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

text:
    A94A2190.
    DEPARTMENT OF HUMAN RESOURCES v. THOMAS.
    (456 SE2d 724)
   McMurray, Presiding Judge.

Plaintiff Gloria Thomas brought this action against defendant, the Georgia Department of Human Resources (“DHR”), pursuant to the Georgia Tort Claims Act, OCGA § 50-21-20 et seq. According to the complaint, plaintiff was injured in a cafeteria at the West Central Georgia Regional Hospital. As she was “waiting to pay for her meal, Plaintiff fell, . . . due to food spilled on the floor.” The complaint also alleged that employees of DHR “knew that food was spilled upon the floor [. . . whereas] Plaintiff did not know that this food was spilled on the floor.” The case was tried before a jury, which found for the plaintiff. This appeal followed. Held:

1. In its first enumeration, DHR contends the trial court erred in failing to direct a verdict in its favor.

(a) “If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” OCGA § 9-11-50 (a). “In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the ‘any evidence’ test. Skelton v. Skelton, 251 Ga. 631 (4) (308 SE2d 838) (1983).” Southern R. Co. v. Lawson, 256 Ga. 798, 799 (1) (353 SE2d 491).

In the case sub judice, the evidence showed that plaintiff slipped on cream of broccoli soup. This was spilled on the floor in the general “area around where [a] coffee pot . . .” stood against the wall and a few feet beyond the cash register. The hospital cafeteria is generally very crowded on Fridays, and this particular Friday was no exception. The area by the checkout is especially crowded because the line of paying customers merges with the throng of non-paying hospital patients, all waiting to get beverages. Lieutenant Otis C. Brown of the Muscogee County Sheriff’s Department and Asberry Clayton stood in the serving line and observed as a hospital employee “was getting her food to take out in a tray. . . . [S]he had paid the cashier already, and she went to get her — the cup of soup right by the coffee. As she picked up the cup of soup, it slipped from her hand and fell on the floor right in front of the cash register.” Lieutenant Brown told the cashier: “There’s soup here on the floor, you should get someone to clean it up because someone will step in it.” Asberry Clayton repeated this admonition to the cashier. Lieutenant Brown estimated that the spill was “a twelve by twelve puddle, blob.” Victoria M. Allen was working the cash register. She affirmed that “[t]hree people told [her] that somebody had spilled stuff on the floor. . . .” Ms. Allen “was telling people there was soup on the floor [. . . but] didn’t. . .” warn plaintiff about it. Ms. Allen also confirmed that, with regard to such cafeteria spills, she was supposed to get them cleaned “up as soon as possible [. . . and] to warn people [by putting] a little sign out [but that she did not] do any of those things.”

Plaintiff stood in line “three or four people behind [Lieutenant Brown and Asberry Clayton].” She was purchasing her own “meal, plus . . . taking [a second meal back for] another employee. . . .” Plaintiff could not simultaneously carry both her tray and the “Styrofoam box . . . that was the takeout tray,” so she paid for her own lunch first and “left the takeout there with Ms. Allen [at the checkout].” Telling the cashier that she “would be right back[,]” plaintiff walked with her tray to a table. She placed that tray on the table and then returned to the “general area” of the checkout, but “flush to the wall. . . .” There, she waited until the cashier “gave [her] the okay that [she] could come in and pay her and get the other tray to carry out.” At that point, plaintiff “didn’t have a tray in her hand. . . .” When she started to approach [the cashier], [her] feet went to sliding and ... at that point, that’s when [plaintiff] hit the little rail . . .” and fell. From the floor, plaintiff detected that her shoes were wet. Only then did she see that wet paper towels covered “a little humplike something in . . . (a] corner ... in front of the [black] baseboard.” MaryAnn Foster, who saw plaintiff fall, previously “had come through the line and [she] didn’t see anything [on the floor], [as she] went by the coffee machine[,]” on her way to the ice machine. Plaintiff was adamant that she “[n]ever [saw the spill] while she was standing up[.]” Accordingly, there is evidence authorizing the jury to conclude that “plaintiff [has shown] that the defendant had [actual] knowledge of the presence of the foreign substance, [and . . . that she] was without knowledge of its presence. Sears, Roebuck & Co. v. Reid, [132 Ga. App. 136, 138 (207 SE2d 532)].” Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327). “A directed verdict ([or] judgment n.o.v.) is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict. OCGA § 9-11-50 (a), (b). Viewing this evidence in favor of the jury’s verdict, we cannot find the evidence, with all its reasonable deductions, demanded a verdict for the defendant. . . . [Cit.]” (Emphasis in original.) Union Camp Corp. v. Daley, 188 Ga. App. 756 (1) (374 SE2d 329).

(b) Nevertheless, DHR argues that an alleged “conflict in Plaintiff’s testimony on deposition and at trial, when construed against her, entitled defendant to a directed verdict.” Specifically, DHR argues that plaintiff’s “trial testimony that her tray prevented her from seeing the spill the first time contradicted her deposition testimony that there was nothing that would have prevented her from seeing the spill the first time she passed by it, if she had looked down.” DHR would apply the rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680). DHR then argues that plaintiff is conclusively presumed to have knowledge of the hazardous substance because she walked past the area of the spill and admittedly did not look down at the floor. From this, DHR argues that plaintiff has failed to exercise ordinary care on her own behalf. See OCGA § 51-11-7.

In the case sub judice, plaintiff testified under cross-examination that she did not see the spill (and could not have seen it) when she first passed by the area of the coffee pot because she was looking straight ahead, “watching where [she] was going,” and trying to avoid bumping into patients and others in the crowd. Plaintiff was pressed repeatedly whether there was “anything that would have prevented you from seeing the spill if you had looked down,” during which plaintiff never admitted that she should have seen the spill while conceding that she must have passed it. The following then transpired: “[PLAINTIFF:] I had my tray. My lunch was in my hand when I made the turn [away from the cash register]. ... I could not see the floor directly right there up under me. I paid for my tray like you would do at Morrison’s, I made the turn, and I came on out. That’s the best I can do. . . . I’m sorry.” Thereafter, DHR sought to impeach plaintiff with her pre-trial deposition testimony, reciting that she had been asked: “ ‘Was there anything that would have prevented you from seeing it when you passed by?’ . . . [Plaintiff answered:] ‘No, because nobody was standing there.’ ”

“Every witness is under a solemn obligation to tell the truth, the whole truth, and nothing but the truth; and this obligation is especially binding upon one who seeks, by his own testimony, to establish a substantial right against another. Atlanta Consolidated St. Ry. Co. v. Beauchamp, 93 Ga. 6 (19 S.E. Rep. 24). . . . Being peculiarly in a position to state fairly and definitely the facts which [s]he professes to know, [a party, i.e., the plaintiff in the case sub judice,] is under a duty of so stating [those facts] as to give a candid and intelligible account of what occurred.” The Western &c. R. Co. v. Evans, 96 Ga. 481, 485-486 (23 SE 494). “The rule in Georgia is that the testimony of a party who offers himself as a witness in his own behalf at trial ‘ “is to be construed most strongly against him when it is self-contradictory, vague or equivocal.” ’ [Cits.] Where the favorable portion of a party’s self-contradictory testimony is the only evidence of his right to recover or of his defense, the opposing party is entitled to a directed verdict. Douglas v. Sumner, [213 Ga. 82, 85 (3) (97 SE2d 122)].” Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1), supra.

In the case sub judice, it is our view that, plaintiff’s trial testimony that the tray in her hand blocked her view of the floor is not a material self-contradiction of her pre-trial deposition that no person was standing in the general area of the spill. “[T]o ‘contradict’ [means] ‘to assert the contrary.’ ” Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2), n. 3, supra. Plaintiff’s two statements are not in irreconcilable conflict but can be viewed as complementary, in which case there is no inconsistency. See Broomberg v. Hudgens, 206 Ga. App. 797, 798 (2) (426 SE2d 617). See generally Mealer v. Gen. Cinema Beverages of Ga., 190 Ga. App. 419, 420 (379 SE2d 192). Conversely, if plaintiff intentionally contradicted herself by making a distinction between the tray in her hand and third persons blocking her view, this is a reasonable explanation, per Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2), 31, supra. In either event, the “credibility of [this] witness [remained] a matter to be determined by the jury under proper instructions from the court.” OCGA § 24-9-80. See also Ryder v. Schreeder, 224 Ga. 382 (2), 386 (162 SE2d 375). The trial court did not err in failing to construe this alleged self-contradiction against the plaintiff while considering DHR’s motion for directed verdict. Whether plaintiff should have seen the spill amid the cafeteria tumult remained a question for the jury to determine, under all the facts and circumstances. “ ‘ “(Q)uestions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases.” (Cit.)’ ” Showalter v. Villa Prado Assoc., 182 Ga. App. 705 (356 SE2d 895). See also Turner v. Sumter Self Storage Co., 215 Ga. App. 92, 96 (4) (449 SE2d 618). In the case sub judice, the fact that plaintiff had previously walked past the general area of the spill is not conclusive of her failure to exercise ordinary care to detect and avoid the hazardous foreign substance, of which DHR had actual knowledge. Cedartown-Polk County Hosp. Auth. v. Watwood, 195 Ga. App. 321, 322 (393 SE2d 476). The trial court did not err in denying DHR’s motion for directed verdict.

2. In its second enumeration, DHR contends the trial court erred in charging the jury on loss of future earnings, arguing there is no evidence that plaintiff’s capacity to earn has been permanently reduced as a result of her injuries. In reply, plaintiff points to medical opinion indicating that she has suffered a 20 percent disability rating.

“Damages allowed to a plaintiff for injury to his earning capacity are compensatory, allowing a pecuniary recovery for a diminution in the physical ability to work resulting from an injury to the person of the plaintiff. Atlantic C. L. R. Co. v. Ansley, 84 Ga. App. 89 (65 SE2d 463).” (Emphasis in original.) Leggett v. Benton Bros. Drayage &c. Co., 138 Ga. App. 761, 764 (1), 765 (227 SE2d 397). “ ‘While proof of the plaintiff’s actual earnings, either before or after the injury, is not essential to the establishment of the value of the plaintiff’s decreased earning capacity, there must nevertheless appear some evidence, either direct or circumstantial, tending to show what the plaintiff was capable of earning both before and after the injury. . . .’ [Cits.]” Hunt v. Williams, 104 Ga. App. 442, 446 (4), 448 (122 SE2d 149). In the case sub judice, the undisputed evidence is that, while she was transferred to the personnel department at West Central Georgia Regional Hospital, plaintiff remains employed without any evidence of diminution in her actual wages or future earning capacity. “[E]vidence that the plaintiff was employed . . . before [her] injury and that after the injury [she] returned to work ... at a stated weekly wage, was insufficient to support the [charge] objected to, even though the evidence showed the plaintiff was permanently injured. Hunt v. Williams, 104 Ga. App. 442, 446 [(4), supra].” Smith v. Burtts, 116 Ga. App. 649, 650 (1) (158 SE2d 702). Contrary to plaintiff’s contention, in the absence of evidence showing a diminution in the plaintiff’s earning capacity, her stated fear of being fired at some future point is not competent evidence in support of pain and suffering or any other element of recoverable damages for the negligent injury to her person. See Brush Elec. Light &c. Co. v. Simonsohn, 107 Ga. 70, 72 (2), 73 (32 SE 902). The error in giving the unwarranted jury instruction on lost future earnings cannot be deemed harmless in this instance. City Council of Augusta v. Owens, 111 Ga. 464, 480 (9), 481 (36 SE 830). Accordingly, while we affirm the judgment in part, based upon the existing jury verdict finding DHR liable for plaintiff’s personal injuries, we nevertheless reverse the judgment in part on the basis of the trial court’s improper jury instruction as to damages. The case is remanded for a new trial, limited solely to the proper amount of damages. OCGA § 9-11-50 (e).

3. Defendant’s third enumeration has been considered and is found to have been rendered moot.

Judgment affirmed in part as to liability; reversed in part and remanded for a new trial as to damages.

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

Beasley, Chief Judge,

concurring specially.

1. There are a number of material factual disputes in this case, so we must take the evidence in favor of the verdict and assume that those disputes were resolved in accordance with plaintiff’s version of the event. Warren v. Cox, 168 Ga. App. 818, 819 (3) (310 SE2d 569) (1983). The trial took several days, making it impractical to recite all of this evidence in an opinion. However, several aspects of it are particularly notable.

A young woman in the cafeteria line paid the cashier for her food and went to get a cup of soup adjacent to the coffee machines at the end of the counter. Two men were behind her in the line with their trays, which slide along metal bars parallel to the serving line. As she picked up the cup of soup, it slipped from her hand and fell on the floor right in front of the cash register. She picked up the cup but left the soup. The two men who had seen this happen stepped over it and told the cashier that it had to be cleaned up so no one would slip on it, but that was not immediately done. The cashier admitted that, she was supposed to warn people of spills and get them up as soon as possible. She did tell some people coming through the line, but she did not warn plaintiff. Plaintiff was behind several people down the line from the men who saw the spill occur. It is not clear from the record whether this was plaintiff’s first trip through the line, when she brought her tray and the carryout box and paid for her own food before taking it to a table and leaving the box, or whether it was the second time, when she went back to pay for the carryout box and fell. That is, the soup may not have been there the first time she went through the line. Nor is it clear when the paper towels were put on top of the soup or who put them there.

At any rate, plaintiff watched for the cashier to motion her forward to make the second payment, and when she moved ahead, she slipped and fell on soup not covered by the paper towels. The cafeteria was very crowded and the soup was in a shaded area next to a floor baseboard. The jury had the benefit of diagrams which several witnesses referred to in their testimony, but we do not have them. The location and the physical conditions existing at the location when the incident occurred were thus better discernible by its members. They also observed and listened to the witnesses, which we cannot do. The jurors could thus better understand the testimony. This is not like summary judgment, where we review the identical record on which the trial court based its decision and reach our own decision de novo.

The court did not charge on the distraction theory as such, but it did charge on the general principles applicable to slip and fall cases, plain view, the plaintiff’s duty to exercise ordinary care for her own safety, and comparative negligence. The jury, which comprehended the evidence far better than we can and determined the facts which we must accept, by its verdict found no negligence on plaintiff’s part in that it did not reduce the claimed damages by any amount whatsoever. This is a close case factually and I find no authority to reverse the judgment as to liability.

2. I join in Division 2 of the majority opinion, with respect to damages.

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

Andrews, Judge,

dissenting.

I join Judge Smith’s dissent and write separately to note that with this case and Shubert v. Marriott Corp., 217 Ga. App. 184 (456 SE2d 680) (1995); apparently one may now trip over a battleship and recover if one states that he did not see it, or can verbalize any excuse for not seeing it.

Smith, Judge,

dissenting.

I respectfully dissent as to Division 1. In affirming the trial court’s denial of a directed verdict in favor of the Department, the majority essentially abrogates the law of premises liability developed over the course of many years by Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980), and its progeny. Moreover, the majority ignores the clear application of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986), to the many contradictory statements made by Thomas.

In a “slip and fall” case, “not only must the plaintiff show that the defendant had knowledge of the presence of the foreign substance, but the plaintiff must also show that he was without knowledge of its presence. The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citations and punctuation omitted; emphasis supplied.) Alterman Foods v. Ligón, supra. We assume, without deciding, that the Department had actual knowledge of the hazard in question. However, if a plaintiff is unable to prove either element of the Alterman test, a failure of proof results. Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991). In this case, the evidence demands a finding that Thomas failed to exercise ordinary care for her own safety.

The facts omitted by the majority and the special concurrence are crucial to the disposition of this case. Thomas had worked at the West Central Georgia Regional Hospital for over 18 years, and she had eaten at the cafeteria almost every day during that time. She testified that the cafeteria was not like an ordinary restaurant “where you have people in their right mind.” She knew that the mental patients were careless with food and drink and that the hospital had changed from carpet to tile in the cafeteria because the patients spilled things so frequently.

Three other witnesses in the area of the spill saw and avoided the spill immediately before Thomas fell. The witnesses and Thomas described it as a “humplike something” or “blob” about a foot square, covered with a pile of paper towels. Thomas originally testified the spill was about 12 inches square, although she later testified she did not know how large it was. Thomas passed the spill for the first time while going to a table. She acknowledged that on this earlier occasion nothing prevented her from seeing the spill “because nobody was standing there,” but she did not look down at the floor because she was looking straight ahead.

After returning to the area of the spill for a second time, Thomas stood, leaning against the wall, for three or four minutes “right there at” the spill. During this time, she watched other customers, spoke to a friend, and waited for the cashier to call her to pay for her order. However, she did not look down. Even while walking or standing in pedestrian traffic, Thomas had a duty to exercise ordinary care for her own safety. Colevins v. Federated Dept. Stores, 213 Ga. App. 49, 52 (3) (443 SE2d 871) (1994). Moreover, “ ‘[w]hen a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. (Cits.)’ [Cit.]” Lea v. American Home Equities, 210 Ga. App. 214 (435 SE2d 734) (1993). Thomas’s testimony “is fatal in this case.” Jester v. Ingles Market, 206 Ga. App. 327, 329 (425 SE2d 323) (1992).

Thomas’s testimony at trial, which is heavily relied upon by the majority and special concurrence, varied substantially from her deposition testimony on virtually every material issue, including such matters as whether she knew of the frequency of spills in the cafeteria, whether she could have seen the spill, how long she stood beside it, and whether or not she was distracted. Such contradictory testimony must be construed against her. “Where the favorable portion of a party’s self-contradictory testimony is the only evidence of his right to recover or of his defense, the opposing party is entitled to a directed verdict. [Cit.]” Prophecy Corp., supra. Thomas’s attempted justification for one of these many material variances, cited by the majority, does not address or explain the variance on the basis of a different legal burden of proof, Broomberg v. Hudgens, 206 Ga. App. 797, 799 (2) (426 SE2d 617) (1992), or on the basis of newly discovered or recollected facts, Prophecy Corp., supra at 31 (3). In essence, she offers as explanation that her deposition testimony was the result of persistent cross-examination by opposing counsel. This is not a reasonable explanation as a matter of law. Nor does it address the many other material variances in her testimony.

Contrary to the majority’s contention, carrying a tray in a cafeteria, like pushing a shopping cart in a grocery, was a normal and customary task, well known to Thomas, and it did not relieve her of the obligation to watch her path. Minor v. Super Discount Markets, 211 Ga. App. 123, 124 (438 SE2d 384) (1993). Nor did the presence of other patrons relieve her of her duty to look where she was going. Colevins, supra at 52. Moreover, Thomas’s contention that she did not see the spill, in the testimony quoted by the majority, does not end the inquiry. The issue is not whether she in fact saw the spill, but whether she should have seen it in the exercise of ordinary care.

Thomas contends she was distracted from the spill by other patrons the first time she passed it, and by watching the cashier the second time. The focus of the “distraction doctrine,” however, is whether the defendant created the distraction or reasonably could have anticipated its existence. Riggs v. Great Atlantic &c. Co., 205 Ga. App. 608, 609 (423 SE2d 8) (1992). In Riggs, the plaintiff claimed she was distracted from a box in a grocery store aisle by her husband, who called her attention to the product she was seeking. This court held that the distraction created by plaintiff’s husband “was not induced by defendant but was in the nature of being self-induced.” Id. at 610. Thomas passed a large and clearly visible spill once, then returned to the same place and stood for three to four minutes watching the cashier at the register, watching other people, and speaking to a friend without seeing the spill within a few feet of her position. Any “distraction” Thomas claims resulted from these ordinary events occurring around her was self-induced rather than due to any conduct of the Department, and it does not relieve her of her responsibility to look where she was going. “To say otherwise would permit customers to barge heedlessly around a store looking . . . anywhere but in their paths, with no care for their own safety and the safety of others. This would render the proprietor an insurer of his customers’ safety, which he is not. [Cit.]” Minor, supra at 124.

The spill was large and clearly visible to three other witnesses. Thomas passed it twice and stood immediately next to it for three or four minutes, and nothing prevented her from seeing it if she had looked. The circumstances she claims constituted “distractions” were created not by the Department but by her own conduct. Moreover, she was thoroughly familiar with the premises and aware of the unusual risk for spills in the area. Under these circumstances, Thomas has failed to carry her burden under Alterman of showing exercise of due care for her own safety. The trial court improperly denied the Department’s motion for a directed verdict. For these reasons, I respectfully dissent.

Decided March 17, 1995

Reconsideration denied March 31, 1995

Michael J. Bowers, Attorney General, William C. Joy, Grace E. Lewis, Senior Assistant Attorneys General, for appellant.

Richard F. Dodelin, for appellee.

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

       In light of this actual knowledge, DHR’s reliance on Moore v. Food Assoc., 210 Ga. App. 780, 782 (437 SE2d 832), is misplaced. Moore represents, at best, a constructive knowledge situation. A complete and correct citation of that decision’s rationale is: “It is not enough for the plaintiff to say that she did not see the dangerous condition and that the defendant must have known it was there.” (Emphasis supplied.) Moore v. Food Assoc., 210 Ga. App. 780, 782, supra.

       Although the dissent finds substantial variances on virtually every material issue, the motion for directed verdict argued only the single alleged inconsistency reviewed in this division. Moreover, alleged inconsistencies as to plaintiff’s estimates of the precise measurement of the paper towel blob or the exact length of time she stood near the spill are not conclusively deemed binding, even if adverse to plaintiff. Hansberger Motor Transp. Co. v. Pate, 51 Ga. App. 877, 878 (3) (181 SE 796).

       Contrary to the contention in the special concurrence, Thomas testified on her deposition in response to the question “Did you pass by that spot where the spill was,” “I turned and yeah I would have passed by the spot....” Only at trial did she change her testimony to contend that she did not know if the spill was there when she passed it for the first time. This illustrates the danger of ignoring the safeguards established by Prophecy Corp., supra, and accepting without question the “improved” and contradictory testimony of a party witness at the trial of a case. Moreover, regardless of whether Thomas passed the spill on a previous occasion, it is undisputed that she stood next to it for three or four minutes without looking down.

         Contrary to the majority’s contention, Lea and the decisions upon which it relies are not confined to cases of actual knowledge on the part of the plaintiff. See, e.g., Anderson v. Dunwoody North Driving Club, 176 Ga. App. 210, 211 (335 SE2d 451) (1985) (constructive knowledge of debris at edge of tennis court inferred from plaintiffs opportunity to observe over time). Cedartown-Polk County Hosp. Auth. v. Watwood, 195 Ga. App. 321, 322 (393 SE2d 476) (1990), is inapplicable because Watwood traversed two different routes upon entering and exiting the premises.

       The special concurrence contends that we must construe the evidence in favor of the jury verdict. However, this is not the case when evidence has been improperly submitted for the jury’s consideration over the prohibition of Prophecy Corp.


source: Caselaw Access Project

author: Johnson, Judge. Andrews, Judge,

license: Public Domain

text:
    A94A2768.
    SHUBERT v. MARRIOTT CORPORATION.
    (456 SE2d 680)
   Johnson, Judge.

Margaret Shubert brought this action for negligence against Marriott Corporation for injuries suffered in a cafeteria operated by Marriott. The trial court granted Marriott’s motion for summary judgment and this appeal followed.

Shubert tripped and fell while getting her lunch at a cafeteria operated by Marriott. Shubert picked up a tray from a raised counter and was carrying it in front of her. It is uncontroverted that the cafeteria was very crowded, with three lines of people waiting in food lines. The salad bar was located beyond the food lines, requiring those wanting salad to get their trays and utensils and then move through the crowd. A small recessed area in which a utility cart had been placed by a Marriott employee was located at the end of the serving counters. Although the alcove was deep enough to accommodate the cart, the cart had been placed in such a way that the bottom front edge protruded approximately six to eight inches beyond the front of the tray counter. As she worked her way through the crowd to the salad bar, Shubert was bumped from behind and turned to see the source. At that moment, Shubert’s foot caught on the protruding metal edge of the cart causing her to fall forward. Her elbow was fractured in the fall. Marriott’s motion for summary judgment asserted that Shubert failed to exercise due care for her own safety. The trial court, in a single sentence order, granted the motion.

Shubert testified that the tray she was carrying obscured her vision. Marriott relied on Minor v. Super Discount Markets, 211 Ga. App. 123 (438 SE2d 384) (1993) in its original motion for summary judgment and again on appeal for the proposition that carrying a tray would not excuse Shubert from exercising due care for her own safety. In Minor, the court noted that the plaintiff was familiar with shopping carts in general and knew that a shopping cart would obscure her view to a certain extent, which may have been a contributing factor to the plaintiff’s fall. However, this was not the basis of the court’s affirmance of the trial court’s grant of summary judgment to the defendant. Rather, the court stressed that the plaintiff admitted that she was looking at the merchandise instead of where she was going, consequently failing to exercise ordinary care for her own safety. Here, whether Shubert exercised the requisite degree of care for her own safety while carrying a tray is a question for the jury to consider.

Marriott also continues to rely on Froman v. George L. Smith, Ga. World Congress Auth., 197 Ga. App. 338 (398 SE2d 413) (1990) asserting that Froman stands for the proposition that a crowd will not excuse a plaintiff’s inability to see and avoid a defect. A careful reading of Froman, however, reveals that the court based its decision on the fact that the plaintiff had traversed the same path for several days prior to the fall, giving the plaintiff an opportunity to become aware of a clearly visible expansion joint in the sidewalk. This court held summary judgment was appropriate because the plaintiff had negotiated the allegedly dangerous condition on several previous occasions, the proprietor did not have superior knowledge of the existence of the condition. In reviewing the facts of the case, the court noted the plaintiff’s assertion that her view of the sidewalk was obscured by a crowd of people, but does not address that defense in the substantive portion of the opinion. Therefore Froman, supra, does not control. Although the record establishes that Shubert had eaten at the cafeteria on numerous occasions, the protrusion of the cart was not a static feature which she would have previously had the opportunity to observe.

Finally, the fact that Shubert turned around momentarily after being jostled should not defeat her claim as a matter of law. “[A] plaintiff may be excused from the otherwise required degree of care because of circumstances creating an emergency situation of peril. . . . The doctrine is further broadened to cover situations where the plaintiff’s attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur.” (Citation and punctuation omitted.) Kres v. Winn-Dixie Stores, 183 Ga. App. 854, 855 (1) (360 SE2d 415) (1987). We recognize the long line of cases barring recovery when the distraction is self-imposed. See, e.g., Wittenberg v. 450 Capitol Assoc., 207 Ga. App. 260, 263 (427 SE2d 547) (1993). It is a natural reflex upon being bumped to turn to see the cause. This action does not constitute a self-imposed distraction.

“In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” (Emphasis in original.) (Citation omitted.) Sunamerica Financial v. 260 Peachtree Street, 202 Ga. App. 790, 793 (2) (a) (415 SE2d 677) (1992). Here, it can be inferred that a Marriott employee placed the cart in such a position so as to create a hazard. Under these circumstances we cannot say as a matter of law Shubert failed to exercise ordinary care for her own safety. Neither is this the proper forum to determine whether Marriott discharged its obligation to exercise reasonable care for the safety of an invitee with regard to the placement of the utility cart. Accordingly we reverse the trial court’s grant of summary judgment to Marriott.

Judgment reversed.

Beasley, C. J., McMurray, P. J., Birdsong, P. J., Pope, P. J., Blackburn, Smith and Ruffin, JJ., concur. Andrews, J., dissents.

Andrews, Judge,

dissenting.

Shubert tripped over the edge of a cafeteria tray cart which was protruding slightly beyond the front of a tray counter along which she was walking. The tray cart was in an alcove next to the tray counter. Instead of being flush with the edge of the tray counter, the cart was in a position about six to eight inches further extended than the counter. As she walked immediately adjacent to the counter, Shubert’s left foot tripped on the six or eight-inch extended portion of the cart and she fell. Shubert, who had been in the cafeteria many times before, testified that she had seen cafeteria personnel roll the cart in and out of the alcove, but she had never seen it left there. She claims that the existence of the tray cart six to eight inches past the edge of the tray counter was a dangerous condition on the premises which was the proximate cause of her fall.

In deposition testimony, Shubert admitted that the extended portion of the cart would have been plainly visible to her, but for the fact that she was carrying a cafeteria tray at the time of her fall and was walking in crowded lunchtime conditions.

“Q: Was anything blocking your view of that part of the cart? A: Yes, I had my tray with my napkin on it waist high in front of me. Q: How far ahead of you would you estimate that blocked your view? A: I just couldn’t see my feet. ... Q: So it was just immediately below where your feet were that the tray would have been blocking your line of sight? A: Yes. Q: Was there anything else other than the tray that was blocking your vision? A: The crowd.”

Shubert also testified that she was bumped from behind and looked back as she walked in the crowd at about the time of her fall. Shubert testified that she could not recall whether or not her head was turned when she bumped the cart, and that, in any event, she would not have been able to see the cart because she could not see her feet. “Q: So at the time your foot hit the cart, was your head turned back looking to see what bumped you or was it turned forward; do you recall? A: I honestly couldn’t tell you.”

When asked if the fall would still have occurred even if she had not been bumped, Shubert responded: “I wouldn’t have seen the cart because I didn’t see my feet.” Shubert did not allege in her complaint and did not argue in response to the motion for summary judgment that this reflexive action on her part was a distraction as discussed in Redding v. Sinclair Refining Co., 105 Ga. App. 375 (124 SE2d 688) (1962), and subsequent “distraction theory” cases. She did not take this position on appeal, and argued in her appellate brief that the turning of her head in response to a bump from behind did not contribute to her tripping over the cart. In discussing Shubert’s reflex action to the bump in terms of the distraction line of cases, the majority raises an issue not raised by the appellant in the trial court or on appeal. Moreover, I am not aware of any case where a reflex action to a bump in a crowd of people has been accepted under the distraction rule, and the cases cited by the majority do not support this proposition.

Shubert does not claim that a lesser degree of caution was sufficient to constitute ordinary care because she was distracted by something attributable to the proprietor, or because of a “natural and usual cause,” or because there were emergency circumstances creating stress or excitement. Compare Redding, supra. Rather, she testified that she was prevented from looking where she was walking because the tray she was carrying blocked her view, and that the crowd of people in the area prevented her from seeing the cart before she approached it. These are not conditions which excuse Shubert from the duty to exercise ordinary care to look where she walked and discover otherwise patently visible objects in her path.

As to the obstruction caused by the food tray Shubert was carrying, although she testified that it obscured her vision, she has never contended in the trial court or on appeal that, because she was carrying a tray which blocked her vision, she was excused from seeing and avoiding the cart. This court has previously held that a plaintiff who obscures his own vision by holding an object in front of himself as he walks has, as a matter of law, failed to exercise ordinary care for his own safety. McMullan v. Kroger Co., 84 Ga. App. 195 (65 SE2d 420) (1951); Moore v. Kroger Co., 87 Ga. App. 581, 582 (74 SE2d 481) (1953). “Under the law, the defendant is not bound to anticipate that its customers would so disregard their own safety as to obstruct their vision with packages or sacks so as to be unable to see where they were walking. If . . . the plaintiff were holding the sacks so that he could not see his intended path a reasonable distance ahead, consistent with due regard for his own safety, then he himself was the author of and responsible for his injury. . . .” McMullan, supra at 198; Moore, supra at 582-583; see Minor v. Super Discount Markets, 211 Ga. App. 123, 124 (438 SE2d 384) (1993).

The basis of Shubert’s claim was that she did not spot the otherwise plainly visible obstruction because she was walking in a crowd. As to the crowded conditions, there is no suggestion here that the crowded lunchtime business at the cafeteria was itself a hazardous condition on the premises. Walking in crowded conditions is a commonly encountered situation, where it is to be expected that objects, otherwise plainly visible at a distance, may remain obscured from view until they are close at hand. Under these circumstances, the exercise of ordinary care for one’s safety while walking requires diligence commensurate with the increased risk. The fact that one obviously cannot see as well in crowded conditions is not an excuse for failing to exercise the degree of ordinary care required under the circumstances. See Froman v. George L. Smith, Ga. World Congress Auth., 197 Ga. App. 338 (398 SE2d 413) (1990). There is no evidence in the record showing why, in the exercise of ordinary care, the crowd prevented Shubert from discovering and avoiding the cart when she approached it, as apparently everyone else in the crowd approaching and passing it was able to do. She simply states that it was not visible because of the crowd of people in line surrounding the front of the cart. In fact, Shubert’s own testimony establishes that the reason she was unable to see the cart when she approached close to it was not because of the crowd, but because her view was blocked by the tray she was carrying in front of herself at waist high level.

Although a proprietor has a duty to keep the premises safe for invitees, an invitee must by the exercise of ordinary care avoid the effect of the proprietor’s negligence after it becomes apparent to her or in the exercise of ordinary care she should have learned of it. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). “The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. If the invitee knows of the condition or hazard, there is no duty on the part of the proprietor to warn the invitee and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.” (Citations and punctuation omitted.) Huntley Jiffy Stores v. Grigsby, 208 Ga. App. 634, 635 (431 SE2d 435) (1993). “The owner or occupier of land is under a duty to invitees to discover and either keep the premises safe from or warn of hidden dangers or defects not observable to such invitees in the exercise of ordinary care. However, there is no duty to warn against obvious or patent dangers which may be observed and avoided by the exercise of ordinary care.” (Citations and punctuation omitted.) Winchester v. Sun Valley-Atlanta Assoc., 206 Ga. App. 140, 142 (424 SE2d 85) (1992). Moreover, under the “plain view” rule “[o]ne is under a duty to look where he is walking and to see large objects in plain view which are at a location where they are customarily placed and expected to be; not performing this duty may amount to a failure to exercise ordinary care for one’s safety as would bar a recovery for resulting injuries.” (Citations and punctuation omitted.) Wal-Mart Stores v. Hester, 201 Ga. App. 478, 479 (411 SE2d 507) (1991).

Decided March 17, 1995

Slip and fall. Fulton State Court. Before Judge Shoob.

Allan L. Galbraith, for appellant.

The evidence shows that the cart at issue was in a location where it was customarily placed and that the six to eight-inch protrusion of the cart was a plainly visible and observable condition to one exercising ordinary care for their own safety under the circumstances. There is no evidence in the record showing any condition or circumstance legally excusing Shubert from the exercise of that degree of ordinary care which would have revealed the presence of the cart to her. Since Shubert knew or should have known of the obstruction caused by the cart, the record shows that Marriott did not have the requisite superior knowledge of the condition. The record also shows that, in the absence of any legally cognizable excuse for not seeing the obstruction, this case is controlled by the “plain view” doctrine. Accordingly, Marriott was entitled to summary judgment under the superior knowledge rule and the plain view doctrine. Hadaway v. Cooner Enterprises, 172 Ga. App. 113, 114-115 (321 SE2d 830) (1984); Huntley Jiffy Stores, supra at 635-636; Emory Uniu. v. Duncan, 182 Ga. App. 326, 328-329 (355 SE2d 446) (1987).

Gorby & Reeves, Michael J. Gorby, Blake H. Frye, for appellee.

       Present case law recognizes only two legal excuses — the distraction rule (e.g., Red-ding, supra) and the rule of necessity (e.g., Fitzgerald v. Storer Cable Communications, 213 Ga. App. 872, 874 (446 SE2d 755) (1994). By recognizing walking in a crowd with a tray as an excuse, the majority opinion signals that virtually any “excuse,” short of walking blindfolded, may now be sufficient to preclude application of the “plain view” rule as a bar to recovery.


author: Blackburn, Judge. Ruffin, Judge,

text:
    A94A2192.
    A94A2193.
    PECORA et al. v. FIRST BANK OF GEORGIA. HENDRIX et al. v. FIRST BANK OF GEORGIA.
    (457 SE2d 200)
   Blackburn, Judge.

This is an appeal of the trial court’s order granting partial summary judgment to the plaintiff First Bank of Georgia (First Bank) in the underlying action for fraud.

Jesse T. Hendrix Builders, Inc. (Hendrix) purchased two lots for residential construction from Joseph Pécora through Pecora’s agent, Gerald Kopp. In connection with the purchase, Hendrix executed two security deeds in favor of Pécora for the purchase price of the lots. At closing, Kopp agreed to not record the security deeds so that Hendrix would be able to get credit from his suppliers. Kopp maintained that he agreed to forebear recording the security deeds in order to facilitate Hendrix’s ability to obtain credit. Thereafter, Hendrix obtained a construction loan from First Bank, which was properly recorded. Hendrix did not inform First Bank of the two unrecorded deeds, and Kopp was unaware that Hendrix obtained such construction loan.

Hendrix subsequently defaulted on the construction loan and First Bank chose to accept a deed in lieu of foreclosure on the subject property. In connection with closing on the deed in lieu of foreclosure, Hendrix signed an owner’s affidavit stating that he knew of “no one claiming under any unrecorded deed, or instrument of any nature, or claiming any interest in said lands whatsoever. . . .” On the same day that Hendrix executed the deed in lieu of foreclosure to First Bank, Kopp recorded Pecora’s security deeds. Pecora’s security deeds did not appear of record when First Bank checked the title on the property several days before the closing.

Approximately four months later, as First Bank prepared to sell one of the lots, it again searched the title to the property and discovered Pecora’s security deeds. First Bank brought the instant action for fraud against Pécora, Kopp, and Hendrix.

1. On appeal, Pécora, Kopp and Hendrix contend the trial court erred in granting partial summary judgment to First Bank because there was no evidence they intentionally deceived First Bank.

“In order to prevail on its cause of action for fraud, [First Bank was required to] prove the following: (1) a false representation by defendant[s]; (2) scienter; (3) an intention to induce [First Bank] to act or refrain from action; (4) justifiable reliance by [First Bank]; and (5) damages.” (Citations and punctuation omitted.) Centennial Life Ins. Co. v. Smith, 210 Ga. App. 194, 195 (435 SE2d 498) (1993). In Sulli van v. Ginsberg, 180 Ga. 840, 845-846 (181 SE 163) (1935), the Georgia Supreme Court noted that “[i]n Robinson v. Woodmansee, 80 Ga. 249 (6) (4 S. E. 497), the trial judge [wrongly] instructed the jury that if there was an understanding between the mortgagor and the mortgagees, that the instruments should be kept off the record for the purpose of protecting the financial credit of the mortgagor, the mortgages would be fraudulent as to all persons who thereafter extended credit to him. This charge was held to be erroneous, because ‘it was not, as a matter of law, fraudulent to agree not to record the mortgages,’ it being a question for the jury as to what the intention was — ‘whether the mortgages were given by the debtor for the purpose of hindering, delaying, or defrauding his creditors,’ and whether, if so, the mortgagees knew of such intention or had ‘notice or grounds for reasonable suspicion.’ ”

Kopp’s failure to originally record Pecora’s two security deeds did nothing more than effectively subordinate those deeds to the subsequent security deed obtained by First Bank when it closed on the construction loan made to Hendrix, which deed was recorded April 27, 1990. OCGA § 44-14-63. First Bank’s interests or rights with respect to its security interest in the subject property were not adversely affected by the failure to record Pecora’s security deeds. It is the grantee of an unrecorded security deed that is generally at risk upon the failure to record its deed. Any subsequent grantee of a security interest from the same vendor, who takes without notice of the prior conveyance, is under such circumstances in the same position it would be in if there had been no prior deed. Indeed, had First Bank elected to foreclose on its recorded security deed, Pecora’s position would have been secondary and he would not have received anything from the foreclosure sale until First Bank had been made whole.

First Bank’s decision to take a deed in lieu of foreclosure, rather than foreclosing, was based upon the misrepresentations of Hendrix, not those of Kopp or Pécora. Upon learning of Hendrix’s misrepresentations concerning unrecorded deeds, First Bank could have moved to set aside the deed, and proceeded thereafter with foreclosure as described above.

The issue presented is whether Kopp’s decision to hold the deeds and subsequently record them the same day First Bank closed on its deed in lieu of foreclosure was a fraudulent act of Kopp and Pécora for the purpose of injuring Hendrix’s creditor. First Bank presented no evidence of the essential elements as they relate to Kopp and Pécora, nor did First Bank present evidence of a conspiracy between Hendrix and Kopp and Pécora for the purpose of injuring Hendrix’s creditor. The existence of the conspiracy, its intent, its purpose, and the question of any injury to First Bank arising therefrom, are all jury questions as to Kopp and Pécora under the facts of this case. “Questions of fraud . . . are, except in plain and indisputable cases, questions for the jury.” Brown v. Techdata Corp., 238 Ga. 622, 625 (234 SE2d 787) (1977). The timing of the ultimate recordation of Pecora’s security deeds, while suspicious, is not sufficient to authorize a partial summary judgment as to fraud.

With regard to the defendants Jesse T. Hendrix and Jesse T. Hendrix Builders, Inc., we find that there was sufficient evidence of fraud because at the closing on First Bank’s deed in lieu of foreclosure, Hendrix executed the owner’s affidavit denying knowledge of any unrecorded deeds or interests and conveyed the deed in lieu of foreclosure with knowledge of the falsity of his affidavit so that First Bank would not foreclose.

2. In Case No. A94A2192, the trial court erred by granting First Bank’s motion for partial summary judgment with respect to its cause of action in fraud against the defendants Gerald Kopp and Joseph Pécora, and we reverse. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In Case No. A94A2193, the trial court correctly granted First Bank’s motion for partial summary judgment with respect to its cause of action in fraud against Hendrix, and we affirm.

Judgment affirmed in Case No. A94A2193 and reversed in Case No. A94A2192.

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

Ruffin, Judge,

concurring in part, dissenting in part.

While I agree with the majority that the trial court correctly granted First Bank’s motion for partial summary judgment against Hendrix, I do not agree that the court erred in also granting the Bank’s motion for partial summary judgment against Pécora and Kopp. I note initially that although Pécora denies any knowledge of Kopp’s actions in this case, since it is undisputed that Kopp was at all times acting as his agent, this denial is of no consequence. A principal is liable for the neglect and fraud of his agent in the transaction of the principal’s business. OCGA § 10-6-60. This is true even if the principal had no knowledge that the agent wilfully concealed material facts in transacting the business of the agency. OCGA § 10-6-56. Accordingly, even if Pécora had no knowledge of any of Kopp’s actions, he is still bound by any fraudulent acts found to have been committed by Kopp during these transactions.

“In order to prevail on its cause of action for fraud, [First Bank was required to] prove the following: ‘(1) a false representation by defendant^]; (2) scienter; (3) an intention to induce [First Bank] to act or refrain from action; (4) justifiable reliance by [First Bank]; and (5) damages. [Cit.]’ [Cit.]” Centennial Life Ins. v. Smith, 210 Ga. App. 194, 195 (435 SE2d 498) (1993). Sullivan v. Ginsberg, 180 Ga. 840 (181 SE 163) (1935), cited by the majority, involved similar allegations as those in the instant case. In Sullivan, a corporation had agreed with one of its creditors that “ ‘mortgages would be not recorded, so that the credit of the corporation would not be lessened or destroyed by the recordation of such mortgages, so that the corporation might secure additional advances from creditors subsequent to the date of the execution of the various notes and mortgages. . . .’” Id. at 844. There the court recognized that “ ‘it was not, as a matter of law, fraudulent to agree not to record the mortgages,’ it being a question for the jury as to what the intention was. . . .” Id. at 846.

In this case it is clear that Pécora and Kopp intended to deceive Hendrix’s future construction creditors into believing there were no mortgages on the property so that those creditors would extend financing to Hendrix. Although Pécora and Kopp contend there is no evidence they agreed with Hendrix that they would not record the security deeds for this purpose, Kopp’s affidavit testimony and Hendrix’s deposition testimony clearly show there was such an agreement. Kopp stated in his affidavit that “[a]t the closing, [Hendrix] requested of affiant that the loan deeds not be immediately recorded so that [Hendrix] might better be able to get credit from his suppliers. Honoring that request, the loan deeds were not recorded.” Similarly, Hendrix admitted in his deposition that “the purpose that Mr. Kopp agree [d] not to file [the] security deeds ... of record was so it would appear to First Bank of Georgia that [Hendrix] owned [the lots] free and clear and that [he] had clear title to them[.]” It is clear from these statements not only that the parties intended to conceal the security deeds but that they did so to induce potential creditors like First Bank to extend credit to Hendrix.

It is also clear from the record that First Bank justifiably relied on the fact that there were no encumbrances on the property before extending the loan to Hendrix and accepting the deed in lieu of foreclosure. On each occasion, First Bank not only searched the titles of the two lots and found no security deeds but required Hendrix to execute a property owner’s affidavit stating there were no unrecorded claims on either lot. Since First Bank exercised due diligence in searching the land records, see Hardage v. Lewis, 199 Ga. App. 632 (405 SE2d 732) (1991), I believe the trial court was authorized to find reliance. See Florida Rock &c. v. Moore, 258 Ga. 106 (5) (365 SE2d 836) (1988).

Finally, the affidavit of First Bank’s president regarding damages in this case is uncontroverted. In his affidavit, the president attests to damages resulting from having to complete construction of the residences as well as damages resulting from the existence of Pecora’s security deeds on the lots.

Although the majority found that issues remained as to whether Kopp’s subsequent recording of Pecora’s security deeds was a fraudulent transaction, it is the original agreement to not record the security deeds in order to deceive Hendrix’s future creditors that forms the basis of the fraud here. First Bank was one such creditor which relied on its finding no claims against the property when it conducted the title searches, when it loaned the money to Hendrix, when it agreed to take a deed in lieu of foreclosing on the lots and when it accepted that deed. Pécora and Kopp’s eventual decision to record the security deeds was merely the culmination of their continuing deceptive enterprise.

Decided March 17, 1995

Reconsideration denied March 31, 1995.

Albert B. Wallace, Stephen B. Wallace, for appellants (case no. A94A2192).

Wood, Odom & Edge, Arthur B. Edge IV, for appellants (case no A94A2193).

Eidson & Associates, James A. Eidson, for appellee.

Although the question of fraud is ordinarily within the province of the jury, in plain and undisputed cases it is proper that the determination be made by the court. Accordingly, I believe the trial court did not err in granting First Bank’s motion for partial summary judgment against Pécora and Kopp on the issue of fraud.

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


author: Johnson, Judge. Beasley, Chief Judge,

text:
    A94A2255.
    WEBSTER v. WILKINS et al.
    (456 SE2d 699)
   Johnson, Judge.

Cox Enterprises, Inc. d/b/a The Atlanta Journal and The Atlanta Constitution, published a newspaper article concerning the wedding of professional basketball player Jacques Dominique Wilkins and Nicole Berry. Part of the article described the prior personal relationship between Wilkins and Elizabeth Webster, who, after their relationship ended, gave birth to a daughter fathered by Wilkins. In the article, Cox quoted Wilkins as saying, “[Webster] gives women in general a bad name ... I probably shouldn’t say this, but I want to take that kid from her. She’s unfit to have a kid.” Based on this quote, Webster sued Wilkins and Cox for defamation. The trial court granted summary judgment to Wilkins and Cox, finding, among other things, that the statement is merely an opinion that is not capable of being proven true or false. Webster appeals.

1. Webster contends the trial court erred in ruling that Wilkins’ statement is merely an expression of opinion. Webster cites the proposition that “[t]here is no wholesale defamation exemption for anything that might be labeled opinion. To say otherwise would ignore the fact that expressions of opinion may often imply an assertion of objective fact. . . . The pivotal questions are whether [the] statements can reasonably be interpreted as stating or implying defamatory facts about plaintiff and, if so, whether the defamatory assertions are capable of being proved false.” (Citations and punctuation omitted.) Eidson v. Berry, 202 Ga. App. 587, 588 (415 SE2d 16) (1992). Webster then reasons that Wilkins’ statement that she is not fit to have a child implies an assertion of objective fact which is capable of being proved false because her fitness as a parent could be determined by a court of law pursuant to criteria set forth in OCGA §§ 19-7-1 and 19-7-4.

Webster’s reasoning is unpersuasive because implicit in it is the assumption that Wilkins used the word “unfit” in its legal sense and thereby implied some objective facts which make Webster an unfit parent as determined under Georgia law. Having reviewed Wilkins’ statement in the context of the entire article, we cannot make this assumption. It is apparent from the context of the article that Wilkins did not use the phrase “unfit to have a kid” in its legal sense or as a legal conclusion, but used it only to express his subjective opinion criticizing Webster’s parental abilities. More importantly, the average reader would not have construed Wilkins’ statement to be his legal conclusion that pursuant to OCGA §§ 19-7-1 and 19-7-4 Webster is an unfit parent. “In considering whether a writing is defamatory as a matter of law, we look at what construction would be placed upon it by the average reader.” (Citations and punctuation omitted.) Mead v. True Citizen, Inc., 203 Ga. App. 361, 362 (417 SE2d 16) (1992). “[T]he courts will not hunt for a strained construction in order to hold the words used as being defamatory.” (Citations and punctuation omitted.) Thomason v. Times-Journal, 190 Ga. App. 601, 602 (1) (379 SE2d 551) (1989). Webster’s reading of Wilkins’ words is such a strained construction because the average reader, construing the statement in the context of the entire article, would have taken the statement for what it was, a subjective, hyperbolic opinion that cannot be proved to be true or false and that concerns a matter on which reasonable people might differ; i.e., Webster’s parental capabilities.

“[T]he expression of opinion on matters with respect to which reasonable men might entertain differing opinions is not libelous. An assertion that cannot be proved false cannot be held libelous. A writer cannot be sued for simply expressing his opinion of another person, however unreasonable the opinion or vituperous the expressing of it may be. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” (Citations and punctuation omitted.) Kendrick v. Jaeger, 210 Ga. App. 376, 377-378 (436 SE2d 92) (1993). Because Wilkins’ statement was a wholly subjective opinion not capable of proof or disproof, the statement cannot support this defamation action against either Wilkins for saying it or Cox Enterprises for publishing it. See Elder v. Cardoso, 205 Ga. App. 144, 145 (1) (421 SE2d 753) (1992); Bergen v. Martindale-Hubbell, 176 Ga. App. 745, 747 (3) (337 SE2d 770) (1985).

2. Even if Wilkins’ statement was not merely an opinion, the trial court correctly granted summary judgment to Wilkins and Cox because, contrary to Webster’s argument, the oral statement was not slander per se, its publication in the newspaper was not libel per se, and therefore Webster was required to show special damages. A statement may be slanderous per se and not require special damage to support an action if it imputes to another a crime punishable by law, charges a person with having some contagious disorder or with being guilty of some debasing act which may exclude her from society, or makes charges against another in reference to her trade, office or profession. OCGA § 51-5-4. Similarly, “[1]ibel per se consists of a charge that one is guilty of a crime, dishonesty, or immorality.” (Citations and punctuation omitted.) Mead, supra. Webster makes no claim that the statement is a charge against her trade, office or profession; rather, she complains the statement may imply she is guilty of a crime, a debasing act which might exclude her from society, dishonesty or immorality.

Webster’s complaints are without merit. The statement that she is “unfit to have a kid” simply does not rise to the level of imputing any specific crime, debasing act, dishonesty or immorality; to conclude otherwise strains the obvious meaning of the statement. See generally Meyer v. Ledford, 170 Ga. App. 245, 246 (1) (316 SE2d 804) (1984). Because the statement is not slander or libel per se, but is merely a derogatory or disparaging remark, special damages must be shown. See Connell v. Houser, 189 Ga. App. 158, 160 (4) (b) (375 SE2d 136) (1988).

“The special damages necessary to support an action for defamation, where the words are not actionable in themselves must be the loss of money, or of some other material temporal advantage capable of being assessed in monetary value. The loss of income, of profits, and even of gratuitous entertainment and hospitality will be special damage if the plaintiff can show that it was caused by the defendant’s words.” (Citations, punctuation and emphasis omitted.) Jamison v. First Ga. Bank, 193 Ga. App. 219, 222-223 (3) (387 SE2d 375) (1989). In her complaint, Webster has not specified any loss of money due to the statement. Moreover, at her deposition she testified that she has not sustained any financial or economic damage as a result of the statement. Given Webster’s failure to plead or prove any special damages caused by the allegedly defamatory statement, the trial court correctly granted summary judgment to Wilkins and Cox Enterprises.

3. Because of our decisions in Divisions 1 and 2, we need not address Webster’s remaining arguments.

Judgment affirmed.

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

Beasley, Chief Judge,

dissenting.

1. The majority holds that it is apparent from the context of the subject newspaper article that Wilkins did not use the phrase “unfit to have a kid” in its legal sense or as a factual statement, and that the average reader would have construed this statement as a hyperbolic opinion that cannot be proved true or false concerning a matter on which reasonable people might differ, i.e., Webster’s parental capabilities. I respectfully dissent.

Wilkins is a well-known professional basketball player. Webster met him while standing in line waiting to get into an Atlanta nightclub. This occurred shortly before she began law school at Georgia State University. After dating him, she gave birth to a female child, Chloe. When he refused to assist with maternity expenses, Webster instituted a paternity action against him. HLA blood testing identified him as the probable father, and Wilkins entered into a child-support agreement with Webster.

She later instituted contempt proceedings against him, for noncompliance with the agreement, and then a complaint for sexual battery, which was dismissed. He thereafter filed a complaint against her for malicious prosecution, to which she filed a counterclaim for sexual harassment. Both were dismissed. Webster’s filing of the sexual battery complaint against Wilkins was reported in various newspapers throughout the country, and some of these reports made mention of the prior paternity action. The acrimonious dissolution of their relationship, and the attendant litigation, were also reported in the local media.

Wilkins subsequently became engaged to another woman, and he asked the defendant newspaper to write an article concerning his impending marriage. After discussing Wilkins’ relationship with Webster, the paternity action, and other litigation between them, the article quotes Wilkins as saying, “She [Webster] gives women in general a bad name ... I probably shouldn’t say this, but I want to take that kid [Chloe] from her. She’s unfit to have a kid.”

A review of the article shows that it is in no way apparent from its context that Wilkins did not use this phrase either in its factual or legal sense. Moreover, there is evidence in this case showing that Wilkins in fact had planned to sue Webster for custody of the child and give her to his mother and that the reporter who wrote this article was aware of that.

While it is true that reasonable people might hold differing opinions on any given individual’s parental abilities, in this case Webster has presented abundant evidence that she is a very capable and loving parent, and the defendants have presented no evidence that she is not. To the contrary, Wilkins testified that, in fact, he does not know what kind of parent Webster is because he rarely has a chance to see the child. He acknowledged that she “looked pretty healthy” on the few occasions he had seen her. Clearly, Wilkins has not established truth as a defense to Webster’s defamation charge, and he is not entitled to summary judgment on this basis. Compare Pinkston v. City of Albany, 196 Ga. App. 43, 47 (3) (395 SE2d 587) (1990).

Wilkins’ accusatory statement against Webster as a mother explains, without going into detail, why he as father desires to remove the child from her custody. He connotes, by his prefatory remark, that he knows the seriousness of his statement, especially when made to a newspaper reporter instigated and prompted by him to write an article for publication about his marital and family affairs.

Under the law of defamation, if an opinion is expressed without disclosing the underlying factual basis, the opinion is actionable if the opinion implies or creates a reasonable inference that the opinion is justified by the existence of undisclosed defamatory and false facts. Metcalf v. KFOR-TV, 828 FSupp. 1515, 1529 (W.D.Okla. 1992), citing the Restatement of Torts, § 566. “The pivotal questions are whether [the] statements can reasonably be interpreted as stating or implying defamatory facts about plaintiff and, if so, whether the defamatory assertions are capable of being proved false.” Eidson v. Berry, 202 Ga. App. 587, 588 (415 SE2d 16) (1992).

Innumerable child custody cases in which parental fitness is drawn in issue demonstrate that the assertion that a parent is unfit to have her child can be interpreted as implying defamatory facts about the parent and is capable of being proved true or false. Perkins v. Courson, 219 Ga. 611, 624 (2) (135 SE2d 388) (1964) holds, e.g., that a parent’s right to child custody may be lost based upon a finding of unfitness where it has been shown “for instance, that the parent is afflicted either mentally or physically to the extent that he cannot provide any care for the child; that he suffers from a serious and contagious disease which would endanger the child; that he has criminal tendencies making it hazardous to expose a child to him; or that he has other such disqualifications not coming within [the Georgia Code].” The Code itself provides that a parent can lose parental power under the law for, among other things, “[f]ailure to provide necessaries for the child or abandonment of the child ... or [c]ruel treatment of the child.” OCGA § 19-7-1 (b). A parent’s right to custody may be lost if, for instance, the child “is being reared under immoral, obscene, or indecent influences which are likely to degrade [her] moral character and devote [her] to a vicious life and it appears . . . that by reason of the neglect, habitual drunkenness, lewd or other vicious habits, or other behavior of the parents . . . , it is necessary for the welfare of the child to protect the child from such conditions.” OCGA § 19-7-4.

Wilkins’ public statement is that he knew things about Webster which made her unfit to have custody of their daughter. He went further and announced that he as father wanted to deprive the mother of custody. Considering Wilkins’ statement about Webster in context, it is not as a matter of law a mere expression of opinion.

2. The trial court also erred in granting summary judgment to Cox.

A publisher who defames a private figure plaintiff may constitutionally be held liable in tort under a standard of ordinary care. Triangle Publications v. Chumley, 253 Ga. 179, 180 (1) (317 SE2d 534) (1984). In this action, Webster is not a limited purpose public figure. Time, Inc. v. Firestone, 424 U. S. 448 (96 SC 958, 47 LE2d 154) (1976). Thus, the issue is one of negligence, and the standard of conduct is defined by reference to the procedures a reasonable publisher in defendant’s position would have employed. Triangle Publications, supra at 181.

While doing research for the article, reporter Auchmutey discovered that after Webster filed the paternity action against Wilkins, he falsely stated that he did not know her. He was thus aware of Wilkins’ propensity for making false statements about Webster. Auchmutey also interviewed Wilkins’ mother, Gertrude Baker. She told him that, as a result of Wilkins’ anger toward Webster, he was planning “to go after” Chloe and give her to Baker, but that Baker did not want to raise the child because Baker was too old. Auchmutey was thus aware that when Wilkins stated that he wanted to take the child away from Webster, he meant it.

Auchmutey also spoke to Webster on several occasions before the article was published. He testified that he did not inquire of her or anyone else whether she is in fact a fit parent, essentially because he interpreted Wilkins’ statement as an expression of his anger rather than a literal accusation that she was not a fit custodian for the child. His focus should have been on how the reader would have interpreted it. In essence, Auchmutey also testified that he interpreted the statement as rhetorical hyperbole. See generally Fram v. Yellow Cab Co., 380 FSupp. 1314, 1329-1330 (19) (W.D. Pa. 1974). The context of the statement, and facts known to Auchmutey and established of record, wholly belie this characterization.

The evidence in this case presents a triable issue of fact on the question of whether the newspaper was negligent in publishing the allegedly defamatory statement.

3. Webster contends that as a matter of law Wilkins’ statement “[s]he is unfit to have a kid,” referring to their one-year-old daughter Chloe, and the reason he wants to deprive the mother of custody, constitutes slander actionable per se without proof of special damages.

Subsection (a) of OCGA § 51-5-4 states that slander or oral defamation consists in: “(1) Imputing to another a crime punishable by law; (2) Charging a person with having some contagious disorder or with being guilty of some debasing act which may exclude him from society; (3) Making charges against another in reference to his trade, office, or profession, calculated to injure him therein; or (4) Uttering any disparaging words productive of special damage which flows naturally therefrom.” Webster does not allege the presence of a subsection (4) situation, which requires proof of special damages, but rather that the statement falls into one of the other three categories, where damage is inferred. OCGA § 51-5-4 (b).

Wilkins’ statement that Webster “is unfit to have a kid” is not a charge against her in reference to her trade, office, or profession. Under Georgia’s parental fitness doctrine, the statement can be interpreted as implying that she has committed a crime punishable by law, such as against the child, or is guilty of some debasing act such as would exclude her from society, such as parental unfitness could. See Division 1, supra. This does not mean that the statement is defamatory as a matter of law. Whether it is depends on what construction would be placed on it by the average reader. Mead v. True Citizen, Inc., 203 Ga. App. 361, 362 (417 SE2d 16) (1992); see Stalvey v. Atlanta Business Chronicle, 202 Ga. App. 597, 599 (1) (414 SE2d 898) (1992). Legal definitions are not controlling, Thuma v. Hearst Corp., 340 FSupp. 867, 871-872 (3) (D.Md. 1972), but they are not irrelevant either. Where, as here, the words spoken are capable of having a defamatory per se meaning by intimation or innuendo, whether the words were in fact so understood presents a jury question. See Southland Corp. v. Garren, 135 Ga. App. 77, 78 (2, 3) (217 SE2d 347) (1975) (the statement that plaintiff was “fired for shortages” may be found by a jury to have imputed to her a crime), rev’d on other grounds, 235 Ga. 784 (221 SE2d 571) (1976).

4. Webster urges that, as a matter of law, the statement “[s]he is unfit to have a kid” in the context reported constitutes newspaper libel actionable per se without proof of special damages. OCGA § 51-5-2 (a) provides: “Any false and malicious defamation of another in any newspaper, magazine, or periodical, tending to injure the reputation of the person and expose him to public hatred, contempt, or ridicule, shall constitute a newspaper libel.”

Decided March 17, 1995

Reconsideration denied March 31, 1995

Herald J. Alexander, for appellant.

What is contained in Division 3, supra, pertains here. The words published by the newspaper concerned the father’s assessment of the mother as unfit to parent their year-old daughter. Whether this tended to injure Webster’s reputation and expose her to public hatred, contempt, or ridicule are questions for the jury. If the jury finds that the words published tended to have this effect, then Webster may recover in accordance with OCGA § 51-5-2 without proof of special damages.

These are all factual matters capable of proof.

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


author: McMurray, Presiding Judge.

text:
    A94A2297.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. RICHARDSON.
    (457 SE2d 181)
   McMurray, Presiding Judge.

Linda Richardson a/k/a Linda Morgan (plaintiff) brought an action against Georgia Farm Bureau Mutual Insurance Company (“Farm Bureau”) to recover under her homeowners insurance policy (“the policy”) for losses allegedly sustained when her house was destroyed by fire. Plaintiff also sought attorney fees and penalties pursuant to OCGA § 33-4-6 because of Farm Bureau’s alleged bad faith refusal to pay her claim. Farm Bureau denied liability under the policy, claiming that plaintiff intentionally burned her house; that plaintiff did not comply with a policy provision stipulating the insured premises as her only residence and that plaintiff made material misrepresentations during Farm Bureau’s post-fire investigation. The case was tried before a jury and the evidence, construed in a light which most favorably supports the jury’s verdict, authorizes the following:

Farm Bureau issued a policy of insurance providing coverage for certain losses to plaintiff’s home with limits of $40,000 for the real property and $20,000 for contents of plaintiff’s home. A pertinent provision of the policy provides: “Concealment or Fraud. We do not provide coverage for an insured who has . . . intentionally concealed or misrepresented any material fact or circumstance; or . . . made false statements or engaged in fraudulent conduct. . . relating to this insurance.” Under a section of the policy entitled, “SPECIAL PROVISIONS,” it is stipulated that “the residence premises is the only premises where the Named Insured or spouse maintains a residence other than business or farm properties. . . .” The policy also provides no coverage for “Intentional Loss, meaning any loss arising out of any act committed ... by or at the direction of an insured; and . . . with the intent to cause loss.”

At about 5:00 in the afternoon of October 17, 1991, the Hall County Fire Department received a report that the insured premises was burning. When fire fighters arrived on the scene, the house was engulfed in flames. It was too late, plaintiff’s house was gone and so were its contents. Plaintiff and her two young children were at the home of a close friend at the time of the blaze and, when plaintiff learned of the fire the next day, she contacted her Farm Bureau agent and met him at the scene. Plaintiff then discovered that the destruction was total. Unfortunately, coverage under the policy was insufficient to make up for the loss as plaintiff (in an apparent attempt to save cost) had recently instructed her Farm Bureau agent to decrease coverage under the policy.

Captain Thomas F. Cannon of Hall County Fire Services investigated the fire and concluded that a flammable liquid was used to accelerate the blaze. Captain Cannon suspected arson because the house was not occupied at the time of the fire and it appeared to him that a flammable liquid had been used to accelerate the flame. The captain questioned plaintiff and learned that she was recently divorced and that she was at the home of a male companion at the time of the fire. Captain Cannon excluded the possibility that plaintiff actually set the blaze, but he did not exclude that plaintiff may have been involved. However, Captain Cannon did suspect plaintiff’s former spouse, reasoning that financial gain and domestic vengeance are common reasons for arson. Indeed, it turns out that plaintiff’s former spouse may have had financial motive for committing arson as he was a co-obligor on debts secured by the plaintiff’s premises.

Farm Bureau employed a private investigator, Larry Cornett, to determine the origin of the fire that destroyed plaintiff’s home. Cornett visited the fire scene and took samples of materials he suspected of being affected by a flammable liquid. Although subsequent laboratory tests were negative for the presence of residue of a flammable liquid on the samples taken from the fire scene, Cornett, nonetheless, concluded that the fire had been accelerated by a flammable liquid. He based this conclusion on observations of suspected burn patterns within the remains of the burned dwelling and the unusually rapid speed in which the fire spread. In his final analysis, Cornett affirmed (at trial) that the fire had “characteristics of an insurance fire for profit[.]”

During the course of its investigation, Farm Bureau representatives discussed the loss with plaintiff on four separate occasions. Plaintiff first gave a statement to her Farm Bureau agent. She then consented to a recorded statement in response to questioning by a Farm Bureau claims investigator. Next, plaintiff submitted to examination, under oath, before an attorney retained by Farm Bureau and a certified court reporter. Before questioning, Farm Bureau’s attorney warned plaintiff that “misrepresentations made during an examination under oath or during the investigation of a claim can give the insurance company the right to void your coverage and not to pay the claim.” Plaintiff later submitted to similar questioning by Farm Bureau’s attorney during a deposition taken pursuant to pre-trial discovery. Although responses plaintiff made during these interrogations include inconsistent statements regarding plaintiff’s intimacies with a male companion (purportedly germane to the residency requirement under the policy) and certain omissions regarding aspects of her financial affairs at the time of the fire, plaintiff turned over most all of her financial records to Farm Bureau during the post-fire investigation and she advised Farm Bureau’s representatives that she was behind in paying a secondary debt encumbering the insured premises. In fact, plaintiff’s initial disclosures along with the financial records she turned over to Farm Bureau indicate that plaintiff was financially broke at the time of the fire and that she was delinquent in paying certain debts, including substantial medical bills incurred for the care of her children.

The jury returned a special verdict for plaintiff, awarding $40,000 for the loss of her home, $10,300 for loss of personal property within the premises, $6,790.50 as a bad faith penalty and $24,900 in attorney fees. The jury marked “Yes” below a question on the special verdict form which inquired as follows: “Do you find from the evidence that Georgia Farm Bureau’s denial of the Plaintiff’s claim amounted to a frivolous and unfounded refusal to pay her claim?” This appeal followed the denial of Farm Bureau’s motion for judgment n.o.v. Held:

1. Farm Bureau contends the trial court erred in denying its motions for directed verdict and for judgment n.o.v. based on its misrepresentation defense. In this regard, Farm Bureau contends that plaintiff “lied ... in her recorded statement and in her examination under oath when she said (1) she was having ‘no problem’ making her mortgage payments . . .; (2) she was up-to-date with [the primary obligation encumbering the insured premises] and only one payment behind to [an individual holding a subordinate security interest encumbering the insured premises] at the time of the fire . . .; (3) she had not been refused credit when applying for loans prior to the fire . . .; (4) she was up to date on all utility bills . . (5) she was not romantically involved with [the man she and her children were visiting on the night of the fire] until after the fire . . .; (6) she was living in her house continuously, using normal amounts of electricity, until a few days to a week before the fire . . .; and (7) she took her mail out of the mailbox every day before the fire.”

“Provisions such as that involved in the [case sub judice] which declare the entire insurance policy void upon misrepresentation or concealment of any material fact, fraud, or false swearing by the insured have been held to be applicable to proofs of loss and other statements made under oath by the insured. ‘(Such a provision) would cover cases of fraudulent misrepresentation of material facts or circumstances, made by (the insured) to the company or its agents that might affect the action of the insurer in respect to settling or adjusting the claim of the insured. . . .’ Goldberg v. Provident Washington Ins. Co., 144 Ga. 783, 790 (87 SE 1077) (1942). See also American Alliance Ins. Co. v. Pyle, 62 Ga. App. 156 (4) (8 SE2d 154) (1940); Couch on Insurance 2d § 49A:60.” State Farm Fire &c. Co. v. Jenkins, 167 Ga. App. 4 (1), 5 (305 SE2d 801). Generally, it is a jury question as to whether a misrepresentation may have actually affected the action of the insurer with respect to settling or adjusting a claim. See United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 236 (248 SE2d 635). However, the issue may sometimes be resolved as a matter of law by the court where the evidence excludes every reasonable inference except that it is material. Woods v. Independent Fire Ins. Co., 749 F2d 1493, 1497 (11th Cir. 1985).

In the case sub judice, we understand how the above quoted misrepresentations regarding disposition of plaintiff’s financial obligations may have been material to Farm Bureau’s post-fire investigation as it relates to plaintiff’s motive for arson and (more remotely) how the frequency of plaintiff’s overnight visits (due to a romantic relationship) with a man who resided at a residence other than the insured premises may be relevant to an investigation concerning whether plaintiff was residing at a place other than the insured premises in violation of the residency requirement in the policy. However, assuming (without deciding) that plaintiff uttered the above statements under oath and that the statements actually turned out to be false, we cannot say (as a matter of law) that plaintiff uttered them with a clear intent to mislead or otherwise defraud Farm Bureau. “It must appear that [an insured’s] false statements were made wilfully and intentionally for the purpose of defrauding the insurer.” American Alliance Ins. Co. v. Pyle, 62 Ga. App. 156, 164 (4), supra. In fact, if there is any evidence to support a jury’s finding in this regard, the denial of a motion for directed verdict or a motion for judgment notwithstanding must be affirmed. Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 268 (1) (416 SE2d 274).

In the case sub judice, there is evidence that plaintiff advised a Farm Bureau investigator at the very outset of the post-fire investigation that she was staying with her friend on the night of the fire because it was cold, one of her children had pneumonia and she did not have enough money to purchase heating fuel for her house. There is also evidence that plaintiff informed Farm Bureau during its investigation that she was a month behind on a secondary obligation encumbering the insured premises; that she owed substantial medical bills ($1,000) incurred for the care of her children; that she had previously attempted to sell or rent the insured premises (apparently without success); that there was no refrigerator in the house at the time of the fire because she could not afford one and that she sold the stove in the house at a yard sale because it was not functional. Further, it is undisputed that plaintiff turned detailed financial records over to Farm Bureau during the post-fire investigation indicating a clear picture of plaintiff’s lack of income and the volume of her debt obligation. Considering this proof of plaintiff’s candor to Farm Bureau as to her grim economic situation at the time of the fire loss, we cannot say (as a matter of law) that plaintiff uttered the presumably false statements regarding her finances with the intent to dupe Farm Bureau into believing that she was not having financial difficulties at the time of the fire. Further, we do not find plaintiff’s sworn statement regarding the timing of her intimate relationship with another man material (as a matter of law) to Farm Bureau’s inquiry as to whether plaintiff was residing at the insured premises at the time of the fire. Indeed, the jury may have inferred that plaintiff uttered this purportedly false statement regarding her personal affairs out of modesty. Finally, the alleged misrepresentations regarding plaintiff’s statements that “(6) she was living in her house continually, using normal amounts of electricity, until a few days to a week before the fire . . .; and [that] (7) she took her mail out of the mailbox every day before the fire” were not conclusively shown to be false. On the contrary, these were hotly disputed issues of fact at trial. Consequently, the jury was authorized in rejecting Farm Bureau’s defenses that plaintiff uttered false statements with an intent to deceive and, in this regard, the trial court did not err in denying Farm Bureau’s motions for directed verdict and for judgment n.o.v. Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 268 (1), supra.

2. Farm Bureau next contends the trial court erred in denying its motions for directed verdict and for judgment n.o.v. as to plaintiff’s claim for bad faith penalties and attorney fees.

“OCGA § 33-4-6 provides 60 days after a demand for payment has been made for the insurer to investigate the claim. As it imposes a penalty, this Code section must be strictly construed. Interstate &c. Ins. Co. v. Williamson, 220 Ga. 323, 325 (2) (138 SE2d 668) (1964). Assertion of a defense to a claim by the insurer requires only ‘reasonable and probable cause’ to avoid the penalties of the Code section. See Rice v. State Farm &c. Co., 208 Ga. App. 166, 169 (1) (430 SE2d 75) (1993); Mass. Bay Ins. Co. v. Hall, 196 Ga. App. 349, 355-356 (3) (395 SE2d 851) (1990).” Ga. Farm Bureau Mut. Ins. Co. v. Roland, 215 Ga. App. 834, 836 (2) (452 SE2d 548). While the question of “reasonable and probable cause [for refusing to pay a claim within the prescribed period of time would seem to be a jury question,] [t]his type of directed verdict case is somewhat of an anomaly. Normally the standard for directed verdict and judgment n.o.v. are the same: ‘(w)here there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.’ Pendley v. Pendley, 251 Ga. 30 (302 SE2d 554). However, it is the very fact that certain factual issues regarding the merits of a claim are in genuine conflict that causes there to be no conflict, as a matter of law, whether an insurance company had reasonable grounds to contest a particular claim. In reaching this determination a court should carefully scrutinize any claim of a contest in facts to preclude the reliance by an insurance company on fanciful allegations of factual conflict to delay or avoid legitimate claims payment.” Rice v. State Farm Fire &c. Co., 208 Ga. App. 166, 167 (1), 169 (430 SE2d 75). In the case sub judice, we have carefully scrutinized the evidence of record and we cannot conclude, as a matter of law, that Farm Bureau had “probable cause” to contest plaintiff’s claim.

Farm Bureau’s decision to refuse plaintiff’s claim within the prescribed number of days was predicated on suspicion that plaintiff was not residing at the premises at the time of the fire and that plaintiff set the fire or had someone set it for her. However, the only evidence supporting Farm Bureau’s conclusion in this regard was that the fire may have been accelerated by a flammable liquid; that plaintiff was having financial difficulties at the time of the loss; that plaintiff may have uttered conflicting statements to a Farm Bureau investigator regarding her house payments and utility bills; that a neighbor had not seen plaintiff at home much before the fire; that a mail carrier noticed mail stacking up in plaintiff’s mail box before the fire and that plaintiff and her children were not at home at the time of the fire. On the other hand, there was absolutely no proof that plaintiff actually set the fire or that she had conspired with someone to set the fire. On the contrary, the jury heard evidence that Farm Bureau either knew or had access to information within 60 days of plaintiff’s claim that plaintiff had decreased coverage on the premises before the fire to reduce the cost of her premium; that plaintiff had made a payment on the primary obligation encumbering the insured premises the day before the fire; that the fire destroyed virtually every item of personal property plaintiff owned and that plaintiff was not at home at the time of the fire because she was protecting the health of her sick child. Further, the evidence is overwhelming that plaintiff fully cooperated during Farm Bureau’s post-fire investigation. In fact, it is undisputed that Farm Bureau did not even collaborate with Captain Cannon in investigating the nature of the fire before coming to trial. Under these circumstances and in light of undisputed proof that plaintiff complied with every discovery request made by Farm Bureau, we cannot say the evidence demanded a verdict against plaintiff with regard to her claim that Farm Bureau acted in bad faith in refusing to pay her claim. Consequently, since the evidence did not demand a verdict that Farm Bureau could not be held liable under OCGA § 33-4-6, either for the imposition of bad faith penalties or for attorney fees, the trial court did not err in denying Farm Bureau’s motions for directed verdict and for judgment n.o.v. in this regard.

Decided March 16, 1995

Reconsideration denied March 31, 1995

Swift, Currie, McGhee & Hiers, Michael H. Schroder, Frederick 0. Ferrand, for appellant.

Sartain Law Offices, Frank R. McKay, Bonnie C. Oliver, for appellee.

Judgment affirmed.

Pope, P. J., concurs. Smith, J., concurs in judgment only.