author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A95A1400.
    ALEXANDER v. GENERAL MOTORS CORPORATION.
    (466 SE2d 607)
   Andrews, Judge.

The trial court granted partial summary judgment in favor of General Motors dismissing the portion of Alexander’s products liability action based on a theory of strict liability, and Alexander appeals. The action arose out of an automobile accident in which Alexander claims his injuries were caused by a defectively designed or manufactured driver’s seat in his General Motors car. Alexander, who was a Georgia resident, purchased the car in Georgia but was driving the car in Virginia, while stationed there with the United States Army, when the accident occurred. In granting partial summary judgment to General Motors, the trial court accepted General Motors’ contentions that: (1) the strict liability cause of action was a tort claim; (2) since the accident and injuries at issue occurred in Virginia, the Georgia rule of lex loci delicti required the application of Virginia substantive law to the strict liability tort claim and (3) since Virginia law did not recognize recovery on the basis of strict liability, Alexander’s strict liability tort claim must be dismissed.

The trial court correctly concluded that Alexander’s strict liability claim pursuant to OCGA § 51-1-11 (b) (1) sounded in tort (Colt Indus. Operating Corp. v. Coleman, 246 Ga. 559, 560 (272 SE2d 251) (1980)), and that the Georgia rule of lex loci delicti governs the decision as to whether Virginia or Georgia substantive law applies to the strict liability claim. Lloyd v. Prudential Securities, 211 Ga. App. 247, 248 (438 SE2d 703) (1993). Under the rule of lex loci delicti, tort cases are governed by the substantive law of the place where the tort or wrong occurred (id. at 248), and in torts of a transitory nature the place of the wrong is the place where the last event occurred necessary to make an actor liable for the alleged tort. See Wardell v. Richmond Screw Anchor Co., 133 Ga. App. 378, 380 (210 SE2d 854) (1974); Risdon Enterprises v. Colemill Enterprises, 172 Ga. App. 902, 903-904 (324 SE2d 738) (1984). Here, the last event necessary to make General Motors liable on the products liability claim was the failure of the allegedly defective driver’s seat resulting in Alexander’s ejection from the car during the accident which occurred in Virginia. Accordingly, under the Georgia rule of lex loci delicti, Virginia substantive law applies.

However, Georgia recognizes a public policy exception to the rule of lex loci delicti. “Even if an application [of the rule of lex loci delicti] renders the law of another state applicable, the forum, within constitutional limits, is not required to give the law of another state extra-territorial effect. That is only done as a matter of courtesy or comity, which will not be enforced if the law of the other state contravenes the public policy of the forum. See OCGA § 1-3-9; Commercial Credit Plan v. Parker, 152 Ga. App. 409 (263 SE2d 220) (1979).” Federal Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763, 765-766 (417 SE2d 671) (1992); see also Karimi v. Crowley, 172 Ga. App. 761, 762 (324 SE2d 583) (1984); Roadway Express v. Warren, 163 Ga. App. 759, 761 (295 SE2d 743) (1982). Accordingly, the issue is whether the public policy exception applies in this case.

Under the public policy exception to the rule of lex loci delicti, Georgia will not apply the substantive law of the place where the tort was committed if application of the foreign law “contravenes our established public policy, or the recognized standards of civilization and good morals; and this exception on account of the contravention of public policy of the State is sometimes invoked where the foreign statute is designed to redress an injury, but prescribes a form of redress which is radically dissimilar to anything existing in our own system of jurisprudence.” Southern R. Co. v. Decker, 5 Ga. App. 21, 25 (62 SE 678) (1908). The substantive law of the place where the tort was committed and where the action arose will be applied by Georgia courts even where Georgia law recognizes a cause of action not available in the foreign jurisdiction, “provided the enforcement of the lex delicti would not seriously contravene the established policy of the forum.” Id. at 29. The burden is on the party seeking to establish the public policy exception. Id.

Here, even though Virginia products liability law differs from Georgia law, there is no radical dissimilarity by which application of Virginia law would seriously contravene the public policy of Georgia. As set forth in the complaint and in his appellate brief, Alexander claims that either a manufacturing or a design defect in the driver’s seat of the car caused his injuries and that the manufacturer, General Motors, is liable on a theory of strict liability for breach of an implied warranty of merchantability. See Wood v. Hub Motor Co., 110 Ga. App. 101, 105 (137 SE2d 674) (1964). Alexander also sought recovery on a negligence theory.

As adopted in Georgia pursuant to OCGA § 51-1-11 (b), “the doctrine of strict liability puts a burden on the manufacturer who markets a new product to take responsibility for injury to members of the consuming public for whose use and/or consumption the product is made.” Robert F. Bullock, Inc. v. Thorpe, 256 Ga. 744, 745 (353 SE2d 340) (1987). Although Virginia has not adopted a strict liability theory in products liability cases (see Sensenbrenner v. Rust, Orling & Neale, Architects, 374 SE2d 55, 57, n. 4 (Va. 1988)), “[u]nder Virginia law, recoveries for personal injuries caused by defective products can be made as breach of an implied warranty of merchantability or under a tort theory of negligent design. . . . The warranty cause of action has two elements: (1) the goods were ‘unreasonably dangerous’ either for the use to which they would ordinarily be put or for some other reasonably foreseeable purpose, and (2) the unreasonably dangerous condition existed when the goods left the manufacturer’s control. [Cits.] A product is ‘unreasonably dangerous’ if defective (1) in assembly or manufacture, (2) if imprudently designed, or (3) if not accompanied by adequate warnings about its hazardous properties. [Cits.]” Abbot v. American Cyanamid Co., 844 F2d 1108, 1114 (4th Cir. 1988) (applying Virginia law).

Despite the absence of a separate strict liability cause of action, “the warranty liability under Virginia law for personal injuries caused by defective products is the functional equivalent of strict liability under the Restatement[, Second, Torts, § 402A] formulation.” American Law of Products Liability 3d, § 16:22. “[I]t is well established that warranty liability under Virginia law for personal injuries caused by defective products is the functional equivalent of strict tort [liability] under the Restatement formulation. [Cits.]” Bly v. Otis Elevator Co., 713 F2d 1040, 1045, n. 6 (4th Cir. 1983); see also Abbot, supra at 1114 (Virginia warranty cause of action for personal injuries caused by defective products is similar to strict liability in tort under the Restatement version). Although Georgia’s statutory version of strict liability differs from the Restatement § 402A version to which Virginia’s warranty liability has been compared, both share a common public policy designed to shift the burden of loss caused by defective products from the victim to the manufacturer, and both do so by focusing not on whether the manufacturer negligently failed to use due care but on whether the marketed product was defective. See Maleski, Ga. Products Liability (2d ed.), §§ 2-2, 2-3; Banks v. ICI Americas, 264 Ga. 732 (450 SE2d 671) (1994) (focusing on a risk utility analysis to determine whether a product was defectively designed).

Virginia products liability law is not radically dissimilar to Georgia law but rather pursues a similar public policy by somewhat different methods. Since Virginia law does not contravene Georgia public policy, the public policy exception is not applicable, and Virginia substantive law applies in this case under the rule of lex loci delicti. Accordingly, the trial court correctly granted partial summary judgment in favor of General Motors to the extent Alexander sought to recover under Georgia’s version of strict liability.

Judgment affirmed.

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

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as I find no compelling reason for Virginia law to displace Georgia’s policy of holding manufacturers strictly liable in tort for injuries proximately caused by defective products placed on the market in this State. In this vein, I believe the majority dodges the controlling issue, i.e., weighing Georgia’s interest in applying OCGA § 51-1-11 (b) against application of the lex loci delictus, and instead applies what I view to be a flawed premise and conclusion that Phillip Alexander, Jr. is no worse off via application of Virginia law because “there is no radical dissimilarity by which application of Virginia law would seriously contravene the public policy of Georgia.” Indeed, the majority’s logic inaccurately suggests that the trial court gave Alexander leave to amend his complaint for recovery based on a theory of implied warranty. In fact, the trial court excluded Alexander’s breach of warranty claims, along with his strict liability claim under OCGA § 51-1-11 (b), and specifically directed Alexander to “file an amended complaint asserting only negligence claims against GM under Virginia law.”

On October 9, 1989, Phillip Alexander purchased a Chevrolet Camaro automobile for his son, Phillip Alexander, Jr. (“Alexander”), from an authorized General Motors Corporation (“GM”) dealer in Chamblee, Georgia. Alexander took immediate possession of his new car and drove it to Fort Gordon, Georgia, where he was then serving in the United States Army. In March 1990, Alexander took the car to his new duty station at Fort Belvoir, Virginia, and a year later, he lost control of the Camaro while traveling with a friend on Route 1 in Fairfax County, Virginia. The car skidded across the highway, pivoted and then rear-ended against a tree. The impact did not seriously injure Alexander’s passenger, but it was enough to collapse the car’s driver’s seat, force Alexander under his safety belt and eject him through the car’s rear window. The resulting blow caused severe damage to Alexander’s spinal cord.

Suffering from quadriplegia, Alexander returned to Georgia where the Camaro was purchased, moved in with his parents and initiated an action against GM, alleging that a defective seat mechanism in the car was the proximate cause of his injuries. GM denied liability and the parties filed opposing motions for summary judgment, seeking a determination of whether Georgia law or Virginia law governs the substantive rights of the parties. The trial court granted partial summary judgment in favor of GM, finding “that Virginia law applies to the claims against GM, that Virginia law does not recognize strict liability actions in product liability cases, and therefore [dismissing] all of [Alexander’s] strict liability claims [. The trial court then gave Alexander time to] file an amended complaint asserting only negligence claims against GM under Virginia law.”

Alexander now contends the trial court erred in precluding recovery based on strict liability, arguing that OCGA § 51-1-11 (b) (1) imposes strict liability via an implied warranty of merchantability and reasons that, “under Georgia’s traditional approach in conflict of laws, the trial court should [have looked] to the place of warranty and not the place of the injury [to determine the substantive rights of the parties].” In opposition, GM points out that OCGA § 51-1-11 (b) (1) specifies liability in tort rather than implied warranty, contending the trial court correctly applied Georgia’s choice of law rule under which tort actions are adjudicated according to the law of the place of injury. See Risdon Enterprises v. Colemill Enterprises, 172 Ga. App. 902, 903 (1) (324 SE2d 738).

I believe that Alexander’s confusion over whether OCGA § 51-1-11 (b) (1) sounds in tort or implied warranty stems from confusing statutory language. While subsection (b) (1) provides that a manufacturer “shall be liable in tort” for injuries caused by defective personal property sold as new property in Georgia, it also appears to impose an implied warranty standard by providing for possible liability if the property “when sold by the manufacturer was not merchantable and reasonably suited to the use intended. . . .” OCGA § 51-1-11 (b) (1). See Maleski, Ga. Products Liability (2d ed.), pp. 36-37, § 2-2. Any confusion prompted by this statutory language can be put to rest, however, since the Georgia Supreme Court has said “that the theoretical basis of the claim [under OCGA § 51-1-11 (b) (1)] is in tort. Center Chemical Co. v. Parzini, 234 Ga. 868 (218 SE2d 580) (1975) [, disapproved on other grounds in Banks v. ICI Americas, 264 Ga. 732, 733 (1), 734 (450 SE2d 671)].” Colt Indus. Operating Corp. v. Coleman, 246 Ga. 559, 560 (272 SE2d 251). To this extent, I agree with the majority that Georgia’s manufacturers’ strict liability statute sounds in tort for purposes of resolving the choice of law issue now before this Court.

Although “Georgia generally adheres to the traditional choice of law system, under which tort actions are adjudicated according to the law of the place where the wrong occurred [,] Sargent Industries v. Delta Air Lines, 251 Ga. 91 (303 SE2d 108) (1983); Wardell v. Rich mond Screw Anchor Co., 133 Ga. App. 378 (210 SE2d 854) (1974)[,] ‘ “(t)he laws of other states have no force in Georgia except on principles of comity and so long as their enforcement ‘is not contrary to the policy of this State.’ (Cit.)” (Cits.)’ Roadway Express v. Warren, 163 Ga. App. 759, 761 (295 SE2d 743) (1982). ‘ “Prima facie every state is entitled to enforce in its own courts its own statutes, lawfully enacted. One who challenges that right, because of the force given to a conflicting statute (or law) of another state by the full faith and credit clause (or for any other reason) assumes the burden of showing, upon some rational basis, that of the conflicting interests involved those of the foreign state are superior to those of the forum. It follows that not every statute (or law) of another state will override a conflicting statute of the forum . . that the statute of a state may sometimes override the conflicting statute (or law) of another, both at home and abroad. . . .” ’ Security Ins. Group v. Plank, 133 Ga. App. 815, 817 (212 SE2d 471) (1975). Thus, even though [Alexander’s] injury [in the case sub judice] was incurred in [Virginia], the courts of this State will apply [Virginia] law as the lex loci only to the extent that such application would not offend the public policy of Georgia.” Karimi v. Crowley, 172 Ga. App. 761, 762 (324 SE2d 583). See American Law of Products Liability 3rd, § 46:18.

The Georgia General Assembly, through the enactment of OCGA § 51-1-11 (b) (1), has demonstrated Georgia’s policy of protecting Georgia consumers against the burden of bearing the costs of injuries caused by defective products sold by manufacturers in this State. It has done this by adopting a “doctrine of strict liability [that] puts a burden on the manufacturer who markets a new product to take responsibility for injury to members of the consuming public for whose use and/or consumption the product is made.” Robert F. Bullock, Inc. v. Thorpe, 256 Ga. 744, 745 (353 SE2d 340). But does this policy overcome our traditional rule of lex loci delictus? The majority dodges this pivotal question by holding that Alexander is no worse off via application of the lex loci delectus because “there is no radical dissimilarity by which application of Virginia law would seriously contravene the public policy of Georgia.” I believe this logic is flawed in two fundamental respects.

First, contrary to the majority’s main premise, the trial court did not give Alexander the option to pursue claims based on theories of implied warranty. In fact, Alexander was not allowed to pursue any implied warranty claims, even though he asserted such breach of warranty claims (under Georgia law) in separate counts of his complaint. As quoted from the trial court’s order, Alexander was directed to “file an amended complaint asserting only negligence claims against GM under Virginia law.” Second, the majority exceeds the bounds of this Court’s authority by expounding Alexander’s rights under Virginia law, particularly his right to recover based on a theory of breach of implied warranty of merchantability. “Where the rights of parties depend upon [the law of another State], and no statute of that state is pleaded or proved, [as is the circumstance in the case sub judice,] this court will presume that the common law is to be applied there. White v. White, 41 Ga. App. 394 (1) (153 SE 203).” Risdon Enterprises v. Colemill Enterprises, 172 Ga. App. 902, 904 (2), supra. See OCGA § 24-7-24 (a). See also American Law of Products Liability 3rd, § 46:37.

More on track in weighing Georgia’s interest in applying the law of the forum as opposed to the lex loci delictus, GM infers that Georgia’s policy of allocating greater risk to manufacturers in products liability cases is outweighed by Virginia’s “interest in the outcome of this litigation . . .” because, “regardless of the state of his legal residence, [Alexander] was living in and traveling on the streets and highways of Virginia [at the time of the collision].” Although I do not agree with this argument, it is on point and worthy of response.

First, there appears to be little (if any) connection between Virginia’s interest in regulating activities on its highways and Alexander’s claims against GM. Alexander is not suing a Virginia resident and he is not claiming that Virginia’s highways are unsafe or were otherwise a proximate cause of his injuries. He is suing GM, a manufacturer in the State of Georgia, for placing a defective product on the market in his home State, allegations which bear solely upon the interests of those residing or doing business in Georgia. Under such circumstances, I see no reason why a citizen of this state (Alexander) should be deprived of the benefit of Georgia’s policy of placing the “burden on the manufacturer who markets a new product to take responsibility for injury to members of the consuming public for whose use and/or consumption the product is made.” Robert F. Bullock, Inc. v. Thorpe, 256 Ga. 744, 745, supra. Certainly, “[t]here can be no more basic a public policy decision than one which allocates risk and social cost.” Trahan v. E. R. Squibb & Sons, Inc., 567 FSupp. 505, 510 (1983). Second, I find no compelling reason to diminish the impact of Georgia’s strict liability rule simply because Alexander drove his car out of the State while on temporary military assignment. It is unlikely that Alexander had ultimate control over his military assignment. The Camaro’s seat could have just as easily failed while he was stationed at Fort Gordon, Georgia. Indeed, as was the case in Baroldy v. Ortho Pharmaceutical Corp., 760 P2d 574, 578-579 (1984), such circumstances of chance should not govern the rights and duties of the parties in products liability cases. Otherwise, the protection afforded Georgia consumers under OCGA § 51-1-11 (b) (1) would flicker off upon travel (no matter how temporal) outside the geographical boundaries of Georgia only to flare up upon reentry into the State.

Decided December 4, 1995

Reconsideration denied December 20, 1995

Kenneth F. Dunham, Dovre C. Jensen, Jr., Margaret N. Patón, L. Lynn Hogue, for appellant.

Lord, Bissell & Brook, Terry R. Howell, Corliss L. Worford, for appellee.

“While [I] have much respect for the decisions emanating from our great sister State of [Virginia], such decisions can not change or modify the statutory law of this State.” Henson v. Airways Svc., 220 Ga. 44, 49 (2), 52 (136 SE2d 747). The law of Georgia is that manufacturers will be strictly liable in tort for injuries proximately caused by defective products placed on the market in this State. This policy is sound and, under principles of comity, I believe must be enforced as an exception to the general choice of law rule under which tort actions are adjudicated according to the law of the place where the wrong occurred.

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

       Although Alexander was stationed at Port Belvoir, he “maintained [his] legal residence [in] Decatur, Georgia . . . and filed Georgia state income tax returns.”

       Practically speaking, allowing Alexander to proceed in strict liability would relieve him of the burden of proving negligence. Colt Indus. Operating Corp. v. Coleman, 246 Ga. 559, 560, supra. Some have said, however, that the advantages of strict liability over negligence are only a matter of semantics with regard to a plaintiffs burden of proof in design defect cases. Banks v. ICI Americas, 264 Ga. 732, 733 (1), 735, n. 3, supra. While this observation remains well taken, the advantages of proceeding in strict liability in such cases is more discernible now that the Supreme Court has adopted a risk-utility analysis for measuring the reasonableness of a manufacturer’s actions in designing and selling a particular product. Id. For example, as an offending product approaches the state of the art and the risk of injury from its use becomes more remote, unlikely are the chances of recovery based in negligence. But under a risk-utility analysis, if the same product is of small utility compared to the magnitude of risk it creates, the more likely it is for the manufacturer to be held strictly liable for injuries proximately caused by the product. See Maleski, Ga. Products Liability (2d ed.), pp. 112, 115, § 6-2.


source: Caselaw Access Project

author: McMurray, Presiding Judge. Blackburn, Judge, Andrews, Judge,

license: Public Domain

text:
    A95A1547.
    MCDONALD’S RESTAURANTS OF GEORGIA, INC. v. BANKS.
    (466 SE2d 240)
   McMurray, Presiding Judge.

Margaret Banks brought an action against McDonald’s Restaurants of Georgia, Inc. (“McDonald’s”) for injuries she allegedly sustained when she slipped and fell in a pool of rainwater that had accumulated at the bottom of a floor-slope inside a McDonald’s restaurant. McDonald’s denied the material allegations of the complaint and filed a motion for summary judgment.

Banks testified (in her deposition) that the area where she fell was not just wet from rain that had been tracked into the restaurant. She explained that the hazard was a “standing” pool of water (four feet wide) at the base of a five-foot incline that sloped from the restaurant’s doorway. Banks deposed that “[t]here was no mat on the floor or other object of any sort to divert traffic around the puddle [,]” and that she did not see the hazard because she was “focused upon ordering at the counter which was directly ahead as well as [dodging] other customers who were coming toward the door to exit.”

Struggling over apparently conflicting decisions from this Court in slip and fall cases, the trial court (in a detailed order) applied the old maxim that the non-moving party is entitled to the benefit of all favorable inferences on summary judgment and found “that there are jury issues present [as to] whether or not the Plaintiff exercised reasonable care for her own safety and whether or not she was distracted by foot traffic leaving Defendant’s premises.” This interlocutory appeal followed the trial court’s order denying McDonald’s motion for summary judgment. Held:

To withstand summary judgment in a slip and fall case due to a foreign substance on the floor, the circumstances must show (1) that the proprietor had actual or constructive knowledge of the hazard, and (2) that the plaintiff was without equal knowledge of the hazard. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327). In the case sub judice, Banks deposed that McDonald’s manager admitted to her after the fall that “he was aware of the area’s propensity to collect and hold water.” This evidence alone would authorize a finding that McDonald’s had constructive knowledge of the water hazard that purportedly caused Banks to fall. See Hardin v. Super Discount Market, 205 Ga. App. 646, 647 (423 SE2d 18). Consequently, the controlling issue is whether Banks had equal knowledge of the alleged hazard, i.e., did she exercise ordinary care for her own safety?

“In Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485) (1994), our Supreme Court held that the plaintiff’s explanation as to why he was not looking where he was going as he approached the check-out counter, that being, that he was looking at the cashier to tell him he was ready to check out, created a fact issue for jury determination. ‘This testimony is some evidence that Barentine exercised reasonable care for his own safety in approaching the check-out counter.’ Id.” Sheriff’s Best Buy v. Davis, 215 Ga. App. 290, 291 (450 SE2d 319). In the case sub judice, Banks did not see the floor hazard because she was “focused upon ordering at the counter which was directly ahead as well as [dodging] other customers who were coming toward the door to exit[,]” “while in Barentine, [a store employee, who was not even attempting to evoke Barentine’s attention,] was simply the focus of Barentine’s attention. If the facts of Barentine establish ‘some evidence’ that Barentine exercised reasonable care for his own safety, then clearly [the circumstances of the case sub judice constitute] a much stronger case of such evidence.” Sheriff’s Best Buy v. Davis, 215 Ga. App. 290, 291, supra.

The trial court did not err in denying the motion for summary judgment filed by McDonald’s.

Judgment affirmed.

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

Blackburn, Judge,

concurring specially.

I concur specially to respond to the dissent’s misconstruction of Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) (1994), on the issue of Banks’ exercise of reasonable care. Because the record shows that McDonald’s agents knew of the hazardous condition, the dispositive issue in this case is whether Banks exercised ordinary care for her own safety. Hardin v. Super Discount Market, 205 Ga. App. 646, 647-648 (423 SE2d 18) (1992).

Barentine specifically addresses this issue. In Barentine, the Supreme Court found that the plaintiff’s admitted failure to look at the floor when he fell failed to justify a directed verdict because his explanation, that he was looking at the cashier standing a distance away from the cash register to tell him he was ready to check out, provided some evidence that he had exercised reasonable care, thereby raising a jury question. Barentine, 264 Ga. at 225. Notwithstanding the dissent’s statement to the contrary, Barentine makes no reference to the distraction doctrine. Its holding did not excuse a distraction, but simply recognized that under some circumstances, the exercise of ordinary care demands a focus away from the floor. “Looking continuously, without intermission, for defects in a floor is not required in all circumstances. What is a ‘reasonable lookout’ depends on all the circumstances at the time and place.” (Citations and punctuation omitted.) Food Giant v. Cooke, 186 Ga. App. 253, 257 (366 SE2d 781) (1988).

Banks testified that just as she fell her attention was on avoiding other patrons who were moving toward the door to leave the McDonald’s and ordering at the check-out counter, rather than the floor. These demands on Banks’ attention were more compelling than those in Barentine, where the cashier’s location was no surprise because he had been standing in the same place when the plaintiff entered the store. As in Barentine, Banks’ focus beyond the floor provided some evidence that she was exercising reasonable care for her own safety. The sufficiency of this evidence should be determined by a jury.

Moreover, even if Banks’ focus on the crowd and the check-out counter were analyzed as distractions, they were not of her own making. The evidence that the distractions were “of such nature as naturally to divert the plaintiff, and also of such nature that the defendant might naturally have anticipated it” is sufficient to preclude summary judgment. Stenhouse v. Winn Dixie Stores, 147 Ga. App. 473, 475 (249 SE2d 276) (1978).

I am authorized to state that Presiding Judge McMurray, Presiding Judge Pope, and Judge Ruffin join in this special concurrence.

Andrews, Judge,

dissenting.

Banks testified that, as she entered the McDonald’s restaurant, she slipped and fell in a puddle of water about four feet wide and four feet long. She admitted the puddle was plainly visible and that she would have seen it had she looked down. Nevertheless, Banks claims she was legally excused from any duty otherwise imposed on her under the “plain view” rule to exercise ordinary care to discover and avoid the plainly visible puddle in her path. To support this claim, Banks relied on a portion of her deposition testimony and on an affidavit she filed in opposition to summary judgment.

In her deposition, Banks testified she did not see the puddle because: “If you are just walking in McDonald’s, I don’t think you’re just going to walk in and look for water. You’re just walking in there, you know, to probably order your food. So, you know, a lot of people will be going in and out.” In her subsequently filed affidavit in opposition to summary judgment, Banks stated: “Upon entering the restaurant, my attention was focused upon ordering at the counter which was directly ahead as well as other customers who were coming toward the door to exit.”

Thus, Banks’ excuses for not exercising ordinary care to see and avoid the plainly visible puddle are that, when she entered the restaurant, she was looking toward the food counter where she was headed, and she saw other customers who were coming toward the door to exit. This amounts to no more than claiming that an ordinary fixture in the McDonald’s restaurant and the mere existence of other customers are distractions or diversions sufficient to excuse Banks from exercising ordinary care for her own safety.

The majority, relying on the Supreme Court’s decision in Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) (1994), concludes these facts are sufficient to create a jury question as to whether or not Banks exercised the requisite degree of ordinary care to discover and avoid the discernible defect. By concluding Barentine requires this result, the majority has either expanded the type of excuses recognizable under the “distraction doctrine” beyond any previous application or has created a new category of legally recognizable “excuses” for not discovering and avoiding plainly visible defects. Since virtually any customer on the premises of any business could articulate the same excuses given by Banks for not seeing a plainly visible defect, the effect of this decision is to remove any reasonable limits on the application of the “distraction doctrine” and destroy the viability of the “plain view” rule as a bar to recovery as a matter of law. As demonstrated below, the majority decision construes Barentine in a manner that fundamentally alters the law of premises liability established by the Supreme Court in Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980), and abandons years of precedent governing the application of the “plain view” rule and the “distraction doctrine.”

The single paragraph passage in Barentine, supra at 225, relied upon by the majority as authority for this radical departure simply concludes that, because the store’s cashier was not at the only open cash register, and Barentine’s attention was diverted by the necessity of calling the cashier to the check-out line, a jury question existed as to whether or not Barentine exercised the requisite degree of care to discover and avoid the plainly visible puddle in which he slipped and fell. Although Barentine does not use the words “distraction” or “diversion,” the decision is clearly explainable as simply holding there was evidence Barentine was distracted or diverted by conduct attributable to the store employee; therefore, a jury question existed as to whether Barentine exercised the requisite degree of ordinary care, which precluded application of the “plain view” rule as a bar to recovery. Id. at 225; see J. H. Harvey Co. v. Kinchen, 213 Ga. App. 868, 869-870 (446 SE2d 218) (1994). There is nothing in Barentine even suggesting the Supreme Court intended the case to apply to the factual situation presented in this case and have the drastic effect given to it by the majority.

This case is controlled by long-standing precedent governing the “plain view” rule and the “distraction doctrine” as applied under the rules established by the Supreme Court in Alterman Foods, supra. In order for Banks to recover under Alterman Foods, she had to show, “(1) that [McDonald’s] had actual or constructive knowledge of the [puddle] and (2) that [she] was without knowledge of the [puddle] or for some reason attributable to [McDonald’s] was prevented from discovering the [puddle].” Id. at 623. Since a question of fact existed as to whether McDonald’s had constructive knowledge of the puddle, the dispositive issue is whether Banks had knowledge of the puddle or for some reason attributable to McDonald’s she was prevented from discovering the puddle.

In determining whether or not a plaintiff has knowledge of the defect that would bar recovery, Alterman Foods makes clear the plaintiff cannot establish a question of fact on this issue merely by declaring that he or she did not see a plainly visible defect. Rather, the plaintiff must “exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citations and punctuation omitted.) Alterman Foods, supra at 623. Although the duty to exercise ordinary care to discover and avoid defective conditions does not require one to continuously scan the floor for defects under all circumstances, ordinary care does require, as a matter of law, the use of one’s eyesight to discover and avoid discernible defects in plain view in one’s path. Vermont American Corp. v. Day, 217 Ga. App. 65, 66 (456 SE2d 618) (1995); J. H. Harvey Co. v. Johnson, 211 Ga. App. 809, 811 (440 SE2d 548) (1994); Yeaple v. Grand Union Co., 207 Ga. App. 15, 16 (427 SE2d 13) (1992); Sinclair v. Orozco, 205 Ga. App. 498, 499 (423 SE2d 25) (1992). Accordingly, where it is undisputed the injury at issue was caused by a plainly visible defect in the plaintiff’s path that the plaintiff would have seen had he or she looked, this Court has uniformly held under the plain view rationale that the plaintiff is barred from recovery, as a matter of law, for failure to exercise ordinary care for his or her own safety. Vermont American Corp., supra at 66-67; Edwards v. Wal-Mart Stores, 215 Ga. App. 336, 338 (449 SE2d 613) (1994); Bruno’s, Inc. v. Pendley, 215 Ga. App. 108 (449 SE2d 637) (1994); Colevins v. Federated Dept. Stores, 213 Ga. App. 49, 52 (443 SE2d 871) (1994); Kinchen, supra at 869; Johnson, supra at 811; Winn Dixie Stores v. Carroll, 212 Ga. App. 234 (441 SE2d 432) (1994); Foodmax v. Terry, 210 Ga. App. 511, 513 (436 SE2d 725) (1993); Sinclair, supra; Riggs v. Great A & P Tea Co., 205 Ga. App. 608, 609 (423 SE2d 8) (1992).

Only two exceptions preclude application of the “plain view” rule in these type cases to bar a plaintiff from recovering as a matter of law. One exception is the “necessity rule” which recognizes that in some circumstances, despite the existence of a plainly visible defect, the plaintiff had no alternative but to assume the risk and encounter the defect. See, e.g., Fitzgerald v. Storer Cable Communications, 213 Ga. App. 872, 874 (446 SE2d 755) (1994). The “necessity rule,” mainly applied in landlord-tenant cases, has no application in this case. The second exception is the “distraction doctrine” which recognizes that, in limited circumstances, plaintiffs may claim they were distracted and, therefore, legally excused from exercising the otherwise required degree of care to discover and avoid plainly visible defects in their paths. See, e.g., Redding v. Sinclair Refining Co., 105 Ga. App. 375, 378 (124 SE2d 688) (1962).

The “distraction doctrine” is of limited application. In general, “a plaintiff may be excused from the otherwise required degree of care because of circumstances creating an emergency situation of peril . . . [or because of other circumstances] where the plaintiff’s attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur.” (Citations and punctuation omitted.) Kres v. Winn-Dixie Stores, 183 Ga. App. 854, 855 (360 SE2d 415) (1987); Stenhouse v. Winn Dixie Stores, 147 Ga. App. 473, 475 (249 SE2d 276) (1978). However, “[w]here the distraction is self-induced the plaintiff can no more take the benefit of it to excuse his lack of care for his own safety than one who creates an emergency can excuse himself because of its existence.” Redding, supra at 379.

In Alterman Foods, supra, the Supreme Court explicitly recognized that a plaintiff may be excused under a distraction rationale from exercising the otherwise required degree of care. “ ‘(W)here a proprietor owes a duty to its invitees to keep the premises in a safe condition for their passage, the setting up of a distraction, by a sign or conduct, which will so divert the customer’s attention as to be the proximate cause of his injury in colliding with what might otherwise be a patent [defect] . . . may constitute actionable negligence on the part of the defendant.’ Jackson Atlantic, Inc. v. Wright, 129 Ga. App. 857, 859 (201 SE2d 634) (1973); Gray v. Delta Air Lines, 127 Ga. App. 45, 52 (192 SE2d 521) (1972).” Alterman Foods, supra at 623. In both Gray, supra and Wright, supra, cited as authority in Alterman Foods, plaintiffs were distracted by conduct attributable to the defendants’ employees. The Supreme Court concluded that a plaintiff may be excused from exercising the degree of care otherwise required to discover and avoid a defect where “for some reason attributable to the defendant [the plaintiff] was prevented from discovering the [defect].” Alterman Foods, supra at 623.

Applying this authority, we have rejected claims that plaintiffs were distracted by items on the shelves of stores, concluding the distraction was not attributable to the defendant store but was self-induced. Riggs, supra at 609-610; Terry, supra at 513 (rejecting plaintiff’s claim that she was distracted because “she was looking for what she wanted to purchase”); Yeaple, supra at 16 (a claim by the plaintiff that she was distracted by display tables in the defendant’s store was rejected as a self-induced distraction). Banks’ claim that she did not see the puddle because she was focused on the food counter as she headed there to order food is indistinguishable from the claims made and rejected in the above cases that plaintiffs were distracted by items on shelves, by display tables, or by looking for items to purchase. In Colevins, supra, we rejected what amounted to a distraction claim almost identical to Banks’ claim that she was focused on other customers headed for the door. There, we held that a plaintiff who claimed she did not see the plainly visible defect in her path because “she was looking (straight [ahead] so she would not bump into people)” failed to exercise ordinary care for her own safety and was precluded from recovering as a matter of law. Id. at 52.

Banks’ claims are like other self-induced distractions which are not attributable to the defendant and which, as a matter of law, provide no excuse for her failure to discover and avoid the puddle. An ordinary fixture on a premises like a food check-out counter or the mere existence of other customers are not distractions attributable to McDonald’s. To hold otherwise, as suggested in the special concurrence to the majority opinion, would be to remove any reasonable limits on the application of the distraction doctrine. Moreover, the majority’s characterization of the issue as whether Banks exercised ordinary care for her own safety, rather than a distraction issue, is a meaningless distinction. The issue here is whether the circumstances were sufficient to excuse Banks from exercising the degree of ordinary care otherwise required under the “plain view” rule to discover and avoid the plainly visible puddle in her path. Obviously, the ordinary care issue is presented in every case where a plaintiff injured by a plainly visible defect claims the failure to exercise ordinary care to see and avoid the defect was caused by some sort of distraction or diversion. This was clearly the issue in Barentine, supra, where the plaintiff claimed he failed to see the plainly visible puddle in his path because his attention was diverted by the necessity of calling the store’s cashier to the check-out line. As noted in Wright, supra, under some circumstances, the physical location assumed by the defendant’s employee may be conduct which would naturally cause the plaintiff’s attention to be diverted and thus constitute a distraction attributable to the defendant. Id. at 859-860. In Wright, the “defendant’s employee not only created the distraction by requesting plaintiff to move but took a position to her left whereby he might naturally have expected plaintiff to step in a direction [toward the dangerous condition].” Id. at 860. Similarly, in Barentine, when the defendant’s cashier took a position away from the only open cash register, the defendant could reasonably anticipate that a customer’s attention could be diverted as he approached the check-out line by the necessity of calling the cashier to his post.

The majority rejects this view of Barentine and, instead, adopts a radical construction of the case as authority supporting Banks’ claims that her attention was diverted by the McDonald’s food counter where she was heading to order food and by other customers in the restaurant. Under this construction of Barentine, the case is authority for recognizing virtually limitless circumstances as legal excuses for the failure to exercise ordinary care to discover and avoid plainly visible defects, regardless of whether the circumstances are “attributable to the defendant.” Compare Alterman Foods, supra at 623. The majority holding is contrary to the Supreme Court’s application of distraction law in Alterman Foods, supra, and numerous prior decisions of this Court applying the “distraction doctrine” and the “plain view” rule in the context of Alterman Foods.

Decided December 5, 1995

Reconsideration denied December 20, 1995

Swift, Currie, McGhee & Hiers, L. Bruce Hedrick, Margaret C. Briggs, for appellant.

Mundy & Gammage, John S. Husser, for appellee.

Since Banks admitted the puddle was plainly visible and that she would have seen it had she looked, under the above cited “plain view” authority, she failed, as a matter of law, to exercise ordinary care for her own safety by discovering and avoiding the puddle. Banks failed to produce any evidence that she was prevented from discovering the puddle for some reason attributable to McDonald’s. It follows that Banks failed to establish under the second prong of Alterman Foods, supra, that she was without knowledge of the puddle or for some reason attributable to McDonald’s was prevented from discovering the puddle. Nothing in the Supreme Court’s Barentine decision requires a different result. Accordingly, McDonald’s was entitled to summary judgment in its favor.


author: Blackburn, Judge.

text:
    A95A1550.
    A95A1551.
    HITACHI CHEMICAL ELECTRO-PRODUCTS, INC. et al. v. GURLEY et al. HITACHI CHEMICAL ELECTRO-PRODUCTS, INC. et al. v. JOHNSON et al.
    (466 SE2d 867)
   Blackburn, Judge.

This Court granted Hitachi Chemical Electro-Products, Inc.’s (Hitachi) interlocutory appeals in the above cases, based upon the trial court’s denial of Hitachi’s motions to dismiss plaintiffs’ complaint for failure to state a claim upon which relief can be granted. Hitachi relied upon two theories: first, that plaintiffs’ complaint is barred by the exclusive remedy provision of the Georgia Workers’ Compensation Act, OCGA § 34-9-11; and second, plaintiffs’ complaint is barred by common law to the extent that it seeks damages for preconception injuries.

Courtney Autumn Gurley and Brittany Johnson were both born suffering severe birth defects. Prior to the birth of their children, Clarence Gurley (Courtney’s father) and John and Sheila Johnson (Brittany’s parents) worked at a semi-conductor factory owned by Hitachi Chemical Electro-Products, Inc. and Hitachi Chemical Company, Ltd. a/k/a Hitachi Kaesi Kogyo, K.K. (hereinafter collectively referred to as Hitachi). Courtney, Brittany and their parents brought actions against Hitachi alleging the birth defects suffered by Courtney and Brittany were caused when their parents were negligently and wilfully exposed to hazardous chemicals while working at the Hitachi factory.

The trial court ruled that plaintiffs’ complaint did state a claim upon which relief could be granted and that the children’s injuries were not derivative of any compensable injury to their parents and, hence, were not barred by the workers’ compensation statute. The trial court also rejected Hitachi’s contention that plaintiffs’ claim is barred by common law to the extent that it seeks damages for preconception injuries.

1. In their complaint, Gurley and Johnson allege only that the harmful chemical exposure occurred prior to their births without specifying if the exposure was before or after their conception. Georgia has long recognized that a child may sue for injuries suffered in útero, Peters v. Hosp. Auth. of Elbert County, 265 Ga. 487 (458 SE2d 628) (1995) citing Tucker v. Howard L. Carmichael & Sons, Inc., 208 Ga. 201, 202 (1) (65 SE2d 909) (1951), and Hitachi does not dispute that appellees’ complaints state a claim for post-conception, prenatal injuries. Rather, Hitachi sought to dismiss appellees’ claims to the extent that they sought relief for injuries sustained prior to conception. In a well-reasoned order, the trial court correctly denied Hitachi’s contention, recognizing therein that this issue was not properly before it as plaintiffs had not specified that they sought damages for preconception injuries. As the trial court concluded, even if plaintiffs’ complaint had specifically sought preconception damages, Hitachi’s contention that such a claim is barred by common law is without merit.

Our Supreme Court has previously recognized the existence of a cause of action to an unconceived child in McAuley v. Wills, 251 Ga. 3 (303 SE2d 258) (1983). In McAuley, a woman passenger was rendered paraplegic when the car in which she was riding crashed. She sued the driver of the car for her injuries. The woman later became pregnant, and her child died shortly after being born. The infant’s death was attributed to “[its] inability, due to the mother’s paraplegia, to pass through the fetal course in an uneventful manner.” Id. A complaint for wrongful death of the child was then filed against the driver. McAuley dealt with the issue of whether a cause of action for a preconception tort exists under Georgia law and, if so, when such a claim is allowable. The Supreme Court, quoting authority from other jurisdictions, recognized the existence of preconception tort liability under Georgia law, stating that “at least in some situations, a person should be under a duty of care toward an unconceived child.” Id. at 6 (5). While recognizing the cause of action, the Supreme Court decided the case on a proximate cause basis, holding that the facts presented in McAuley did not support the claim. Without denying that the driver’s negligence caused the infant’s injury, the Supreme Court determined that the relationship between the driver’s negligence and the infant’s death was “too remote for the law to countenance a recovery.” Id. at 7. The Supreme Court described its decision to limit liability as “in the nature of. a policy decision.” Id.

Under Georgia law, a motion to dismiss for failure to state a claim will not be granted unless it appears to a certainty that plaintiff would be entitled to no relief under any state of facts which can be proved. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient. Oliver v. Irvin, 230 Ga. 248, 249 (196 SE2d 429) (1973). Plaintiffs’ complaint alleges that they were exposed to hazardous and dangerous chemicals prior to the birth of the children and that such prenatal exposure proximately resulted in their injuries, which allegations sufficiently state a claim upon which relief can be granted under Georgia law. McAuley, supra. We deal here only with the issues before us and do not infer any opinion as to other issues which are not before us, i.e., proximate cause.

2. The present actions are not barred by the exclusivity provision of Georgia’s Workers’ Compensation Act. The exclusivity provision, which is contained in OCGA § 34-9-11, provides in pertinent part that “[t]he rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death.” (Emphasis supplied.)

In the present actions, the plaintiffs seek compensatory damages for injuries to their minor children proximately caused by the parents’ and the children’s exposure to hazardous chemicals at the parents’ workplace. The children’s claims for damages are not derivative of any claim that could be asserted by their parents but are entirely separate and distinct from any claim which could possibly be asserted by their parents for work-related injuries. The minor children are therefore third-party plaintiffs whose claims are not contemplated by the Workers’ Compensation Act and whose injuries the act was not designed to protect.

In Cushing v. Time Saver Stores, 552 S2d 730 (La. Ct. App. 1989), a Louisiana appellate court interpreted a similar exclusivity provision, holding it did not bar the action of a minor child for injuries caused by his mother’s work-related accident that occurred before the child was born. The court noted that the Louisiana act and the cases interpreting the exclusivity provision focused on economic and intangible losses to members of an injured employee which were derivative by nature, e.g., loss of support or consortium. The court then distinguished the physical injury suffered by the unborn child from any injury suffered by the parent and concluded that such child’s injury was not derivative. The court reasoned that a fetus which is injured by the conduct of the parent’s employer is entitled to assert a cause of action against such employer in the same manner that a child who is already born, and is injured on the parent’s work-site, could assert such a claim. See also Thompson v. Pizza Hut of America, 767 FSupp. 916 (N. D. Ill. 1991) (exclusive remedy provision did not preclude recovery for injuries suffered by a child in útero as a result of the mother’s exposure to carbon monoxide due to the employer’s negligence); Namislo v. Akzo Chemicals, 620 S2d 573 (Ala. 1993) (exclusivity provision did not bar the personal injury claim for prenatal injuries sustained as a result of the mother’s work-related exposure to mercury); Keefe v. Pizza Hut of America, 868 P2d 1092 (Colo. Ct. App. 1993) (claim for prenatal injuries was not barred by exclusive remedy provision because it was not “for and on account of’ an employee’s injury).

Decided November 6, 1995

Reconsideration denied December 20, 1995

Kilpatrick & Cody, Alan R. Perry, Jr., Michael E. Brooks, for appellants.

Troutman Sanders, Daniel S. Reinhardt, Susan S. Lanigan, for appellees.

The present claims are based on permanent injuries to the minor children and are not derivative of any work-related claim that can be asserted by the parents against Hitachi. Cf. Henderson v. Hercules, Inc., 253 Ga. 685 (324 SE2d 453) (1985) (wife’s loss of consortium claim barred by the exclusivity provision because it was derivative of husband’s workers’ compensation claim). Consequently, the injuries claimed by appellees are outside of the purview of the Workers’ Compensation Act and not subject to its exclusive remedy rule. The trial court did not err in denying Hitachi’s motion to dismiss based upon the workers’ compensation exclusivity provision contained in OCGA § 34-9-11.

Judgment affirmed.

McMurray, P. J., concurs. Andrews, J., concurs in judgment only.


author:
McMurray, Presiding Judge. Beasley, Chief Judge,
      Blackburn, Judge, Andrews, Judge, Smith, Judge,

text:
    A95A1552.
    VELEZ v. BETHUNE et al.
    (466 SE2d 627)
   McMurray, Presiding Judge.

Plaintiff Sherry S. Bethune, individually, as mother of Mary Elizabeth Bethune, a deceased minor, and as temporary administratrix of the child’s estate, brought this intentional tort action against defendant Francisco J. Velez, M. D., and others, seeking to recover for the alleged wrongful death of the nine-day-old infant. Mary Elizabeth Bethune was born prematurely “on the side of the expressway . . on November 20, 1991, after a gestation period of approximately 24 weeks, and was immediately taken to Southern Regional Medical Center. Defendant first saw the infant on November 28, 1991. Due to severe prematurity, the infant “was unstable with a chest [X]-ray that shows evidence of interstitial pulmonary emphysema, and . . . metabolic acidosis.” According to the amended complaint, on November 29, 1991, Dr. Velez unlawfully, intentionally, and without justification, abandoned his patient, the infant Mary Elizabeth Bethune, by causing the “termination [, deescalation,] and discontinuance of cardio pulmonary resuscitation, life support measures and medical treatment for her,” without the consent and approval of the infant’s parents, and without their knowledge.

Dr. Velez denied the material allegations, although he subsequently deposed that he “ordered discontinuation of an on-going resuscitation.” After a period of discovery, defendant moved for summary judgment on the grounds that he had obtained the consent of the parents to stop treatment and that the child was already “clinically dead” by the time he disconnected ongoing life support measures. In support of the contention that he obtained the consent of the parents, defendant relied on his progress notes made by him on November 29, 1991, which recite, in part: “After discussing condition with parents and agreement with them we decided that it was in the best interest of this patient to stop any further resuscitative effort.” This meant that Dr. Velez “stopped the infusion of Dopamine, and we stopped mechanical ventilation.”

Plaintiff opposed the motion with the affidavit of the infant’s father, Clayton E. Bethune, who deposed that he “never discussed with [defendant] any efforts by him to stop resuscitation efforts for my daughter [; and further that he had] never given permission to [defendant] to stop resuscitation efforts on Mary Elizabeth Bethune.” The affidavit of Delaine Brown, plaintiff’s cousin, contradicts defendant’s contention that he spoke with plaintiff and obtained her permission to stop resuscitative efforts on November 29, 1991. “In the presence of [plaintiff], I observed Mary Elizabeth Bethune on November 29, 1991. When I first saw Mary Elizabeth Bethune, she was [already] dead, was not clothed in any way and was not attached to any life support systems.” Also, medical records indicate that the infant still had a heartbeat at 8:30 a.m., i.e., although, in the death certificate he signed, Dr. Velez had pronounced the infant dead at 7:50 a.m. Defendant also testified variously that the infant was in the process of dying at 7:50 a.m., which necessarily “means that the baby is still alive[.]”

The trial court denied defendant’s motion for summary judgment but certified its order denying reconsideration for immediate review. Defendant’s application for interlocutory appeal was granted and a timely notice of appeal was filed. Held:

1. In four related enumerations, defendant enumerates the denial of his motion for summary judgment. He argues first that the act of removing infant Bethune from life support is not a tort for which plaintiff can recover. We disagree.

The allegations were sufficient to state a wrongful death claim on the basis that the infant’s death resulted either from defendant’s reckless disregard of the consequences, or his heedless indifference to the rights and safety of others. When coupled with a reasonable foresight that injury would probably result, this constitutes that criminal negligence equivalent to an intentional tort. Hamilton v. Powell, Goldstein &c., 252 Ga. 149, 150 (311 SE2d 818). See also Bowers v. State, 177 Ga. App. 36, 38 (338 SE2d 457). In the case sub judice, Dr. Velez had no right to decide, unilaterally, to discontinue medical treatment even if, as the record in this case reflects, the child was terminally ill and in the process of dying. That decision must be made with the consent of the parents. See In re Jane Doe, 262 Ga. 389, 391 (2), 393 (2) (c) (418 SE2d 3).

2. Next, defendant contends that the denial of summary judgment was erroneous because the infant Bethune was clinically dead. We do not agree that the absence of legal injury to the tragically premature infant nor the absence of proximate cause has been established beyond question. The evidence is in conflict as to whether the defendant physician, Francisco J. Velez, M. D., reasonably believed that he acted with the informed consent of the parents when he intentionally discontinued resuscitative efforts and intentionally removed life support mechanisms. See In re Jane Doe, 262 Ga. 389, 391 (2), 393 (2) (c), supra. The evidence is also in conflict as to whether the infant was clinically dead at the time. Although the trier of fact could conclude that Dr. Velez was entirely justified in his actions, within the meaning of OCGA § 51-11-1, the question of reasonableness remains for the jury to determine under all the attendant circumstances, including the credibility of the witnesses. The case law regarding the negligent failure to diagnose a terminal disease is simply inapposite to the deliberate acts of withholding or deescalating medical assistance, and the dissents err in relying thereon. Furthermore, the imminence and inevitability of death for this nine-day-old infant go only to the quantum of damages and do not vitiate the doctor’s initial dereliction, if the jury finds one. See, e.g., In re Jane Doe, 262 Ga. 389, 391 (2), fn. 4, supra. It is our view that, the trial court correctly denied defendant’s motion for summary judgment in this instance.

3. Defendant’s two remaining enumerations have been considered and are found to be without merit.

Judgment affirmed.

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

Beasley, Chief Judge,

concurring specially.

I agree with the majority because Dr. Velez had no right to discontinue treatment without the parents’ consent. The obligation is enunciated by the Georgia Supreme Court in In re L. H. R., 253 Ga. 439 (321 SE2d 716) (1984), which recognized a duty. Following that decision, the legislature delineated certain rights and obligations with respect to the question of cardiopulmonary resuscitation, in OCGA § 31-39-1 et seq. See In re Jane Doe, 262 Ga. 389, 391 (2) (418 SE2d 3) (1992).

Since the constitutional right to refuse belonged to the child, and had to be exercised by her surrogates (her parents) following the diagnosis and prognosis not only of the attending physician but also that of another, disinterested, physician, OCGA § 31-39-2, discontinuance without consent could be either an intentional or a negligent act, depending on the facts found by the jury. In either event, it would be an “unlawful violation of a private legal right,” OCGA § 51-1-1. The law always seeks to give a remedy if a legal right has been violated. See Ga. Law of Damages (4th ed.), §§ 1-1,1-4. If the failure to get consent carries no legal liability, then the protective scheme created in In re L. H. R., supra at 446, and refined by the statute is unenforceable.

The fact that there may be little or no actual damages does not govern whether there is a compensable tort. Nominal damages would be sufficient. See measure of damages, OCGA § 51-12-4. Bradley v. Godwin, 152 Ga. App. 782, 784 (3) (264 SE2d 262) (1979).

In my opinion, the wrongful death statute includes the wrongful hastening of death, and there is some evidence that the infant’s earlier death was caused by Dr. Velez. The record does not preclude a finding that his actions caused the death to be sooner rather than later, and that before he took these actions he did not get the consent of the surrogates of the person whose life was thereby terminated.

Blackburn, Judge,

concurring specially.

I agree with the majority; I write separately to specifically address Dowling v. Lopez, 211 Ga. App. 578, 579 (440 SE2d 205) (1993) cited by Judge Andrews’ dissent. Although I agree with Judge McMurray that Dowling is factually distinguishable from the present case, I am compelled to raise the same concern here that I raised in my dissent in Dowling.

Judge Andrews would find that because Dr. Velez, at most, only shortened the life of a terminally ill child, no damages for the wrongful death of the child are available to the plaintiffs. It is undisputed in this case that the immediate cause of the child’s death was the actions of Dr. Velez. The child was connected to a mechanical ventilator that Dr. Velez caused to be turned off. While it may well be true that the child would probably have ultimately succumbed to her illness, which had been diagnosed as terminal, no one can state with certainty that death would have in fact resulted from her condition. In any event, a jury would be authorized to find that the child would have lived longer but for the actions of Dr. Velez and that the immediate cause of the child’s death was the intentional wrongful act of Dr. Velez. As the majority found, the child’s condition and life expectancy would be factors for the jury to consider in its assessment of damages if it otherwise found defendant liable for the child’s death.

Andrews, Judge,

dissenting.

Sherry Bethune, as the mother of the deceased child and as the temporary administratrix of the child’s estate, sued Dr. Velez for damages after her child died nine days after birth while under the care of Dr. Velez at the Southern Regional Medical Center (the hospital) in Clayton County.

Ms. Bethune alleged that Dr. Velez improperly discontinued ongoing resuscitative efforts, life support procedures and medical treatment which were being employed to keep the prematurely born child alive and that this action caused or contributed to the death of the child. This appeal is from the trial court’s order denying Dr. Velez’s motion to dismiss and his alternative motion for summary judgment.

This is not a medical malpractice action. Although Ms. Bethune alleged malpractice in her original complaint, she voluntarily dismissed the portion of her complaint alleging that Dr. Velez negligently failed to comply with the appropriate standard of medical care. The only expert medical evidence in the case was given by Dr. Velez, who stated by affidavit and deposition that he acted in an ordinarily skillful manner within the appropriate standard of medical care when he determined that it was medically appropriate to disconnect the mechanical ventilator from the child and discontinue other resuscitative measures and medical treatment. Ms. Bethune contends, not that Dr. Velez was professionally negligent, but that he took these actions improperly without the consent of the child’s parents.

The record shows that the child was prematurely born on November 20, 1991 outside the hospital after a gestation period of approximately 24 weeks. The premature child was delivered by the father on the side of an expressway as the parents were on their way to the hospital. The child was admitted to the hospital emergency room on November 20 shortly after birth weighing approximately 500 grams and suffering from “profound hypothermia.” After resuscitation efforts were successful in the emergency room, the child was transferred to the neonatal intensive care unit for further treatment, which included mechanical ventilation. Dr. Velez testified that on November 29, 1991, while he was the treating physician for the child, the child was listed in critical condition, that he discussed with the parents that the child was on “ventilatory support, high doses of [an] inotropic agent and had received several doses of sodium bicarb and epinephrine” and was “not responding to my resuscitative efforts.” He testified that, after discussing the child’s condition with both parents, he obtained their oral consent to discontinue any further resuscitative efforts “due to a poor prognosis consistent with severe prematurity.” Dr. Velez testified that discontinuation of resuscitation efforts “means that we stopped the infusion of Dopamine, and we stopped mechanical ventilation.” Both parents denied that they had any such discussion with Dr. Velez, and both parents stated that they did not consent to the discontinuation of any medical treatment on the child.

As to the medical status of the child when Dr. Velez discontinued medical treatment and ordered the child disconnected from the mechanical ventilator, the hospital records showed that Dr. Velez pronounced the child dead at 7:50 a.m. on November 29, 1991. However, the records also show that the mechanical ventilator was not disconnected from the child until 8:30 a.m. on the same morning. Although Dr. Velez contended in one portion of his deposition that the child was “clinically dead” when he took these actions, he testified in another portion of his deposition that the child “was in the process of dying” at 7:50 a.m. and was “still alive” when resuscitation efforts were discontinued and the mechanical ventilator was disconnected. Hospital records of the child’s monitored heart rate, blood pressure and temperature provided evidence that the child was registering vital signs when resuscitative measures were discontinued and the ventilator was disconnected.

After voluntarily dismissing the medical malpractice portion of her complaint (Count 2), only Count 1 of the complaint remained. In Count 1, Ms. Bethune alleged that, without the consent of the child’s parents, Dr. Velez “caused the issuance of an order not to continue the resuscitation of [the child] in violation of OCGA Section 31-39-1, et seq.” which in turn caused the death of the child. Under OCGA § 31-39-1 et seq., except as otherwise permitted by court order, where a minor child is a proper “candidate for nonresuscitation” as defined by OCGA § 31-39-2 (4), an attending physician must obtain the consent of the parents before issuing an order not to attempt cardiopulmonary resuscitation of the child. Ms. Bethune alleged in Count 1 that, as a result of the alleged unauthorized action taken by Dr. Velez, she was entitled to recover for the full value of the child’s life as the mother of the child and that, as the temporary administratrix of the child’s estate, she was entitled to recover for funeral, medical and other expenses and for the pain and suffering of the deceased child. Dr. Velez moved the court for summary judgment as to Count 1.

Subsequently, Ms. Bethune amended her complaint to add two additional counts denominated as Counts 3 and 4. In Count 3, Ms. Bethune alleged that the actions taken by Dr. Velez intentionally caused or contributed to the child’s death and that Dr. Velez abandoned the child in a condition that resulted in the child’s death. She further alleged in Count 3 that, as the mother of the child, she is entitled to recover for the full value of the life of the child and that, as the temporary administratrix of the child’s estate, she is entitled to recover for funeral, medical and other expenses and for the child’s pain and suffering. Count 4 of the complaint alleged that Dr. Velez is liable for punitive damages as a result of his actions.

After Counts 3 and 4 were added, the trial court ruled on Dr. Velez’s motion for summary judgment as to Count 1. The trial court granted summary judgment in favor of Dr. Velez as to Count 1, ruling that there was no evidence in the record that a “do not resuscitate” order was ever issued by Dr. Velez or anyone else caring for the child, and that OCGA § 31-39-1 et seq. did not apply. The trial court concluded that, as the record stands, there is no evidence that this case involved a do not resuscitate order under which extreme lifesaving procedures would have been withheld if the child suffered cardiac or respiratory failure. Accordingly, the court concluded that OCGA § 31-39-1 et seq. governing the issuance of orders not to attempt cardiopulmonary resuscitation to reverse sudden, unexpected death did not apply. Rather, the trial court concluded that a decision was made in this case to discontinue or deescalate ongoing medical treatment. See In re Jane Doe, 262 Ga. 389, 390, n. 1 (418 SE2d 3) (1992) (distinguishing between a do not resuscitate order and a decision to deescalate ongoing medical treatment). No direct appeal was taken from the grant of summary judgment as to Count 1, nor has this issue been raised by cross-appeal in the present action.

Subsequently, Dr. Velez moved for dismissal or alternatively for summary judgment as to Counts 3 and 4. Dr. Velez contended in part that Ms. Bethune attempted in these counts to reassert a medical malpractice action without filing the expert affidavit required by OCGA § 9-11-9.1. The trial court ruled that Counts 3 and 4 did not claim medical malpractice but rather alleged that Dr. Velez was liable for an intentional tort, so no expert affidavit was required. Ms. Bethune concedes on appeal that the complaint does not set forth a claim for medical malpractice. Accordingly, the trial court correctly held that the complaint does not allege medical malpractice. Citing In re L. H. R., 253 Ga. 439 (321 SE2d 716) (1984), and In re Jane Doe, supra, the trial court concluded that Counts 3 and 4 set forth a viable cause of action against Dr. Velez, not for medical malpractice, but for terminating medical treatment for the child without the consent of the parents, which constituted an intentional tort. The trial court’s denial of the motions as to Counts 3 and 4 is the subject of the present appeal.

Count 3 of the complaint sets forth two separate causes of action. One cause of action alleges a wrongful death claim in which Ms. Bethune seeks to recover for the full value of the child’s life in her capacity as the child’s mother. See OCGA § 51-4-1 et seq. In a separate cause of action in Count 3, Ms. Bethune seeks to recover “funeral, medical and other expenses resulting from the death of [the child] . . . and for the pain and suffering of [the child]” in her capacity as the personal representative of the child’s estate. OCGA §§ 9-2-41; 51-4-5 (b); Smith v. Mem. Med. Ctr., 208 Ga. App. 26, 27 (430 SE2d 57) (1993).

Recovery under Georgia’s wrongful death statutes is limited to “all cases in which the death of a human being results from a crime, from criminal or other negligence, or from property which has been defectively manufactured, whether or not as the result of negligence.” OCGA § 51-4-1 (2); Ryals v. Billy Poppell, Inc., 192 Ga. App. 787 (386 SE2d 513) (1989). Obviously, this case does not involve defectively manufactured property, nor is there any allegation of professional negligence. Accordingly, by statutory definition, the alleged wrongful death in this case must have resulted from either a crime or criminal or other negligence not constituting professional negligence.

I agree with the majority that the allegations of the complaint were sufficient to state a wrongful death claim on the basis that the child’s death resulted from criminally negligent conduct equivalent to an intentional tort. Either a reckless disregard of the consequences or heedless indifference to the rights and safety of others, coupled with reasonable foresight that injury would probably result, constitutes criminal negligence equivalent to an intentional tort. Bowers v. State, 177 Ga. App. 36, 38 (338 SE2d 457) (1985); Hamilton v. Powell, Goldstein &c., 252 Ga. 149, 150 (311 SE2d 818) (1984).

The majority also correctly concludes that Dr. Velez had no right to unilaterally decide to discontinue medical treatment even if, as the record in this case reflects, the child was terminally ill and in the process of dying. Under In re L. H. R., supra, the parents of the infant child were authorized to consent on behalf of the child to refuse or terminate medical treatment only “after diagnosis that the [child] is terminally ill with no hope of recovery and that the [child] exists in a chronic vegetative state with no reasonable possibility of attaining cognitive function. The above diagnosis and prognosis must be made by the attending physician. Two physicians with no interest in the outcome of the case must concur in the diagnosis and prognosis.” Id. at 446. Once such a diagnosis and prognosis is made and is concurred in by two other physicians, “the state has no compelling interest in maintaining life [and] [t]he decision to forego or terminate life-support measures is, at this point, simply a decision that the dying process will not be artificially extended.” Id. at 446. Under these circumstances, it is the decision of the parents as to whether or not to end the dying process for their infant child. Id. at 446.

The record is not clear as to whether the circumstances existed which would have authorized the parents in this case to consent to discontinuation of life support measures on the child. Nevertheless, the trial court correctly concluded that a question of fact existed as to whether the parents consented to the actions taken by Dr. Velez. Under the contradictory testimony rule, the trial court was also authorized to construe Dr. Velez’s various statements regarding the time of the child’s death as contradictory testimony which created a factual issue as to whether or not the child was still alive when he discontinued medical treatment and life support measures. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).

But even assuming the child was alive at that time and that Dr. Velez acted without the authorized consent of the parents, the trial court erred by denying summary judgment on the wrongful death claim because there was no evidence in this case that the discontinuation of medical treatment and life support measures was the proximate cause of the child’s death within the meaning of the Georgia wrongful death statutes. “Georgia’s wrongful death statutes give a right of action not available at common law and must be limited strictly to the meaning of the language employed and not extended beyond plain and explicit terms. Miles v. Ashland Chem. Co., 261 Ga. 726, 728 (410 SE2d 290) [(1991)].” Dowling v. Lopez, 211 Ga. App. 578, 579 (440 SE2d 205) (1993).

The gravamen of the present wrongful death action is not that Dr. Velez negligently diagnosed the child’s condition as terminal, but that he wrongfully discontinued medical treatment for the child without the authorized consent of the parents. Ms. Bethune does not contend that Dr. Velez was professionally negligent, and the only medical testimony in the case is Dr. Velez’s opinion that the child was either “clinically dead” or in “the process of dying” because of medical problems caused by severe prematurity and would not have survived despite the discontinuation of medical treatment. Given the undisputed medical evidence, the wrongful death claim in this case is clearly not that the child would have lived but for the actions of Dr. Velez, but that the life of the terminally ill child may have been prolonged for a short period. Although Ms. Bethune may have sought damages in a cause of action outside of Georgia’s wrongful death statutes, the wrongful death statutes are strictly construed to provide for recovery for the full value of the decedent’s life in cases where death resulted from the defendant’s alleged wrongful act — they do not provide for recovery in this type of case, where the child’s death was the unavoidable result of other causes, and the defendant’s actions only hastened the already inevitable death. See OCGA § 51-4-1 (2); Dowling, supra; Annotation: Recovery in Death Action for Failure to Diagnose Incurable Disease Which Caused Death, 64 ALR4th 1232. Accordingly, the trial court erred in denying summary judgment on the wrongful death claim because “there is no evidence that defendant’s [discontinuation of medical treatment] was the proximate cause of the decedent’s death so as to authorize damages for the full value of the decedent’s life pursuant to OCGA § 51-4-2 (a).” Dowling, supra at 581.

The majority refuses to apply the holding of Dowling, supra, to the facts of this case, concluding that a factual question remains as to whether the actions taken by Dr. Velez were the proximate cause of the infant’s death, and that the “imminence and inevitability of death for this nine-day-old infant go only to the quantum of damages. . . .” This is the same argument which was rejected by a majority of this Court in Dowling. See id. at 582-583 (Blackburn, J., dissenting). In Dowling, the plaintiff sought to recover for the wrongful death of the decedent claiming that, even though the decedent had terminal cancer and would have died within a few years, the defendant’s negligent misdiagnosis caused the decedent to die sooner. The majority in Dow-ling concluded that there was no evidence of proximate cause and that a wrongful death action could not be sustained on a claim that “there is evidence that the decedent’s life could have been prolonged (rather than saved) had it not been for defendant’s alleged malpractice.” Id. at 580. In reaching this conclusion, the majority rejected the dissent’s assertion that “[t]he existence of the terminal condition would be a factor in calculating damages, but it would not preclude a wrongful death action.” Id. at 583 (Blackburn, J., dissenting). There is simply no basis for distinguishing the terminal condition of the decedent in Dowling from the terminal condition of the deceased infant in this case. If there was no proximate cause in Dowling, there is no proximate cause here. If Dowling is no longer to be followed, it should be forthrightly overruled.

In the second cause of action in Count 3, Ms. Bethune, as the administrator of the estate, sets forth claims for funeral, medical and other necessary expenses resulting from the death of the child and for the child’s pain and suffering. See OCGA §§ 51-4-5 (b) and 9-2-41. These are claims which the administrator has the right to pursue, which existed in the child before death, and which the child would have been entitled to pursue had she lived. Gay v. Piggly Wiggly Southern, 183 Ga. App. 175, 180 (358 SE2d 468) (1987); Complete Auto Transit v. Floyd, 214 Ga. 232, 237-238 (104 SE2d 208) (1958). As such, the medical expenses are sought as “an item of special damage incident to the recovery for the injury to the person [of the deceased]” and funeral expenses are sought as expenses resulting from the wrongful death of the deceased. Gay, supra at 180. The claim for pain and suffering in this case constitutes a claim that, had the child lived, the child would have had a cause of action for pain and suffering resulting from Dr. Velez’s discontinuation of medical treatment. Floyd, supra at 237. Furthermore, since the punitive damages sought in Count 4 pursuant to OCGA § 51-12-5.1 are not available in the wrongful death claim, they constituted a pre-death tort claim of the decedent brought by the administrator of the estate for punitive damages “in connection with the injuries [and] pain and suffering of the deceased . . .” as a result of Dr. Velez’s discontinuation of medical treatment. Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 340-341 (319 SE2d 470) (1984).

There is no evidence to support a recovery on these claims. As to the claim that funeral expenses resulted from the wrongful death of the deceased, in the absence of a viable wrongful death claim there is no basis for recovery of resulting funeral expenses. As to the claim for medical expenses incurred by the child, there is no evidence that any action taken by Dr. Velez caused additional medical expenses.

As to the pain and suffering claim, the allegation against Dr. Velez was not that he injured the child and caused the child to experience pain and suffering by taking some action below the standard of medical care, but rather that he withdrew medical treatment without proper authorization. There is no claim in this case that Dr. Velez’s discontinuation of medical treatment for the child constituted professional negligence, and the only expert medical testimony was that the treatment provided by Dr. Velez was within the appropriate standard of care. As discussed in relation to the wrongful death claim, this amounts to a claim that Dr. Velez’s unauthorized actions deprived a terminally ill child of a chance to survive for a short period of time. There is no evidence that any action taken by Dr. Velez caused the child additional pain and suffering. Similarly, in the absence of any basis for concluding that Dr. Velez took actions which caused the child to experience pain and suffering, there is no support for the recovery of punitive damages in connection with any injuries or pain and suffering. See Donson Nursing Facilities v. Dixon, 176 Ga. App. 700, 702 (337 SE2d 351) (1985); Jones v. Davis, 183 Ga. App. 401, 403 (359 SE2d 187) (1987).

Accordingly, the trial court erred by denying summary judgment in favor of Dr. Velez as to Counts 3 and 4 of the complaint.

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

Smith, Judge,

dissenting.

A physician’s failure to obtain appropriate consent before discontinuing resuscitative efforts is reprehensible and actionable through a claim for medical malpractice. Plaintiff initially pursued such a claim but later chose to dismiss it. A wrongful death action will not lie, however, because the facts and issues involved in this case are controlled by Dowling v. Lopez, 211 Ga. App. 578 (440 SE2d 205) (1993), authored by the author of the majority in this case. The language in Dowling is unequivocal: “Neither [the wrongful death statute], nor any other provision in Georgia’s wrongful death statutes provides for recovery where a defendant’s wrongful act or negligence did not result in death.” (Emphasis supplied.) Id. at 579-580. In this case, plaintiffs failed to point to evidence that defendant’s intentional acts proximately caused the child’s death, or evidence “showing to any reasonable degree of medical certainty that the patient’s death could have been avoided.” Id. at 580.

Strangely, Dowling seems to have been ignored by the majority, even though the author of the majority also authored Dowling. Apparently, the majority attempts to distinguish Dowling by characterizing the doctor’s acts here as intentional. In truth, the facts in Dow-ling came far closer to establishing the existence of proximate cause than those in this case. A wrongful death action nonetheless was not viable there. A reading of the precise language in Dowling shows that any distinction between intentional and negligent acts is immaterial. Simply characterizing the doctor’s act as an intentional tort is not enough to transform the action into a viable one for wrongful death.

Decided December 5, 1995

Reconsideration denied December 20, 1995.

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

George H. Connell, Jr., for appellees.

To allow the wrongful death action to proceed ignores and implicitly overrules the plain language of Dowling. I agree with Judge Andrews that Dowling “should be forthrightly overruled” if that case is no longer the law. The trial court erred in denying summary judgment to defendant.

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

       A separate count for medical malpractice was dismissed for failure to file the affidavit of an expert, as mandated by OCGA § 9-11-9.1.

       Although a violation of the parents’ right to consent to withdrawal of medical treatment may possibly have supported a claim for intentional infliction of emotional distress, this cause of action was not alleged.

       Count 4 of the complaint did not allege a separate cause of action but simply alleged that the plaintiffs were entitled to recover punitive damages.

         Plaintiffs have pointed to no evidence that the life of the child would have been substantially prolonged. There was testimony that the premature child was “clinically dead” or “was in the process of dying” when resuscitation efforts were discontinued. In Dowling, which involved the negligent failure to diagnose cancer, a surgeon testified that he had treated patients with symptoms similar to those of the decedent who had lived for six to eight years, and even longer. Id. at 580. This Court nevertheless found that no evidence existed that the misdiagnosis proximately caused decedent’s death so as to authorize damages under the wrongful death statute. Id. at 581.