author: McMurray, Presiding Judge. Blackburn, Judge,

text:
    A95A0909.
    HOWARD et al. v. CITY OF COLUMBUS et al.
    (466 SE2d 51)
   McMurray, Presiding Judge.

James Howard, Jr. died during incarceration at the Muscogee County jail, perishing after prolonged suffering resulting from untreated diabetes mellitus. An autopsy revealed that Howard’s blood-glucose level was 12 times the amount normally tolerated by humans and that the cause of death was “ketoacidosis.” Although Howard (as well as other inmates) allegedly advised jailers of his debilitating condition for several days, these pleas went unnoticed until Howard lapsed into a coma. Paramedics were then summoned to the jail and quickly determined that Howard was suffering because of untreated diabetes. But it was too late to reverse the cycle of advanced “ketoacidosis.” Howard died upon arrival at Columbus Medical Center. Upon the coroner’s inquest, a jury allegedly “determined that JAMES HOWARD, JR. died a preventable death resulting from the neglect of the Muscogee County Jail and its employees and of [a] diabetic condition.”

Conswella Howard, by and through her natural and legal guardian, Stephanie Cobbin, and Stephanie Cobbin, as temporary administratrix of the estate of James Howard, Jr. (plaintiffs), filed a multicount complaint asserting both state and federal law claims against the City of Columbus, Muscogee County, Georgia, J. E. “Gene” Hodge, in his individual and official capacity as Sheriff of Muscogee County, Georgia (“the City,” “the County” and “the Sheriff”), Jerry Stephens Chase, in his individual and official capacities as a physician and medical director at the Muscogee County jail, Mildred Chapman, in her individual and official capacities as a licensed practical nurse and head nurse at the Muscogee County jail, and Lawrence Thompson and Ava McLeod, in their individual and official capacities as licensed practical nurses and as nurses at the Muscogee County jail (defendants). Specifically, plaintiffs allege in Count 1 that defendants failed to provide Howard with medical treatment and care as required by OCGA § 42-5-2 and in Count 2 that defendants’ actions and omissions caused Howard to suffer “continuous and severe physical, mental and emotional injuries prior to his death. . . .’’In Count 3, plaintiffs assert claims for wrongful death pursuant to OCGA § 51-4-1 (1) and, in Count 4, they advance state law claims for abuse of authority and cruel and unusual punishment. The basis of plaintiffs’ claim in Count 5 is that “[t]he actions of each defendant constituted medical care which was negligent and grossly negligent, if not callous and willfully inhumane, in deliberate disregard for the right of JAMES HOWARD, JR. to medical care, and/or constitutes grossly inadequate medical staff, facilities or procedures, resulting in injury to JAMES HOWARD, JR., and is actionable and recoverable under O.C.G.A. § 51-1-27.” Plaintiffs allege in Count 6 that “[t]he policies and customs and/or lack of policies to adequately and competently provide medical care to inmates constitutes a deliberate indifference to the serious needs of inmates and is a violation of [the] 8th Amendment to the Constitution of the United States[; that the] actions of the Defendants in not providing proper medical care to JAMES HOWARD, JR. was arbitrary and purposeless in relation to the effective management of the correction facilities involved [; that as] a direct and proximate result of the Defendants actions or omissions, JAMES HOWARD, JR., suffered violations of his constitutional rights as protected by the 8th Amendment to the United States Constitution [and that the] actions and inactions of each Defendant constituted such deliberate indifference to JAMES HOWARD, JR., that he was deprived of his rights to medical treatment and to his life, as protected by the Eight[h] Amendment to the United States Constitution.”

Defendants denied the material allegations of the complaint and filed motions to dismiss, asserting that the expert’s affidavit filed in support of plaintiffs’ medical malpractice claims does not comply with the pleading requirements of OCGA § 9-11-9.1 (a). The affidavit of Joseph G. Bussey, Jr. was filed in support of Count 5 of the complaint and provides, in pertinent part, as follows: “I am, at the present time, a qualified medical doctor, and physician duly licensed by the State of Georgia .... Having reviewed an abstract of the treatment records of patient James Howard, Jr., I . . . have acquired a limited knowledge of the matters herein referred to and I am also qualified to render a professional opinion as to the standard of care and skill which under similar conditions and like circumstances would ordinarily have been employed by the medical profession generally. . . . Having personally examined [an] abstract of Mr. Howard’s medical records and having relied upon my own experience, familiarity and training in similar matters, it is my opinion to a reasonable degree of certainty that:

“(a) The conduct of the City of Columbus, County of Muscogee, Georgia, Jail Health Clinic did not comply with the standard of skill and care which under similar conditions and like circumstances would have been employed by the medical profession generally when and to the extent it failed to provide Mr. James Howard, Jr. with timely investigation and proper health care attention necessary for the treatment of his diabetic condition. Particularly, the jail clinic’s neglect and failure to recognize and treat this man’s diabetic condition was a breach of that standard.

“(b) The conduct of the City of Columbus, County of Muscogee, Georgia, Jail Health Clinic did not comply with the standard of skill and care which under similar conditions and like circumstances would have been employed by the medical profession generally when, in regard to the management of its personnel and staff, it failed to exercise those procedures and protocols critical to the providing of necessary and proper health care treatment to James Howard, Jr. Particularly, to the extent that the jail clinic departmental personnel and staff failed to recognize and properly provide medical treatment for a diabetic condition that resulted in the preventable death of James Howard, Jr. and to the extent that the needed and potentially life-prolonging health treatment was denied to the detriment of the patient James Howard, Jr. whose life hung in the balance of time, was a breach of that standard.”

In three separate orders the trial court found that Dr. Bussey’s affidavit was insufficient to support plaintiffs’ claims for medical malpractice. The trial court went further, however, and dismissed the entire complaint, finding that the claims asserted in all six counts amount to nothing more than causes of action for medical malpractice. This appeal followed. Held'.

1. The City, the County and the Sheriff have filed a motion to dismiss this appeal, arguing that the Court of Appeals has no jurisdiction because the notice of appeal incorrectly designates that the order granting their motion to dismiss was entered on November 17, 1994. This assertion is without merit.

“Where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, what judgment or judgments were appealed from or what errors are sought to be asserted upon appeal, the appeal shall be considered in accordance therewith notwithstanding that the notice of appeal fails to specify definitely the judgment appealed. . . .” OCGA § 5-6-48 (f). See Brackett v. Allison, 119 Ga. App. 632 (1) (168 SE2d 611). In the case sub judice, it is obvious that plaintiffs are appealing from three separate orders, which compositely dispose of the entire complaint. On November 17, 1994, the trial court signed the order dismissing plaintiffs’ complaint as to the City, the County and the Sheriff, and on November 21, 1994, this order was filed with the trial court’s clerk. On November 21, 1994, another order was entered granting Dr. Jerry Stephens Chase’s motion to dismiss. And on November 22, 1994, an order was entered dismissing the complaint as to the remaining defendants, Licensed Practical Nurses Mildred Chapman, Lawrence Thompson and Ava McLeod. Plaintiffs’ notice of appeal was filed on December 16, 1994, within 30 days after final disposal of all of plaintiffs’ claims.

The motion to dismiss filed on behalf of the City, the County and the Sheriff is hereby denied.

2. The trial court erred in dismissing plaintiffs’ complaint in its entirety based on plaintiffs’ alleged failure to file an expert’s affidavit in compliance with OCGA § 9-11-9.1 (a). The affidavit requirement in this subsection does not apply to claims unrelated to malpractice. Parker v. Brinson, 209 Ga. App. 19 (432 SE2d 626). Nor is OCGA § 9-11-9.1 (a) applicable to all wrongful acts or omissions allegedly committed by professionals. “[T]he relevant inquiry is whether ‘a particular claim is grounded upon “professional malpractice,” that is, an act or omission caused by a “professional” which constitutes malpractice.’ [Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 63 (3), 64 (424 SE2d 632).]” Adams v. Coweta County, 208 Ga. App. 334, 335 (2) (430 SE2d 599). In the case sub judice, plaintiffs allege in Count 5 that defendants (each responsible for inmates at the Muscogee County jail) deliberately overlooked Howard’s physical deterioration over a period of several days and that defendants ignored Howard’s pleas (as well as the pleas of other inmates) for help. These claims do not relate to the exercise of professional judgment and therefore do not require backing of an expert’s affidavit. See Adams v. Coweta County, 208 Ga. App. 334, 335 (2), 336, supra. Further, we do not agree with the trial court that plaintiffs’ remaining state law claims (Counts 1, 2, 3 and 4) and federal law claims (Count 6) amount to nothing more than causes of action for medical malpractice. The plaintiffs are only required to allege facts sufficient to place defendants on notice of their substantive claims. See Howard v. Bank South, N.A., 209 Ga. App. 407, 408 (1) (433 SE2d 625). Consequently, as was the case in Howard v. Jonah, 208 Ga. App. 542 (430 SE2d 833), the trial court erred in dismissing plaintiffs’ complaint as to those claims not based upon professional malpractice. See Parker v. Brinson, 209 Ga. App. 19, supra.

3. Our final inquiry is whether Dr. Bussey’s affidavit fails to satisfy the pleading requirements of OCGA § 9-11-9.1 (a). The trial court found that Dr. Bussey’s affidavit is insufficient because it is without sufficient factual basis to support the expert’s conclusions; it does not indicate that Dr. Bussey is competent to give an opinion as to the standard of care required of licensed practical nurses; the affidavit collectively refers to defendants rather them any specific medical professional and the affidavit fails to set forth at least one negligent act or omission by defendants Chase, Chapman, Thompson and McLeod.

(a) Factual basis of Opinion and Account of Defendants’ Negligent Acts or Omissions. Defendants assert that Dr. Bussey’s statements that he has “limited knowledge of the matters herein referred to” and that he has reviewed an “abstract” of James Howard, Jr.’s medical records renders the factual basis of the expert’s opinion insufficient. Defendants Chase, Chapman, Thompson and McLeod further argue that the affidavit is insufficient because it does not set forth at least one negligent act or omission. These arguments are without merit. It was not only unnecessary for Dr. Bussey to attach the “abstract” of Howard’s medical records to his affidavit, it was unnecessary for him to render an accounting of the specific records that comprised this “abstract.” Williams v. Hajosy, 210 Ga. App. 637 (1), 638 (436 SE2d 716). All that was required to satisfy the initial pleading requirements of OCGA § 9-11-9.1 (a) was a synopsis of the salient facts upon which Dr. Bussey based his opinion. HCA Health Svcs. of Ga. v. Hampshire, 206 Ga. App. 108, 112 (4) (b) (424 SE2d 293). And to this extent, Dr. Bussey deposed that the defendants, particularly “the jail clinic departmental personnel and staif,” “failed to provide Mr. James Howard, Jr. with timely investigation and proper health care attention necessary for the treatment of his diabetic condition^ neglected and failed] to recognize and treat this man’s diabetic condition[,] failed to exercise those procedures and protocols critical to the providing of necessary and proper health care treatment to James Howard, Jr. [and] failed to recognize and properly provide medical treatment for a diabetic condition. ...”

The dissent, however, views Dr. Bussey’s affidavit as insufficient under OCGA § 9-11-9.1 because “it allows general allegations of negligence to be attributed to the entire ‘jail clinic departmental personnel and staff without reference to specific acts of negligence by specific defendants.” In so concluding, the dissent unduly narrows the Supreme Court holding in Gadd v. Wilson & Co. &c., 262 Ga. 234 (416 SE2d 285), where it was said that specific reference to a particular defendant is not required in pleading affidavits prescribed under OCGA § 9-11-9.1. The Court in Gadd held that all that is necessary is that such affidavits “link” the defendant professional to the negligent act or omission. Contrary to the dissent’s view, the Supreme Court does not limit its holding to cases where there is only one professional defendant. On the contrary, the Supreme Court held that pleading affidavits under OCGA § 9-11-9.1 should be construed with the liberality of the Civil Practice Act. Gadd v. Wilson & Co. &c., 262 Ga. 234, 235, supra. From this perspective, we find that Dr. Bussey’s affidavit is sufficient to satisfy the pleading requirements of OCGA § 9-11-9.1. First, the medical professionals referenced in Dr. Bussey’s affidavit not only appear to be the defendant medical professionals in the case sub judice, but (for what is known at this shallow point of litigation) these defendants were all responsible for and charged with Howard’s medical care and treatment at some point over the protracted period of the inmate’s medical weakening and decline. (At least there is not yet conclusive proof to say otherwise.) Second, it appears to take several days without medical care for a person to die of “ketoacidosis” and, according to Dr. Bussey, it is below the requisite standard of care for medical professionals such as defendants not to recognize, diagnose or treat a person displaying the apparently dreadful and overt signs of diabetic “ketoacidosis.” This, of course, is not to say that civil discovery will not dispel liability on the part of some or all of the medical defendants. However, considering that no party has been called upon under oath in the case sub judice to account for the circumstances of the death of James Howard, Jr., we find no deficiency in Dr. Bussey’s general identification of defendants or the specificity of his opinion regarding the defendants’ substandard medical care and treatment of James Howard, Jr. Further, we find no flaw in his statement that he has “limited knowledge” of the matters which form the basis of his opinion. Indeed, opportunities to gain “full knowledge” of the medical treatment and care provided to James Howard, Jr. at the Muscogee County jail (upon which an expert may form a more accurate medical opinion) will only arrive when civil discovery has been extended to plaintiffs.

(b) Competence of Expert Opinion. Defendants Chapman, Thompson and McLeod argue that Dr. Bussey was not competent to testify as to the standard of care required of licensed practical nurses. This argument was rejected under identical circumstances in Crook v. Funk, 214 Ga. App. 213, 215 (2) (447 SE2d 60).

(c) Specific Reference to the Defendants Chase, Chapman, Thompson and McLeod. It was unnecessary for Dr. Bussey to refer to any particular defendant in the body of his affidavit. He was only required to link the alleged malpractice to defendants Chase, Chapman, Thompson and McLeod. See Gadd v. Wilson & Co. &c., 262 Ga. 234, 235, supra. Dr. Bussey did this when he deposed that “the jail clinic departmental personnel and staff. . .” were responsible for the unnecessary death of James Howard, Jr.

4. We do not reach issues argued by the City, the County and the Sheriff regarding a motion to dismiss plaintiffs’ civil rights claims under 42 USC § 1983. Since the trial court did not rule on this motion to dismiss, this Court has no jurisdiction to rule on it on appeal. See Young v. Scott, 212 Ga. App. 572, 574 (1) (442 SE2d 768).

Judgment reversed.

Pope, P. J., and Ruffin, J., concur. Beasley, C. J., Johnson and Smith, JJ., concur in the judgment only. Birdsong, P. J., and Blackburn, J., concur in part and dissent in part. Andrews, J., concurs in the judgment only as to Divisions 1, 2 and 4 and dissents in part.

Blackburn, Judge,

concurring in part and dissenting in part.

Once again we are faced with a case in which the requirements of OCGA § 9-11-9.1 have created an additional level of litigation where traditionally authorized procedures could have more efficiently dealt with the underlying issues. I am in agreement with Divisions 1, 2, and 4 of the majority; however, I must respectfully dissent from Division 3 as I do not agree that Dr. Bussey’s affidavit satisfies the pleading requirements of OCGA § 9-11-9.1. My dissent, therefore, deals exclusively with the adequacy of the OCGA § 9-11-9.1 affidavit required for plaintiffs’ cause of action for medical malpractice (Count 5 in plaintiffs’ complaint), and not other issues which are not before us.

Plaintiffs brought the present action against several defendants: a city, a sheriff, a doctor, and three nurses. In their complaint, the plaintiffs do not relate the negligent actions to any individual defendant in the medical malpractice cause of action. Plaintiffs refer to the failure of the defendants collectively to provide adequate medical attention and treatment to plaintiffs’ decedent. Plaintiffs allege that the actions of each defendant constituted medical care which was negligent. Again, in Dr. Bussey’s affidavit, the allegations of negligence are not connected to specific defendants, instead Dr. Bussey cites as negligent the conduct of the “City of Columbus, County of Muscogee, Georgia, Jail Health Clinic” and “jail clinic departmental personnel and staff.”

We have construed OCGA § 9-11-9.1 to require “a valid affidavit by an expert competent to testify in court against each professional defendant named in the complaint, in which is set forth specifically at least one negligent act or omission claimed to exist as to each professional defendant (jointly, where appropriate; otherwise, severally) and the factual basis for the claim against each defendant.” HCA Health Svcs. of Ga. v. Hampshire, 206 Ga. App. 108, 110 (424 SE2d 293) (1992). “Although the express language of § 9-11-9.1 does not require the affidavit to name the party who was allegedly negligent, § 9-11-9.1 has been interpreted as requiring that an affidavit be filed by a competent expert witness setting forth a single negligent act allegedly committed by the defendant.” (Citation and punctuation omitted; emphasis in original.) Gadd v. Wilson & Co. &c., 262 Ga. 234, 235 (416 SE2d 285) (1992). In Gadd, the Georgia Supreme Court found that the requirement that the alleged negligence had to be linked to the defendant was substantially met by the fact that there was only one defendant and “therefore was implicitly the party to whom” the negligence was attributed. Id.

Decided December 5, 1995

Reconsideration denied December 20, 1995

Burkey & Burkey, Jennifer A. Burkey, Frederick D. Burkey, for appellants.

Hatcher, Stubbs, Land, Hollis & Rothschild, Robert C. Martin, Jr., C. Morris Mullin, Page & Scrantom, W. G. Scrantom, Jr., Eugene H. Polleys, Jr., for appellees.

The present case contains multiple defendants and the affidavit fails to connect any individual defendant with a negligent act. Furthermore, the majority’s construction of this affidavit is not consistent with the purpose of OCGA § 9-11-9.1, see Gadd, supra at 235, to the extent it allows general allegations of negligence to be attributed to the entire “jail clinic departmental personnel and staff” without reference to specific acts of negligence by specific defendants. The affidavit fails to set forth the factual basis for any claim against any individual defendant.

Based upon the foregoing, I would affirm the trial court’s grant of the defendants’ motion to dismiss with regard to Count 5 for medical malpractice which was properly granted.

I am authorized to state that Judge Birdsong joins in this opinion.

       “Ketoacidosis” or “ketosis” is “a condition characterized by an abnormally elevated concentration of ketone bodies in the body tissues and fluids; it is a complication of diabetes mellitus and starvation.” The Sloane-Dorland Annotated Medical-Legal Dictionary, p. 398 (1987). Severe ketosis may not only affect a person’s mental processes, but “can render a person unable to perform such normal functions as walking or driving an automobile.” United States v. McGuire, 381 F2d 306, 317 (2d Cir. 1967).


source: Caselaw Access Project

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

license: Public Domain

text:
    A95A0963.
    WORKS et al. v. AUPONT et al.
    (465 SE2d 717)
   McMurray, Presiding Judge.

On the morning of June 11, 1992, Paul Worth was admitted for outpatient surgery at Satilla Regional Medical Center. He died about four hours later, but not before suffering gradual bodily deterioration during the post-operative recovery period. Review of medical records by a registered nurse and a physician from the State of New York indicate that Worth’s death was the result of substandard medical care by the hospital’s nursing staff and the treating physicians, Pierre Aupont, Robert Carbaaugh, James S. Snow and S. William Clark III. The registered nurse and the New York physician suggest that Worth’s suffering and death were due (in large part) to untimely response and improper treatment of the patient’s high-risk medical condition, i.e., diabetes mellitus and hypertension.

On June 10, 1994, the Friday before expiration of the two-year statute of limitation, Fannie Lee Grady, as next friend of Azzie Lee Works and temporary administrator of the estate of Paul Worth (plaintiffs), brought a medical malpractice action against Pierre Aupont, Robert Carbaaugh, James S. Snow, Satilla Health Services, Inc. d/b/a Satilla Regional Medical Center, Doctor S. William Clark III, and Clark Eye Clinic. A nurse’s affidavit was filed with the complaint as required by OCGA § 9-11-9.1 (a), but an affidavit supporting the medical malpractice claims against the treating physicians was not. Plaintiffs instead invoked the automatic 45-day extension period prescribed by OCGA § 9-11-9.1 (b), alleging that “the statute of limitations will expire within ten (10) days of the filing of this complaint and because of such time constraints an expert affidavit concerning the Defendant Doctors could not be prepared for filing with the complaint.” Five days later, on June 15, 1994, plaintiffs filed the New York physician’s affidavit. Plaintiffs’ attorney received this affidavit on Monday, June 13, 1994.

The treating physicians and Clark Eye Clinic sought dismissal of the complaint with prejudice or summary judgment, asserting that plaintiffs failed to contemporaneously file an expert’s affidavit with the complaint as required by OCGA § 9-11-9.1 (a). The trial court agreed, rejecting plaintiffs’ allegation that “time constraints” prevented compliance with OCGA § 9-11-9.1 (a). This appeal followed entry of an order, certified pursuant to OCGA § 9-11-54 (b), dismissing plaintiffs’ complaint and purportedly granting summary judgment in favor of the treating physicians and Clark Eye Clinic based on plaintiffs’ failure to comply with the pleading requirement of OCGA § 9-11-9.1. See Druckman v. Ethridge, 198 Ga. App. 321 (1) (401 SE2d 336). Held:

1. In Sisk v. Patel, 217 Ga. App. 156 (456 SE2d 718), a majority of this Court recently recognized that OCGA § 9-11-9.1 has done more to spawn wasteful litigation than to “achieve its purpose of reducing frivolous litigation.” Sisk v. Patel, 217 Ga. App. 156, 160, supra. The case sub judice is no exception. This time, however, the dissent is reading more into OCGA § 9-11-9.1 than is provided, rather than demanding strict compliance with the statute as was the case in Sisk, in order to justify cutting off a cause of action for medical malpractice which has been deemed by an expert to have factual merit. See Sisk v. Patel, 217 Ga. App. 156, 160, supra.

An examination of the hearing transcript as well as the trial court’s summary judgment order reveals that the trial judge disposed of plaintiffs’ medical malpractice claims against the treating physicians and Clark Eye Clinic because he did not believe plaintiffs’ allegation that “time constraints” prevented compliance with the contemporaneous filing requirements of OCGA § 9-11-9.1 (a). We reverse because OCGA § 9-11-9.1 (b) unambiguously provides for an automatic 45-day extension for filing the requisite affidavit “to any case in which the period of limitation will expire within ten days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared.” OCGA § 9-11-9.1 (b). See Dixon v. Barnes, 214 Ga. App. 7, 8 (1) (446 SE2d 774). If these two conditions are met, it does not matter whether the trial court believes or disbelieves a plaintiff’s allegation that “time constraints” prevented compliance with the contemporaneous filing requirement of OCGA § 9-11-9.1 (a). The plaintiff is given 45 extra days to come up with the necessary affidavit. It is not until after expiration of this 45-day period that subsection (b) provides for a hearing to determine whether good, cause exists for any further delay. Piedmont Hosp. v. Draper, 205 Ga. App. 160, 161 (1) (421 SE2d 543).

In the case sub judice, plaintiffs’ complaint against the treating physicians and Clark Eye Clinic was filed within ten days before expiration of the two-year statute of limitation and, because of this time constraint, plaintiffs’ attorney alleged that an affidavit of an expert could not be prepared for filing with the complaint. Consequently, since the requisite affidavit was filed within 45 days after the filing of plaintiffs’ complaint, the trial court had no discretion in questioning plaintiffs’ excuse for noncompliance with OCGA § 9-11-9.1 (a). Thus, the trial court erred in granting summary judgment in favor of the treating physicians and Clark Eye Clinic based on plaintiffs’ failure to comply with the contemporaneous filing requirement of OCGA § 9-11-9.1 (a).

2. Plaintiffs’ remaining enumeration of error presents nothing for review since the theory of liability questioned therein was not precluded by the trial court upon summary adjudication. The only basis of the trial court’s order was dismissal of the plaintiffs’ complaint for failure to comply with OCGA § 9-11-9.1. See Druckman v. Ethridge, 198 Ga. App. 321 (1), supra.

Judgment reversed.

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

Beasley, Chief Judge,

concurring specially.

Our task in this case requires a construction of a statute, so we must “look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). We must also give “ordinary signification” to words. OCGA § 1-3-1 (b).

In an effort to preclude frivolous malpractice claims, the legislature has created in OCGA § 9-11-9.1 an inordinately detailed scheme of exceptions to its requirement that an affidavit accompany the complaint. Instead of leaving to the wisdom of the judiciary the discretion to tailor general standards of “justifiable delay” or “reasonable extension of time” to specific cases where justice may warrant an exception to contemporaneous filing, the rigid rules relating to exceptions have spawned a legion of cases on the construction and application of the statute. One of the most problematic recent ones is Sisk v. Patel, 217 Ga. App. 156 (456 SE2d 718) (1995). Here is another instance.

The legislature has provided in subsection (b) a narrow but liberal exception to the contemporaneous filing requirement of OCGA § 9-11-9.1 (a). It is liberal in that it permits a plaintiff who feels the life-extinguishing breath of the statute of limitation 45 extra days to file the affidavit and thus avoid expiration of his claim. This, depending on when the complaint is served, may even be beyond the ordinary expiration date for filing the answer, so as to work an extension for that, too. OCGA § 9-11-9.1 (c). It works in effect a partial forty-five-day extension of the two-year statute of limitation for certain malpractice cases, OCGA § 9-3-71 (a), even though it expressly does not actually extend the period of limitation. OCGA § 9-11-9.1 (d). The legislature recognized the practicality that the required affidavit, a particularized pleading requirement for only certain civil cases, might not be ready for filing although it is in the process of being obtained when the expiration of the cause of action is imminent.

The exception is narrow in that it applies only in one circumstance, that is, when there is a congruence of two factors: 1) the statute of limitation will expire within ten days of the filing of the complaint; 2) “the plaintiff has alleged that an affidavit of an expert could not be prepared.”

I do not agree with the majority that defendants cannot challenge the truthfulness of the allegation and defeat the plaintiffs’ reliance on the automatic 45-day extension. If the legislature meant that the required allegation could not be challenged, it would have used a word other than “alleged,” as that means a statement subject to challenge: “stated; recited; claimed; asserted; charged.” Black’s Law Dictionary (rev. 4th ed. 1968); see Jenkins v. Garrison, 265 Ga. 42, 48, n. 11 (453 SE2d 698) (1995). Also, if it meant the allegation insulated the 45-day extension, then it has no meaning and that factor might just as well have been left out of the statute. There would be a forty-five-day extension whenever the statute of limitation expires within ten days of the filing of the complaint. We are compelled to attribute meaning to all parts of a statute. Redding v. State, 205 Ga. App. 613, 615 (2) (423 SE2d 10) (1992).

Secondly, judicially according unassailable conclusiveness to the allegation shields possible untruth from both consequence and sanction, as Judge Andrews points out, and I cannot attribute such intention to the legislature, more so because it relates to an allegation of an officer of the court rather than to that of a complaining party. Such an officer has a higher duty than does a non-verifying complainant, although “honesty and good faith” is a requirement of pleading which applies to the latter as well. Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 692 (4) (178 SE2d 543) (1970).

What is meant by the extension being “automatic” is that plaintiff need not seek it from the court; he or she automatically has it if the two factors are present. It does not mean that plaintiff cannot be called upon to show the existence of the two factors, both of which involve facts. The first would require plaintiff to establish when the cause of action arose, so as to measure the limitation period for its expiration date, and the second would require plaintiff to show that the reason the affidavit was not filed is that it could not be in hand for filing with the complaint.

This, of course, invites a mini-trial under OCGA § 9-11-12 (b) (6), a fact-finding journey for the parties and trial court at the outset of the proceedings if defendants demand it, to ascertain whether the affidavit, in good faith, truly could not be prepared and on hand for filing with the complaint. This is envisioned in Emory Clinic v. Wyatt, 200 Ga. App. 184 (1) (407 SE2d 135) (1991). Hewitt v. Kalish, 264 Ga. 183 (1) (442 SE2d 233) (1994), explains the availability of a hearing under OCGA § 9-11-12 (d) for challenges to the affidavit. Good faith of counsel played a major role in another subsection (b) case, Piedmont Hosp. v. Draper, 205 Ga. App. 160, 162 (1) (421 SE2d 543) (1992), although it related to the request for a further extension.

Here it appears that everything was in order except that counsel misconstrued the statutes. With hindsight, the complaint and affidavit could have been filed on June 13, the last day for filing within the statute of limitation and the day counsel received the affidavit. Then recourse to the statutory extension would not have been necessary. But counsel believed that the statute expired on Saturday, June 11, relying on Allstate Ins. Co. v. Stephens, 239 Ga. 717 (238 SE2d 382) (1977), and so filed it on June 10, three days before the statute ran and thus “within 10 days” of expiration, the large window of opportunity created by the legislature for the forty-five-day extension to apply. Stephens construed a version of OCGA § 1-3-1 (d) (3) which has been changed. As a result of the change, the period was extended to Monday. Sanders v. Allstate Ins. Co., 207 Ga. App. 461 (428 SE2d 575) (1993); Loveless v. Grooms, 180 Ga. App. 424 (349 SE2d 281) (1986). The affidavit was filed on June 15, 43 days before the 45-day extension ran and thus well within it, if it applied.

Plaintiffs’ counsel explained that he did not have the affidavit in hand on June 10, which was true. Defendants suggested that he should have relied on Brown v. Middle Ga. Hosp., 211 Ga. App. 884 (440 SE2d 687) (1994), cert, denied March 25, 1994, as authority for the filing of a facsimile copy, but that would not have authorized it. Even assuming counsel had ready means to obtain a facsimile copy, the authority of Sisk, supra, cert, denied June 23, 1995, with which three members of the Court disagreed, was not published until nine months later.

Plaintiffs alleged that “an expert affidavit concerning the Defendant Doctors could not be prepared for filing with the complaint.” The statute simply uses the word “prepared,” but the obvious meaning includes its physical presence for filing in a legally acceptable form because its absence is the very reason for the statutory extension. It is true that the affidavit was signed in New York on Thursday, June 9, the day before the complaint was filed. But plaintiffs’ attorney did not have it physically for filing. Dismissal is not warranted because counsel was not prescient about this Court’s future ruling in Sisk with respect to facsimiles, and either was unwilling to rely on overnight mail or merely believed it was unnecessary because of the availability of the 45-day extension.

Plaintiffs showed that counsel did not seek to invoke the 45-day legislatively created extension in bad faith; if such were the case, defendants would surely be entitled to dismissal. Instead, the absence of the affidavit was explained, the truth was that counsel did not have it physically but expected it shortly, and it was in fact filed a few days thereafter. Counsel even served it on defendants by mail, on June 14, so that he could certify service when the affidavit was filed as an amendment to the complaint. See OCGA § 9-11-5 (b). Apparently they received the affidavit even before they were served with process.

The trial court turned the statute on its head by faulting plaintiffs for filing the complaint a few days before the affidavit was in hand so as to assure adherence to the statute of limitation. It found that “Plaintiffs could have filed Dr. Gevirtz’s affidavit contemporaneously with the Complaint by waiting until June 13, 1994 to file the Complaint.” Such hindsight departs from the objective consideration which must be given in determining whether the two factors exist which authorize plaintiff to invoke the privilege of the statutory extension. The provision merely calls for a good faith explanation for the absence of the affidavit, not the “good cause” which is necessary to obtain a judicially authorized further extension. The court gave as additional reason for the non-applicability of the extension the fact that counsel had the medical records of the deceased “fourteen months prior to the running of the statute of limitations.” While this would have shown an absence of “good cause” to grant a further extension, it was not an incursion on the good faith resort to the 45-day extension.

This record does not show any untruth, subterfuge, lack of good faith, significant delay if any, resort to the extension for the purpose of delaying the case, or prejudice to defendants. The only consequence of the affidavit being filed five days after the complaint and two days after the statute of limitation expired is that defendants had thirty days after the filing of the affidavit to file their answers. OCGA § 9-11-9.1 (c). Since the record does not contain the returns of service, this extension may have been moot, since defendants would also have 30 days from the date of service, which may have been later. OCGA § 9-11-12 (a).

Thus, summary judgment, which if correct should have been dismissal instead, see Druckman v. Ethridge, 198 Ga. App. 321 (1) (401 SE2d 336) (1991), was in error.

Andrews, Judge,

dissenting.

I respectfully dissent because the majority’s pro forma construction of OCGA § 9-11-9.1 (b) renders its provisions meaningless. Subsection (b) excuses the contemporaneous filing requirement when “the period of limitation will expire within ten days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared.” After a hearing, the trial court made undisputed factual findings that (1) plaintiffs’ lawyers obtained the medical records in this case 14 months before the statute of limitation expired; (2) plaintiffs’ expert executed his affidavit on June 9, 1994, the day before the complaint was filed; and (3) the affidavit could have been filed with the complaint had it been returned by overnight mail or facsimile or had counsel waited until June 13 to file the complaint. The court therefore concluded that plaintiffs’ alleged inability to obtain the affidavit in time to file it with the complaint was not caused by a time constraint due to the impending expiration of the statute of limitation.

Decided December 5, 1995

Reconsideration denied December 20, 1995.

Hallman & Stewart, Ronald W. Hallman, Berrien L. Sutton, C. Edwin Rozier, for appellants.

Tillman, McTier, Coleman, Talley, Newbern & Kurrie, Wade H. Coleman, Edward F. Preston, Dillard, Bower & East, Terry A. Dillard, Fendig, McLemore, Taylor, Whitworth & Durham, Philip R. Taylor, Brennan & Wasden, Wiley A. Wasden III, James V. Painter, W. Grady Pedrick, for appellees.

Although OCGA § 9-11-9.1 (b) mandates a 45-day extension to file the affidavit when the statutory requisites are met, I reject the premise that those requisites may be satisfied through deceit. The record clearly shows that time constraints did not prevent the affidavit from being filed with the complaint. Counsels’ statement to the contrary violates their duty as attorneys practicing in this State to employ “such means only as are consistent with truth.” OCGA § 15-19-4 (2). I decline to join the majority in condoning this unethical breach of duty by officers of the court. Tingle v. Arnold, Cate & Allen, 129 Ga. App. 134, 137 (3) (199 SE2d 260) (1973).

This is simply another example of this Court’s refusal to apply OCGA § 9-11-9.1 as framed by our legislature. See Sisk v. Patel, 217 Ga. App. 156, 165 (456 SE2d 718) (1995) (Andrews, J., dissenting).

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

       The trial court’s factual findings are undisputed. It is also undisputed that the statute of limitation did not technically expire until Monday, June 13 because Paul Worth expired on June 11, 1992 and June 11, 1994, two years from that date, fell on a Saturday. OCGA §§ 9-3-71; 9-11-6 (a); Sanders v. Allstate Ins. Co., 207 Ga. App. 461 (1) (428 SE2d 575) (1993).


author: Beasley, Chief Judge. Ruffin, Judge, Smith, Judge,

text:
    A95A1006.
    PACE v. THE STATE.
    (466 SE2d 254)
   Beasley, Chief Judge.

Charles Pace was convicted of possession of cocaine with intent to distribute. In his sole enumeration of error, Pace asserts the trial court erred in denying his motion to suppress evidence which he contends was the result of an illegal detention and search.

The evidence in favor of the trial court’s ruling is construed most favorably to uphold the judgment. State v. Corley, 201 Ga. App. 320 (411 SE2d 324) (1991).

Two officers were patrolling in a car at 9:00 p.m. and included some apartments which were checked frequently because of the drug and prostitution activity there. One of the officers, who was a detective in the vice and narcotics squad, had seen drug transactions at this location, had made drug arrests there himself, and had seen other drug arrests made there. The officers saw defendant, who was standing in the parking lot. He stood there, alone, for about eight minutes before the officers approached him in the car. He did not seem to be waiting to meet anyone or to go inside, so they were suspicious that he was there to sell drugs to drivers-in, the scenario known as “stop and cop.”

When they drove up to defendant in the marked police car, with them in uniform, he looked at the vehicle and turned around and started to walk away, towards the “porch” (a cement slab) of an apartment, at an angle towards the rear of the apartments. They exited the car and called for him to come to the police car. He began acting very nervous and continued to walk away but they walked up to him and he reached towards his right pocket and attempted several times to reach into it. They stopped him from going into the pocket because they were concerned for their safety, knowing that if a suspect is intent on harming the police it will be done with something in his hands. They feared he was going for a weapon. The detective, who had seen suspects pull weapons on officers with quick movements from their pockets, reached down and stopped the hand from going all the way into the pocket. They asked him to put his hands on the police car, and the officer reached into the pocket and found the razor blade and drugs. The officer wanted to remove what he thought would be a weapon. He testified that “he (defendant) was obviously reaching for something that we felt was a threat to us.”

They did not do a pat-down first, although the officer testified at the motion hearing that they did a pat-down after they placed him on the vehicle, and at first testified at trial that they did a pat-down before they “put him on our vehicle.” He made clear at trial that no pat-down occurred before the search of defendant’s pocket. The legal analysis thus is not based on whether they felt a weapon or what they thought was a weapon. The search of the pocket was prompted not by a tactile detection by the police, but by defendant’s actions, which alerted them to thinking he was retrieving a weapon. They reasonably believed that their safety had already been demonstrably compromised, just as it would have been if they felt what could have been a weapon. Defendant did have a razor blade (and a piece of cellophane with nine pieces of crack cocaine).

The officers did have a right to stop Pace from going into the pocket; they explained amply why they did it. The law permits law enforcement officers to protect themselves from harm even when conducting a non-coercive lawful stop. Their safety is entitled to assurance at that stage just as well. “ ‘ “The key question in all cases remains whether the protective measures taken by the officer were reasonable under the circumstances.” (Cits.)’ [Cit.]” Chaney v. State, 207 Ga. App. 72, 73 (427 SE2d 63) (1993). “ ‘ “An officer may take appropriate self-protective measures when he lawfully confronts an individual and reasonably believes him to be armed or otherwise dangerous to the officer or others. The usual police response will be to conduct a frisk, patting the individual’s clothing in search of a weapon. (Cits.)” ’ ” Id. at 72-73. A pat-down is not a prerequisite, however. Hayes v. State, 202 Ga. App. 204, 206 (414 SE2d 321) (1991). In Hayes, intrusion into a pocket based upon safety concerns and defendant’s behavior, rather than what was felt in a pat-down, was upheld; defendant turned away when a pat-down reached a certain pocket; he was told to place his hands on the car and the officer then reached into the pocket without feeling it first.

“ ‘Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief “seizures” that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.’ ” State v. Davis, 206 Ga. App. 238 (424 SE2d 878) (1992). Under the first tier, a police officer may approach an individual and ask a few questions without triggering Fourth Amendment scrutiny. State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822) (1992). See also Sabel v. State, 248 Ga. 10 (1) (282 SE2d 61) (1981). Accordingly, the officers were authorized to pull into the parking lot and ask Pace what he was doing. See Ward v. State, 193 Ga. App. 137 (1) (387 SE2d 150) (1989); Vance v. State, 205 Ga. App. 201 (421 SE2d 730) (1992).

In order for an officer to protect himself from injury, there need not first be established a reasonable, articulable suspicion that the person who is being lawfully questioned has committed or is committing a crime. The risk of injury justifies reasonably tailored protective reaction to a citizen’s threatening action even in “tier-one” investigative encounters. Were it not so, the cost would be too high for such encounters. “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry v. Ohio, 392 U. S. 1, 23 (88 SC 1868, 20 LE2d 889) (1968). Whether a limited protective search of the person is justified requires a reasonable belief that the officer’s safety or that of others is in danger. Terry, supra at 27.

The following “safety search” cases illustrate other circumstances in which weapon searches were ruled reasonable and thus permitted. In Louis v. State, 196 Ga. App. 276 (396 SE2d 25) (1990), defendant was in a phone booth next to a car where others were engaged in drug activity. He turned his back to the officers and reached for his crotch, where the officers knew weapons are often concealed. In Clark v. State, 131 Ga. App. 583 (2) (206 SE2d 717) (1974), it was held: “When the detective advised defendant at the scene that he was a police officer, and defendant reached in his pocket, the detective had a right to stop and frisk defendant in order to protect himself,” citing Terry.

The question is whether a reasonably prudent person in the circumstances would be warranted in the belief that his safety or that of others was in danger. Terry, supra at 27. See also Michigan v. Long, 463 U. S. 1032 (III) (103 SC 3469, 77 LE2d 1201) (1983). The officer was “able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron v. New York, 392 U. S. 40, 64 (88 SC 1889, 20 LE2d 917) (1968).

The officer invaded the pocket with his hand only when he had a reasonable belief that defendant was reaching for a weapon, based on all the circumstances described above, including defendant’s efforts to avoid the police and then nervously seek something from his pocket. The belief, objectively, was not merely the product of an “inventive imagination,” nor was the search “an act of harassment.” Terry, supra at 28. The detention was effected in order to determine whether a weapon was within defendant’s reach and control. It was a limited and appropriately directed reaction, prompted by the citizen’s hand movements in the context of all the surrounding circumstances when the officers tried to communicate with him.

The officers were acting lawfully when they sought to ask Pace what he was doing. “[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, [cits.]; ask to examine the individual’s identification, [cits.]; ... — as long as the police do not convey a message that compliance with their requests is required.” Florida v. Bostick, 501 U. S. 429, 434-435 (111 SC 2382, 115 LE2d 389) (1991). Here the questioning had not even commenced; the officer had just asked defendant to stop when he escalated the general safety hazard to which police are subjected and created a specific one by attempting to retrieve what was in his pocket. This justified the limited intrusion.

Judgment affirmed.

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

Ruffin, Judge,

dissenting.

The majority sets out three tiers of police-citizen encounters and concludes that although this case involved a tier one encounter, the personal security of the police officers justified their search of Pace. While I agree with the majority that a police officer’s right to personal security is of great importance, I respectfully dissent because I disagree that the officers’ search was lawful in this case.

I also agree with the majority that under the first tier, a police officer may approach an individual and ask questions without triggering Fourth Amendment scrutiny. State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822) (1992). See also Sabel v. State, 248 Ga. 10 (1) (282 SE2d 61) (1981). While I am troubled by the fact that the officers decided to question Pace based solely on their observation of him standing alone in an apartment complex parking lot for a full eight minutes, under existing precedent I am constrained to agree with the majority that there was nothing wrong with the officers pulling into the parking lot and asking Pace what he was doing. But we must also determine whether the officers’ subsequent conduct was likewise lawful.

In Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), the United States Supreme Court examined the scope of a police officer’s power to seize and search a citizen without probable cause for arrest. Id. at 16. The Court initially found that “there is ‘no ready test for determining reasonableness [of an officer’s actions] other than by balancing the need to search (or seize) against the invasion which the search (or seizure) entails.’ [Cit.]” Id. at 21. The Court warned against treating such a search as a “petty indignity,” and indeed described it as “a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.” Id. at 17. We all agree that “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” Id. at 24-25. Accordingly, the Court in Terry emphasized that in reviewing such cases, courts must guard against police conduct “which trenches upon [an officer’s] personal security without the objective evidentiary justification which the Constitution requires.” Id. at 15. Importantly, the Court required that “in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Emphasis supplied.) Id. at 21.

In Terry, the necessary justification was established when a police officer observed three men walk alternately along an identical route, pausing to stare in the same store window approximately 24 times and where each completion of the route was followed by a conference between the men on a street corner. In light of this evidence, the Court concluded that “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous[,] . . .” and where nothing in the course of his investigation dispels his reasonable fear for his own safety, he is entitled to a limited search of the individual. (Emphasis supplied.) Id. at 30. While the Court in Terry only required specific and articulable objective evidence of unusual conduct related to criminal activity, it noted that “[tjhere is nothing unusual in two men standing together on a street corner, perhaps waiting for someone.” Id. at 22.

As clarified by Justice Harlan in his concurring opinion in Terry, “if the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. Any person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm such a person for his own protection, he must first have a right not to avoid him but to be in his presence. That right must be more than the liberty ... to address questions to other persons, for ordinarily the person addressed has an equal right to ignore his interrogator and walk away; he certainly need not submit to a frisk for the questioner’s protection. I would make it perfectly clear that the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime.” Terry, supra at 32-33. See also Lafave, Search & Seizure (2d ed. 1987), Vol. 3, pp. 499-501 § 9.4, and authorities cited.

In Sibron v. New York, 392 U. S. 40 (88 SC 1889, 20 LE2d 917) (1968), cited by the majority, the officer’s justification for searching the defendant was found by the Court to be unreasonable. As in this case, in Sibron the officer was not acquainted with the defendant and had no information concerning him. The officer merely saw the defendant talking to a number of known narcotics addicts over a period of eight hours. The Court emphasized that the officer “was completely ignorant regarding the content of these conversations, and that he saw nothing pass between [the defendant] and the addicts. So far as [the officer] knew, they might indeed ‘have been talking about the World Series.’ ” (Emphasis supplied.) Id. at 62. The Court in Sibron concluded that “[t]he inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual’s personal security.” Id.

In light of the above authority, I now turn to the facts of this case in search of some specific and articulable objective evidence of unusual conduct related to criminal activity. One of the officers testified that Pace was stopped because “he was making no attempt to go inside. He was obviously, . . . it’s a known drug area. He was loitering in the parking lot and seemed to have no purpose for being there.” The officer further testified that although he did not see any criminal activity occurring, and didn’t know what Pace’s intentions were, he “suspected that [Pace] may be up to something. . . .”

“That [the officer’s unparticularized suspicion] about [Pace] proved correct is perhaps a tribute to his policeman’s intuition, but it is not sufficient to justify, ex post facto, a seizure that was not objectively reasonable at its inception.” (Punctuation omitted.) Rogers v. State, 206 Ga. App. 654, 659 (3) (426 SE2d 209) (1992). There is simply nothing unusual about a man standing alone in an apartment complex parking lot for eight minutes. As in Sibron, the officers in this case were completely ignorant regarding the reason Pace was standing in the parking lot. There was absolutely no evidence that the officers were acquainted with Pace or had any information concerning him. Not only did they not see Pace hand anything to any other individual, they did not even see him interact with any other individual. I can think of numerous legitimate purposes for standing alone in an apartment complex parking lot, and so far as the officers knew he might have been waiting for a ride. See Sibron, supra; Terry, supra.

Again, I agree with the majority that a police officer’s safety is of utmost concern, but we cannot view that concern in a vacuum. Also at stake is a citizen’s constitutional right to be free from unreasonable searches and seizures. While I agree with the majority that “[t]he key question in all cases remains whether the protective measures taken by the officer were reasonable under the circumstances [,] . . .” courts cannot reach that question unless it is first established that there is specific and articulable objective evidence of unusual conduct related to criminal activity. Chaney v. State, 207 Ga. App. 72, 73 (427 SE2d 63) (1993). Indeed, before we even reached what we described as the “key question” in Chaney, we first established that the officers had “a reasonable, articulable suspicion” that the defendant was engaged in criminal activity. Id.

Because the officers in this case had no specific and articulable objective evidence of unusual conduct related to criminal activity, I conclude that the evidence obtained in the search should have been excluded and Pace’s conviction should be reversed.

However, that is not the only disagreement I have with the majority’s opinion. The majority mentions that the officers did not conduct a pat-down before pulling the contraband out of Pace’s pocket, but states that this fact was not considered in its analysis. In my view, however, that fact makes a crucial and important difference in the legal analysis.

Terry allows only a “carefully limited search of the outer clothing” of a suspect. (Emphasis supplied.) State v. Sapp, 214 Ga. App. 428, 430-431 (2) (448 SE2d 3) (1994). Presented recently with a similar factual situation, a majority of this court held that under Terry, where circumstances permit and the officers’ safety is not compromised, a two-step process must be followed: an officer must first perform a non-intrusive pat-down before the second step of intruding beneath the surface of the detainee’s clothing. Barrett v. State, 212 Ga. App. 745 (443 SE2d 285) (1994). Because the officers in Barrett omitted that first step and reached into the accused’s sock to examine a “bulge” without first performing a pat-down, a majority of this court found that the contraband had been illegally seized.

The dissent in Barrett raised the same concerns for the officers’ safety that are raised by the majority here. In my view, under the circumstances here presented those concerns are unwarranted. Pace was under the officers’ control when he was searched; the threat posed by his reaching for his pocket had been neutralized. Before searching Pace, the officers placed him up against the police car; he was no longer free to reach into his pocket.

Even assuming a genuine concern that the pocket contained a weapon, these circumstances mandated a pat-down before reaching into Pace’s pocket. Clearly, it could have been done without endangering the officers. Under Terry, a pat-down was the necessary first step; the officers admitted none was performed until after they had reached into Pace’s pocket. Thus, for this reason also, the contents of Pace’s pocket were removed illegally and should have been suppressed.

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

Smith, Judge,

dissenting.

Although I agree with much that is said in Judge Ruffin’s dissent, I cannot agree that the stop of Pace was unlawful under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

I do agree that the officers exceeded the bounds of Terry when they reached into Pace’s pocket without performing a pat-down for weapons. Barrett v. State, 212 Ga. App. 745 (443 SE2d 285) (1994), was decided less than two years ago and presented a similar factual situation. I find any distinctions between this case and Barrett to be without a difference, and I find that this Court’s inconsistent treatment of the two cases renders a disservice not only to Pace, but to the bench and bar. Accordingly, I respectfully dissent.

Decided December 5, 1995

Reconsideration denied December 20, 1995

Robert L. Wadkins, for appellant.

Douglas C. Pullen, District Attorney, George E. Lipscomb II, Assistant District Attorney, for appellee.


author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A95A1015.
    ARMENISE v. ADVENTIST HEALTH SYSTEM/SUNBELT, INC. et al.
    (466 SE2d 58)
   Andrews, Judge.

Armenise fell and fractured his leg when he stepped in an ankle-deep depression in the ground which was hidden from view by thick grass. The fall occurred while Armenise was an invitee walking across a grassy area between a parking lot in front of Adventist Health System/Sunbelt, Inc. d/b/a Smyrna Hospital (the hospital) to an adjacent medical complex owned by M. P. Equities. The hospital owned the half of the grassy area bordering on the parking lot, and M. P. Equities owned the half closer to the medical complex. Although the depression in which Armenise stepped was located on the half of the grassy area owned by M. P. Equities, there was evidence that the hospital customarily inspected and maintained the entire grassy area. Armenise sued the hospital and M. P. Equities to recover for his injuries, claiming the defendants negligently failed to keep the premises in a safe condition for invitees. The trial court granted summary judgment in favor of both defendants and Armenise appeals.

The evidence showed that the hazard at issue was a narrow trench-like depression approximately ankle deep and several feet in length. It was in a neatly mowed and maintained grassy area and was not visible because it was covered by thick grass. There was no evidence as to how the depression was formed or how long it had been there. Although there was evidence the depression was in the approximate area where an underground utility line had been placed when the hospital was built in 1972, there was no evidence the depression resulted from the presence of the utility line. The hospital’s landscaping supervisor testified on deposition that he looked for and located the depressed area after he learned of Armenise’s fall and that the depression appeared to be a narrow grass-covered area where the ground had settled. He did not know the cause of the settlement or how long it had been there. Although there was evidence that other invitees frequently walked over the grassy area, there was no evidence that anyone had previously fallen, tripped, or slipped in the area of the hazard or in any other part of the grassy area.

The landscape supervisor also testified that he walked over and inspected the grassy area weekly, that he never discovered the grass-covered depression during his inspections, and that in order to find the depression after the fall he had to press around in the area with his feet until he pressed down the grass covering the depression. The following testimony was given by the landscape supervisor on cross-examination by plaintiff’s counsel: “Q: You didn’t see that trench or indentation out there. And I believe you testified in your affidavit that you surveyed the area every week? A: That’s correct. Q: So it was not obvious and noticeable to you, was it? A: No, it wasn’t. . . . Q: And you walked over and surveiled the area every week, didn’t you? A: Right. Q: And you didn’t see it? A: I didn’t see this.”

The landscape supervisor further testified on cross-examination as to the inspection he conducted to locate the depression after he learned of Armenise’s fall: “Q: But it [the depression] was not readily observable to you until you pressed it down and stomped around and found it? A: We had to look for it. Q: And you had to press the grass down to find the indentation, didn’t you? A: Yes.”

In order for an invitee to recover for a proprietor’s alleged negligence in failing to keep the premises safe, there must be proof that the proprietor had superior knowledge of the hazard which was the proximate cause of the invitee’s injury. Pound v. Augusta Nat., 158 Ga. App. 166, 167 (279 SE2d 342) (1981). Clearly, there was evidence that, despite exercising ordinary care for his own safety, Armenise was unable to discover and avoid the depression in which he stepped because it was covered by thick grass. Even if he was without knowledge of the hazard, under the superior knowledge rule, Armenise must prove the defendants had superior knowledge by showing they had either actual or constructive knowledge of the hazard. Since there is no evidence the defendants had actual knowledge of the hazard, this case hinges on proof of constructive knowledge.

Generally, constructive knowledge may be shown by two methods. The first method involves proof that an employee of the proprietor was in the immediate area of the hazard and had the means and opportunity to easily see and remove the hazard. Mitchell v. Food Giant, 176 Ga. App. 705, 708-709 (337 SE2d 353) (1985); Winn-Dixie &c. v. Ramey, 186 Ga. App. 257, 259 (366 SE2d 785) (1988). There is no evidence in the record that an employee of either of the defendants could have easily seen and removed the hidden defect in this case. The second method is premised on the proprietor’s “duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises.” (Citations and punctuation omitted.) Strickland v. Howard, 214 Ga. App. 307, 308 (447 SE2d 637) (1994). Under this method of proving constructive knowledge, the evidence must show that the hazardous condition existed on the premises for a sufficient period of time such that a proprietor exercising ordinary care to inspect the premises should have discovered and removed the hazard. Lonard v. Cooper & Sugrue Properties, 214 Ga. App. 862, 863-864 (449 SE2d 348) (1994). Thus, even if a defect is hidden or obscured from view, if the evidence shows that the proprietor should have discovered it by a reasonable inspection of the premises, then an inference will arise from the breach of the duty to inspect the premises and keep it safe that the proprietor has constructive knowledge of the presence of the defect. Id.; see Food Giant v. Cooke, 186 Ga. App. 253, 255 (366 SE2d 781) (1988).

However, in the fulfillment of the duty to inspect the premises and keep it safe from defects, including hidden defects, the law requires only that the proprietor exercise ordinary care, not extraordinary care. OCGA § 51-3-1. “In other words, one is not chargeable with negligence in failing to discover and remedy a danger in the property which he could not have discovered by the exercise of ordinary care, or which has not existed for a sufficient time to charge him with the duty of discovering it.” McCrory Stores Corp. v. Ahern, 65 Ga. App. 334, 336 (15 SE2d 797) (1941). In this case, the nature of the depression in the ground and the fact that it was covered by thick grass were sufficient to show that the hazard had existed on the property for an extended period of time during which the defendants had a duty to inspect the property and, in fact, did inspect the property on numerous occasions. Accordingly, the issue is whether in the exercise of ordinary care the defendants should have discovered the hidden defect.

There was evidence showing that the hospital assumed responsibility for inspecting and maintaining the grassy area where the hazard existed. The hospital cut the grass in the area, and, on a weekly basis, the hospital’s landscape supervisor walked over the area and inspected it. Despite these efforts, the grass-covered depression in which Armenise stepped was not discovered. The landscape supervisor testified that, after learning of the accident in the area, he had to search around in the area to find the narrow depression and was able to locate it only by stepping around and pressing down with his feet in the area where Armenise fell until his foot actually pushed down the grass covering the depression.

The defendants exercised ordinary care by conducting inspections of the premises which were reasonable under the circumstances. There was no evidence that the grassy area presented any kind of hazard requiring a closer inspection since no one else had tripped or fallen in the area. Despite conducting a reasonable inspection of the premises, the defendants simply failed to discover the hidden hazard. This is not negligence. To hold otherwise would be to impose a duty on the defendants to anticipate the existence of a hazard which they had no reason to believe existed or to impose a duty to exercise extraordinary care to inspect the premises by physically pressing down the grass on every square foot of the property to discover the possible existence of an obscured depression or indentation in the ground. “Thus, where, as here, there was no actual knowledge of the alleged dangerous and unsafe condition, and there is nothing in the [record] to show or indicate the propriety or necessity of making an inspection to ascertain the possible or probable existence of any defect, such as that other people had tripped or fallen [in the same area], ordinary diligence did not as a matter of law, under the facts [as shown], require an inspection [sufficient to reveal the defect] where the defendant^] had no reason to think [such] an inspection was necessary.” McCrory Stores Corp., supra at 340; Lonard, supra at 864-865.

The case of Lawless v. Sasnett, 200 Ga. App. 398 (408 SE2d 432) (1991), cited by Armenise as authority requiring reversal of the trial court, is distinguishable on its facts. In that case, which reversed the grant of summary judgment to the defendant proprietors, there was evidence that the obscured hazard was a knee-deep hole in the ground that would have been visible to the plaintiff had the defendants not negligently let the surrounding grass grow to a height of approximately one foot.

Since the hazard in this case was not discoverable by the defendants, despite the exercise of ordinary care in inspecting the premises, there is no basis for concluding that the defendants had constructive knowledge of the hazard. In the absence of any evidence that the defendants had actual or constructive knowledge of the hazard, the trial court properly granted summary judgment in favor of the defendants. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991).

Judgment affirmed.

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

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as it is my view that the majority improperly takes the place of a jury in finding (as a matter of law) that defendants M. P. Equities of Atlanta, a New York General Partnership (“M. P. Equities”) and Adventist Health System/Sunbelt, Inc. (“Adventist Health”) exercised ordinary care in maintaining and inspecting the common areas of their medical complex. I believe a jury would be authorized in finding that the eroded fissure where Armenise fell had been in existence for a substantial period of time, and that “it was large enough to have been observable during routine mowing and maintenance. . . . ‘Where an obstruction is in some way hidden, camouflaged or intrinsically unsafe, the question of ordinary care should be one for the jury.’ Forde v. C & S Ga. Corp., 178 Ga. App. 400, 403 (343 SE2d 164) (1986). See also Begin v. Ga. Championship Wrestling, [172 Ga. App. 293, 294-295 (322 SE2d 737)].” Lawless v. Sasnett, 200 Ga. App. 398, 399 (408 SE2d 432).

On the morning of August 15, 1991, Sebastian Sam Armenise dropped Sandra Farley off at a medical office building (adjacent to Smyrna Hospital) for outpatient surgery. He later returned to the medical complex, parked his car in a nearby lot and made his way up a grassy berm to the office building. After finding Farley in her physician’s waiting room “still kind of woozy and . . . laying on the couch” and deciding to ease his friend’s burden, Armenise headed back to the parking lot so that he could drive his car as close to the medical building as possible. But while returning down the grassy berm to the parking lot, Armenise fell “and heard the worst snap [he] ever heard in his whole life.” Sprawled on the ground and suffering with “a terrific burning sensation,” Armenise rolled over and tried to pull his foot from a “hole.” This effort, however, proved futile so Armenise “grabbed the top of [his] pants and put [his] foot up.” He then observed raw leg bones protruding from his skin and fell dazed. Armenise’s foot was dangling opposite the appropriate direction.

Learning that the office building is owned by M. P. Equities and that the hospital is owned by Adventist Health, Armenise asserted personal injury claims against both M. P. Equities and Adventist Health (defendants) based on allegations that defendants failed to exercise the requisite degree of care in keeping the grassy berm safe. Defendants denied the material allegations of the complaint and filed motions for summary judgment.

The evidence and pleadings, construed in a light most favorable to Armenise’s claims, Hoffman v. Atlanta Gas Light Co., 206 Ga. App. 727, 728 (1) (426 SE2d 387), reveal that the grassy berm is a common area in a medical complex that benefits both defendants; that the berm gradually slopes upward toward a common driveway separating the lot where Armenise parked from the nearby office building, and that Adventist Health is in charge of maintaining this area. The grassy berm, which extends over 300 feet along the medical complex’s common driveway and is adorned with a thick coat of grass and a neat line of dogwood trees, not only appears to be the most convenient route to M. P. Equities’ office building, but defendants were aware (before Armenise fell) that it was routinely used by patrons to reach the medical office building. It is alleged that the eroded fissure where Armenise fell was caused by an underground utility line owned by Adventist Health. Photographs of the accident scene, as well as eyewitness testimony, indicate that the fissure was obscured by thick grass at the time Armenise fell.

Although Adventist Health does not own the area where Sam Armenise was injured, Adventist Health owns the lower half of the grassy berm, assumed full responsibility for maintaining the landscape at the medical complex and carried out these duties for its own benefit as well as the benefit of M. P. Equities. Further, the record indicates that Adventist Health is responsible for the buried utility line that allegedly caused the eroded fissure and led to Sam Armenise’s fall. Under these circumstances, I believe a jury would be authorized in finding that Adventist Health is (at very least) charged as joint occupier of the grassy berm, along with M. P. Equities. See Davis v. Garden Svcs., 155 Ga. App. 34, 35 (270 SE2d 228). And compare Ramey v. Pritchett, 90 Ga. App. 745 (84 SE2d 305), and Intl. Paper Realty Co. v. Bethune, 256 Ga. 54, 55 (344 SE2d 228). I therefore believe the circumstances of the case sub judice would authorize a finding that Sam Armenise was an invitee as to both defendants. See N. L. Indus. v. Madison, 176 Ga. App. 451, 452 (1) (336 SE2d 574), and Flint River Cotton Mills v. Colley, 71 Ga. App. 288, 291 (30 SE2d 426).

“ ‘Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.’ OCGA § 51-3-1. ‘An occupier of premises is under a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. Prosser, Law of Torts (4th ed.) 393, § 61. An invitee enters upon the premises under an implied representation, or assurance, that the land has been prepared and made ready and safe for his reception. The invitee is entitled to expect the possessor will exercise reasonable care to make the land safe for his entry. 2 Restatement of Torts 216, § 343.’ Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 294[, supra].” Lawless v. Sasnett, 200 Ga. App. 398, 399, supra.

Decided December 5, 1995

Reconsideration denied December 20, 1995

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, for appellant.

Powell, Goldstein, Frazer & Murphy, Randall L. Hughes, Adrienne E. Marting, Anne L. Thompson, Sharon L. Ware & Associates, Robin P. Lourie, for appellees.

In the case sub judice, Wendell R. Rust, Adventist Health’s man in charge of maintaining the landscape at the medical development, testified that “I go out weekly and look for broken glass in the parking lot or a sprinkler head [and] I have looked there, but I never noticed that there was a settlement there.” Rust admitted, however, that he did not actually cut the grass or maintain the landscape. He explained that over 90 percent of the landscaping work is performed by independent contractors. I believe that this admission, along with photographs indicating that the fissure is long, narrow and dry, would authorize a jury’s finding that the hazard “had been in existence for a substantial period of time and that it was large enough to have been observable during routine mowing and maintenance. . . . ‘Where an obstruction is in some way hidden, camouflaged or intrinsically unsafe, the question of ordinary care should be one for the jury.’ Forde v. C & S Ga. Corp., [supra]. See also Begin v. Ga. Championship Wrestling, supra, 172 Ga. App. at 295.” Lawless v. Sasnett, 200 Ga. App. 398, 399, supra.

I, therefore, believe the trial court erred in granting defendants’ motions for summary judgment.

I am authorized to state that Presiding Judge Pope joins in this dissent.

       We need not resolve any issues of possession and control of the property in question. For purposes of this appeal, we assume, without deciding, that both defendants, as either the owner or occupier of the property in question, had a duty to exercise ordinary care to keep the premises safe for invitees pursuant to OCGA § 51-3-1.

       The top half of the berm (where Armenise fell) is owned by M. P. Equities, and the lower half of the berm is owned by Adventist Health.

       Although Adventist Hospital points out that Sam Armenise was not sure of the precise location of his fall and argues that a more definitive explanation in his affidavit is contradictory, Sandra Farley identified a photograph showing a point on the grassy bank where she observed Armenise lying immediately after the fall. This photograph depicts Farley sinking her foot ankle-deep in a hole which is camouflaged by a thick crop of grass and (according to Farley) is the exact spot where Armenise fell. Farley testified that this photograph was taken about a week after Armenise fell.


text:
    A95A1111.
    ROWLETTE et al. v. PAUL et al.
    (466 SE2d 37)
   Andrews, Judge.

This case is before us on appeal from the trial court’s grant of summary judgment to the Pauls on the Rowlettes’ claim for damages incurred when Denise Rowlette was attacked by the Pauls’ beagle.

Construing the evidence in favor of the Rowlettes as non-movants on summary judgment, the record shows that Denise Rowlette, who was employed by Appraisal Research, went to the Pauls’ house in order to verify and update information for the Oglethorpe County Tax Assessor’s Office. Rowlette did not notify the Pauls in advance of her intended survey. On the day of the attack, Rowlette and a coworker, Ike Temple, drove into the driveway and Temple got out and went toward the front door. The car which Rowlette and Temple were driving had two magnetic plastic signs on the doors which read: “County Re-evaluation.” Both Rowlette and Temple wore ID cards with their pictures on them, identifying them as employees of Appraisal Research. They saw a lady through the front window, later identified as Mrs. Paul, who turned and disappeared as Temple walked toward the front door. Temple then told Rowlette to go around to the back of the house. As Rowlette, who was wearing a raincoat with a hood pulled up over her head due to the inclement weather, came around the corner to the back of the house, she was attacked by Flash, the Pauls’ five-year-old beagle. Rowlette stated that the dog was on the back porch with the Pauls’ 17-year-old daughter, Aimee, and Mrs. Paul, although Mrs. Paul said that she did not come out on the porch until after she heard the commotion.

According to Rowlette, the dog jumped down on her from the porch, causing a hematoma on her right breast where he landed on her, and then bit her on her left calf and left arm. Both Aimee and Mrs. Paul called to the dog to stop, but Rowlette testified in her deposition that Mrs. Paul told her “we can’t handle the dog.” Rowlette went back to her car and she and Temple drove back to the company office in Lexington. She then went to her home in Winder and from there drove to Athens where she was treated at the emergency room of St. Mary’s Hospital.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. ... A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” (Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In order to support an action for damages under OCGA § 51-2-7, it is necessary to show that the dog was vicious or dangerous and that the owner had knowledge of this fact. McCree v. Burks, 129 Ga. App. 678, 679 (200 SE2d 491) (1973). “Scienter is a necessary and a material fact which must be shown before there can be any finding of liability against the defendant.” (Citation and punctuation omitted.) Id. “It is not enough, however, that the possessor of the animal has reason to know that it has a propensity to do harm in one or more specific ways; it is necessary that he have reason to know of its propensity to do harm of the type which it inflicts.” (Citation and punctuation omitted.) Carter v. Ide, 125 Ga. App. 557, 558 (188 SE2d 275) (1972).

Even construing the evidence, as we must, in favor of the Rowlettes, the record shows that the only time Flash ever displayed aggressive behavior was approximately one year before the incident in this case, when he jumped up and bit Mr. Paul’s uncle on the buttocks. The uncle, who was still dressed in his work clothes from the quarry, had on a white dust mask and a hat and surprised the sleeping dog by banging on the back porch. Although the dog bite tore his pants, he did not need any medical attention. Other than this one incident, the dog had never growled at anyone, attacked anyone, or displayed any type of vicious behavior. Here, the Pauls had no reason to know that the dog would attack a stranger coming into the backyard. Flash had never shown any propensity for viciousness and had never attacked anyone in this manner before. Jumping up and biting someone on the buttocks who is dressed strangely in work clothes with a white dust mask and a hat because he startled the dog by banging on the porch was not sufficient to show a dangerous propensity for viciousness such that the Pauls were on notice that the dog would launch an unprovoked attack on a stranger coming into the yard. Therefore, the Rowlettes are unable to prove an essential element of their case; namely, that the Pauls knew of the dog’s propensity to inflict harm in this particular manner. Carter, supra at 558. Accordingly, the trial court correctly granted summary judgment to defendants on the issue of liability.

Judgment affirmed.

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

McMurray, Presiding Judge,

dissenting.

In my view, the evidence in the case sub judice raised issues of fact as to negligence, diligence, comparative negligence, contributory negligence, proximate cause, and the exercise of ordinary care for one’s protection which are peculiarly matters for the jury and the trial court should not take the place of the jury in solving them, except in plain and indisputable cases. See Bussey v. Dawson, 224 Ga. 191, 193 (160 SE2d 834). Consequently, I would hold that the trial court erred in granting summary judgment to defendants because there are issues of material fact in the case sub judice that must be resolved by a jury.

1. The superior court found in its findings of fact that “[o]n February 17, 1992, Plaintiff [Denise W. Rowlette] was employed by Appraisal Research, Inc. to assess property in Oglethorpe County for tax purposes. As part of her employment, Plaintiff arrived at the Defendants’ house. Plaintiff came unannounced and uninvited. Defendant Mrs. Paul saw Plaintiff and her coworker drive into the Defendants’ driveway. Mrs. Paul walked away from the window toward the rear of the house. Plaintiff believed that Mrs. Paul wanted to meet her at a side or back door, so she walked around the side of the house into the back yard. When Plaintiff entered the Defendant’s back yard, Defendants’ dog, an unaltered five-year-old beagle, jumped off the porch and onto Plaintiff. The dog lunged towards Plaintiff’s throat and bit her right chest. The dog bit her several times, including bites on her left calf and left leg. In addition, Plaintiff suffered a serious hematoma on her right breast. At the time the dog attacked Plaintiff, Mrs. Paul and . . . the Defendants’ 17-year-old daughter, were on the back porch. While the dog attacked Plaintiff, Mrs. Paul stated ‘we can’t handle the dog.’ In addition, the dog was dry when it attacked her, even though a light rain had been falling throughout the day. The dog had, approximately one year prior to this incident, bitten Mr. Paul’s uncle once on the buttocks. Mr. Paul’s uncle had surprised the dog by banging on the Defendants’ back porch. The dog bit him once in the buttocks, tearing his pants some, but not causing him to require any medical attention. Other than this allegedly vicious incident, Defendants state that the dog has never displayed any vicious behavior. Plaintiff suffered injury from the dog attack and subsequently brought this action against Defendants. Defendants move for summary judgment on the ground that they had no notice that the dog would attack a person in the manner that it attacked Plaintiff. In addition, Defendants move for summary judgment on the issue of punitive damages on the ground that no evidence exists for the imposition of such damages.”

In the court’s conclusions of law, the court found “Defendants are entitled to total summary judgment. Plaintiff has failed to show that the Defendants were aware or should have been aware of their dog’s alleged vicious propensity to attack in the way it attacked Plaintiff. In addition, Defendants are entitled to summary judgment because Plaintiff has failed to show the existence of facts which would support the imposition of punitive damages. The Court has considered the relevance of Plaintiff’s status upon the Defendants’ property, i.e. whether Plaintiff was an invitee, licensee or trespasser, but does not in any part base its decision on this point.”

OCGA § 51-2-7, as amended effective July 1, 1985, provides: “A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash.”

Regarding liability vel non, defendants urge that “[t]here is no proof the dog had a vicious or dangerous character, no proof of a pattern of dangerous behavior and no proof that the Pauls knew of a propensity to attack persons as alleged by appellants.”

“To prevail on summary judgment, defendant^ were] required affirmatively to negate one or more essential elements of the complaint. Corbitt v. Harris, 182 Ga. App. 81, 83 (354 SE2d 637) (1987); Reed v. Adventist &c. Systems/Sunbelt, 181 Ga. App. 750, 752 (2) (353 SE2d 523) (1987); OCGA § 9-11-56 (c). As posed by the conflicting views of the parties, the question is whether the evidence establishes beyond a jury’s debate that defendant^] met the legal standard so as not to be liable within the terms of the statute.” Evans-Watson v. Reese, 188 Ga. App. 292 (372 SE2d 675) (1988). Moreover, “[t]he credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” OCGA § 24-9-80.

2. “OCGA § 51-12-5.1 (b) applies to all causes of action arising after July 1, 1987, and provides that: ‘Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant^’] actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.’ . . . The issue on summary judgment [as to punitive damages] is whether, in light of the defendants’ knowledge of the previous dog bite, the actions they took or failed to take to prevent a similar occurrence amounted to evidence of wilful or wanton misconduct or that entire absence of care that raises the presumption of conscious indifference to the consequences. In Parsons v. Ponder, 161 Ga. App. 723 (288 SE2d 751) (1982) this court found sufficient evidence to support the jury’s punitive damages award when the defendant^] knew the dog had previously bitten another person, and, despite that knowledge, the dog was allowed to roam free.” Powell v. Ferreira, 198 Ga. App. 465, 466 (402 SE2d 85).

In the case sub judice, the evidence would authorize a conclusion by the jury that the dog was deliberately set on plaintiff Denise W. Rowlette as she was conducting the county’s business of revaluing real property for taxation and further that nothing was done to stop the attack, with defendant lamely saying “We can’t handle the dog.” This is evidence of that callous and conscious indifference to the consequences that will support an award of punitive damages, should the jury find them to be appropriate in this case. Parsons v. Ponder, 161 Ga. App. 723, 724 (2), 725, supra. Consequently, the trial court in the case sub judice also erred in granting summary judgment as to punitive damages.

Decided December 5, 1995

Reconsideration denied December 20, 1995

McArthur & McArthur, John J. McArthur, Russell & Mingledorff, Currie M. Mingledorff, for appellants.

McLeod, Benton, Begnaud & Marshall, Richard L. Brittain, for appellees.

I am authorized to state that Presiding Judge Pope joins in this dissent, and that Judge Blackburn joins in Division 1 of this dissent.