiver of Formal Arraignment/ Acknowledgement of Court Date” on which Stringer’s name and title had been printed was “circumstantial evidence of a conclusive nature” proving that Stringer had actual knowledge of all the offenses. Notwithstanding this claim, Blackwell did not elect to call Stringer as a witness and merely asserted that Stringer knew about the other offenses at the time of the plea negotiations on the no insurance charge. The clerk of the court testified, without contradiction, that his office routinely filed the traffic tickets after receiving them directly from the sheriff’s department, without anyone from the solicitor’s office seeing or reviewing them. See Meservey v. State, 230 Ga. App. 382, 383 (496 SE2d 518) (1998) (the mere filing of uniform traffic citations by the clerk’s office, absent the “ ‘consent, direction, or approval of the solicitor-general,’ ” does not constitute commencement of prosecution). See OCGA § 15-18-66 (b) (10).

Decided June 16, 1998.

Conrad & Abernathy, Eric A. Ballinger, for appellant.

Leslie C. Abernathy, Solicitor, Laura A. Janssen, Assistant Solicitor, for appellee.

Although the trial court incorrectly indicated that the prosecuting officer on the three uniform traffic citations was the arresting officer, Blackwell failed to show that any prosecuting official had actual knowledge of all four charges at the time of the plea. Zater, 197 Ga. App. at 649 (an arresting officer is not a “proper prosecuting officer”). In these circumstances, we cannot say that the trial court clearly erred in finding that Blackwell failed to satisfy OCGA § 16-1-7 (b) or by denying Blackwell’s motion in autrefois convict and plea in bar. Meservey, 230 Ga. App. at 383; Rowe, 218 Ga. App. at 748.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.

       Inasmuch as Blackwell’s demand for speedy trial did not identify the charges pending or provide other specific information, it could not reasonably be construed as sufficient to put the State on notice of his demand. Cummins v. State, 202 Ga. App. 155 (413 SE2d 773) (1991).


text:
    A98A0101.
    SALEM v. STATE OF GEORGIA.
    (503 SE2d 62)
   Ruffin, Judge.

The State filed a forfeiture action against two parcels of real property, a checking account and a certificate of deposit (“CD”) owned by Marva Salem. The State alleged that the real property was used to facilitate the possession of cocaine and marijuana and the distribution of marijuana and that the money in the checking account and the CD were proceeds derived or realized from the sale of cocaine and marijuana. Salem answered, asserting that she was an innocent owner of the forfeited property and was not holding the property for the benefit of any person whose conduct gave rise to the forfeiture action. The trial court forfeited all of the property at issue. Salem appeals, and for reasons which follow, we affirm.

As forfeiture actions are civil proceedings, the State was required to prove its case by a preponderance of the evidence. Bettis v. State of Ga., 228 Ga. App. 120, 121 (491 SE2d 155) (1997). “Subsections (o) (5) and (p) (6) of OCGA § 16-13-49 provide that forfeiture proceedings shall be held by the court without a jury. Upon appellate review, factual findings made after a bench trial shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The clearly erroneous test is the same as the any evidence rule.” (Citations and punctuation omitted.) Lyon v. State of Ga., 230 Ga. App. 264 (495 SE2d 899) (1998).

Given the above standards, the evidence shows that Salem and Willie Lawson have been friends since approximately 1965. Salem testified that at times Lawson would help , her out of financial binds by co-signing loans with her or assisting her in making loan payments. She testified that in return she would take Lawson to the doctor due to his poor health.

On January 2, 1996, Lawson indicated to the branch manager of the First Citizens Bank in Reidsville, Georgia, that he wanted to set up a CD in Salem’s name. Lawson’s reasons for doing this were that Salem “had been a friend to him throughout the years, and she had stood by him even when his family did not, and he wanted to take care of her.” Lawson mentioned to the branch manager that he had previously deposited some money in Lawson’s daughter’s name, but that she had spent it. The CD established in Salem’s name was for $72,242.77. The CD amount originated from $20,000 that came from Lawson’s business/checking account and $30,000 from a savings account he had set up in his daughter’s name. This $50,000 was placed into a CD in 1990 and, with interest, grew into the $72,000 placed into Salem’s CD in 1996. According to the branch manager, Lawson clearly understood that he was giving Salem the money and that he would no longer have any interest or control over it.

In addition, Lawson set up a checking account in Salem’s name in January 1996. Lawson deposited $40,000 into Salem’s new checking account. Finally, on January 12, 1996, Lawson quitclaimed to Salem four tracts of real property, including one tract on which Lawson’s nightclub, the Twentieth Century Club, was located and an adjacent tract used as a parking lot for the club. On January 16, 1996, Salem executed a will in which she bequeathed to Lawson the CD, the $40,000 checking account and the real property she received from him.

The police had suspected for several years that drugs were being sold from Lawson’s nightclub. One evening during March 1991, Officer F. J. Shuman of the Reidsville Police Department drove by Lawson’s club and noticed Lawson standing outside the club in a wooded area. Officer Shuman saw Lawson making motions with his hand, and so he exited his car and walked over to the area where Lawson had been standing. He found on the ground a pill bottle that contained 2.5 grams that tested positive for cocaine. However, Lawson was not arrested. Then, on two occasions in 1992, a man named Lonnie Johnson assisted Officer Shuman in purchasing drugs at Lawson’s club. Johnson said that on both occasions he purchased drugs from Lawson. The substance from each buy weighed less than one gram and tested positive for cocaine. However, Officer Shuman never witnessed Lawson selling cocaine, and Lawson was never charged with any crime. In fact, Officer Shuman testified that he investigated Lawson for drug dealing for nine years and never arrested him.

At other times during the 1990s, other police officers investigated drug dealing from Lawson’s club. Officer Michael Richardson of the Hinesville Police Department worked undercover with the TriCircuit Drug Task Force in 1993. On October 2, 1993, he pulled into the nightclub’s parking lot and was approached by a man, Charles Smith, inquiring as to what Officer Richardson wanted. Officer Richardson said $20 in crack cocaine, and Smith told him tó return in 30 minutes. Richardson saw Smith turn and walk towards the club. When Richardson returned, Smith was standing near the front of the club. He walked over and gave Richardson the cocaine. Then, on October 26, 1993, Richardson accompanied a confidential informant to the club. While Richardson waited in the car, the informant went into the club and returned with Smith. As the informant was purchasing the drugs, Lawson began yelling from the club at the informant and Smith to get Richardson out of there because Richardson was a police officer. However, Officer Richardson never saw Lawson selling drugs and admitted there was no probable cause to arrest Lawson.

A trooper from the Georgia State Patrol testified that he was involved in several more drug buys at Lawson’s club in January 1994. According to the trooper, Lawson was directly involved in at least one of the transactions. The suspects named in these buys were Lawson, his club, Smith and a man named Willie A. Williams, Lawson’s son. In each buy, less than a gram of cocaine was sold. There is no evidence of record that Lawson was arrested for any crime at this time.

In 1995, Officer Eddie Rewis of the City of Lyons Police Department spoke with Lawson, whom Rewis had known for 20 years. According to Rewis, during the conversation, Lawson admitted that in the past he had dealt in cocaine and marijuana and had become addicted to cocaine.

Five additional drug buys were made at the club in February 1996. Agent Tracy Sands with the Tri-Circuit Drug Task Force worked with a confidential informant in these buys. On February 9, 1996, the informant purchased less than a gram of cocaine from Williams, Lawson’s son, near the club’s bathroom. The next purchase was February 16, 1996. Again, the informant entered the club to purchase cocaine. The informant said he purchased drugs from Lawson’s son while Lawson watched from the rear of the club. The substance from this buy also tested positive for cocaine.

On February 17, 1996, the informant went inside the club to purchase more drugs. The informant said that as he walked toward Williams, Lawson directed another man, Raymond Bradley Johnson, to meet the informant. Johnson and the informant walked outside the club and down the street. Eventually, Johnson sold the informant outside the club less than a gram of cocaine.

Three other drug buys utilizing the informant occurred on the club premises on February 21, 23 and 28, 1996. In one transaction, the informant purchased less than a gram of cocaine from Williams. In another of the late February buys, the informant purchased 1.7 grams of a substance which tested positive for cocaine from a man named Nick Tattnall. In the last buy, the informant purchased from Johnson less than one gram of cocaine.

On March 1, 1996, the police, pursuant to a search warrant, searched Lawson’s nightclub. The police arrested six people who possessed crack cocaine. The police seized nine baggies of marijuana in the bathroom of a private area in the back of the nightclub that Lawson used as a residence. The net weight of the marijuana was less than one ounce. Lawson stated that the marijuana was for his own personal use. However, he admitted he would “give the marijuana to females.” The police also seized a bag containing white powder identified as lactose. State witnesses testified lactose was often used as a cutting agent for heroin and cocaine. Police seized another baggie which contained cocaine residue weighing less than a gram. The police also saw razor blades at the club, which an officer with the GBI testified were often used to process crack cocaine.

Police also seized documents concerning the forfeited money. Specifically, under a mattress in the residential area of Lawson’s club the police seized the $72,000 CD which was listed in Salem’s name and Salem’s checkbook for her $40,000 checking account. In addition to finding the CD and the checkbook, the police found Salem’s will in Lawson’s residence in the back of the club. Although police seized other property, such as guns and cash, Salem has not claimed an interest in these items.

The State, in seeking to have the checking account, CD and real property forfeited, alleged that Salem was not an innocent owner of the property, but was merely holding it for Lawson’s benefit.

In response to this allegation, Salem testified that there was no understanding that she was holding the real property or the money for Lawson or anyone else. Rather, she stated that she alone owned the checking account, the CD and the real property. Salem denied having any knowledge of any drug sales taking place at Lawson’s club or in any drug transactions involving Lawson. Salem further testified that she kept her documents at Lawson’s club because her husband had filed for divorce and she did not want him to learn of her new acquisitions.

1. We note that the State has failed to present evidence that the contraband involved in each transaction consisted of one gram or more of cocaine or four ounces or more of marijuana. See State of Ga. v. Foote, 225 Ga. App. 222 (483 SE2d 628) (1997). Thus, the forfeiture must be based on the fact that the “property was used to facilitate a transaction in or a purchase of or sale of a controlled substance or marijuana.” See OCGA § 16-13-49 (e) (“A property interest shall not be subject to forfeiture under this Code section for a violation involving one gram of cocaine or less or four ounces of marijuana or less unless said property was used to facilitate a transaction in or a purchase of or sale of a controlled substance or marijuana.”).

We conclude that the State has sufficiently proven by a preponderance of the evidence that the real property at issue was used to facilitate the sale and purchase of cocaine and marijuana. Lawson admitted that in the past he had sold cocaine and marijuana; confidential informants had told police that they purchased cocaine from Lawson; and numerous drug transactions had taken place at the club over the years prior to March 1, 1996, when the search was executed. While the extent of Lawson’s involvement in all of the transactions is not altogether clear, it is the property’s involvement in the transactions that is vital to a determination of forfeiture. See Carr v. State of Ga., 212 Ga. App. 36, 37 (1) (441 SE2d 85) (1994), overruled on other grounds, Rabern v. State of Ga., 221 Ga. App. 874 (473 SE2d 547) (1996). “In a forfeiture action under OCGA § 16-13-49, the determination to be made by the finder of fact is not whether appellants possessed or used drugs, nor whether appellants were most likely engaged in selling drugs. The issue to be decided is whether the evidence presented by the state suffices to support a forfeiture under the relevant statute. [Cit.]” Carr, supra at 37 (1).

OCGA § 16-13-49 (d) further provides that “[t]he following are declared to be contraband and no person shall have a property right in them: (2) All property which is, directly or indirectly, used or intended for use in any manner to facilitate a violation of this article or any proceeds derived or realized therefrom.” (Emphasis supplied.) As the real property was utilized to facilitate drug transactions, neither Lawson nor the owner of the property, Salem, could claim a property interest in it.

Moreover, for Salem to defeat the forfeiture of her property interest in the real property, she had to meet the requirement of OCGA § 16-13-49 (e) (4), which provides that the owner of the property must establish that she “[d]oes not hold the property for the benefit of or as nominee for any person whose conduct gave rise to [the] forfeiture. . . .” Salem had the burden to prove by a preponderance of the evidence that she was an innocent owner under the provisions of OCGA § 16-13-49 (e). Maynard v. State of Ga., 217 Ga. App. 344, 345-346 (2) (457 SE2d 253) (1995).

Here, Salem did not take control of the property after Lawson quitclaimed it to her. Rather, Lawson continued to operate his club from the property. Salem presented no evidence showing that she exercised any control over the land, and thus a factual question existed as to whether she was holding the property for Lawson’s benefit. The trial court concluded that she was holding the property for Lawson, and we find that this conclusion was not clearly erroneous. Lyon, supra.

Decided June 5, 1998

Reconsideration denied June 17, 1998

2. Concerning the CD and the checking account, we find no evidence, only mere speculation, that the money in the CD and checking account were used or intended for use to facilitate a drug transaction, or that the money was derived from drug transactions. See OCGA § 16-13-49 (d) (2). But OCGA § 16-13-49 (d) (6) also provides that no person shall have a property right in “moneys, negotiable instruments, securities, or other things of value which are found in close proximity to any controlled substance or marijuana or other property which is subject to forfeiture under this subsection.” The CD and checkbook were “things of value” which were found in close proximity to the marijuana in Lawson’s private residence. Thus, in accordance with OCGA § 16-13-49 (d), neither Lawson nor Salem could claim any interest in them.

Moreover, for Salem’s property interest in the CD and checking account not to be subject to forfeiture, she had to prove that she “[d]oes not hold the property for the benefit of or as nominee for any person whose conduct gave rise to [the] forfeiture, and, if [she] acquired the interest through any such person, [she] acquired it as a bona fide purchaser for value without knowingly taking part in an illegal transaction. . . .” (Emphasis supplied.) OCGA § 16-13-49 (e) (4).

While Salem testified that she did not hold the property in trust for Lawson, it is clear that she was not a bona fide purchaser for value; the CD and checking account were Lawson’s gifts to her. Accordingly, Salem failed to meet all the requirements of OCGA § 16-13-49 (e) such that her property interest would not be subject to forfeiture. See Maynard, supra (there was no bona fide purchaser for value of real property sought to be forfeited as brother deeded the property to his sister as a gift).

Accordingly, we find that the trial court did not clearly err in forfeiting the real property, the CD and the checking account in this case. Lyon, supra.

Judgment affirmed.

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

Salter & Shook, Mitchell M. Shook, Jason A. Craig, for appellant.

Dupont K. Cheney, District Attorney, Carole E. Wall, Assistant District Attorney, Kimberly A. Staten-Hayes, for appellee.


author: Pope, Presiding Judge. Ruffin, Judge,

text:
    A98A0441.
    CALDWELL v. GRIFFIN SPALDING COUNTY BOARD OF EDUCATION et al.
    (503 SE2d 43)
   Pope, Presiding Judge.

Antwan Caldwell, a freshman on the Griffin High School varsity football team, was attacked and beaten by other members of the team during an apparent “initiation ritual” which took place at the team’s summer football camp. To recover for Antwan’s injuries, his father, Charles Caldwell, sued the Griffin Spalding County Board of Education (the “Board”), head football coach Lloyd Bohannon, and Griffin High School principal Larry White. The suit claimed that the Board, Bohannon, and White knew or should have known that these “initiations” were an annual event but failed to prevent the attack on Caldwell. The trial court granted summary judgment to the Board based on sovereign immunity and to Bohannon and White based on official immunity. Although Caldwell claims Bohannon and White were not entitled to official immunity, we disagree and affirm the trial court’s judgments.

Under a 1991 amendment to the Georgia Constitution, “the public officers and employees of the [Griffin Spalding] County Board of Education . . . are entitled to official immunity, regarding any cause of action averred against them in their private (individual) capacity, when they are sued for discretionary acts taken within the scope of their employment and without actual intent to injure. See generally [Ga. Const. 1983,] Art. I, Sec. II, Par. IX; [cits.]” Crisp County School System v. Brown, 226 Ga. App. 800, 802 (2) (487 SE2d 512) (1997). When a public employee is sued over his misperformance or nonperformance of a discretionary act, the employee may be held liable only where evidence shows he or she acted with “actual malice or with actual intent to cause injury in the performance of [his or her] official functions.” Ga. Const. 1983, Art. I, Sec. II, Par. IX (d). The Supreme Court has determined that “actual malice” excludes any concept of “implied malice” or “reckless disregard” and means only “express malice or malice in fact.” Merrow v. Hawkins, 266 Ga. 390, 392 (2) (467 SE2d 336) (1996).

Construed in favor of Caldwell, the evidence shows Antwan was a freshman who accompanied the football team to its 1994 annual summer camp at Troy State University in Alabama. According to affidavits provided by former football players, older players at each year’s football camp traditionally “initiated” freshman players by “shaving [the] heads of first year players and general ‘horseplaying,’ such as trashing players’ rooms.” The evidence conflicts as to whether the coaching staff was aware of this tradition and implicitly condoned it, but no witness testified that the coaching staff or other school officials explicitly encouraged or approved this behavior. For the 1994 camp, players were housed in a dormitory with adult chaperones or coaches in rooms at the end of each hall. Bohannon testified that he warned the players that any horseplay would be punished. Nonetheless, during an afternoon break in activities a group of players, their faces masked, attacked Antwan in an empty dormitory room and beat him severely, knocking him unconscious and requiring hospital care. Antwan testified that he had witnessed other initiations that week and had seen older players shave younger players’ heads, spray them with shaving cream, and mess up their rooms, but had not seen anyone physically attacked. In fact, no witness testified that any prior initiation had involved physical beatings such as the one Antwan sustained.

Applying the standards set forth in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), we affirm the grants of summary judgment. We first note that this case is one alleging the negligent failure of school officials to protect Antwan from an attack by other students. The appellate courts of this state have consistently held that the supervision of student safety is a discretionary function, the proper exercise of which entitles school officials to immunity. See Kelly v. Lewis, 221 Ga. App. 506, 508 (471 SE2d 583) (1996) (student who was attacked by a gang on his way to school alleged that school officials failed to enforce rules governing supervision of arriving students); Teston v. Collins, 217 Ga. App. 829, 830-831 (1) (459 SE2d 452) (1995) (student attacked by a visitor to school claimed officials failed to control third party visitors); Guthrie v. Irons, 211 Ga. App. 502, 506 (2) (439 SE2d 732) (1993) (student who was attacked by another student in hallway claimed teachers failed to follow policy which required they monitor halls), disapproved on other grounds, Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476) (1994).

Caldwell argues that a state criminal statute against hazing (OCGA § 16-5-61) transforms this discretionary policing function into a ministerial one and that Bohannon and White had a ministerial duty not to aid and abet the crime of hazing. A school official does not have legal discretion to participate in a crime or to allow students under his supervision to commit a crime. OCGA §§ 16-2-20 and 16-2-21. Compliance with the law is mandatory, and in that sense arguably “ministerial.” However, in this case there is no evidence that Bohannon and White were parties to a crime or allowed a crime to occur. Even assuming that the beating in this case amounted to criminal hazing, it is -undisputed that this activity was unknown to Bohannon and White before and at the time it occurred, and that nothing had happened on that trip or in prior years to make it foreseeable that such conduct would transpire. Bohannon and White, therefore, could not be aiders and abettors to the hazing in this instance. OCGA § 16-2-20.

Moreover, in Teston, 217 Ga. App. at 830, we rejected a similar argument that a criminal statute governing the conduct of third parties created a ministerial duty in school officials to enforce that law. The plaintiff in that case argued that school officials had the ministerial duty to enforce the provisions of OCGA § 20-2-1180, which makes it unlawful for unauthorized persons to remain on a school campus. This Court rejected that argument, noting that the statute was directed at the offender and not at school administrators. Here likewise, OCGA § 16-5-61 makes anyone engaged in hazing guilty of an aggravated misdemeanor. But as in Teston, that prohibition merely gives “school [officials] discretionary authority to control [hazing].” Id.

Furthermore, no evidence in the record indicates Bohannon or White acted with “actual malice” towards Antwan. Caldwell’s argument, at best, is one of “implied malice”: that by failing to stop the prior incidents involving shaved heads and shaving cream attacks, Bohannon and White exhibited a reckless disregard for the rights of students such as Antwan by creating a climate in which this attack could occur. Merrow rejected this theory of liability. 266 Ga. at 392. Considering the lack of any evidence showing that either defendant actively condoned, encouraged, or took part in any of these initiation rites, or the violent attack on Antwan, Caldwell’s claim of actual malice must fail.

Judgment affirmed.

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

Ruffin, Judge,

concurring specially.

I concur with the Court’s judgment, but only because I am compelled to do so by Georgia law. Moreover, I write separately to highlight certain facts in the record and to suggest that the appellate courts and the legislature reconsider whether supervision of students should be considered a discretionary rather than a ministerial act.

From my review of the record it is clear that the football summer camp was a school-sponsored event and Bohannon, the high school football coach, was responsible for supervising the players, including Antwan Caldwell and his assailants. Four members of the football team provided affidavits, stating that “upperclassmen [were] allowed to haze first year football players,” including Caldwell. All four members of the team stated that the “hazing consisted of incidents such as shaving heads of first year players and general ‘horseplaying,’ such as trashing players’ rooms.” One of the affiants stated that he was the target of the hazing and he informed Bohannon and other members of the coaching staff that he did not want to participate in this ritual. The three other affiants stated that “Coach Bohannon and the other members of the coaching staff were aware of these incidents and never attempted to stop them.” One of the affiants added that he “was the recipient of this hazing on a couple of occasions and [he] was involved in a couple of fights as a result of these incidents.”

Bohannon testified in a deposition that he had seen incidents where the players had their hair cut, but other than that, he had never seen any incidents of hazing. Bohannon said that he investigated Caldwell’s attack, but did not investigate whether hazing was a routine part of the summer camp. He also admitted that after the Caldwell attack, he did not discuss hazing with the football players. Furthermore, while Bohannon said that at the beginning of the camp a lecture was given about camp procedures, he never stated that he or any other camp official spoke to the players about hazing. According to Bohannon, he only spoke with the players after the Caldwell attack about horseplay among teammates.

Given the above, I believe there is sufficient evidence to conclude that Bohannon was aware of the incidents and condoned them, despite the potential for harm. However, Georgia law is clear that “the general task imposed on teachers to monitor, supervise, and control students has . . . been held to be a discretionary action which is protected by the doctrine of official immunity. [Cits.]” Wright v. Ashe, 220 Ga. App. 91, 94 (469 SE2d 268) (1996). And as the majority points out, when an action is based on a discretionary act of a public employee, actual malice, which does not include implied malice or reckless disregard, must be shown. See Ga. Const. 1983, Art. I, Sec. II, Par. IX (d); Merrow v. Hawkins, 266 Ga. 390 (467 SE2d 336) (1996). In this case, Bohannon’s conduct at most represents reckless disregard for the safety of his players; there is no evidence that Bohannon acted with the intent to harm Caldwell specifically. Accordingly, the majority is correct that under Georgia law Bohannon is entitled to official immunity.

Nevertheless, the result in this case is troubling because school officials should not be immune from suit when they are in charge of supervising students and are acting in the place of the students’ parents, but then fail to take precautionary measures to prevent students from being harmed by initiation rituals when the potential for harm is known to them. I suggest that the appellate courts, and more appropriately, the legislature revisit the issue of whether supervision of students amounts to a discretionary rather than a ministerial act. Moreover, we should consider Florida’s stance on this subject, which is that “the duty to supervise high school students is generally ministerial in nature.” Rupp v. Bryant, 417 S2d 658, 665 (Fla. 1982). See also Wyke v. Polk County School Bd., 129 F3d 560, 570-574 (11th Cir. 1997).

“Florida case law recognizes the general duty of schools, principals and teachers to adequately supervise students placed within their care. [Cit.] The genesis of this supervisory duty is based on the school employee standing partially in place of the student’s parents.’ [Cits.]” Leahy v. School Bd. of Hernando County, 450 S2d 883, 885 (Fla. App. 1984).

In Rupp, the plaintiff, a high school student, sued the principal, faculty advisor and school board after the plaintiff suffered injuries in a hazing at an initiation ceremony of a school club. The Florida Supreme Court, in determining that supervision of high school students is a ministerial act, relied on the decisions of other jurisdictions. See Larson v. Independent School Dist., 289 NW2d 112 (Minn. 1979); Cook v. Bennett, 288 NW2d 609 (Mich. 1979); Salyers v. Burkhart, 352 NE2d 156 (Ohio 1974). Because the actions of the faculty advisor and the principal in Rupp did not involve “discretion in the policy-making sense,” neither could raise the shield of official immunity. Rupp, supra at 665.

The Florida Supreme Court in Rupp noted that “[a] public school, at least through the high school level, undoubtedly owes a general duty of supervision to the students placed within its care.” Id. at 666. Finding that the officials owed a duty to the plaintiff, the Court addressed whether the failure to supervise the student club was the proximate cause of the plaintiff’s injuries. The Florida Court adopted the standard that “certain student misbehavior is itself foreseeable and therefore is not an intervening cause which will relieve principals or teachers from liability for failure to supervise^]” Id. at 668. The Court continued: “[w]e should not close our eyes to the fact that boys of seventeen and eighteen years of age, particularly in groups where the herd instinct and competitive spirit tend naturally to relax vigilance, are not accustomed to exercise the same amount of care for their own safety as persons of more mature years. Recognizing that a principal task of supervisors is to anticipate and curb rash student behavior, our courts have often held that a failure to prevent injuries caused by the intentional or reckless conduct of the victim or a fellow student may constitute negligence.” (Punctuation omitted.) Id. at 668-669 (citing Dailey v. Los Angeles Unified School Dist., 470 P2d 360 364 (Cal. 1970)). From this vantage point, the Court held that “rough-housing or hazing at a high school club initiation is behavior which is not so extraordinary as to break the chain of causation between the school’s failure to supervise and the injury to the student. [Cits.]” Rupp, supra at 669. Accordingly, a jury question remained whether the school’s action or inaction was the proximate cause of the plaintiff’s injuries resulting from the hazing.

Decided June 2, 1998

Reconsideration denied June 17, 1998

Alvin L. Kendall, Lisa R. Roberts, for appellant.

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., Christopher D. Balch, for appellees.

All of the reasoning cited above is applicable in Caldwell’s case. Rough-housing and hazing during a high school football summer camp is to be expected, and in this case, there is some evidence to show that Bohannon was aware or at least implicitly condoned the initiation rituals. Whether his failure (1) to supervise the teammates, (2) to warn them against hazing and the ramifications of such actions, and (3) to condemn such practices were the proximate causes of Caldwell’s injuries is a jury question. Bohannon had the duty to adequately supervise his students placed within his care, as he was clearly standing partially in place of the students’ parents. Leahy, supra.

I would follow the lead of Florida and other jurisdictions and conclude that, Bohannon’s duty to supervise high school students was a ministerial act rather than a discretionary one. See Rupp, supra. Again, however, the current status of Georgia law prevents this analysis. But I strongly urge the legislature and the appellate courts to revisit the issue of official immunity as it relates to the supervisory duties of schools and teachers. While an injury from playing football is to be expected, parents do not leave their children at school with the expectation that they will be improperly supervised or injured by hazing. Official immunity in this State allows teachers and coaches to turn a blind eye to actions by students that have the potential to harm other students and be free from liability. I do not believe that this should be the correct public policy in Georgia.

       Caldwell does not appeal the grant of summary judgment to the Board.

       I do not address the school principal’s liability, as I fully agree with the majority that there is no evidence to show that he acted with malice against Caldwell.