author: Eldridge, Judge. Barnes, Judge,

text:
    A00A1538.
    WILLIAMS v. THE STATE.
    (547 SE2d 395)
   Eldridge, Judge.

A Floyd County jury found Clyde Tony Williams guilty of possession of cocaine with intent to distribute. Williams appeals by challenging (1) the trial court’s order denying his motion to suppress, and (2) the sufficiency of the evidence demonstrating intent to distribute the cocaine in his possession. Upon careful review of the errors as enumerated, we affirm Williams’ conviction.

The evidence, viewed to uphold the verdict, shows that Officer Tim Smith with the Rome Police Department was on routine patrol at 1:08 a.m. He saw Williams sitting in a chair in his driveway right next to the sidewalk. Williams’ residence is on the corner of Pennington Avenue and Grover Street, which has been identified as a high drug sale area. Officer Smith had previously arrested Williams twice for drug-related offenses within a couple of blocks of the comer. The chair in which Williams was sitting was beside the front passenger wheel of a broken down Chevrolet Caprice that sat in the driveway with its front end parked inches from the public sidewalk. Williams was wearing a leg monitor pursuant to his parole status.

Officer Smith stopped his vehicle:

I got out, approached him, asked him what was going on. He [Williams] jumped up out of his chair and said, “What am I doing, Smith? I ain’t done nothing. I ain’t done nothing. . . .” He said, “I ain’t got nothing. I ain’t done nothing. What have I done? I ain’t got nothing on me.” He [Williams] reached in his pocket and pulled out a big handful of money and put it back in his pocket. “I ain’t got nothing.”

At the very beginning of this exchange, Officer Glaze approached to back up Smith; Glaze heard Williams’ protestations and saw him pull the money out of his pocket. In the middle of the exchange, Officer Bartley arrived as backup, and Smith told him what was occurring; Bartley told Smith that he had seen Williams sitting beside the Caprice since 4:00 that afternoon, some nine hours earlier.

Williams was “very excited, very nervous. . . . He was pretty much, almost jumping around excited.” Officers Glaze and Bartley began to shine their flashlights around the yard, while Smith asked Williams what was wrong; Smith was “focused on Mr. Williams. Due to the fact that he was so nervous.” During the entire encounter, the officers stayed near the sidewalk where the Caprice was parked and Williams was standing; the officers remained “in the same general area as the whole incident started out at, in a few feet one way or the other.”

Shortly after the encounter began, officers Glaze and Bartley bent down and shined their lights under the Caprice from the driver’s side. In plain view, the officers saw a plastic bag containing 40 hits of crack cocaine. The bag was located under the car on the inside of the passenger side tire, where it could be accessed from the chair in which Williams was sitting.

The entire encounter lasted five minutes or less. During that time, Williams was not detained and was “free to go at any time.” He never asked the officers to leave and left himself only for 15 seconds to go up onto the porch, remove the money from his pocket, and return. The encounter remained voluntary the entire time.

Prior to trial, Williams filed a motion to suppress the cocaine. After receiving evidence thereon, the trial court found, inter alia:

Now those drugs, as it was described from the witness stand and as I looked at those photographs, could just as easily have been seen by an officer standing, squatting, kneeling on the public sidewalk, because that car and the front end of the car was hanging over by inches the public sidewalk. My general recollection is that those sidewalks — that the public right-of-way for those sidewalks is a little bit wider than the paved portion itself, but the car actually overhung the paved portion of a public sidewalk and it was level and the car sat on a concrete pad. There was nothing that would have prevented an officer from looking under the front end of the car from a public viewing point and seeing these drugs having seized them. It seems to me that the law is not so unreasonable and we’re talking about unreasonable searches and seizures.

Held:

1. Williams first challenges the trial court’s denial of his motion to suppress, claiming that the search under the Caprice violated his Fourth Amendment right to be free from unreasonable searches and seizures. In that regard,

(a) The contact between the officers and Williams appeared to be a first tier voluntary encounter, which lasted less than five minutes. Williams was at his home, was not detained, and was free to come and go. Williams never ordered the officers out of his yard but continued to stand in his yard and talk to them.

Even were this not the case, Williams’ known history of selling drugs within two blocks of the area in question, i.e., his home; his presence from 4:00 p.m. to 1:08 a.m. alone in a chair in his driveway beside a car on a street corner known for heavy drug sales; the presence of a large amount of cash in Williams’ pocket; his extreme nervousness at the approach of the officers; and his abruptly volunteered assertions that “What did I do? I ain’t got nothing on me,” are sufficient to provide reasonable articulable suspicion that Williams might be engaged in drug sales so as to permit an investigative detention and questioning. Thus, the officers were validly in Williams’ yard.

(b) There was no search in violation of the Fourth Amendment,

(i) Since the officers had a right to be in the yard in order to investigate, the police did not improperly intrude into a constitutionally protected area, and laws regarding curtilage in relation to a lawful search are not germane. Thus, Williams’ reliance on our decision in State v. O’Bryant is misplaced, because that case turned on the fact that officers had no valid reason to remain within the curtilage of the property in question after ascertaining that the owners were not home.

Moreover, if the laws regarding curtilage were applicable, such questions should be resolved with reference to four factors:

the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.

Here, Williams’ front yard and driveway are on a corner of two public streets immediately connected to a public sidewalk and road. The small front yard and driveway can be easily seen in their entirety from the sidewalk. The yard and driveway are open to be walked upon or cut through by any passersby, and no steps have been taken to protect the area in any way from view or access. Under such circumstances, there can be no constitutionally protected right to privacy or reasonable expectation of privacy in any items exposed to the naked eye in either Williams’ driveway or front yard. The Fourth Amendment protects only against unreasonable searches.

The Fourth Amendment . . . has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible.

What a person exposes to the public is not a subject of Fourth Amendment protection. “In substance then, we conclude that where one exposes to open view that which is contraband, he forfeits his right to any reasonable expectation of privacy.”

(ii) There was no Fourth Amendment violation because the officers shined their flashlights around Williams’ yard.

It is likewise beyond dispute that [the officers’] action in shining [their] flashlight to illuminate [Williams’ yard and driveway] trenched upon no right secured to the latter by the Fourth Amendment. . . . [Cit.] “(T)he use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution.” Numerous other courts have agreed that the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection.

One cannot claim that cover of darkness precludes seeing what daylight would expose to plain view.

(iii) There was no Fourth Amendment violation because the officers had to bend down to see the contraband under the Caprice.

Likewise, the fact that [the officer] changed his position and bent down at an angle so he could see what was [under Williams’] car is irrelevant to Fourth Amendment analysis. The general public could peer [under Williams’] automobile from any number of angles; there is no reason [the officer] should be precluded from observing as an officer what would be entirely visible to him as a private citizen. There is no legitimate expectation of privacy shielding that portion [under] an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers. In short, the conduct that enabled [the officer] to observe [under Williams’] car . . . was not a search within the meaning of the Fourth Amendment.

(iv) There was no Fourth Amendment violation when Officer Glaze seized the contraband in plain view under the car.

Officer Glaze’s testimony was “at first I didn’t think it was what I thought it was, but then I got a closer look at it and it was a plastic bag with suspected crack in it.” Glaze suspected the plastic bag contained crack from the time he first saw it, but looked closer. He testified that he had been trained to identify drugs, had seen crack cocaine before, and he suspected the plastic bag he saw under the car was crack cocaine. From this evidence, it is plain that Officer Glaze had probable cause to seize the plastic bag he saw in plain view under Williams’ car.

(v) There was no Fourth Amendment violation simply because Officer Smith was not certain that someone looking under the car from a public sidewalk could have seen the drugs. Officer Smith did not find the drugs. Officers Glaze and Bartley did. And Bartley testified that the drugs were located underneath the car near the inside of the passenger side tire, where, as the trial court determined, they could be seen by an officer looking down the length of the car from the front end.

It is urged that the trial court’s conclusion the drugs could be seen from the public sidewalk is clearly erroneous because the trial court stated “that car and the front end of the car was hanging over by inches the public sidewalk,” while the photographic exhibits show that no part of the car hung over the public sidewalk. However, this argument ignores the actual substance of the trial court’s findings, which was that an officer could see the drugs underneath the car from the sidewalk, because the front end of the car was so very close to the sidewalk. The issue is not, then, whether the front end was “hanging inches over” or “recessed inches away” from the sidewalk. The issue is whether the drugs could be seen underneath the car from the sidewalk. The photographic exhibits clearly support the trial court’s factual determination that anyone could easily stand on the sidewalk, bend over, look under the front end, and see the contraband underneath the car. From the photographs it is clear that, if the front end is not actually “hanging inches over the sidewalk,” it is too close to doing exactly that for the trial court’s factual determination to be “clearly erroneous.” When an appellate court reviews an order on a motion to suppress evidence, it must construe the evidence most favorably to upholding that order; the trial court should resolve conflicts in the evidence, and its credibility and factual findings should not be disturbed on appeal unless they are clearly erroneous. In this case, the trial court made considered, detailed, and thoughtful findings of fact from which to base proper conclusions of law. The court specifically found that Williams and his family were not credible with regard to the police encounter: “it makes it more believable for me that the police version is what happened than what Mr. Williams’ family said.” The court found that the officers had reasonable articulable suspicion to detain Williams for questioning; that they then had a right to be in the yard; that shining their flashlights around the yard and under the car was not unreasonable; and that the drugs were in plain view under the car from both the yard and the sidewalk. The trial court’s findings are supported by the facts. Accordingly, there was no error in denying Williams’ motion to suppress.

2. Williams contends there was no evidence to demonstrate he possessed the requisite intent to distribute the crack cocaine found under the Caprice. We disagree.

Williams’ prior conviction for sale of cocaine two blocks from the incident locale was admitted to demonstrate his bent of mind and intent to distribute with regard to the instant case. That coupled with evidence that Williams had been sitting alone on the corner of a high drug sale area for nine hours straight, from 4:00 p.m. to 1:08 a.m.; had a large amount of cash in his pockets; was within reaching distance of 40 hits of crack cocaine; and was in possession of no paraphernalia for ingesting crack cocaine is sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Williams was in possession of the drugs with the intent to distribute them.

Judgment affirmed.

Pope, P. J., Johnson, P. J., and Smith, P. J., concur. Blackburn, C. J., Barnes and Phipps, JJ, dissent.

Barnes, Judge,

dissenting.

I respectfully dissent. The “plain view” doctrine cannot be used to justify the search and seizure in this case because the officers invaded the curtilage of Williams’ home for no legitimate reason and searched it without a warrant. “Prima facie a search made within the curtilage of the owner without a warrant is unconstitutional and void. Curtilage includes the yards and grounds of a particular address, its gardens, barns, buildings, etc.” (Citations and punctuation omitted.) Bunn v. State, 153 Ga. App. 270, 272 (2) (265 SE2d 88) (1980). A person’s driveway and a car parked on the driveway fall within the curtilage of his home and are entitled to the protections of the Fourth Amendment. State v. O’Bryant, 219 Ga. App. 862, 864 (467 SE2d 342) (1996).

The officers in this case entered Williams’ yard for no legitimate reason. Although I agree that the first officer on the scene, Officer Smith, had a right to stand on the public sidewalk and talk to Williams, the other officers had no justifiable reason to enter Williams’ property and begin a search. Neither of these officers came to the property to talk with Williams; instead, they stopped of their own accord to provide backup to the first officer and then immediately conducted a search of his front yard and the area underneath a car in his yard. They initiated this search as a matter of “habit” or “routine” because Williams was nervous. While it was perfectly appropriate for them to stop to provide officer backup, there was no legitimate reason for them to enter and search Williams’ property.

Decided March 30, 2001

Reconsideration denied April 12,2001

Karen S. Wilkes, for appellant.

Clyde T. Williams, pro se.

Tambra P. Colston, District Attorney, John F. McClellan, Jr., Assistant District Attorney, for appellee.

Since the contraband was found after they illegally entered Williams’ property, the plain view doctrine does not apply. Bunn, supra, 153 Ga. App. at 275 (plain view doctrine did not apply because “the officers had intruded within the curtilage before they saw the articles hidden behind the air conditioner”). Speculation that the police “might” have seen it from a public place does not alter the fact that the police illegally searched Williams’ property and actually found the contraband as a result of that illegal search. As the United States Supreme Court recognizes, “[i] t is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.” Horton v. California, 496 U. S. 128, 136 (110 SC 2301, 110 LE2d 112) (1990).

Adoption of the majority’s analysis in this case gives the police the right to roam over a person’s property at will and search for any contraband or evidence that is not completely hidden from view. It will also allow the police to enter our yards and peer into our bedroom windows. This is precisely what our Constitution was designed to prevent, and I would accordingly reverse the trial court’s denial of Williams’ motion to suppress.

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

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Popham v. State, 214 Ga. App. 775, 777 (449 SE2d 150) (1994).

        Smith v. Maryland, 442 U. S. 735, 741 (99 SC 2577, 61 LE2d 220) (1979).

       219 Ga. App. 862, 863 (467 SE2d 342) (1996).

        United States v. Dunn, 480 U. S. 294, 301 (107 SC 1134, 94 LE2d 326) (1987); Espinoza v. State, 265 Ga. 171, 173 (454 SE2d 765) (1995).

       (Emphasis supplied.) California v. Ciraolo, 476 U. S. 207, 213 (106 SC 1809, 90 LE2d 210) (1986).

        Gravley v. State, 181 Ga. App. 400, 404 (352 SE2d 589) (1986).

        Texas v. Brown, 460 U. S. 730, 739-740 (103 SC 1535, 75 LE2d 502) (1983); United States v. Dunn, supra at 304-305. See also Galloway v. State, 178 Ga. App. 31, 35 (342 SE2d 473) (1986).

       (Citations and punctuation omitted.) Texas v. Brown, supra at 740.

       Id. at 742-743.

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

        Guild v. State, 234 Ga. App. 862, 870 (10) (b) (508 SE2d 231) (1998).

       The majority uses the four factors outlined in United States v. Dunn, 480 U. S. 294 (107 SC 1134, 94 LE2d 326) (1987), and Espinoza v. State, 265 Ga. 171 (454 SE2d 765) (1995), to conclude that Williams had no constitutionally protected right to privacy. However, those factors were created to assist a court in determining the extent of a home’s curtilage, not to find that a person has no expectation of privacy in an area that is without question part of the home’s curtilage.

       The majority’s description of the scope of the search warrants further explanation. Officer Smith testified that he believed he was standing on the sidewalk when he talked with Williams and that they (he and Williams) “were always in the same general area as the whole incident started out at, in a few feet one way or another.” Officer Bartley testified that he believed Officer Glaze “was around the yard looking” when he arrived on the scene. He then joined “Officer Glaze in searching around the yard.” He and Glaze also searched the area of the yard on the opposite side of the car from where Williams was standing. Officer Glaze testified that he searched “around the vehicle, around the grass, [and] around the trees” for about five minutes. This area “was anywhere in between a length of car, something like that.” Finally, the trial court found that the police found the contraband while they were standing on the defendant’s front yard.

       The majority concludes that “the officers had a right to be in the yard to investigate,” but fails to state what the officers were investigating in the yard. Officer Glaze, one of the officers who searched the yard testified, “We weren’t in there investigating him or anything like that.” The other officer who searched the yard, Officer Bartley, testified that he had no previous information as to what the other officers were investigating when he arrived and that he assisted “by joining Officer Glaze in searching through the yard.”


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A00A1788.
    HELM v. GRAHAM.
    (547 SE2d 343)
   Ruffin, Judge.

Robert Dean Graham brought this action against his ex-wife, Stacey Helm, seeking a change in physical custody of their two minor children, then ages six and nine. Following two evidentiary hearings, the trial court entered an order awarding physical custody to Graham. We granted Helm’s application for discretionary appeal and now reverse.

Graham and Helm divorced in 1995 in Henry County, Georgia. Their original divorce decree gave Helm sole custody of the couple’s two children. Graham petitioned to modify the decree in 1997, seeking custody or, in the alternative, joint custody of the children. In an October 2, 1997 order, the trial court noted various deficiencies in Helm’s child care:

the mother [Helm] has been extremely lacking in her parental duties and her conduct indicates a laxity in moral standards which might well work to the detriment of the two children. While in her custody, the children have had body lice and head lice. The daughter has had a vaginal infection and pinworms. Their dental care has been inadequate. [Helm’s] conduct indicates a lack of stability. She moves from place to place frequently. She has been in bankruptcy. Although she only has a GED, she removed the boy from school and undertook to provide home school. She is now divorced for the second time and presently has a questionable relationship with one Jim Bloodworth. [Helm’s] telephone and electrical power are in his name because, she says, her credit was bad and she could not get these services. Mr. Bloodworth babysits the children, stays overnight, and sleeps in the room with [Helm],

The trial court concluded that Helm’s conduct “warrants, but does not demand, a change in custody.” It ultimately found that physical custody should remain with Helm, but cautioned Helm to remedy her conduct. In addition, the court modified the original divorce decree by granting Graham joint legal custody, as well as the right to make major medical decisions for the children.

Following entry of the October 2, 1997 order, Helm obtained employment and maintained a home for the children in Columbus, Georgia. Their only move between October 2, 1997, and the trial court’s first hearing on the current modification petition was to a larger unit within the same apartment complex. Helm also enrolled the children in the Muscogee County school system, where they received good grades and often appeared on the principal’s list and honor roll. Although Helm continued her relationship with Jim Bloodworth for some period of time, she denied — and Graham presented no contrary proof — that Bloodworth spent the night at her apartment after October 2, 1997.

In June 1998, Helm met her current husband, an Army staff sergeant stationed at Fort Bragg near Fayetteville, North Carolina. The two married in December 1998. Helm, however, led Graham to believe that she did not intend to marry until July 1999 because “she was afraid of how [Graham] was going to react.” In the spring of 1999, Graham learned that Helm “planned” to marry and move the children to Fayetteville, North Carolina. He subsequently petitioned for physical custody, claiming that “there has been a change in material circumstances which, if permitted to continue, will adversely affect the health and welfare of the children.”

Granting Graham’s request for physical custody, the trial court determined that

[t]he ongoing pattern of instability since the last modification and the exposure to a pattern of short-term relationships whereby one father figure is replaced by another has caused and continues to cause a detriment to the children. Removing the children to North Carolina and subjecting them to lengthy drives for visitation would have a harmful effect on the children. Removing the children from the State of Georgia would also have the effect of modifying the father’s right to joint legal custody by denying him reasonable access to the children, as well as denying him his right and duty to continue to make the children’s major health care decisions.

The trial court further found that the children would be harmed by separation from their support group in Georgia, including their father and both sets of grandparents.

On appeal, Helm argues that the trial court erred in giving physical custody to Graham. We agree.

In custody contests,

the award of custody by a divorce court vests the custodial parent with a prima facie right. Ordinarily, the trial court should favor the parent having such a right. What the court must affirmatively find is either that the original custodian is no longer able or suited to retain custody or that conditions surrounding the child have so changed that modification of the original judgment would have the effect of promoting his welfare. . . . Although trial courts have wide discretion in change of custody proceedings, there are limits to that discretion.

If the original custody order has been modified, the focus shifts to the latest custody award: “A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award.” The trial court’s decision on a modification petition will be affirmed on appeal if supported by any reasonable evidence.

In this case, the record presents no reasonable evidence of a material change in condition since the October 2, 1997 order awarding physical custody to Helm. On the contrary, conditions have improved since the last custody order. As described above, Helm has maintained a home in the same apartment complex, moving only once within the complex to secure a larger apartment. She placed the children in public school, where they excelled, and the record does not indicate that Helm has neglected the children’s health care. In addition, Graham presented no evidence that any boyfriend of Helm’s spent the night at Helm’s apartment after the October 2,1997 order. In fact, Helm is now married to a staff sergeant in the United States Army. The record reveals that the children “adore” and “want to do everything” with Staff Sergeant Helm and that the Helms found a three-bedroom home in Fayetteville, North Carolina, large enough for the children, with a fenced-in backyard and a pool.

These facts do not evidence an “ongoing pattern of instability” or a material change in condition supporting the trial court’s custody modification. The only changes in the children’s environment consist of Helm’s remarriage and the planned move to North Carolina. Relocating to another state and remarrying, however, “are not in and of themselves sufficient changes in conditions to authorize a change in custody.”

In its order, the trial court noted that Helm did not inform Graham about the timing of her marriage, moved with the children from her Columbus apartment after the first modification hearing without notifying Graham, and unilaterally cancelled an orthodontist appointment scheduled for her son. Graham, however, presented no evidence that Helm’s secrecy about her remarriage or her failure to inform him when she moved from the Columbus apartment affected the children’s welfare or impacted his visitation rights. Similarly, the record does not authorize a finding that the cancelled orthodontic appointment adversely influenced their son’s welfare. Helm testified that “she had contacted the orthodontist and that the appointment could be rescheduled with no problem,” and Graham presented no evidence that Helm neglected to reset the appointment. None of these facts, therefore, supports a change in custody.

The trial court’s true focus was on the “change in condition” posed by Helm’s remarriage and planned move, which will separate the children from their father and other family members. As noted above, however, that “change” cannot, standing alone, support a court order transferring physical custody. Furthermore, Helm testified that she will continue to work with Graham on health care issues and will meet Graham between his home and Fayetteville, North Carolina, to exchange the children for visitation. The evidence, therefore, undermines the trial court’s conclusion that Helm’s relocation will deny Graham access to his children or prevent him from making decisions about their medical care.

The record presents no reasonable evidence of a material change in conditions affecting the children’s welfare since the October 2, 1997 order. The trial court erred in removing physical custody from Helm. The children’s relocation, however, may warrant modification of Graham’s visitation rights. Accordingly, the trial court is directed on remand to hear testimony concerning this issue and, if appropriate, to enter an order modifying Graham’s visitation rights.

Decided March 21, 2001

Reconsideration denied April 12, 2001.

Crumbley & Crumbley, Wade M. Crumbley, for appellant.

Carl A. Adcock, for appellee.

Judgment reversed and remanded.

Andrews, P. J., and Ellington, J., concur.

       Graham and the children’s grandparents live in Henry County, Georgia, approximately two hours from the children’s home in Columbus.

       (Citations and punctuation omitted.) Ormandy v. Odom, 217 Ga. App. 780-781 (1) (459 SE2d 439) (1995).

        Martin v. Greco, 225 Ga. App. 752, 753 (1) (484 SE2d 789) (1997).

       Id.

       Graham apparently does not question that Helm is “suited to retain custody.” Ormandy, supra at 781. Instead, he contends that a material change in condition has occurred.

       Given her planned move to North Carolina, Helm did not renew the lease for her apartment in Columbus. Between the two modification hearings, her lease ended, and she and the children moved in with a friend pending resolution of the custody issue. That temporary move is not reasonable evidence of instability.

        Ormandy, supra at 781 (1); see also Moore v. Wiggins, 230 Ga. 51, 55 (1) (195 SE2d 404) (1973); Ofchus v. Isom, 239 Ga. App. 738, 739 (1) (521 SE2d 871) (1999) (physical precedent only).

       See Young v. Young, 216 Ga. 521, 522 (118 SE2d 82) (1961) (“The award of custody of a child of the parties in a divorce decree is conclusive unless there have been subsequently to the decree new and material changes in the conditions and circumstances substantially affecting the interest and welfare of the child.”); Mahan v. McRae, 241 Ga. App. 109, 112 (522 SE2d 772) (1999) (“Without new and material conditions that substantially affect the welfare of the chid, a change of custody is not authorized.”), cert, granted, Case No. S00G0533 (2000).

       See Ofchus, supra at 739; Mahan, supra at 112 (“Out-of-state moves by the custodial parent necessarily result in increased separation between the children and the noncustodial parent. But, relocating and remarrying sire not in and of themselves sufficient changes in condition to authorize a change in custody”) (punctuation omitted).

       The record shows that Graham managed to make health care decisions for the children when they lived in Columbus, two hours away from his Henry County home.

       In its modification order, the trial court “adopted” the opinion of a psychologist presented by Graham, who indicated that a “pattern of instability” had harmed and will continue to harm the children if custody remains with Helm. Graham’s psychologist, however, reached his initial opinion based on a 45-minute interview with the children, review of the October 2, 1997 order, and review of transcripts from the previous court hearings. Helm’s conduct prior to the October 2, 1997 order clearly factored into the psychologist’s opinions. Aside from that prior conduct, the psychologist found the children’s environment “unstable” based upon Helm’s remarriage and her plan to move the children to North Carolina, facts that do not evidence a change in condition sufficient to support the trial court’s order.

        Ormandy, supra at 782.


text:
    A00A1811.
    HERMAN HOMES, INC. v. SMITH et al.
    (547 SE2d 591)
   Ruffin, Judge.

Herman Homes, Inc. was the builder of several homes in the Sierra Highlands subdivision. After Johnnie Smith and other individuals purchased homes in the community (collectively “the homeowners”), they discovered drainage problems on their property. The homeowners sued Herman Homes, alleging, inter alia, that the builder knew of the drainage problems, yet fraudulently induced them to enter into their purchase agreements by failing to disclose the defects. Herman Homes moved for summary judgment on the fraudulent inducement claims, arguing that because the purchase agreements contained an entire agreement clause, and the homeowners elected to affirm the agreements, they were estopped as a matter of law from relying on any purported misrepresentations. The trial court denied the motion, but certified its ruling for immediate review. We granted Herman Homes’ application for interlocutory appeal, and for reasons which follow, we reverse the trial court’s ruling.

1. On appeal, we review the trial court’s grant of summary judgment de novo to determine whether the evidence of record, viewed in the light most favorable to the nonmoving party, demonstrates any genuine issue of material fact. Summary judgment is proper only when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.

In this case, the homeowners acknowledge that their respective purchase agreements with Herman Homes contain merger clauses which provide that

any other agreement entered into by any parties in connection with this transaction is attached to the sales contract. This contract constitutes the entire agreement between the parties, and no change or modification shall be made without the prior written consent of both parties.

After moving into their homes, the homeowners experienced problems with storm water run-off from adjacent property pooling on their property. The homeowners hired an engineer to investigate the problem. The engineer found that, contrary to the requirements of the final subdivision plat, the developer and the builder, Herman Homes, had not made any provisions to direct the flow of surface water run-off to the drainage facilities to be constructed by the developer. The engineer concluded that this was the cause of the homeowners’ surface water pooling problems.

The homeowners subsequently filed this action, alleging that the accumulation of water has damaged their landscaping, foundations, and septic tanks. The homeowners contend that Herman Homes concealed the drainage defects to fraudulently induce them to enter into their purchase agreements. However, in their verified complaint, the homeowners expressly acknowledged that they had the option of either rescinding or affirming their purchase agreements and elected “to affirm the purchases of their respective properties and [sue] to recover from the Defendants damages for the diminution of the value of their respective property caused by such latent defects undisclosed. . . .”

Under these circumstances, we agree with Herman Homes that the trial court should have granted the defendant summary judgment on the homeowners’ fraudulent inducement claims. This is because when a home buyer elects to affirm a purchase agreement which contains a merger or entire agreement clause, he or she is precluded from recovering for the seller’s alleged fraudulent inducement based on misrepresentations made outside the contract. The entire agreement clause “operates as a disclaimer, establishing that the written [agreement] completely and comprehensively represents all the parties’ agreement.” The purchaser is, therefore, barred from claiming that he or she relied on an alleged misrepresentation not contained within the agreement.

Decided March 14, 2001

Reconsideration denied April 12,2001

Andersen, Davidson & Tate, William M. Ray II, Christopher R. Stovall, for appellant.

In this case, it appears that the homeowners are relying on purported misrepresentations made by Herman Homes outside the purchase agreement. The homeowners have not pointed to any language in the agreement in which Herman Homes allegedly misrepresents the drainage conditions, and they have not shown that the specific plats relied upon or any other misrepresentations were incorporated into the agreement.

The rule announced by our Supreme Court in Wilhite v. Mays does not change the result. There, the Supreme Court affirmed the rule that where a seller passively conceals a latent defect in the property, and the buyer is induced to enter the purchase agreement by such fraud, the buyer is not bound by the general rule of caveat emptor, but may instead elect to rescind the contract or affirm the contract and sue for damages resulting from the fraud. The issue of whether a merger clause in the purchase agreement would prevent such recovery for fraud was not before the Court, and the Court’s opinion did not purport to address this issue.

2. In light of our ruling in Division 1, it is unnecessary to address Herman Homes’ other enumerations of error.

Judgment reversed.

Andrews, P. J., and Ellington, J., concur.

Jones & Walling, D. Richard Jones III, W. Dent Aeree, for appellees.

       The homeowners also sued the subdivision developer who is not a party to this appeal. In addition, although not at issue in this appeal, the plaintiffs also claim that Herman Homes is liable for breach of contract, breach of warranty, and attorney fees.

       See OCGA § 9-11-56 (c); Leal v. Hobbs, 245 Ga. App. 443 (538 SE2d 89) (2000).

       See id.; see also Paden v. Murray, 240 Ga. App. 487 (523 SE2d 75) (1999).

       See Paden, supra at 488 (1) (buyer who affirmed contract was precluded from recovering for seller’s alleged failure to disclose several structural defects in house); Estate of Sam Farkas, Inc. v. Clark, 238 Ga. App. 115, 117-118 (1) (517 SE2d 826) (1999) (buyer who affirmed contract was precluded from recovering for seller’s alleged failure to disclose that it entered one-year lease with existing tenant of purchased property); Ben Farmer Realty Co. v.

        Woodard, 212 Ga. App. 74, 77 (441 SE2d 421) (1994) (buyer who affirmed contract was precluded from recovering for seller’s alleged failure to disclose fire damage and misrepresentation that property was structurally sound); Kaye v. Ryland Group, 228 Ga. App. 742, 743 (492 SE2d 729) (1997) (physical precedent only) (buyer who affirmed contract was precluded from recovering for builder’s alleged concealment of knowledge that road would be moved closer to home).

       (Punctuation omitted.) Clark, supra at 118.

       See id.

       We note that the land descriptions in the homeowners’ purchase agreements refer to a recorded plat of survey. Although referenced plats are ordinarily considered as incorporated into the description, see Hanners v. Woodruff, 257 Ga. 73, 74 (354 SE2d 826) (1987), the homeowners have neither argued nor established that the plats referenced in the land descriptions are the same plats which contained the drainage requirements for their lots.

       239 Ga. 31 (235 SE2d 532) (1977).

       See id.


text:
    A00A1817.
    BUCKALEW v. THE STATE.
    (547 SE2d 355)
   Ruffin, Judge.

Steven M. Buckalew was convicted of two counts of boating under the influence. He was sentenced only on Count 2, boating under the influence per se. In his appeal, Buckalew challenges the sufficiency of the evidence. He also claims that the trial court erroneously admitted evidence and made two charging errors. For reasons that follow, we affirm.

On appeal, Buckalew no longer enjoys a presumption of innocence, and the evidence must be viewed in a light most favorable to the verdict. When so viewed, the evidence established that Michael Odom contacted the police after his 72-foot houseboat was rammed on Lake Lanier by a boat owned by Buckalew’s brother, Dale. Just before the collision, Dale’s boat had drifted into Odom’s boat lines. Dale apologized and explained that he was having trouble maneuvering the boat, which was stuck in reverse. Odom suggested that Dale give Odom about 15 minutes to leave the area before moving the boat again. Dale apparently agreed and began waiting with his boat engine off.

At that point, Buckalew waded out from the beach yelling obscenities and climbed aboard his brother’s boat. Dale told Buckalew not to start the engine because the transmission was stuck in reverse. Nevertheless, Buckalew started the boat, which moved in reverse at a “wide-open speed” and rammed Odom’s houseboat. After the collision, Buckalew gave Odom his name and telephone number. Odom noticed that Buckalew smelled of alcohol, was acting irritated, and had “sporadic” speech.

A1 Gramaldi, positioned nearby on another boat, testified that after the Buckalew boat first drifted into Odom’s lines, the occupants turned the engine off. He then saw another man climb aboard. According to Gramaldi, a man and a woman told this person not to start the engine because it was stuck in reverse, but he did so anyway. Shortly after the impact, Odom took several photographs of Buckalew, including a picture of Buckalew at the wheel as the boat left the area in reverse. These photographs were entered in evidence. When the Buckalew boat departed, Odom contacted law enforcement officials, who met him at a nearby marina. A three-page handwritten statement drafted by Odom shortly after the collision was admitted into evidence without objection. Odom indicated in his written statement that the incident occurred at 6:45 p.m.

Department of Natural Resources (“DNR”) law enforcement officers intercepted the Buckalew boat around 7:00 p.m. DNR Ranger Kenneth Carter and Sergeant James Bell testified that they observed Buckalew operating the vessel, then saw him switch places behind the steering wheel with another male as law enforcement officials closed in.

Buckalew told Ranger Carter that he had not been drinking alcohol. Carter testified, however, that Buckalew “showed a lot of manifestations of being under the influence” of alcohol. According to Carter, Buckalew appeared unsteady, his hand movements were very slow, his face was “flushed and slack,” his speech was “[s] lurred,” he was “loud and boisterous,” his eyes were bloodshot, and he “smelled of alcohol — of an alcoholic beverage.” Another officer, Ranger Dale Clayton, noted that Buckalew was “loud, belligerent . . . [r]eal argumentative” and “was using vulgar language, being abusive and uncooperative.”

When Ranger Carter attempted to conduct field sobriety tests, Buckalew refused to cooperate. Buckalew was then arrested. After his arrest, Buckalew insisted on taking the field sobriety tests. Ranger Carter administered several tests, and Buckalew failed each one. Test results subsequently obtained by a certified, examiner on the Intoxilyzer 5000 revealed that Buckalew had an alcohol concentration of 0.134 at 9:03 p.m. and 0.130 at 9:07 p.m.

1. Buckalew makes several sufficiency of the evidence arguments. None supports reversal.

(a) Buckalew contends that no direct evidence shows he operated, navigated, steered, or drove his brother’s boat following the collision with Odom’s houseboat. At trial, he denied operating the boat, claiming that his brother was in control. He also argues that the state did not present sufficient evidence that he was intoxicated at the time of the collision, requiring reversal.

We disagree. As an initial matter, we note that neither count charged Buckalew with being intoxicated at the time of the collision. Instead, Buckalew was charged with boating under the influence of alcohol to the extent that he was less safe and being in “actual physical control of a moving vessel while having an alcohol concentration of 0.10 grams or more at any time within three hours after such control from alcohol consumed before such control ended.” Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Buckalew was boating under the influence of alcohol, as alleged by the accusation.

(b) Buckalew claims the state failed to prove that his blood alcohol level was tested within three hours of controlling the boat, as required by OCGA § 52-7-12 (a) (4). Construed favorably to the verdict, however, the evidence indicated that the collision with Odom’s houseboat occurred around 6:45 p.m. Odom contacted the DNR shortly after the collision, and the police log places the time of Odom’s call at 7:01 p.m. Officers dispatched to the area subsequently observed Buckalew operating the boat on the lake. The times appearing on Buckalew’s Intoxilyzer 5000 test results are 9:03 p.m. and 9:07 p.m., well within three hours of each of these events.

(c) Finally, Buckalew argues that the state failed to prove that the offense occurred within state waters, since the federal government owns Lake Lanier. The Georgia Boat Safety Act defines “ ‘[w] aters of this state’ ” as “any waters within the territorial limits of this state” except for “privately owned ponds or lakes not open to the public.” Lake Lanier lies within the boundaries of this state and is open to the public. The evidence does not suggest otherwise. Buckalew has cited — and we have found — no authority for his apparent claim that the Georgia Boat Safety Act does not apply on Lake Lanier.

2. Buckalew contends that the trial court erred in admitting the written statement of Renee Cornell, his brother’s girlfriend, who was on the boat with them. The trial court admitted Cornell’s statement after concluding that she was “unavailable” to testify. It found that the state made “[d]iligent efforts ... to subpoena [Cornell] and try to contact her,” but was unsuccessful. Buckalew disagrees and questions the state’s efforts. Even if Buckalew is correct that the statement should have been excluded as hearsay, he “has shown no harm in its admission.” In fact, the statement appears to support certain aspects of Buckalew’s testimony. As we have noted before, “[i]t is axiomatic that harm as well as error must be shown to authorize a reversal by this court.”

3. Buckalew also contends that the trial court erred in admitting portions of Ranger Carter’s written report. The trial court admitted a redacted version of the report after finding that Carter’s veracity had been called into question. The record shows that defense counsel used the report to establish that trial testimony given by Carter was incorrect. Defense counsel also cross-examined Ranger Carter about his presence in the courtroom throughout the trial, where, in defense counsel’s words, he had “the benefit of listening to the other witnesses testify.”

A witness’s prior consistent out-of-court statement is admissible over a hearsay objection where “(1) the veracity of a witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination.” A witness’s “veracity” is placed in issue “if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination.”

We cannot conclude that the trial court erred in finding that Buckalew raised issues about Ranger Carter’s veracity. Furthermore, even if Buckalew’s inquiries did not place Carter’s veracity in question, admission of the report was not harmful. During his testimony, Ranger Carter used his report to refresh his recollection and testified about information contained in the report without objection. He further indicated that his trial testimony was consistent with his report. Under these circumstances, it does not appear that the report’s admission contributed to the verdict.

4. Buckalew also challenges one section of the trial court’s boating under the influence charge. The challenged instruction tracked OCGA § 52-7-12 (a) (1) and (4), the two offenses with which Buckalew was charged. He complains, however, that the court should not have included the portions of the statute relating to manipulation of “moving water skis, moving aquaplane[s], moving surfboard[s], or similar moving device [s],” which have no bearing on this case.

We have noted that

[e]ven though not every phrase and portion of the Code section be applicable, it is generally held that a new trial will not be granted if the court gave in charge an entire statute or Code provision where a part thereof is applicable even though a part may be inapplicable under the facts in evidence.

Furthermore, although a jury instruction can be misleading when it “gives several definitions of the offense where the accused is charged with only one of those definitions,” no fatal error occurs if the jury receives subsequent instructions confining the offense to that charged in the accusation.

Just after giving the challenged charge, the trial court focused the jury on “moving vessel[s],” rather than water skis or similar devices. The trial court also stated that the jury would not be authorized to find Buckalew guilty unless it determined that he committed the “offenses charged.” In addition, throughout the charge, the trial court limited its instructions to “Boating Under the Influence” and stated at the beginning that Buckalew was charged with “Boating Under the Influence Less Safe and . . . Boating Under the Influence Per Se.” The judge told the jury that it would have the accusation with it to refer to during deliberations, and the accusation unequivocally charged Buckalew with boating under the influence. The trial court further instructed that “[n]o person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt.”

Reviewing the charge as a whole, we conclude that the challenged instruction was not likely to have misled or confused the jury. No reversible error occurred.

5. Buckalew asserts that the trial court erred by refusing to give his requested charge on justification. He argues that he was entitled to the charge because he believed there was an emergency when he climbed aboard his brother’s boat.

Among other requirements, a jury instruction must be adjusted to the evidence and embody a correct, applicable, and complete statement of law. When a requested charge is confusing, inappropriate, or not authorized by the evidence, denial of the request is proper.

Decided March 23, 2001

Reconsideration denied April 12, 2001

Ford & Josey, Michael C. Ford, for appellant.

Leslie C. Abernathy, Solicitor-General, Inez D. Grant, Assistant Solicitor-General, for appellee.

An instruction on justification would not have been adjusted to the evidence in this case. No “emergency situation” authorized Buckalew’s actions. The record shows that when Buckalew boarded his brother’s boat, it was no longer tangled in Odom’s boat lines. Although the boat may have been drifting, there was no evidence of any imminent danger to anyone’s safety or property. Buckalew cites no authority, and we know of none, that would authorize an intoxicated person to operate or attempt to operate a boat under the circumstances of this case. Since the requested instruction was not reasonably raised or authorized by the evidence, the trial court correctly refused to give it.

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

       In Count 1, the accusation charged Buckalew with “BOATING UNDER THE INFLUENCE OF ALCOHOL — LESS SAFE ... to the extent that it was less safe for the person to operate, navigate, steer, drive, manipulate, or be in actual physical control of a moving vessel in violation of OCGA § 52-7-12 (a) (1).” Count 2 charged Buckalew with “BOATING UNDER THE INFLUENCE OF ALCOHOL — PER SE” under OCGA § 52-7-12 (a) (4).

        Pollard v. State, 230 Ga. App. 159 (495 SE2d 629) (1998).

        Gallimore v. State, 242 Ga. App. 374, 375 (529 SE2d 668) (2000); Eason v. State, 234 Ga. App. 595, 597 (1) (507 SE2d 175) (1998); Lucas v. State, 234 Ga. App. 534, 536 (1) (507 SE2d 253) (1998); compare Bowen v. State, 235 Ga. App. 900, 902 (510 SE2d 873) (1999).

       OCGA § 52-7-3 (26).

       See California Coastal Comm. v. Granite Rock Co., 480 U. S. 572, 580 (107 SC 1419, 94 LE2d 577) (1987) (noting that “the State is free to enforce its criminal and civil laws on federal land so long as those laws do not conflict with federal law”) (punctuation omitted).

        Green v. State, 209 Ga. App. 274, 275 (2) (433 SE2d 383) (1993).

       On appeal, Buckalew claims harm in Cornell’s statement that when he first boarded his brother’s boat, he “went to the front . . . and put the engine in forward. It went backward and rammed into [Odom’s houseboat].” Yet, even Buckalew admitted that he “put the gear in the forward position” when he first climbed aboard, after which “[t]he boat went backwards into Mr. Odom’s boat.” Buckalew also contends Cornell’s statement that “[w]e went out into the cove and began trying to work on the engine” raised some implication that Buckalew was “operating the boat.” One sentence after the quoted statement, however, Cornell indicated that “Dale was driving into an open area and Steve [Buckalew] was watching for the shore and other boats.” Cornell’s statement, therefore, bolsters Buckalew’s argument that he was not operating the boat.

       (Punctuation omitted.) Anderson v. State, 183 Ga. App. 313 (3) (358 SE2d 888) (1987).

        Woodard v. State, 269 Ga. 317, 320 (2) (496 SE2d 896) (1998).

       Id.

       See James v. State, 270 Ga. 675, 676 (3) (513 SE2d 207) (1999).

       See Astudillo v. State, 244 Ga. App. 612, 613-614 (536 SE2d 271) (2000).

       (Punctuation omitted.) Bagley v. State, 153 Ga. App. 777-778 (266 SE2d 804) (1980).

        Brown v. State, 243 Ga. App. 632, 634 (4) (534 SE2d 98) (2000).

       Id.; see also Horner v. State, 240 Ga. App. 1, 2 (1) (522 SE2d 483) (1999).

        Register v. State, 229 Ga. App. 648 (1) (494 SE2d 555) (1997).

        Jones v. State, 200 Ga. App. 519, 521 (2) (c) (408 SE2d 823) (1991).

       See OCGA § 16-3-20.

       Compare Moore v. State, 234 Ga. App. 332, 333 (1) (506 SE2d 685) (1998).

       See Bowden v. State, 270 Ga. 19, 21 (3) (504 SE2d 699) (1998).

        Gill v. State, 229 Ga. App. 462, 465 (4) (494 SE2d 259) (1997).


author: POPE, Presiding Judge.

text:
    A00A1945, A00A1946.
    NELSON et al. v. SILVER DOLLAR CITY, INC. et al.; and vice versa.
    (547 SE2d 630)
   POPE, Presiding Judge.

In 1995, while on a 30-minute paid break from her job as a lifeguard at White Water Park, Jenee Johnston, a 16-year-old licensed driver, struck another car on U. S. 41 (Cobb Parkway). Tragically, three people were killed in the collision. Plaintiffs Tonya Nelson and Jessie Harvey are surviving relatives and the administrators of the estates of two of the victims. They filed wrongful death claims against Silver Dollar City, Inc., which operates under the White Water name (hereinafter “White Water”), and Atlanta Structures, L.P. and TRC Realty, Inc.-III, the owners of the adjacent White Water Business Park (hereinafter collectively “Business Park”).

The defendants subsequently moved for summary judgment. The trial court granted partial summary judgment, but held that an issue of fact remained on the vicarious liability claim as to whether Johnston was acting in the scope of her employment at the time of the collision. The trial court granted the Business Park’s motion for summary judgment. Nelson and Harvey appeal the trial court’s order, and White Water cross-appeals from the partial denial of its summary judgment motion.

Viewed in the light most favorable to Nelson and Harvey, the evidence showed that on August 24, 1995, Johnston, accompanied by Joshua Levine, another White Water lifeguard, left the White Water property during a paid break to get lunch. Leaving the park was in violation of company policy, but it is unclear whether this policy was ever communicated to Johnston or Levine. The pair left the park with the knowledge and tacit consent of a supervisor, who had asked Johnston to bring food back for her as well.

Johnston drove through the adjacent Business Park and came to a stop at a point where one of the Business Park’s roadways intersected with Cobb Parkway. Johnston was aware that she could have driven through the Business Park onto an adjacent street that intersected Cobb Parkway at a traffic light and which would have enabled her to turn without crossing lanes of oncoming traffic. But Johnston testified that she chose to turn onto Cobb Parkway from the Business Park’s private roadway, and without the benefit of the traffic light, because she always used that route. She had never had or observed any prior problems or accidents at that intersection.

The collision occurred when Johnston attempted to turn left onto Cobb Parkway across four traffic lanes. Johnston’s car struck a car driven by Lee Nelson, in which Michael Harvey was riding as a passenger. Upon impact, Nelson’s car crossed the centerline into oncoming traffic, where it struck a third vehicle. Nelson, Harvey, and the driver of the third car were all killed.

Johnston told police at the scene that she was leaving White Water to run an errand for her supervisor. She said that she had looked both ways before starting her turn. In a later taped statement, Johnston again stated that she had left White Water to go out for something for her supervisor. She explained that although she had looked left before beginning her turn, she had not seen Nelson’s car. Johnston was charged with failing to yield the right of way.

In her deposition Johnston stated that she was going out to get lunch and that she was going to get a milkshake for her supervisor as a “personal favor” and not as a part of her job duties. The trial court found that this evidence was contradictory and created a jury issue as to “the credibility of Johnston as a witness as to whether she was leaving White Water on a purely personal mission or at the direction of her supervisor” and thus whether Johnston had left work to run an errand for her supervisor.

Case No. A00A1945

1. Nelson and Harvey first assert that the trial court erred in finding that the only jury question as to White Water’s vicarious liability was whether Johnston was leaving White Water on a work-related errand for her supervisor or under her supervisor’s direction. But we do not read the trial court’s order as holding that only one jury issue exists. Rather, we interpret the order as finding that summary judgment was precluded on the issue of White Water’s vicarious liability because at least one jury issue exists. Accordingly, we find no error.

2. Nelson and Harvey next assert that it was error for the trial court to grant summary judgment to White Water on the issue of negligent supervision. They assert that jury issues remain as to whether White Water exercised ordinary care in supervising its employees as they left the park for 30-minute break periods.

“In Georgia, the essential elements of a cause of action for negligence are: (1) a legal duty; (2) a breach of this duty; (3) an injury; and (4) a causal connection between the breach and the injury.” (Citation omitted.) Vaughan v. Glymph, 241 Ga. App. 346, 348 (526 SE2d 357) (1999). Therefore, Nelson and Harvey must first establish that White Water owed their decedents a legal duty.

In making their negligent supervision argument, Nelson and Harvey rely upon three basic theories: (1) the general duty to exercise ordinary care, citing OCGA § 51-1-12; (2) the duty of an employer to make its premises safe for its employees and to warn of dangers inherent to the premises or the nature of the job, citing, e.g., Smith v. Ammons, 228 Ga. 855 (188 SE2d 866) (1972); Church v. SMS Enterprises, 186 Ga. App. 791 (368 SE2d 554) (1988); and (3) the duty of an employer to control the actions of its employees on its premises so as to prevent forseeable injuries to third persons, citing Great A & P Tea Co. v. Cox, 51 Ga. App. 880 (181 SE 788) (1935); Restatement 2d of Torts, § 317.

While these authorities may impose general duties upon an employer to monitor and supervise its employees on its own premises in relation to the employer’s customers and the employees’ own safety, we find no authority establishing a general duty upon every employer to monitor and supervise its employees outside its premises for the protection of the driving public at large.

The evidence shows that the accident in this case occurred off White Water’s premises and on a route chosen by the employee. Johnston was licensed by the State of Georgia to operate a car, and driving was not one of her regular job duties. Under these narrow circumstances, we agree with the trial court that White Water had no duty to monitor Johnston’s driving practices or habits. Nor is there any evidence that White Water was aware of any problems with Johnston’s driving or any other factors that arguably could have imposed any duty of specialized supervision. See Modern Woodmen of America v. Crumpton, 226 Ga. App. 567, 569 (487 SE2d 47) (1997).

Nelson and Harvey argue, however, that White Water assumed a duty of supervision when it issued a policy directing its employees not to leave the premises during break periods. White Water presented evidence that this policy was announced to employees through a newsletter handed out with the employees’ paychecks on July 7, 1995, approximately one month before the accident. The newsletter noted that there had been “several fender benders and littering incidents in the employee parking lot,” and that “effective immediately” all employees were to remain on the park throughout the workday.

But uncontradicted evidence shows that this policy was intended to cut down on littering and fender benders in the employee parking lot itself and also to prevent delays in the lifeguard rotations caused by employees leaving the park. Therefore, the policy was aimed at monitoring and controlling activity occurring on the park premises. There is no evidence in the record that this policy was intended to prevent accidents occurring off the White Water premises and thus no evidence that White Water undertook a duty to protect third parties from such accidents.

Nelson and Harvey also argue that because White Water once owned the Business Park property and maintained an easement of ingress and egress over it, a jury issue exists as to whether they were on notice of allegedly dangerous conditions in exiting the property directly onto Cobb Parkway. But White Water did not own or maintain the Business Park property at the time of the accident, and the accident occurred at a location outside its easement. Therefore, no additional duty on the part of White Water arose.

Thus, we find no error in the trial court’s grant of summary judgment on the issue of White Water’s liability for negligent supervision.

3. Nelson and Harvey also assert that the trial court erred in granting summary judgment to the Business Park based upon a finding that Johnston’s failure to yield the right of way was the sole proximate cause of the collision. They contend that it was error for the trial court to focus on whether the Business Park’s shrubbery impeded Johnston’s view because there was evidence of other acts of negligence. They assert that jury issues exist as to whether the Business Park was negligent in not erecting traffic control signals at the intersection, in allowing young White Water employees to use its premises, and in failing to route or direct such traffic to the alternate exit in accordance with White Water’s easement.

While these arguments address allegedly negligent acts, the Business Park is not liable absent evidence that these acts proximately caused the collision. See Keith v. Beard, 219 Ga. App. 190,192 (1) (464 SE2d 633) (1995) (even “[n]egligence per se does not mean liability per se”). “ ‘[N]o matter how negligent a party may be, if his act stands in no causal relation to the injury it is not actionable.’ [Cits.]” Bacon v. Mayor &c. of Savannah, 241 Ga. App. 211, 213 (525 SE2d 115) (1999). See also City Council of Augusta v. Booker, 229 Ga. App. 566, 567 (1) (494 SE2d 374) (1997) (physical precedent only).

With regard to the shrubbery, Nelson and Harvey argue that the trial court failed to consider their expert testimony that the plantings hampered motorists’ view of oncoming traffic, often causing them to creep forward into the acceleration/deceleration lane on Cobb Parkway and pressuring them to make a quicker decision as to when to turn. Nelson and Harvey also contend that the placement of the shrubbery was a per se violation of OCGA § 32-6-1, which prohibits any obstructions or encroachments upon public roads.

Nevertheless, there is no evidence that the shrubbery played any part in this particular accident. The evidence showed that Johnston, although aware of the alternate exit, chose not to make use of the traffic light, but instead to follow her habitual course of turning left directly onto Cobb Parkway. She came to a full stop at the intersection and stayed there for thirty seconds to one minute observing the traffic flow. Levine, who was sitting in the front passenger seat, testified that they could see the oncoming traffic from where they were stopped. Johnston, who said that she used the intersection regularly, testified that she could see oncoming traffic at that intersection. And Edward Motley and Craig Guyton, the drivers in the cars behind Johnston that day, both testified that, at the time, they often used the Business Park intersection and were able to see the oncoming traffic from the Business Park driveway. Motley testified that for Johnston not to see Nelson’s car that day she “couldn’t have been looking.”

We recently affirmed summary judgment in favor of a property owner, under similar facts, where a collision occurred as one of the drivers was turning left out of a commercial drive onto a public roadway. The plaintiff there argued that greenery on the private property obstructed her view of oncoming traffic and that obstruction constituted negligence per se. We found that even assuming negligence per se, when the defendants presented evidence that the collision was caused by the driver of the other car, the burden then shifted to the plaintiff to show an issue of fact:

The burden of coming forward with some evidence as to the concurrent causation of the collision then shifted to [the plaintiff] to create an issue of fact from slight evidence that the vegetation constituted a concurrent causative factor in the collision. [Cits.] While the greenery may have caused some obstruction of vision . . . there existed an absence of any competent evidence that any possible obstruction . . . did, in fact, cause or contribute to the collision.

Howard v. Gourmet Concepts Intl., 242 Ga. App. 521, 523 (1) (c) (529 SE2d 406) (2000). See also Jackson v. City of Hahira, 244 Ga. App. 322, 324 (535 SE2d 327) (2000). Because the plaintiff failed to produce any evidence of causation, the Court granted summary judgment to defendants. Howard, 242 Ga. App. at 523-524. “The mere occurrence of this collision and the presence of vegetation alongside the road do not create a concurrent proximate cause of the occurrence.” Id. at 524 (1) (c).

Similarly, in this case the Business Park has produced evidence showing that Johnston’s actions were the sole proximate cause of the accident, and Nelson and Harvey have failed to produce any evidence showing that the shrubbery blocked Johnston’s view that day. Accordingly, they have failed to raise an issue of fact on the issue of causation.

Moreover, although Nelson and Harvey assert that the Business Park should have taken other steps to route the White Water employee traffic to a different exit, the evidence showed that Johnston was aware of the alternate route but chose not to take it. And the Business Park had no obligation to erect a traffic signal device at the intersection of its roadway with Cobb Parkway; that is a governmental obligation. Zumbado v. Lincoln Property Co., 209 Ga. App. 163, 164 (2) (a) (433 SE2d 301) (1993). We have found that “[i]t is in fact unlawful for anyone other than those governmental entities listed in OCGA § 32-6-50 to erect traffic control devices. OCGA § 32-6-51 (a).” Id.

Even if issues of fact exist as to the Business Park’s negligence, we agree with the trial court that those issues need not be reached in this case due to the lack of proximate cause. The trial court correctly granted summary judgment to the Business Park.

Case No. A00A1946

4. White Water argues on cross-appeal that the trial court erred in denying it summary judgment because no issue of fact exists as to whether Johnston was acting within the course of her employment at the time of the accident. We agree.

The test for determining whether an employer is liable for its employee’s actions is whether the employee was acting in the scope of her employment and on the business of the employer at the time of the injury. Chorey, Taylor & Feil, P.C. v. Clark, 273 Ga. 143, 144 (539 SE2d 139) (2000). Stated another way, "the test of liability is whether the tort was done within the scope of the actual transaction of the masters business for accomplishing the ends of his employment.” Rogers v. Fred R. Hiller Co. &c., 214 Ga. App. 448 (1) (448 SE2d 46) (1994). But where a tort occurs while an employee has stepped aside from his employer’s business to do an act entirely disconnected from that business, the employer has no liability. Id.

The accident in this case occurred after Johnston left White Water’s premises on her way to get lunch. We have previously held that where an employee takes a break for lunch and is not otherwise engaged in his employer’s business, the employee is on a purely personal mission. In Aubrey Silvey Enterprises v. Bohannon, 182 Ga. App. 738 (356 SE2d 693) (1987), the evidence showed that an employee spent his morning ordering parts and planned to pick them up after a lunch with his wife. The employee had an accident on the way to the florist to pick up flowers to give his wife at lunch. This Court found that at the time of the collision, the employee “was engaged in a personal mission unrelated to his employment.” Id. at 740. And the fact that he may have been planning to pick up the parts after his lunch did not alter the nature of his actions at the time of the accident. Id. See also Hargett’s Tel. Contractors v. McKeehan, 228 Ga. App. 168, 170 (491 SE2d 391) (1997); Reese v. Ga. Power Co., 191 Ga. App. 125, 129 (3) (381 SE2d 110) (1989). Nor does the fact that the employee is paid during the break change a personal mission into one on behalf of the employer. Bedford v. Awod, 248 Ga. App. 28, 30-31 (3) (545 SE2d 162) (2001).

We are not persuaded by the argument that Johnston was acting for White Water’s benefit because she was on a paid break and seeking nourishment to better perform her job duties. It goes without saying that an employee who is well rested and well fed is likely to perform better than an employee who is not. White Water’s policy of providing regular breaks for its lifeguards was simply a recognition of this fact. But it would be extending the scope of employment too far to hold that an employer is liable for an employee’s actions in performing a routine task such as getting food simply because the employer may receive an incidental benefit from the employee’s taking nourishment. The primary beneficiary of such a task is the employee himself, who receives the nourishment.

Nelson and Harvey also assert, however, that the evidence raised an issue of fact as to whether Johnston was on a business-endorsed errand for her supervisor at the time of the accident. As stated above, the trial court found a conflict between Johnston’s statement to police that she was on an errand for her supervisor and her later testimony that any such errand was personal in nature.

As an initial matter, we note that Johnston’s statements are not in conflict, but rather are entirely consistent. She told police that she was on an errand for her supervisor, without explaining what the errand was. In her deposition testimony, she stated that the errand was a personal one. Her testimony thus clarifies her earlier statement to police; it does not contradict it.

But even if Johnston’s statements could be interpreted as being in conflict, no jury issue exists because there is absolutely no evidence that any errand she may have been engaged in was work-related. To the contrary, Johnston testified that she had planned to go to a fast food restaurant and return directly to White Water. She stated that she may have been planning to pick up a milkshake for her supervisor or food for other people, although she could not specifically recall at the time of her deposition. And she acknowledged that she had brought food back to her supervisor on one occasion, but that she considered it a personal favor. The supervisor herself testified that she made no request for Johnston to bring her anything. When Johnston asked her if she wanted anything from the fast food place, she declined the offer and, in fact, told Johnston not to leave the park. Thus, there is absolutely no evidence that the supervisor asked Johnston to drive off the park for a work-related errand on the day of the accident.

Nor does the evidence that Johnston may have been on a personal errand for her supervisor create an issue of fact as to White Water’s vicarious liability. The fact that some of her fellow employees may have personally benefitted from her lunch trip is not evidence that Johnston was on White Water’s business during her lunch break. See Chorey, Taylor & Feil v. Clark, 273 Ga. at 145.

And we find distinguishable those cases imposing vicarious liability during an employee’s ingress and egress from his job. In those cases, an employer may be liable only where the employee was still on the employer’s premises at the time of the accident. See, e.g., Beverly v. J. H. Harvey Co., 237 Ga. App. 21 (515 SE2d 404) (1999) (physical precedent only); Southern Bell Tel. &c. Co. v. Conyers Toyota, 190 Ga. App. 792, 793 (1) (380 SE2d 296) (1989). That was not the case here.

Therefore, there is no evidence that Johnston was acting within the scope of her employment at the time of the accident. And the trial court erred in denying White Water’s motion for summary judgment on the issue of vicarious liability.

Decided March 30, 2001

Reconsideration denied April 12, 2001

Pope, McGlamry, Kilpatrick & Morrison, William U. Norwood III, Jay F. Hirsch, David S. Bills, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Brian R. Neary, Boyd B. Newton, Lokey & Smith, Malcolm Smith, Jon W. Burton, for appellees.

Judgment affirmed in part and reversed in part.

Miller and Mikell, JJ, concur.

       Neither Johnston nor Levine recalled receiving the newsletter.


text:
    A00A2060.
    VILLAREAL et al. v. TGM EAGLE’S POINTE, INC.
    (547 SE2d 351)
   Ruffin, Judge.

On May 9, 1997, an electrical fire at the Eagle’s Pointe apartment complex destroyed eight apartments. The tenants who lost their belongings in the fire sued TGM Eagle’s Pointe, Inc. (TGM), the property management company, alleging that TGM knew about the electrical problem that caused the fire, yet negligently failed to repair it. TGM moved for summary judgment, and the trial court granted its motion. The tenants appeal, and, for reasons that follow, we affirm.

A trial court properly grants a motion for summary judgment when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. On appeal of a grant of summary judgment, we conduct a de novo review, and we view the evidence in the light most favorable to the nonmoving party.

So viewed, the record establishes that the Villareal family lived at Eagle’s Pointe in apartment 1709. On May 9, 1997, 15-year-old Maria Villareal woke early to get ready for school. Maria opened the porch door to check the weather and turned the switch for the porch light, which was located in the living room of the apartment. The switch emitted a spark, and Maria turned the light off. At that time, Maria did not smell anything burning, and she continued getting ready for school and left approximately 15 to 20 minutes later. As she was leaving, Maria smelled smoke, but could not tell where it was coming from. Shortly thereafter, the residents of the 1700 building discovered that the building was on fire. Although no one was injured, the residents of eight apartments lost personal property in the fire.

Several investigators examined the burned apartment building to determine what caused the fire. According to fire investigator Thomas Morrill, the fire started on the porch of apartment 1709. Morrill was unable to determine the exact source of the fire, but he did not believe that the spark that Maria saw caused it because she never reported seeing any glow or flames coming from the switch.

William Barrett, a fire and arson investigator for Gwinnett County, examined the burned apartment on the morning of the fire. Barrett determined that the fire originated in the wall between the porch and the living room of apartment 1709 and that the fire was “consistent with an electrical malfunction.” However, Barrett could not state definitively whether the spark started the fire.

Fire investigator William Dodd also examined the apartment. He agreed with Barrett that the fire was caused by an electrical malfunction in the common wall between the living room and the porch. However, Dodd did not believe that the spark seen by Maria could have caused the fire. Dodd testified that “[a] spark doesn’t generate sufficient heat for a long enough period of time to cause ordinary combustibles to ignite.” But Dodd also testified that sparking indicates a problem with the switch such as a bad connection and that, over time, this can create a fire hazard.

The tenants sued TGM, alleging that, despite repeated complaints of electrical problems in the 1700 building, it negligently failed to address the problem. TGM moved for summary judgment, arguing that it had no notice of any electrical problems in the apartment rented by the Villareals. The trial court concluded that TGM did not have either actual or constructive notice of an electrical problem in apartment 1709 and granted summary judgment to TGM. On appeal, the tenants assert that the trial court erred in granting TGM’s motion for summary judgment. We disagree.

“While a landlord is under a statutory duty to keep the premises in repair, a landlord is not an insurer of its tenants’ safety.” However, if a landlord receives notice that the premises are not in repair, it has a duty “to inspect and investigate in order to make such repairs as the safety of the tenant requires.” If, after receiving such notice, the landlord fails to repair the premises within a reasonable time, the landlord is then charged with notice of all defects that an inspection would have disclosed. However, “[n]otice of separate and independent patent defects, in no way connected with a latent defect which is alleged to have occasioned the injury sued for, is not constructive notice of the latter defect.”

Here, the evidence suggests that the fire was caused by an electrical malfunction in an interior wall of the Villareals’ apartment. It is undisputed that, prior to the fire, the Villareals never reported any electrical problems in their apartment. Additionally, there is no evidence of any electrical code violations in wiring of the apartments in the 1700 building. However, the plaintiffs contend that TGM had notice of serious systemic electrical problems in that building and that, if TGM had properly inspected the building, it would have discovered the problem in the Villareals’ apartment. Thus, the issue is whether the evidence of electrical problems in some apartments was sufficient to put TGM on notice of a possible problem in all apartments.

The record demonstrates that all of the apartments at Eagle’s Pointe had separate electrical systems, separate circuits with separate breakers, and separate meters. Nevertheless, out of the eight apartments that burned, the residents of five of those apartments reported electrical problems in the months leading up to the fire. According to the residents of apartment 1710, the stove would make a popping sound when turned on and the lights in the apartment would go on and off. Evidently, the management company repaired the breaker, which corrected the problem of all the lights turning off. However, the tenants continued to have problems with two lamps in the living room that would turn off for no apparent reason.

The residents of apartment 1711 also had electrical problems. Specifically, a few weeks before the fire, the lights in the apartment turned off for no reason. In response to the residents’ complaint, a maintenance man inspected all of the switches in the apartment and replaced the master circuit breaker. After this repair was made, the residents did not notice any other electrical problems.

In apartment 1712, the residents complained that turning on a hair dryer plugged into the bathroom wall would often cause the circuit to break, which, in turn, caused lights to go off. Also, the residents testified that the lights would sometimes go off even if the hair dryer was not turned on. The residents further stated that several electrical outlets were faulty, including one in a bedroom that would “shock” anyone attempting to plug something into it.

The residents of apartment 1714 complained of similar electrical problems. As in apartment 1712, the residents discovered that plugging either a hair dryer or electric razor into the bathroom outlet could cause the circuit to break. Also, on several occasions, the lights in the living room turned off for no apparent reason.

Finally, the residents of apartment 1715 complained of numerous electrical problems, including the porch light that would occasionally not work, outlets that did not function, a living room lamp that would sporadically turn off, and problems with the lights in the kitchen and bathroom.

The plaintiffs retained Kenneth Cunningham, an electrical contractor, who, after reviewing the fire marshal’s report and a list of the tenants’ complaints, rendered an opinion about the nature of the electrical problems in the 1700 building. According to Cunningham, he noticed a recurring complaint with regard to “one circuit in particular, the bathroom combination living room circuit.” In his deposition, Cunningham testified that, in the 1970s, building standards changed such that bathrooms were on a separate circuit. In older buildings, however, bathrooms could share a circuit with other rooms, which could lead to a circuit overload. Based on the complaints of short circuiting, Cunningham concluded that the apartments likely shared a circuit between the living room and bathroom. Cunningham further testified that this likely caused an overloading of the system, which resulted in the lights going off and on in the apartments. However, Cunningham could not say that the problems in this circuit caused the fire. Also, when asked if he believed that “the entire apartment complex had systemic electrical problems,” Cunningham responded, “[m]y opinion is it could.”

Despite Cunningham’s somewhat equivocal deposition testimony, in his affidavit, he concluded that (1) the tenants’ complaints were serious, safety-related complaints; (2) the electrical problems were systemic rather than isolated; and (3) if TGM had conducted a “reasonably diligent” investigation into the cause of the problems, it “more probably than not” could have prevented the fire. Even construing this evidence in favor of the plaintiffs, as we do on summary judgment, we agree that TGM is entitled to summary judgment.

The fact that TGM may have known about electrical problems in some apartments does not give rise to a duty to inspect all apartments, including those apartments that had no electrical problems. This is especially true where, as here, the apartments have separate electrical systems, separate circuits, separate meters, and separate breakers. As this Court has recognized,

ordinary care in the fulfillment of [a] landlord’s duty to keep the premises in repair does not. . . embrace an affirmative duty to make such an inspection of the premises as will disclose the existence of any and all latent defects which may actually exist therein.

Moreover, even if TGM did have a duty to inspect all apartments, the plaintiffs’ claims still fail because they are unable to establish proximate cause. “Both negligence and proximate cause must be present before liability arises.”

In this case, the evidence suggests that the fire stemmed from damaged electrical wire or a faulty switch. According to Cunningham, a sparking switch is a sign that a “switch is going bad and it should be replaced.” Similarly, Dodd testified that a spark from a switch is an “indication you’ve got a problem.” Dodd also testified that, to confirm the presence of such damage, one would have to visually inspect behind the plate. According to Cunningham, however, “[i]f a light switch appears to be functioning properly and no spark is seen,” there would be no reason to look behind the plate.

Here, the first time anyone saw a spark coming from the switch where the fire appears to have started was the morning of the fire. Thus, prior to that date, there would have been no reason to look behind that particular plate. It follows that, even if TGM had inspected the apartment, it would not necessarily have discovered any defect in the switch. Accordingly, the plaintiffs’ contention that an inspection would have prevented the fire is based upon mere speculation, which is insufficient to show proximate cause or to withstand summary judgment. Under these circumstances, the trial court did not err in granting TGM’s motion for summary judgment.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

Decided March 23, 2001

Reconsideration denied April 12, 2001.

Chad A. McGowan, Lynda W. Orr, for appellants.

Swift, Currie, McGhee & Hiers, John F. Blount, Mark T. Dietrichs, for appellee.

        Leal v. Hobbs, 245 Ga. App. 443 (538 SE2d 89) (2000).

       Id.

       (Citations and punctuation omitted.) Standard Mgmt. Co. v. Scott, 229 Ga. App. 36, 38 (493 SE2d 216) (1997).

       (Citation omitted.) Davis v. All-State Homes & Properties, 233 Ga. App. 60, 61 (503 SE2d 331) (1998).

       Id.

       (Punctuation omitted.) Tribble v. Somers, 115 Ga. App. 847, 849 (156 SE2d 130) (1967).

       Although the plaintiffs do not say whether the porch light switch was on this circuit, according to Maria Villareal, the porch light switch was in the living room.

       See Hemphill v. Johnson, 230 Ga. App. 478 (497 SE2d 16) (1998).

       See Dyer v. Wight, 163 Ga. App. 63, 64 (293 SE2d 723) (1982) (where tenant never informed landlord of any needed repairs, landlord had no duty to inspect apartment); see also Johnson v. Fowler Elec. Co., 157 Ga. App. 319-320 (1) (277 SE2d 312) (1981).

       Cf. Tribble, supra (notice of defects in one area of porch does not provide notice of defects in another area of porch).

       (Citations and punctuation omitted.) Harris v. Sloan, 199 Ga. App. 340, 341-342 (1) (405 SE2d 68) (1991).

        Wadkins v. Smallwood, 243 Ga. App. 134, 138 (3) (530 SE2d 498) (2000).

       See Johnson v. Dept. of Transp., 245 Ga. App. 839, 841 (538 SE2d 879) (2000); see also Noble v. Nieznany, 239 Ga. App. 547, 548 (1) (521 SE2d 472) (1999) (summary judgment proper where defect that caused fire would not have been “detected by ordinary visual inspection”).


text:
    A00A2110.
    JOHNSON et al. v. RIVERDALE ANESTHESIA ASSOCIATES, P.C. et al.
    (547 SE2d 347)
   Ruffin, Judge.

Claire Johnson suffered a severe allergic reaction to general anesthesia she received during surgery. The reaction caused brain damage, and Johnson ultimately died. Claire Johnson’s husband, Donald Johnson, and the administratrix of her estate, Donna Hood, sued the anesthesiologist, Dr. Robert Lawhead, and his employer, Riverdale Anesthesia Associates, P.C. (Riverdale), for medical malpractice. Following a trial, the jury found in favor of Dr. Lawhead and Riverdale. The plaintiffs appeal, challenging the trial court’s ruling on a motion in limine and the court’s refusal to give a requested jury instruction. Finding no error, we affirm.

1. Plaintiffs alleged that Dr. Lawhead committed medical malpractice by failing to pre-oxygenate Claire Johnson. In preoxygenation, a surgery patient is administered pure oxygen prior to surgery to provide an oxygen reserve during surgery. The defendants moved, in limine, for the court to prevent plaintiffs from asking defendants’ medical expert, Dr. Robert Caplan, whether he, personally, would have pre-oxygenated Johnson. The trial court granted the motion, and on appeal plaintiffs assert the ruling was erroneous. We disagree.

In a medical malpractice action, “[t]he applicable standard of care is that employed by the medical profession generally and not what one individual doctor thought was advisable or would have done under the circumstances.” The determination of whether evidence is relevant to this standard of care or should be excluded as irrelevant or unduly prejudicial evidence is within the discretion of the trial court. Inasmuch as the evidence here concerned what Dr. Caplan personally would have done, the trial court did not abuse its discretion in excluding it.

Plaintiffs also assert that the trial court abused its discretion in ruling that defendants did not open the door for such testimony by questioning their own witness about the matter. In support of this assertion, plaintiffs point to Dr. Caplan’s testimony where he stated that there was nothing Dr. Lawhead could have done to make it safer for Johnson to have the anesthesia. When plaintiffs objected to this testimony, the trial judge explained that plaintiffs were free to question Dr. Caplan about whether he believed pre-oxygenating Johnson would have made a difference and that her ruling in limine merely prohibited the parties from asking the expert whether he “would have personally done it.” Because Dr. Caplan’s testimony did not touch upon what he would have personally done, we find no abuse in the trial court’s ruling.

Finally, plaintiffs argue that defendants opened the door when Dr. Lawhead testified that he did not believe Johnson was a candidate for pre-oxygenation. We note initially that plaintiffs have not shown that they raised this argument during the course of the trial, which generally precludes review of the issue. Furthermore, because Dr. Lawhead testified as a defendant, and not as an expert witness, it is unclear how his testimony about his own beliefs could have violated the court’s ruling in limine. Finally, we find no merit in plaintiffs’ argument that they should have been permitted to ask Dr. Caplan if he would have pre-oxygenated Johnson, in order to impeach Dr. Lawhead’s testimony that Johnson was not a candidate for pre-oxygenation. It was for the jury to decide whether Dr. Lawhead’s determination in this regard violated the standard of care, and, as stated above, Dr. Caplan’s personal practices and beliefs were irrelevant.

2. The evidence at trial showed that after Dr. Lawhead administered the anesthesia, Claire Johnson immediately suffered complications that deprived her of adequate oxygen. For approximately ten to fifteen minutes, Dr. Lawhead and other health care professionals attempted to restore Johnson’s oxygen supply. Although Dr. Lawhead eventually succeeded, the temporary lack of oxygen caused catastrophic brain damage.

During the time that Dr. Lawhead was responding to Johnson’s initial respiratory complications, he did not record her vital signs on his chart. However, Johnson’s vital signs were being monitored and recorded by a device called a Datex monitor. Although Dr. Lawhead could have printed the vital signs data at the end of the procedure, he did not do so. Plaintiffs characterized Dr. Lawhead’s failure to print the Datex data as the spoliation of evidence and requested the court to charge the jury that spoliation of evidence creates a presumption that “the evidence would have been harmful to the spoiliator [sic].” The court denied plaintiffs’ request, and the plaintiffs assert the decision was erroneous. We disagree.

As a general rule, “[i]n order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge.” The spoliation charge at issue here is grounded in OCGA § 24-4-22, which provides:

If a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted.

In Cotton States Fertilizer Co. v. Childs, the Supreme Court cautioned that the presumption set forth in OCGA § 24-4-22 can be given as a “charge only in exceptional cases,” that “the greatest caution must be exercised in its application,” and that “[e]ach case must stand upon its own particular facts.” In determining if the charge is warranted, there are several factors that a court may consider, including whether the party seeking the charge “was prejudiced as a result of the destruction of the evidence.”

In this case, it is undisputed that Dr. Lawhead’s chart was missing vital signs data for the 15-minute period during which he was attempting to provide Johnson with oxygen and that the Datex monitor recorded this information. In their appellate brief, plaintiffs repeatedly assert that they were prejudiced by this missing data. Plaintiffs have not pointed to any evidence, however, which suggests what they might have proven with the missing data or, moreover, that their expert was hindered by the missing data in forming his opinion of professional negligence. To the contrary, when questioned at trial, plaintiffs’ medical expert acknowledged that when he reviewed the case and developed his opinion, he did not have any problem with Dr. Lawhead’s charting.

Decided March 23, 2001

Reconsideration denied April 12, 2001

Hill & Bleiberg, Gary Hill, Evans & Evans, Larry K. Evans, for appellants.

It is also appropriate to consider whether the party who destroyed the evidence acted in good or bad faith. This is a relevant consideration because one of the rationales for the presumption is that it “deter [s] parties from pretrial spoliation of evidence and ‘serves as a penalty, placing the risk of an erroneous judgment on the party that wrongfully created the risk.’ ” But, “[a] party should only be penalized for destroying documents if it was wrong to do so.”

In this case, we have not been provided with any explanation for Dr. Lawhead’s failure to retrieve the vital signs data from the Datex monitor. The parties have also not pointed to any evidence which establishes whether the standard of care requires the preservation of such data. Without such evidence, we will rely on the “presumption that professionals perform their professional services in an ordinarily skillful manner.” Accordingly, we conclude that Dr. Lawhead did not deviate from the standard of care by failing to record or print the information on the Datex monitor.

Under these circumstances, and in light of the warning that the presumption charge should be given only in exceptional cases, we conclude that the trial court did not err in refusing to instruct the jury as requested.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

Harman, Owen, Saunders & Sweeney, H. Andrew Owen, Jr., for appellees.

       In an offer of proof made outside the jury’s presence, plaintiffs established that Dr. Caplan would have pre-oxygenated Johnson.

        McNabb v. Landis, 223 Ga. App. 894, 896 (5) (479 SE2d 194) (1996).

       See id.

       See id.

       Plaintiffs argue that in one such instance defendants questioned their own witness, Dr. Richard Lodise, whether he would have pre-oxygenated Johnson. We have carefully scrutinized that portion of the transcript cited by plaintiffs, however, and find that the questioning was strictly limited to the standard of care. Thus, inasmuch as the argument is unsupported by the record, it has no merit.

       We do not consider “arguments neither raised nor ruled on by the court below and that are asserted for the first time on appeal.” (Punctuation omitted.) Leal v. Hobbs, 245 Ga. App. 443, 447 (2) (b) (538 SE2d 89) (2000).

       See McNabb, supra.

       (Punctuation omitted.) Lee v. Bartusek, 205 Ga. App. 551 (1) (422 SE2d 570) (1992).

       179 Ga. 23, 31 (174 SE 708) (1934).

       See Chapman v. Auto Owners Ins. Co., 220 Ga. App. 539, 542 (469 SE2d 783) (1996).

       See id.

       (Emphasis supplied.) Welsh v. United States, 844 F2d 1239, 1246 (6th Cir. 1988).

        Akiona v. United States, 938 F2d 158, 161 (9th Cir. 1991).

        Wilson v. Muhanna, 213 Ga. App. 704, 705-706 (1) (445 SE2d 540) (1994) (physical precedent only).

       See id. For a general discussion of cases considering whether a presumption should arise from the intentional or negligent failure of a health care provider to produce medical records see Fischer, Annotation, Medical Malpractice: Presumption or Inference from Failure of Hospital or Doctor to Produce Relevant Medical Records, 69 ALR4th 906 (2000).

       See Childs, supra at 31.