author: Judge Harold R. Banke.

text:
    A96A0531.
    OUTDOOR SYSTEMS, INC. v. WOODSON.
    (473 SE2d 204)
   Judge Harold R. Banke.

Floyd Woodson filed an ejectment action against Outdoor Systems, Inc. Outdoor Systems based its defense on a lease it claimed gave it the right to maintain a billboard on Woodson’s property. A Fulton County jury found in Woodson’s favor, ordered Outdoor Systems to remove its billboard from the property, and awarded him damages of $100 for each month the company’s sign had remained on the property. The trial court entered judgment on that verdict, and Outdoor Systems appealed to the Supreme Court. Finding the case did not involve title to land, the Supreme Court transferred the matter to this Court. Held:

1. The trial court did not err when it denied Outdoor Systems’ motion for directed verdict in which the company contended Woodson failed to establish his title to the property. A directed verdict is proper only “[i]f 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. . . .” OCGA § 9-11-50 (a). “In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict.” Roseberry v. Brooks, M.D., 218 Ga. App. 202, 206 (1) (461 SE2d 262) (1995). The standard for directed verdict and judgment n.o.v. are identical. Stone v. Allen, 201 Ga. App. 842 (1) (412 SE2d 605) (1991).

Woodson presented sufficient evidence of his ownership of the property to create an issue for the jury; he testified he owned the property by virtue of a warranty deed and called Outdoor Systems to remove the sign the same day he purchased it. Outdoor Systems did not object to this testimony. “Although [Woodson’s] deed may have been the best evidence of his ownership of the real estate in question[,] we cannot disregard the fact that [Woodson’s] testimony as to ownership, admitted without objection, is some evidence of his ownership sufficient to satisfy our any evidence requirement and thereby bar a directed verdict for [Outdoor Systems] based on this issue. [Cit.]” Herston v. Locke, 160 Ga. App. 120 (286 SE2d 349) (1981).

Outdoor Systems’ argument that Woodson did not adequately show his ownership of the property because he did not show “good record title for a period of 40 years,” pursuant to OCGA § 44-2-22, is completely without merit. That statute, far from providing the sole means by which a party may prove ownership of land, merely supplies an evidentiary “shortcut” to proving ownership of land when two parties make adverse claims to it. See, e.g., Goodyear v. Trust Co. Bank, 247 Ga. 281, 285 (3) (276 SE2d 30) (1981) (statute provides a presumption of ownership); Shippen v. Cloer, 213 Ga. 172, 174 (3) (97 SE2d 563) (1957) (statute prevents a party from having to trace ownership back to original land grant from sovereign).

2. (a) Outdoor Systems was not entitled to a directed verdict on the question of damages, as Woodson did introduce some evidence on this issue. The parties stipulated that Outdoor Systems had offered Woodson $50 per month in rent, which he refused. This evidence gave the jury a sufficient basis on which to calculate an award of rent. “Questions of value are peculiarly for the determination of the jury, where there is any data in the evidence upon which the jury may legitimately exercise their own knowledge and ideas.” (Citations and punctuation omitted.) Cleaveland v. Alford, 188 Ga. App. 690, 691 (2) (373 SE2d 853) (1988).

Outdoor Systems was not entitled to a directed verdict on the basis that Woodson made no specific plea for damages in his complaint. As the company did not base its motion on that ground, it is waived. See Grabowski v. Radiology Assoc., 181 Ga. App. 298, 299 (2) (352 SE2d 185) (1986). Furthermore, Outdoor Systems did not object on this basis when Woodson injected this claim into the trial, even though the verdict form allowed the jury to make this award. By failing to object, Outdoor Systems impliedly agreed to submit this issue to the jury. See OCGA § 9-11-15 (b); Lake Lanier &c. Assn. v. BMS Enterprises., 194 Ga. App. 858, 859 (392 SE2d 312) (1990).

(b) The jury was not, however, entitled to award rent of $100 per month. “Where a party sues for specific damages he has the burden of showing the amount of loss claimed in such a way that the jury may calculate the amount of loss from the data furnished and will not be placed in a position where an allowance of the loss is based on guesswork. [Cit.]” Studebaker Corp. v. Nail, 82 Ga. App. 779, 785 (2) (62 SE2d 198) (1950). The only possible evidentiary basis for the jury’s award was the amount the parties stipulated Outdoor Systems had offered. This award of double that amount clearly is not based on the evidence. See Story v. Monteith, 180 Ga. App. 517, 519-520 (349 SE2d 760) (1986), in which we similarly determined the amount of damages to be unauthorized by the evidence.

Because the jury’s award of $100 per month in rent is excessive, this error requires reversal for a new trial on the issue of damages only. See Cowart v. Strickland, 149 Ga. 397, 400 (100 SE 447) (1919) (court may grant new trial on issue of mesne profits only). “Where the jury finds damages in an amount which exceeds that which is authorized by the evidence!,] it is not necessary to grant a new trial if the erroneous amount can be accurately measured and deducted from the verdict. [Cit.] Where, on the other hand, an amount to be written off cannot be determined, a reversal is in order because the error cannot be cured. [Cit.]” Story, 180 Ga. App. at 519. Although the offer of $50 per month was the only rental value offered into evidence, the testimony also shows Woodson rejected that offer. Under these circumstances, as in Story, we cannot adequately reshape the verdict based on the record before us because the appropriate amount of damages is uncertain. We leave that determination to a jury.

3. In its next enumeration of error, Outdoor Systems argues the trial court erred by failing to limit Woodson’s claim for damages to those incurred between the date he purchased the property (April 15, 1993) and the date he filed suit (October 19, 1993). This enumeration, apparently based on an interpretation of OCGA § 51-9-6, has no merit. That statute, which does not apply here, limits claims for damages in cases of continuous trespass to those incurred before suit is filed because subsequent damages give rise to a new cause of action. But the ejectment statute, OCGA § 44-11-7, bars any separate suit for rents and profits flowing from the defendant’s possession of the property. Thus, “in an action of ejectment, mesne profits may be recovered up to the time of the final judgment. . . .” Lankford v. Dockery, 85 Ga. App. 86, 94 (5) (67 SE2d 800) (1951); see Brown v. Tyson, 150 Ga. 598 (104 SE 420) (1919) (plaintiff can amend petition after verdict to seek mesne profits accruing after the verdict).

4. Outdoor Systems complains of the trial court’s failure to admit into evidence a lease allegedly entered into between a company whose assets it purchased and the wife of the person from whom Woodson purchased this property. The trial court appears to have excluded this document for one or both of two reasons: 1) because Outdoor Systems could not show its relevance, in that the company could not show this lease bound Woodson and Outdoor Systems; andJ or 2) because Outdoor Systems could not lay a proper foundation to admit what would otherwise be hearsay. Unfortunately, Outdoor Systems failed to include in the record a copy of this lease and failed to read its contents into the transcript. Neither has it complained of the court’s failure to admit other documents which it contends provided an evidentiary foundation for admitting the lease. “[Outdoor Systerns] is required to show harm as well as error to prevail on appeal [cit.], and this [it] must show by the record as harm cannot be established by unsupported assertions contained in . . . briefs. [Cit.] The record in this case reflects that [Outdoor Systems] made no proffer as to the contents of the [lease], . . . Further, ... no attempt was made to identify [its] contents for [the] record and subsequent appellate purposes. Under these circumstances, [Outdoor Systems] has failed to show harm. . . Hertz Corp. v. McCray, 198 Ga. App. 484, 486 (2) (402 SE2d 298) (1991); see also Harwell v. Harwell, 248 Ga. 578, 579 (2) (285 SE2d 12) (1981).

Decided June 27, 1996.

Schreeder, Wheeler & Flint, Scott W. Peters, for appellant.

Bruce F. Morriss, Daniel Shim, for appellee.

5. Finally, Outdoor Systems alleges the trial court should have charged the jury on the “law of dispossession” rather than the law of ejectment. Its enumeration appears based on the Supreme Court’s order denying its motion for discretionary appeal, in which the Court found this action based on a claim to possession and not on a claim to title. Outdoor Systems v. Woodson, Case No. S95D1529 (decided July 14, 1995). This enumeration has no merit.

Woodson denied Outdoor Systems had any right to possess the property. He based his complaint in ejectment, seeking possession of his property from a party he contended wrongfully held it. These allegations state a cause of action for ejectment. See Ingold, Inc. v. Adair, 247 Ga. 155, 156 (274 SE2d 560) (1981). Outdoor Systems made no exceptions to the trial court’s jury charges regarding ejectment. In fact, its counsel specifically requested two such charges the court gave: “I charge you that the plaintiff seeking ejectment must recover on the strength of his own title, and not the weakness of the defendant’s title,” and “I charge you that in the event you find that the plaintiff has failed to establish facts showing good record title, then the plaintiff is not entitled to relief of ejectment which he seeks.” Because its counsel requested the court to charge this law, Outdoor Systems cannot complain of an error it invited even assuming that error might otherwise be harmful as a matter of law. Bailey v. State, 203 Ga. App. 133, 138 (4) (416 SE2d 151) (1992); Edwards v. State, 235 Ga. 603, 604 (2) (221 SE2d 28) (1975).

Judgment affirmed in part, vacated in part, and remanded with direction.

McMurray, P. J., and Ruffin, J, concur.


source: Caselaw Access Project

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

license: Public Domain

text:
    A96A0733.
    BISHOP v. KFC NATIONAL MANAGEMENT COMPANY, INC.
    (437 SE2d 218)
   Birdsong, Presiding Judge.

Billy J. Bishop filed suit against KFC National Management Company d/b/a Kentucky Fried Chicken for injuries received when he sat down on a booth bench in appellee’s restaurant. Holding his tray of food, he put his hand on the edge of the bench in order to sit down, and the bench collapsed. He fell, sitting down hard on the corner of the bench directly on his tailbone, allegedly injuring himself to the extent that he missed nine months of work.

The trial court granted summary judgment to KFC, evidently on the argued grounds that the bench was held to its supporting frame by wood screws as was proper according to industry standards, and that KFC’s employees had inspected the booth prior to Bishop’s injury and found no defect. KFC contends it is the nature of wood screws that they may deteriorate and break without fault or negligence on anyone’s part. KFC also contends the evidence is undisputed that the bench was secured by wood screws.

Appellant Bishop contends there is evidence from which it may reasonably be inferred that at the time of his injury the screws holding this bench to its frame were not wood but were sheetrock screws which are not structurally appropriate for attachment of this kind of bench. He contends KFC therefore negligently constructed this bench and, moreover, failed to reasonably inspect it for defects. Held:

On motion for summary judgment, regardless which party would have the burden of proof at trial, the burden is on the movant to show there is no genuine issue of material fact. All evidence is construed most strongly against the movant, and the party opposing the motion is given the benefit of all reasonable doubt and all favorable inferences that can be drawn from the evidence. Piggly Wiggly Southern v. Bennett, 217 Ga. App. 496, 497 (458 SE2d 138).

Appellant’s injury occurred on June 22, 1993. A restaurant contractor examined photographs of the seating in the restaurant and concluded in an affidavit dated April 1995 that the plastic benches in the restaurant were designed to be held in place by being bolted to supporting metal frames; that when properly attached, the benches are free standing units capable of bearing loads without being attached to any wall; and that “since the bench rotated forward with Mr. Bishop, it is clear at that time the bench was not attached securely to its supporting metal frame. These attachment points would not be subject to deterioration or rot [and] the attachment of the bench to the metal frame would be permanent, and not subject to failure or coming loose from normal usage. . . . [A]ny loosening would occur gradually over a considerable time before failure would occur. This situation would also be apparent to the restaurant’s employees simply by jiggling the benches with their hands. In my opinion, therefore, the cause of the failure of the bench . . . was the faulty construction of the bench in failing to attach it properly ... or the failure to occasionally check for loose attaching bolts.”

In June 1995, this contractor offered a second affidavit in support of Bishop’s response to KFC’s motion for summary judgment. He stated that before preparing his first affidavit, he examined the benches without crawling under them, and that on June 30, 1995, he returned to the restaurant and crawled under the benches to inspect them in detail. He concluded that the bench Bishop sat on was an “end” bench which does not back up to any other bench; that the benches are thin fiberglass forms supported by a metal frame assembly; that on the end benches, the seat has only two attachment points, which are a board molded along the bottom of the seat and secured by two lag bolts; and that two screws penetrate the back of the seat and are screwed into wooden blocks. The contractor inspected each of the end benches in the section where Bishop fell. On the bench which collapsed under Bishop, the screws used in the seats are heavy wood screws, which are appropriate for this purpose because they can be bent or flexed without breaking. However, the expert discovered that the other three end benches in the area were attached with sheetrock screws, and “sheetrock screws are not appropriate for this use because they are . . . hard and brittle. . . . They . . . are designed for use only . . . where flexion in normal use is not anticipated. . . . On two of the [other three end benches in the area] both sheetrock screws were broken. These two benches would easily tilt forward if pressure was applied to [the front edge of the seat]. The third bench had one sheetrock screw broken. These hazards were readily observable just by jiggling the back of the bench with my hands. In fact, it was easy to pull the backs forward and see the broken screws. . . . Since the bench rotated forward with Mr. Bishop, it is clear that the back of the bench was not securely attached. . . . Since Billy Bishop’s bench has a different screw . . . than the other benches, I conclude that before it was repaired it also was held with sheetrock screws. I think it is probable, therefore, that the reason his bench tilted forward was that sheetrock screws had been improperly used to secure the back of his bench. ... In my opinion, therefore, the cause of the failure of the bench . . . was (1) the faulty construction of the bench in improperly using tempered sheetrock screws . . . and (2) the failure of the restaurant personnel to occasionally check to see if the benches were secure.” (Emphasis supplied.)

From all the evidence, including circumstantial evidence, judged in favor of respondent Bishop, a reasonable trier of fact may conclude that defendant’s employees failed to exercise reasonable care in inspecting and keeping the premises in safe condition and should have known of the existence of defects. Flood v. Camp Oil Co., 201 Ga. App. 451, 453 (411 SE2d 348). Furthermore, from all the evidence including circumstantial evidence, the jury may also reasonably infer that all four of the end benches in that area had originally been negligently attached with the same type screw (a sheetrock screw) and that the only reason the bench which collapsed is now attached by wood screws is that this bench was repaired after it collapsed. This is not mere “speculation”; it is a reasonable inference from the circumstantial evidence that apparently all four benches were built at the same time and in the same manner. That is, by reasonable inference from all the evidence, a jury may conclude the bench where Bishop sat had been improperly attached by sheetrock screws like the other benches in the same area and is now secured by wood screws only because it had been repaired after it collapsed under Bishop. The fact that there may be reasonable inferences drawn from preponderant circumstantial evidence does not make such inferences any less reasonable.

KFC contends, however, that such an inference is impossible because after Bishop fell he looked under the bench and saw it was attached by wood screws, so that the evidence demands a finding that the bench was held by wood screws at the time it collapsed. This is a misconstruction of Bishop’s testimony. Bishop’s actual testimony was that the screws he saw under the bench after he fell might be wood screws, but that he saw them only briefly because he gave them only a glance, as he soon became nauseated and felt like he was on fire and had to leave the restaurant. The fact that Bishop testified the screws “looked like” wood screws does not, as the dissent evidently believes, mean that they were wood screws.

Under Georgia law, a proprietor is liable to invitees for injuries caused by his failure to use ordinary care in keeping the premises safe. OCGA § 51-3-1. A business invitee may reasonably assume that, absent an obvious hazard, the furnishings on business premises are safe for the use for which they were intended, and ordinary care requires a proprietor who has the opportunity to discover the condition of his furnishings to ascertain that they are safe for use under the conditions contemplated. Spencer v. Little Brownie Properties, 203 Ga. App. 324, 325 (416 SE2d 851). The jury may find, by the preponderance of the evidence and by reasonable inferences drawn from all the evidence, including circumstantial evidence, construed in Bishop’s favor, that KFC negligently constructed this bench by attaching it with sheetrock screws, as it did with the other end benches in the same area, and that KFC’s employees failed to inspect properly the benches. See id. The trial court therefore erred in granting summary judgment to defendant KFC.

Judgment reversed.

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

Beasley, Chief Judge,

dissenting.

The trial court was correct in granting summary judgment to defendant because it pointed out that there is “an absence of evidence to support the nonmoving [plaintiff’s] case” and plaintiff points to no “specific evidence giving rise to a triable issue.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). As in Ballard v. Southern Regional Med. Center, 216 Ga. App. 96, 98 (1) (453 SE2d 123) (1995), there is no evidence that KFC had actual knowledge of the alleged defect and no evidence that the looseness of the bench at about 1:00 p.m. “existed for a sufficient amount of time to allow a reasonable inspection to discover it in order to charge [KFC] with constructive knowledge.”

To the contrary and without contradiction, the defendant’s head shift supervisor, who was working at the restaurant when the incident occurred, testified that she had visually inspected the bench earlier that same morning, that a number of customers had sat on that seat the same day before Bishop sat on it, and that no one complained about it. After she started her shift at 8:00 a.m., just before she opened the doors for customers at 10:30, she checked the benches and tables for stability to be sure they were safe. She did so by touching them, sort of pulling with her hands. The benches were scrubbed every day with a cloth towel and spray. She first became aware that the bench was loose when plaintiff came up to the front counter where she was packing orders and told her it was loose, after his alleged fall. He informed her and then left with the woman who was with him.

“[T]here is no duty [on a proprietor of premises] to discover a defect which is not manifested until the incident causing injury.” Id. And as we repeated in Talton v. Perimeter Place Assoc., L.P., 214 Ga. App. 505, 506 (448 SE2d 241) (1994), “an occupier is under no duty to continuously patrol the premises to discover defects.” “A landowner is not an insurer of an invitee’s safety.” (Punctuation omitted.) Barksdale v. Nuwar, 203 Ga. App. 184, 185 (416 SE2d 546) (1992).

As to the nature of the problem, Bishop testified that when he inspected the bench right after the incident, it looked like the wood had given way and a piece of it remained around the screws, which were still in the backing of the seat. He never said the screws were broken, which is what his expert testified would cause the bench to loosen. He did say, “The screws didn’t pull up.” He also said three times that they “looked like” wood screws as follows. He pulled the back of the bench forward to look behind it “and there were three looked like wood screws. They might not be wood screws, but that’s what they looked like. Went into a, what appeared to be a two-by-four” behind the bench attached to the wall. In response to whether he saw “what looked like had been wood screws,” he replied “yes” without equivocation. He said two or three pieces of what looked like decayed wood were on the floor after he fell. Sheetrock screws which plaintiff’s expert saw over two years later on other benches were black.

Even if it could be reasonably inferred that the wrong screws were being used on the bench so as to cause it to become loose when plaintiff came in contact with it, a product defect, there is a complete absence of evidence that defendant failed to exercise reasonable care in inspecting and keeping the premises in a safe condition and thus had superior constructive knowledge of the defect. Flood v. Camp Oil Co., 201 Ga. App. 451, 453 (411 SE2d 348) (1991). There is an absence of evidence that this defendant manufactured or constructed the bench, although it is alleged in the recast complaint.

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

Andrews, Judge,

dissenting.

Bishop was injured when the bench he sat on at the Kentucky Fried Chicken (KFC) restaurant suddenly collapsed. He claims KFC was negligent and liable for his injuries because of an unsafe condition on the premises caused by defective construction of the bench.

Assuming the bench was defectively constructed and collapsed because it was secured to the wall by sheetrock screws instead of wood screws, as Bishop’s expert contractor states, there is no evidence in the record to support the imposition of liability on KFC for the collapse of the bench caused by the defective construction. The only basis for imposing liability on KFC for the construction defect is to show that it had superior knowledge of the existence of the defect. Pound v. Augusta Nat., 158 Ga. App. 166, 167 (279 SE2d 342) (1981). Assuming Bishop could not observe the defect in the bench, there is no evidence that KFC knew or should have known of the unsafe condition created by the use of sheetrock screws to attach the bench to the wall when it was constructed.

There is no evidence that KFC had actual or constructive knowledge of the defective construction by building the bench or by supervising or directing its construction. See Flagler Co. v. Savage, 258 Ga. 335, 337 (368 SE2d 504) (1988). There is no evidence that, prior to its collapse, the bench was loose or otherwise exhibited any condition that would have put KFC on notice of the defective construction. The detailed inspection of the benches in the KFC restaurant by Bishop’s expert contractor in which he observed that the bench which collapsed had been repaired with wood screws and some of the other benches were loose because of broken sheetrock screws took place over two years after the accident. The only evidence as to the condition of the bench prior to the accident came from KFC’s employee who indicated that all the benches had been inspected shortly before the accident and there was no sign of looseness in any of the benches. Bishop did not claim the bench appeared loose or jiggled when he sat on it before it collapsed. Rather, he deposed that the bench suddenly came loose from the wall and collapsed forward when he sat on it “like an '8 to 15 inch drop from the stable position to the broke position” and that it appeared to him the screws just pulled out of the wood. KFC demonstrated that it had no actual knowledge of the construction defect and no constructive knowledge because the defective condition was not discoverable by a reasonable inspection of the premises. Barksdale v. Nuwar, 203 Ga. App. 184 (416 SE2d 546) (1992). The record shows only that the bench appeared to be in good condition but then suddenly collapsed when Bishop sat on it.

In response to KFC’s motion for summary judgment, it was incumbent on Bishop to produce evidence to support his claim that KFC negligently failed to correct an unsafe construction defect of which it had superior knowledge. Having failed to produce any evidence that KFC had knowledge of the defect because it built the bench, or supervised or directed the building of the bench, or otherwise knew about or should have discovered the defective construction of the bench, there is an absence of evidence to support the essential elements of the claim. Id.; Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Accordingly, the trial court correctly granted summary judgment in favor of KFC.

Decided June 27, 1996.

McKenney, Jordan & Carey, G. McGregor Jordan, Jr., for appellant.

Fain, Major & Wiley, Thomas E. Brennan, John K. Miles, Jr., for appellee.

I am authorized to state that Chief Judge Beasley joins in this dissent.


author: Pope, Presiding Judge. Andrews, Judge,

text:
    A96A0615, A96A0616.
    AMERICAN GOLF CORPORATION v. MANLEY et al.; and vice versa.
    (473 SE2d 161)
   Pope, Presiding Judge.

After plaintiff Jeffrey Manley was seriously injured in a golf cart accident, he and his wife Haley sued defendant American Golf Corporation, the operator of the golf course. Seeking actual and punitive damages, plaintiffs alleged that defendant was negligent in several ways. The trial court granted defendant’s motion for directed verdict with respect to punitive damages, but allowed plaintiffs’ claims for actual damages to go to trial. In Case No. A96A0615, defendant appeals from a jury verdict of $140,000 for Jeffrey Manley and $10,000 for his wife, and in Case No. A96A0616, plaintiffs cross-appeal from the trial court’s denial of their motion for pre-judgment interest. We affirm in both cases.

Case No. A96A0615

Because this appeal is from a denial of a motion for a directed verdict, we view the facts in a light favorable to the jury’s verdict. See Roswell Properties v. Salle, 208 Ga. App. 202, 203 (3) (430 SE2d 404) (1993). Plaintiff Jeffrey Manley and his brother were playing golf at defendant’s course for the first time. Although the whole course was hilly, the 15th hole was particularly steep and its cart path was in one way unique: it combined the particularly steep grade with a 180 degree hairpin turn. Moreover, due to heavy foliage and another curve, the hairpin turn was not visible to a cart driver starting down the hill. As plaintiff started down the hill and began to pick up speed, he applied the brakes, but it was too late; the brakes did not slow him down, and he continued to gather speed. When plaintiff applied more and more pressure to the brakes, they apparently locked up, and the cart crashed and tipped over at the hairpin turn.

The manager of the golf course testified that there had been prior accidents at that spot and that management knew it was dangerous. He said those accidents resulted from brakes locking up, which occurs when the driver pushes down on the brake pedal in the wrong spot or from the wrong angle, and results in skidding and loss of control. The manager further stated that management had considered putting in speed bumps to make the path on the 15th hole less dangerous, and had even thought about stationing a ranger there to lead drivers down the hill. Defendant decided to do neither, however, and although the manager did not directly say so, the jury could have inferred from his testimony that defendant did not want to spend the money because it had decided to discontinue its operation of the course after its lease ran out.

Plaintiffs presented the testimony of two of the other golfers who crashed at the same turn, though the testimony of a golf course employee who crashed at the same site was excluded because his accident was not substantially similar to plaintiff’s. Additionally, plaintiffs questioned Mike Young, a golf course architect hired by defendant to consult about a different problem the year before plaintiff’s accident. Young said that when he saw the 15th hole he told defendant’s representative, “Someone could get killed on this cart path,” and the representative responded, ‘Yeah, we know. We’ve had some problems here.”

Defendant’s manager testified that there were numerous warning signs on the 15th hole, cautioning drivers about the steep grade and advising them to slow down. Plaintiff testified, however, that at the time of his accident there was only one caution sign, and it was located too far down the hill to be of any help. Moreover, defendant acknowledged that none of its warning signs mentioned the upcoming, unseen hairpin turn, which was what made the path on this hole so dangerous. Instead, the signs were the same kind of general cautionary signs present in other areas of the course. The manager had previously put up a sign that said “Danger,” but his superiors had directed him to remove it and replace it with a milder warning.

1. In four enumerations of error, defendant argues that its motion for directed verdict should have been granted because there was no evidence of negligence. A denial of a motion for directed verdict must be affirmed if, viewed in the light most favorable to the party securing the jury verdict, there is any evidence to support the verdict. Salle, 208 Ga. App. at 203-204. Considering the pictures of the path in the record, the testimony about the layout of the path and drivers’ inability to see the hairpin turn when starting down the hill, the manager’s testimony about his awareness of the danger, Young’s testimony regarding the admission of another representative of defendant that he was aware of the danger, the testimony regarding other accidents in which drivers had crashed at the same turn after their brakes locked up, the conflicting evidence about what warning signs were in place at the time of plaintiff’s accident, and undisputed evidence that there was no specific warning about the hairpin turn, we conclude there was evidence supporting a finding that defendant had superior knowledge of a dangerous condition and was negligent in failing to warn its invitees about it.

2. In light of our conclusion in Division 1, we need not consider whether there was evidence that defendant was negligent in other ways as well. See Salle, 208 Ga. App. at 204 (jury’s finding of negligence will be upheld if there is any evidence to support it).

3. Defendant also contends the trial court erred in allowing Mike Young to testify on redirect that he had seen a lot of golf courses, and that in his opinion the golf cart path at defendant’s 15th hole was a dangerous path — one of the most dangerous he had seen. Young was not offered as an expert, so his statement of opinion was not authorized by OCGA § 24-9-67. Nonetheless, the testimony was admissible under OCGA § 24-9-65, which provides that where the question under examination is one of opinion, any witness may give his opinion and its basis. Because the question of dangerousness is inherently one of opinion, the trial court properly admitted Young’s opinion testimony: “the status of the witness as lay or expert would go, not to admissibility, but to credibility.” McLelland v. State, 203 Ga. App. 93, 95 (6) (416 SE2d 340) (1992). See also Sweet v. State, 191 Ga. App. 516 (3) (382 SE2d 376) (1989).

4. Defendant further argues that the trial court erred in admitting evidence regarding two other accidents because they were not substantially similar to plaintiff’s accident. Both the other accidents occurred at the exact same location as plaintiff’s, and in both of the other accidents the drivers, like plaintiff, applied their brakes but were unable to slow down, and eventually locked their brakes, crashing and tipping over their carts. This is sufficient similarity to attract defendant’s attention to the dangerous condition of the path. See Pembrook Mgmt. v. Cossaboon, 157 Ga. App. 675 (3) (278 SE2d 100) (1981). Contrary to defendant’s assertion, the fact that one of the drivers jumped out of her cart as the cart began to crash does not undermine the similarity of the occurrences. Defendant’s argument that the other accident was dissimilar because the driver was drinking is also unconvincing, since the driver’s testimony was that he had had a couple of beers but was not intoxicated.

Case No. A96A0616

5. In their cross-appeal, plaintiffs challenge the trial court’s denial of their motion for pre-judgment interest. Under OCGA § 51-12-14 (a), “[w]here a claimant has given written notice . . . to a person against whom a claim is made of a demand for an amount of unliquidated damages in a tort action and the person against whom such claim is made fails to pay such amount within 30 days . . ., the claimant shall be entitled to receive interest on the amount demanded if, upon trial of the case in which the claim is made, the judgment is for an amount not less than the amount demanded.” Here, written notice was made of a demand for $150,000, and the jury returned a verdict of $140,000 for Jeffrey Manley and $10,000 for Haley Manley on her consortium claim. Thus, the correctness of the trial court’s decision depends on whether the written notice spoke to Jeffrey’s claim only, or included Haley’s as well.

Plaintiffs rely on Grissett v. Wilson, 181 Ga. App. 727, 728 (1) (353 SE2d 621) (1987), in which we held that a single notice demand can cover multiple claims, and that a notice stating that “[t]he purpose of this letter is to make a demand for settlement of all claims” covered the spouse’s consortium claim as well as the injured plaintiff’s personal injury claim. See also Windermere, Ltd. v. Bettes, 211 Ga. App. 177, 179 (3) (438 SE2d 406) (1993) (demand letter expressly offering to settle the entire case with all defendants for all damages covered separate claim for attorney fees under OCGA § 13-6-11). In this case, however, the heading of the demand letter referenced only Jeffrey Douglas Manley, and the first paragraph stated, “Please be advised that we herewith posit a settlement demand in reference to the above stated claim in the amount of $150,000.” (Emphasis supplied.) The letter contains a section entitled “Claims on Behalf of Jeffrey Douglas Manley,” but there is no separate discussion or listing of the consortium claim. In the five-page letter, the consortium claim is mentioned only once in passing, in a section called “Accident History.” Mindful that the provisions of OCGA § 51-12-14 must be strictly construed because they are in derogation of common law, see Resnik v. Pittman, 203 Ga. App. 835 (418 SE2d 116) (1992), our review of the full demand letter, and particularly the reference to settling Jeffrey Manley’s claim rather than “all claims,” leads us to conclude that the demand letter encompassed only Jeffrey’s claim. Accordingly, the trial court properly denied plaintiffs’ motion for pre-judgment interest.

Judgment affirmed in Case No. A96A0615.

Ruffin, J., concurs. Andrews, J., concurs specially. Judgment affirmed in Case No. A96A0616. Andrews and Ruffin, JJ, concur. Smith, J., disqualified.

Decided June 4, 1996

Reconsideration denied June 28, 1996.

Smith, Gilliam & Williams, Matthew T. Smith, Steven P. Gilliam, for appellant.

Mitchell & Mitchell, William J. Kimsey, for appellees.

Andrews, Judge,

I concur specially in Case No. A96A0615 to observe that, generally, golfers assume the risks associated with operating a golf cart on the steep terrain of a “mountain” type golf course such as the one at issue in this case because the steep grades are inherent in the design of the course, expected by the golfer, and plainly visible.

Nevertheless, I concur in the result in this case because there was evidence supporting Manley’s claim that he was injured in the golf cart accident as a result of a hazardous condition on the golf course which was not expected or plainly visible and of which American Golf Corporation had superior knowledge. Although the steep grade of the cart path was plainly visible to Manley as he approached it, there was evidence that the hairpin curve farther down the path was not visible until he approached it in the cart while driving down the steep grade. There was no evidence that Manley was not operating the golf cart in a reasonably safe manner as he approached the curve considering the obvious steepness of the path. Even assuming the cart and its brakes were functioning properly, there was evidence that the steep grade of the path and the momentum of the cart along with the sudden appearance of the hairpin curve combined to create a hazardous condition which was a proximate cause of the accident.

Because it was aware of previous golf cart accidents at the hairpin curve, American Golf Corporation knew the conditions at the curve were potentially hazardous and called for the exercise of extreme caution by golf cart drivers as they approached the concealed curve. The signs placed by American Golf Corporation warning golfers to exercise caution because of the steep path but giving no warning of the additional hazard caused by the hidden hairpin curve were not adequate to fully inform Manley of the hazard. Since Manley had never before played the course, he had no actual knowledge of the additional hazard created by the hairpin curve. Accordingly, the case was properly submitted to the jury on evidence that American Golf Corporation had superior knowledge of a hazardous condition which proximately caused the accident.

I concur fully in Case No. A96A0616.

       Notably, pictures of the 15th hole taken just after the accident disappeared while in defendant’s possession.


author: Birdsong, Presiding Judge. Beasley, Chief Judge,

text:
    A96A0107.
    REMENESKI v. KLINAKIS.
    (473 SE2d 223)
   Birdsong, Presiding Judge.

Following our grant of an interlocutory appeal, Victor J. Remeneski appeals the trial court’s partial denial of his motion for summary judgment on Anthony S. Klinakis’s claim for malicious prosecution. Remeneski contends summary judgment should have been granted on all of Klinakis’s claims against him because both charges against Klinakis arose from a single incident and the trial court denied Klinakis’s motion for a directed verdict of acquittal on one of the charges arising from that incident.

The record shows that Remeneski and Klinakis had different interest in a union matter when there was a confrontation. According to Remeneski, Klinakis stood in front of him screaming and yelling at him. Remeneski states that Klinakis called him “a f—king scumbag, and a scumbucket, and a f—king a—hole numerous times,” and while Klinakis shouted these epithets he was close to Remeneski’s face, he was red in the face and his body shook all over, and he put his finger close to and shook it in Remeneski’s face. Remeneski also states that he thought Klinakis was going to hit him and he prepared himself to receive a punch. Although at the probable cause hearing, Remeneski testified he thought he would punch Klinakis, two years later at the trial of the case, Remeneski repeated the substance of his testimony about the incident, but recanted his testimony that he thought he might hit Klinakis. Remeneski testified at the trial that he could remember feeling scared. The record also shows that Klinakis produced witnesses who stated that he did not call Remeneski the names Remeneski contends he did, but that Klinakis merely called Remeneski a scumbag and a Polack scumbag.

Remeneski testified that the day after the incident, he was approached by a co-worker who encouraged Remeneski to report the incident to local authorities. The next day, Remeneski visited a magistrate who, after listening to Remeneski’s version of the events, told him that based upon what Remeneski related, Klinakis’s conduct violated the Georgia statute on fighting words and told Remeneski that he could fill out an application for an arrest warrant. Remeneski did so, and later he and another person who witnessed the incident testified before another magistrate at a hearing to determine whether a warrant should issue against Klinakis for violating the fighting words statute (OCGA § 16-11-39). Klinakis was present at the hearing with counsel, but did not testify. After the hearing, an arrest warrant issued charging Klinakis with fighting words, and subsequently the county solicitor’s office added a count, based upon the same incident, charging Klinakis with simple assault (OCGA § 16-5-20).

Initially, Klinakis filed a plea in abatement to the fighting words charge asserting that federal labor law had preempted the area and also filed a demurrer to the simple assault charge asserting the charge was moot. Finding that the fighting words charge was preempted by jurisdiction of the National Labor Board, the trial court granted Klinakis’s plea in abatement to the fighting words charge and dismissed the simple assault charge as moot because the court found the same conduct was complained of in both counts. This Court reversed that decision because we found that federal law did not preempt state law in these circumstances and because we found the counts alleged separate violations: one violation based on uttering fighting words and the other based on certain physical conduct. See State v. Klinakis, 206 Ga. App. 318 (425 SE2d 665).

The case finally came to trial about two years after the incident giving rise to the charges. Following presentation of the prosecution’s case, Klinakis moved for a directed verdict of acquittal on both charges. Although the motion was granted on the fighting words charge, the motion was denied on the simple assault charge; the case went to the jury; and a not guilty verdict was returned.

Thereafter, Klinakis filed a complaint against Remeneski and Remeneski’s union, the Aircraft Mechanics Fraternal Association, seeking damages for malicious prosecution (OCGA § 51-7-40) and false arrest (OCGA § 51-7-1). After filing an answer denying liability, Remeneski moved for summary judgment asserting that the denial of Klinakis’s motion for a directed verdict on the simple assault charge and the magistrate’s decision to bind Klinakis over for trial, as a matter of law, precluded a lack of probable cause for bringing the prosecution, and the fact that the charges were prosecuted barred Klinakis’s claim for wrongful arrest. The trial court granted summary judgment on the simple assault charge and the wrongful arrest charge for those reasons, but denied the motion on the fighting words charge because the motion for directed verdict was granted on that charge.

On appeal, Remeneski contends the lower court erred by denying his motion because both charges arose from the same incident and, therefore, the denial of the motion for a directed verdict on the one charge established that there was probable cause to bring the prosecution for both charges. He also alleges the trial court erred by not finding that the magistrate’s decision to bind Klinakis over for trial precluded a determination that there was no probable cause for bringing the fighting words charge. The Aircraft Mechanics Fraternal Association did not join in Remeneski’s motion below and is not a party to the appeal. Held,:

1. “The overriding question in actions for malicious prosecution is not whether the plaintiff was guilty, but whether the defendant had reasonable cause to so believe — whether the circumstances were such as to create in the mind a reasonable belief that there was probable cause for the prosecution. This burden is not carried in any reasonable sense unless the plaintiff [Klinakis] shows that under the facts as they appeared to the prosecutor at the time of the prosecution, that the defendant [Remeneski] could have had no reasonable grounds for believing the plaintiff to be guilty of the charge brought.” (Citation and punctuation omitted.) Monroe v. Sigler, 256 Ga. 759, 760 (353 SE2d 23). The denial of a motion for a directed verdict of acquittal constitutes a binding determination of the existence of probable cause. Id. at 761. Further, “[t]he gravamen of the complaint is the absence of probable cause on the part of the person instituting the prosecution. Probable cause is absent when the circumstances are such as to satisfy a reasonable person that the accuser had no ground for proceeding but his desire to injure the accused.” (Citation and punctuation omitted.) Wal-Mart Stores v. Blackford, 264 Ga. 612, 613 (449 SE2d 293).

Remeneski asks us to hold that, because the trial court made a binding determination there was probable cause to bring the simple assault charge, this determination should also apply to the fighting words charge because both charges were based upon the same incident. Indeed, there is no dispute that the two charges arose from the same confrontation between Klinakis and Remeneski; the charges arose from Klinakis’s actions occurring at the same time and at the same place. The only difference is that one charge is based on Klinakis’s words and the other on his conduct. The issue thus presented is whether the trial court’s binding determination there was probable cause for prosecuting the charge based upon Klinakis’s physical conduct also constitutes a binding determination there was probable cause for prosecuting the charge based upon his utterances.

Our Supreme Court considered a similar issue in Day Realty Assoc. v. McMillan, 247 Ga. 561 (277 SE2d 663). The facts are set out in this Court’s opinion, McMillan v. Day Realty Assoc., 156 Ga. App. 660 (275 SE2d 352). Shortly after McMillan was terminated from his employment as a yard worker at Day Realty’s apartment complex, a lawn mower, a weed cutter, and a swing blade were found missing. The weed cutter and the swing blade were seen later at McMillan’s home. After McMillan was charged with the theft of the lawn mower, the weed cutter, and the swing blade, McMillan showed the complex’s manager where he left the lawn mower on the apartment grounds, some distance from where the mower was usually stored.

After the case against McMillan was nolle prossed, he sued Day Realty for malicious prosecution, but the case resulted in a directed verdict for Day Realty. Upon McMillan’s appeal to this Court, we reversed because we found that under the circumstances, there was a serious question whether a reasonably prudent person would have believed there was any basis to find McMillan guilty of the theft of the lawn mower. McMillan, 156 Ga. App. at 663.

After granting certiorari to consider whether a jury issue is “presented in an action for malicious prosecution where the defendant obtains an arrest warrant for theft by taking of several items and the evidence, as a matter of law, supports a finding of probable cause for some items, but not for all of them” {Day Realty, 247 Ga. 561), our Supreme Court held that a jury question was not presented under those facts. The Supreme Court held that “as long as there was probable cause to prosecute for the theft of some of the items, Day cannot be liable in tort for malicious prosecution.” Id. at 562.

Although the court below found as a controlling factor that in Day Realty the items alleged to have been stolen were set out in one charge, we do not find that significant. The issue should not be whether the offenses were alleged in one charge, but whether there was probable cause for the criminal prosecution. Here, the facts present a stronger case for extending a finding of probable cause to both charges than those in Day Realty for extending probable cause from the theft of one item to another because there was no showing of any connection between the items stolen. Nothing in Day Realty suggests that the thefts arose from a single event or transaction or were otherwise related except for the same perpetrator and victim. Nevertheless, our Supreme Court held that the existence of probable cause for initiating the prosecution extended to all the items alleged to have been stolen. In this case, however, not only were the perpetrator and victim the same, but the charges arose from a single incident that occurred at the same time and place. In this regard, we note that the trial court originally dismissed the simple assault charge as moot because the same conduct was complained of in both charges.

Consequently, we reject the contention that our Supreme Court intended to limit the holding in Day Realty only to instances in which the criminal allegations are contained in the same charge. Instead, we find it consistent with the holding in Day Realty that a finding of probable cause as to one related offense arising from the same transaction is a binding determination that there was probable cause for all related charges arising from the same transaction or occurrence. This is particularly true in this case in which the solicitor’s office independently reviewed the file and, sua sponte, found that Klinakis’s action warranted a prosecution for simple assault.

Of course, as the dissent states, it is a serious matter to charge another with a crime. Nothing in this opinion states otherwise. It is also a serious matter to be the defendant in a malicious prosecution action because one, after seeking and following the advice of a magistrate, selects the wrong legal theory under which to bring a charge, even though another magistrate considered the evidence and found probable cause to issue a warrant on that charge. It is also a serious matter to be the defendant in one of these actions after the solicitor’s office considers the incident and determines that the incident warrants a criminal prosecution, albeit under a different legal theory.

Life should not be a law school examination in which one becomes a defendant in one of these actions because he picks the wrong theory under which to bring a charge even though the same evidence supported a binding determination that probable cause exists to prosecute a criminal charge under another legal theory. What would be the purpose of such a result? It is the absence of probable cause for instituting the prosecution that is the gravamen of these complaints. See Wal-Mart Stores v. Blackford, supra at 613; K-Mart Corp. v. Coker, 261 Ga. 745 (410 SE2d 425); Monroe v. Sigler, supra at 759.

Thus, when there is a binding determination of the existence of probable cause for one related charge arising from the same transaction (Monroe v. Sigler, supra at 761), it cannot be said that the person bringing the charges had no ground for proceeding except a desire to injure the accused. See OCGA § 51-7-43. Therefore, when the court trying the criminal case determines that there is sufficient evidence for one of related criminal charges arising from the same transaction to go to the jury, that is sufficient to show the existence of reasonable grounds for prosecuting other charges reasonably arising from the same transaction.

By this, however, we do not mean merely that the charges arise at the same place and general time. For application of this rule, there must be more than just a sequential relationship between the charges. Instead, the charges must be based on the same course of conduct with a reasonable relationship between them.

“Our ruling comports with the policy of the courts that malicious prosecution suits are disfavored and citizens are encouraged to bring to justice those who are apparently guilty.” (Citation and punctuation omitted.) Wal-Mart Stores v. Blackford, 264 Ga. at 614. “As [the Supreme Court] stated in Day Realty Assoc. v. McMillan, [supra at 562]: It is the policy of the courts that malicious-prosecution suits are not favored. It is public policy to encourage citizens to bring to justice those who are apparently guilty. Citizens have a duty to report crimes. Disputes concerning that duty should be handled within the legal system, and not by extralegal means. We do not encourage the reporting of crimes when a criminal victim easily, and at great hazard, can become a civil defendant.” (Punctuation omitted.) Monroe v. Sigler, supra at 761-762.

We do not find persuasive the cases from other jurisdictions cited in the dissent on this issue. In those cases the charges did not all originate from the same transaction, and the results are inconsistent with the law of this State as we perceive it to be announced in Wal-Mart Stores v. Blackford, supra; Monroe v. Sigler, supra; and Day Realty Assoc. v. McMillan, supra.

Therefore, the trial court erred by denying Remeneski’s motion for summary judgment.

2. In view of our disposition in Division 1, we need not address Remeneski’s other enumerations of error.

Accordingly, the denial of Remeneski’s motion is reversed, and the trial court is directed to enter summary judgment in favor of Remeneski.

Judgment reversed with direction.

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

Beasley, Chief Judge,

dissenting.

I respectfully dissent because the trial court was correct in denying summary judgment to defendant Remeneski on the fighting words charge. This was the only charge prosecuted by Remeneski, and it suffered a directed verdict because the evidence could not support a verdict. It was the solicitor who added a simple assault charge, which the jury rejected.

Remeneski contended that the fighting words charge was closely related to the simple assault charge so that the denial of a directed verdict on the simple assault charge in the preceding criminal trial constituted a binding determination of the existence of probable cause on the fighting words charge. It is true that a denial of directed verdict on a criminal charge establishes probable cause as a matter of law. Monroe v. Sigler, 256 Ga. 759 (353 SE2d 23) (1987). In other words, if a trial court, after hearing and seeing the State’s evidence, finds that there was enough evidence of each of the elements of the charged crime to allow a jury to decide guilt or innocence, probable cause to prosecute existed. Teasley v. State, 214 Ga. App. 646, 647 (2) (448 SE2d 904) (1994).

But it is too large a leap to conclude as a matter of law that this ruling ipso facto throws a cover of protection over charges of other crimes allegedly arising from the same incident. Probable cause for one does not necessarily mean probable cause for another. As we recognized the first time this case was here, the charges instigated were based on “two separate and independent criminal statutes (OCGA §§ 16-11-39 and 16-5-20) [the purpose of which is] the prevention and criminalization of constitutionally unprotected words and/or acts directly leading to the immediate threat of or incitement to violence. . . .” State v. Klinakis, 206 Ga. App. 318, 321-322 (1) (b) (425 SE2d 665) (1992). The criminal trial court properly ruled on each charge separately. It granted the directed verdict on the fighting words charge, which meant there was no evidence on which guilt could be found. Teasley, supra.

Remeneski depended for his faulty theory on Day Realty Assoc. v. McMillan, 247 Ga. 561 (277 SE2d 663) (1981). But as distinguished by the trial court, that case involved only one charge of the theft of several items, and the Supreme Court held that the lack of probable cause as to one of the items “in the same charge” does not give rise to an action for malicious prosecution. Id. at 562. So long as there is probable cause for some of the items listed in the charge, it is not malicious to prosecute for theft. The charge of theft is grounded. The Supreme Court did not intimate or even discuss, much less hold, that where a person is accused of multiple charges of different crimes, and the charge pressed by the accuser is unfounded in that there was a lack of probable cause to believe it was committed, it would not be malicious prosecution as to that charge so long as one of the other charges did not lack probable cause.

It is a serious matter to charge someone with a crime, and a serious and sometimes devastating matter to be so charged. One who causes damage by doing so maliciously and without reasonable cause to believe that the person he is accusing is guilty of that crime should not be permitted a shield from civil liability simply because there was probable cause to believe some other charged crime was committed. Where there is evidence of the elements of the tort as set out in OCGA § 51-7-40 with respect to the separate and independent alleged crime, the wrongfully accused person should not be deprived of his right of action. Thus I agree with the trial court and with other courts which have taken this view. See, e.g., Janetka v. Dabe, 892 F2d 187, 190 (2nd Cir. 1989); DeLaurentis v. City of New Haven, 597 A2d 807, 822 (Conn. 1991); Cuthrell v. Zayre of Virginia, 201 SE2d 779 (Va. 1974).

If there are any circumstances under which the extension of Day Realty created in the majority opinion might be appropriate, this is not such a case. The criminal court granted a directed verdict on the fighting words charge, establishing as a matter of law that such an accusation was not grounded in even a probable cause belief. The elements of this crime, OCGA § 16-11-39, are far different from those of simple assault, OCGA § 16-5-20. Although the two charges grew out of the same incident and, in Remeneski’s theory, were “closely related” in that sense, they stemmed from different legal elements and from different facts essential to those elements.

Decided June 28, 1996

Alfred L. King, Jr., for appellant.

Peters, Roberts, Borsuk & Taylor, R. Stephen Roberts, for appellee.

The record contains conflicting evidence with respect to Remeneski’s truthfulness in relating facts upon which the prosecution for fighting words proceeded. The resolution of this conflict is for the jury. Martin v. Reitz, 152 Ga. App. 854, 856-857 (264 SE2d 305) (1980). So is the question of the lack of probable cause. OCGA § 51-7-43. See Perry v. Brooks, 175 Ga. App. 77, 78 (4) (332 SE2d 375) (1985) (non-precedential as to case but precedential as to cited principles).

The trial court should be affirmed.

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

       “[A] directed verdict of acquittal should be granted only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17-9-1 (a); [cit.].”

       The Supreme Court returned the case to this Court to determine whether there was probable cause to prosecute as to the other items in the charge.


author: Blackburn, Judge. Beasley, Chief Judge,

text:
    A96A0210.
    DEPARTMENT OF TRANSPORTATION v. BRIDGES.
    (473 SE2d 765)
   Blackburn, Judge.

In the underlying action, Bridges sought recovery from the Department of Transportation (DOT) on a theory of inverse condemnation. Upon our grant of its application for interlocutory appeal, the DOT appeals the trial court’s denial of its motion for summary judgment.

Bridges’ complaint is based on the DOT’s closing of Chumley Circle at its intersection with Canton Road. Bridges’ property is an undeveloped commercial tract of land which abuts Chumley Circle near its intersection with Canton Road. It is the only property in the county with a Chumley Circle street address and the only property which uses Chumley Circle as its primary access to Canton Road. Surrounding properties are zoned residential and either have direct access to Canton Road or have used other residential streets for access. The DOT closed Chumley Circle at its intersection with Canton Road for safety reasons.

The court’s denial of summary judgment rested on the conclusion that Bridges has a right to be compensated for any substantial impairment of his right of access to his property, that the existing means of ingress and egress may not be substantially interfered with without compensation, and that it is for the jury to decide whether there has been a substantial impairment or interference.

1. The issue here is whether Bridges has suffered any violation of a special right which he holds by virtue of ownership of his property, as opposed to a violation of those general rights which he enjoys in common with the public. If he has not, then he cannot recover damages for this injury, which he suffers in common with other members of the public.

Bridges’ commercial property had been zoned O & I since 1985, and he intended to develop it as office property. The DOT action has taken away Bridges’ right to develop his property commercially because it has cut off access to the commercial artery and the only access is now through residential neighborhoods. As Bridges owns the only property so affected, his injury raises a jury question. Being the solitary property affected is the ultimate state of uniqueness.

Whether property is unique is a jury question, and only slight evidence of uniqueness is required to warrant the submission of the issue to the jury. DeKalb County v. Glaze, 189 Ga. App. 1, 4 (375 SE2d 66) (1988). All evidence is viewed in favor of Bridges and in opposition to the DOT’S motion for summary judgment. The facts herein outlined are supported by Bridges’ affidavit and are undisputed by the DOT. The trial court correctly decided to submit this question to a jury. See Dept. of Transp. v. 19.646 Acres of Land, 178 Ga. App. 287 (1) (342 SE2d 760) (1986); Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 542 (1) (309 SE2d 816) (1983).

In Circle K Gen. v. Dept. of Transp., 196 Ga. App. 616 (396 SE2d 522) (1990), an excellent opinion authored by Judge Beasley, this Court held that the property owner in that case had the right to present evidence to show the access to its property had been substantially restricted. Substitution of a controlled access road by the State was held to potentially cause damage to the property owner which was compensable insofar as an access road was not the same as access to the major thoroughfare. In this case, Bridges has not even been provided with a controlled access road, but rather is faced with a constructed barrier which completely blocks his access to Canton Road. Additionally, a review of the diagram attached as Exhibit 1 to Bridges’ affidavit shows that access to his commercially zoned property is now available only through surrounding residential property which is a substantial and unique detriment to him. The trial court in Circle K noted that “the [property owner] would be entitled to recover for any damages from the change in access which would be unique to itself and not of the same kind as the general public meaning the other property owners along [the street on which the plaintiff’s property was located] whose access was also changed.” (Punctuation omitted; emphasis supplied.) Id. at 617.

The dissent focuses on a distinguishable case, Tift County v. Smith, 219 Ga. 68, 72 (131 SE2d 527) (1963), in which the Court reiterated the existence of the “cul-de-sac” theory in which Georgia courts had permitted landowners to recover for damages incurred as a result of the dead-ending of a road within the same block as the property involved, citing Felton v. State Hwy. Bd., 47 Ga. App. 615 (171 SE 198) (1933), and Ga. Terminal Co. v. Temple Baptist Church, 144 Ga. 791 (87 SE 1023) (1916). The Court also recognized in Tift, supra at 71, that it did not apply to factual situations like the present case: “The holdings by this court in Ward and Georgia Terminal Co., supra[ cases similar to the present case], and those by the Court of Appeals turn upon whether the dead-end obstruction is within the same block as the property involved. Thus, there is no decision by this court as to whether a situation comparable to the one here constitutes a claim compensable under the constitutional provision invoked.” (Emphasis supplied.)

In Tift, the Court further stated: “The complaint here is based upon access, reoí to the road upon which their property abuts, but to a particular place, Eldorado.” (Emphasis in original.) Id. “The only interference plaintiffs allege is inconvenience of travel on the old road.” Id. at 72. “It is significant that they allege no . . . other damage that is peculiar to them because of their ownership of this property.” (Emphasis supplied.) Id. Tift did not involve an interference with the right to develop one’s property consistent with its existing zoning, as does the present case. The right to so develop one’s property is a property right with which the DOT cannot interfere without compensation to the landowner. See Ga. Const. 1983, Art. I, Sec. Ill, Par. I.

Bridges’ property is the only property on Chumley Circle and is the only property directly affected by the DOT’s action. This distinguishes the present case from Tift and MARTA v. Fountain, 256 Ga. 732 (352 SE2d 781) (1987), which cites Tift. The flaw in applying MARITA and Tift to the present case is the underlying assumption in those cases that there are others who adjoin the “abutting highway” and are similarly affected, and thus there is no special right in the complaining landowner. “[0]ne whose right of access from his property to an abutting highway is cut off or substantially interfered with has a special property right which entitles him to damages. But if his access is not so terminated or obstructed, if he has the same access to the highway as he did before the closing, his damage is not special, but is of the same kind, although it may be greater in degree, as that of the general public, and he has lost no property right for which he is entitled to compensation.” (Punctuation omitted.) MARITA, supra at 733, quoting Tift.

Bridges’ access differs in kind, as no other property abuts the road, not in degree, and thus MARITA and Tift are inapplicable. Further, Bridges has also lost a property right for which he is entitled to compensation, even under the language of Tift, that being his right to develop his property which was precluded by the DOT’s action. Bridges’ inability to develop the commercial potential of his property is a special damage unique to him alone, suffered as a result of the actions of the DOT. Being the only one affected is as unique and special as one can get; there is no higher degree of uniqueness. “[CJonsequential damages must be special to the condemnee and not be those suffered by the public in general.” Hillman v. Dept. of Transp., 257 Ga. 338, 339 (359 SE2d 637) (1987).

This case is also distinguishable from the Durpo case cited by the dissent. See Dept. of Transp. v. Durpo, 220 Ga. App. 458 (469 SE2d 404) (1996). In Durpo, the landowner complained that its direct access to a main road was closed, thereby causing a loss of business because of the new less-direct method its customers must travel to reach it. In the present case, Bridges can no longer develop his commercial property due to the DOT’s actions. The only remaining access to Bridges’ commercial property is through residential neighborhoods. Bridges’ damages are special and unique as contrasted with the type of damages addressed in Durpo.

Therefore, the trial court did not err in denying DOT’s motion for summary judgment.

2. Bridges contends that he has been denied access to the county sewer system. Bridges alleged that he had received approval to access the county sewer system, that he presented evidence (which he did) that the closure of Chumley Circle at its intersection with Canton Road has denied him his only access to the sewer system, and that such access is necessary in order for him to develop his property. A complete denial of access to a public utility under these circumstances would constitute a compensable damaging of property. Consequently, the court did not err in denying DOT’s motion for summary judgment on Bridges’ amendment to his complaint.

3. We do not address DOT’s argument regarding the separation of powers clause of the Georgia Constitution, in that it does not appear this issue was raised below. See, e.g., Tanthongsack v. State, 265 Ga. 88 (1) (453 SE2d 468) (1995).

Judgment affirmed.

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

Beasley, Chief Judge,

concurring in part and dissenting in part.

I fully concur in Divisions 2 and 3 but respectfully dissent as to Division 1. Since the decision in Tift County v. Smith, 219 Ga. 68 (131 SE2d 527) (1963), the law in Georgia has been that a landowner has a special property right which entitles him to access to a public road abutting his property, but that inconvenience of access to other roads and circuity of travel caused by the closure of one end of an abutting road, which closure is a short distance from the landowner’s property, does not violate any special right of the landowner. In this case, the Court holds that such a closure does violate a special right of the landowner if the landowner’s property is unique in the sense that it is the only property which abuts only that road. This holding misapplies the concept of uniqueness and is in conflict with Tift County and its progeny. I therefore respectfully dissent from Division 1 of the majority opinion.

Tift County acknowledged that a landowner has a special property right which entitles him to access to a public road abutting his property. Dept. of Transp. v. Whitehead, 253 Ga. 150 (317 SE2d 542) (1984); Circle K Gen. v. Dept. of Transp., 196 Ga. App. 616 (396 SE2d 522) (1990); and DeKalb County v. Glaze, 189 Ga. App. 1, 2 (1) (375 SE2d 66) (1988), are examples of cases in which a landowner’s right of access to an abutting road was interfered with or impaired.

Conversely, Tift County drew the distinction that inconvenience of access and circuity of travel caused by the closure of one end of an abutting road a short distance from the landowner’s property does not violate any special right of the landowner. The Supreme Court reasoned: “What we deem controlling under the facts here is that access to the [road] upon which the plaintiffs’ property abuts was not interfered with. The fact that farther down this road a dead-end obstruction was created so as to constitute a cul-de-sac, causing inconvenience, does not, in our view, constitute the taking or damaging of private property for a public purpose so as to require compensation.” 219 Ga. at 73-74.

Since the Supreme Court also stated that it was not concerned with the fact that plaintiffs’ property was located without, rather than within, a municipally incorporated area, id. at 73, Tift County renounces the cul-de-sac principle. Accord 16 Mercer L. Rev. 50-51 (1964). In this regard, that principle has not been applied in any case since the Tift County decision, and it is not relied on by plaintiff Bridges.

MARTA v. Fountain, 256 Ga. 732 (352 SE2d 781) (1987), and Hendrix v. Dept. of Transp., 188 Ga. App. 429 (373 SE2d 264) (1988), are examples of cases involving non-compensable injuries. See also Dept. of Transp. v. Taylor, 264 Ga. 18 (440 SE2d 652) (1994). Like the present case, Taylor, Hendrix, and Fountain involved commercial properties.

Bridges’ is one of the four properties which abut Chumley Circle, but Bridges’ is the sole property which does not also abut another public road. Two also abut Canton Road, and one also abuts Hilltop Drive. Bridges regarded Chumley Circle as a driveway which connected his property to a public road (Canton Road), but Chumley Circle is itself a public road. It connects with others in the residential subdivision, so it gave a number of property owners more direct access to Canton Road than they now have since Chumley Circle has been closed at Canton Road. See the appendix hereto. That is, the most direct route to Canton Road for property owners on Kelley Drive also has been cut off by the closure so that they, like Bridges, must access Canton Road by way of Hilltop Drive. (For some, Suholdon Circle would now be more direct.)

It is undisputed that Bridges’ access to the abutting public road (Chumley Circle) was not diminished. Bridges’ access to Canton Road was changed from one lot’s distance to four lots’ distance. The inconvenience caused by the closure is an injury which “falls squarely within the non-compensable category. . . .” Fountain, supra at 734.

In Dept. of Transp. v. Durpo, 220 Ga. App. 458 (469 SE2d 404) (1996), the property owner owned a shopping center abutting Iris Drive. For safety reasons, the DOT closed Iris Drive at its intersection with State Route 138 (the Interstate 20 access road). This resulted in less convenient access from Durpo’s property to State Route 138 and Interstate 20, and in traffic being routed around Durpo’s property, but Durpo’s access to Iris Drive was not altered.

Durpo contended that an immediate and uninterrupted access from Iris Drive to State Route 138 and Interstate 20 was critical to the value and economic success of the shopping center. The trial court ruled that DOT’S closure of Iris Drive at its intersection with State Route 138 was a compensable taking.

This Court reversed. Tift County, relied on in Division 1 of that opinion, is now sought to be distinguished by the majority. The court in Durpo distinguished Circle K, on which the majority places major reliance here. The only distinction between Bridges’ case and Durpo is that Durpo involved economic loss suffered by a property owner who operated an established business, whereas this case involves economic loss suffered by a property owner who has not yet developed the property or established business on it but instead has had it rezoned from residential to commercial property.

“The term ‘uniqueness’ is used in two contexts. One is where the property on which a business is situated constitutes a ‘unique’ location, allowing business losses. The other is where property is ‘unique,’ so that its fair market value does not represent the condemnee’s actual loss. [Cits.]” Raiford v. Dept. of Transp., 206 Ga. App. 114, 119 (2) (424 SE2d 789) (1992). In order for a recovery by the property owner to be sanctioned in either context, there must have been a compensable damaging or taking. See, e.g., Dept. of Transp. v. Sharpe, 213 Ga. App. 549, 550 (1) (445 SE2d 343) (1994); Dept. of Transp. v. Hillside Motors, 192 Ga. App. 637 (385 SE2d 746) (1989).

The denial of vehicular access to Canton Road via Chumley Circle, there being other access, did not constitute a compensable taking or damaging of Bridges’ property. The fact that Bridges’ is the sole property with a Chumley Circle address does not qualify it as compensably unique. This fact does not turn otherwise non-compensable damage into a compensable taking. If it did, it would mean that if there is only one tract which abuts only one street, the dead-ending of the street may be compensable; but if there is another tract, it is not.

Moreover, the majority errs when its accepts as true Bridges’ conclusory assertion that access from his property to Canton Road via Chumley Circle is necessary in order for him to develop the property commercially. The DOT did not dispute this assertion because it moved for summary judgment on a theory that makes the assertion immaterial and because Bridges did not move for partial summary judgment on this issue.

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

APPENDIX

Decided June 28, 1996

Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, Jeffrey J. Davis, Assistant Attorney General, Anne W. Sapp, for appellant.

Moore & Rogers, John H. Moore, G. Phillip Beggs, Bentley, Bentley & Bentley, Fred D. Bentley, Jr., Linda W. Brunt, Maddox, Maddox & Maddox, Lynwood A. Maddox, for appellee.


author: Pope, Presiding Judge.

text:
    A96A0309.
    CARPET CENTRAL, INC. v. JOHNSON.
    (473 SE2d 569)
   Pope, Presiding Judge.

Plaintiff Carpet Central, Inc. d/b/a Associated Furniture Brokers sued defendant Johnson for negligence and breach of contract, alleging that defendant failed to repair numerous leaks in the roof of the building plaintiff had leased from defendant. Following t ial of the case before a jury, the trial court granted defendant’s motion for a directed verdict. Plaintiff appeals.

In cases like this, we construe the evidence, with all reasonable deductions therefrom, in favor of the party opposing the motion for directed verdict. Moore v. American Suzuki Motor Corp., 203 Ga. App. 189 (1) (416 SE2d 807) (1992). As such, the evidence shows that on April 10, 1990, plaintiff leased a building for use as a used furniture store from defendant. Under the lease, defendant had a duty to make any necessary repairs to the building’s roof within a reasonable time after receiving written notice of the need for such repairs. Shortly after plaintiff occupied the premises in June 1990, the roof leaked, damaging plaintiff’s office and inventory. Defendant was promptly notified in writing, but no repairs were made for several weeks. Over the next four years, the roof leaked approximately twenty more times, causing additional damage to plaintiff’s office and inventory. Each time the roof leaked, defendant was notified in accordance with the lease terms. The record demonstrates that in some instances defendant sent roofers to the building to patch holes or splits and make other incidental repairs. On other occasions, however, no repair attempts were made. It is undisputed that none of the repairs that were made prevented future leaks from occurring. And one of the roofing company’s invoices, which was produced by defendant, indicates that the roof was in bad condition. Plaintiff’s expert also testified that in his opinion, the roof should have been replaced.

Plaintiff filed its original complaint on August 18, 1993. Therein, it alleged that defendant had breached the lease by failing to meet its repair obligation. Plaintiff also alleged that defendant was negligent in its attempt to repair the roof, since defendant made only token efforts to repair the leaks when it knew or should have known that the entire roof needed to be replaced. Based on these allegations, plaintiff claimed it was entitled to recover for damages to its office and inventory.

After filing its original complaint, plaintiff decided to terminate the lease early, as provided for in the lease, and go out of business. Thereafter, from February through May 1994, it liquidated its inventory at substantially reduced prices. As a result, plaintiff amended its complaint seeking recovery for lost profits it allegedly incurred as a result of this liquidation. On the day of the trial, plaintiff also sought to amend its complaint to include a claim for diminution in rent, but the trial court refused to allow plaintiff’s amendment at that time.

1. Plaintiff contends the trial court erred in determining as a matter of law that plaintiff had failed to demonstrate defendant was guilty of negligent repair. We agree. The common definition of “repair” is very broad in scope and includes in its meaning “to . . . make good.” SunAmerica Financial v. 260 Peachtree St., Inc., 202 Ga. App. 790, 792-793 (415 SE2d 677) (1992). As set forth above, defendant was repeatedly notified about leaks in the roof, and in June 1991, plaintiff specifically requested that the roof be fixed permanently because the leaks were continuing to damage plaintiff’s office and furniture. Defendant, however, continued to have the roof patched, rather than make the roof good by having it replaced. Although defendant contends that he was never informed that the roof needed to be replaced, there is evidence in the record that one of the roofing companies sent to repair the roof indicated that the roof was in bad condition. Moreover, once a landlord has notice of a defect, such as a leak, he is deemed to have constructive knowledge of all other defects which would have been discovered in repairing the first defect. Smith v. Smith, 125 Ga. App. 257 (2) (187 SE2d 330) (1972); Aycock v. Houser, 96 Ga. App. 99 (1) (99 SE2d 298) (1957). Consequently, we conclude that there is evidence in the record from which a jury could have determined that defendant’s attempts to patch the roof rather than replace it constituted negligence. See Stern’s Gallery of Gifts v. Corporate Property Investors, 176 Ga. App. 586 (337 SE2d 29) (1985) (negligence found in landlord’s repeated failure to make necessary repairs to a roof); Dempsey v. Hertzfield, 30 Ga. 866, 869 (1860) (repeated patchwork rather than thorough renovation of a roof to prevent leaks found to be negligent).

2. We reject plaintiff’s contention that the trial court erred in granting a directed verdict to defendant to the extent plaintiff sought to recover for damage allegedly caused to its office and inventory. The record shows that after filing its original complaint, plaintiff submitted a claim for recovery of these damages to its insurer. The insurer paid the claim, except for approximately $3,000 worth of deductibles. Although plaintiff admits that under the terms of the lease defendant is not liable for any loss which is covered by tenant’s insurance, it claims that it is entitled to recover the amount of its claim treated as a deductible. We disagree. The evidence does not demonstrate that plaintiff could not obtain a policy without a deductible. Absent such evidence, plaintiff has not demonstrated that it fulfilled its obligation under the terms of the lease to maintain fire and casualty insurance coverage in fully adequate amounts on its personal property, including trade fixtures, which was placed in or about the leased premises. In this case, the allocation of risk between the parties clearly constituted a matter of contract construction which was properly determined by the trial judge and did not require submission to the jury. See Lineberger v. Williams, 195 Ga. App. 186 (393 SE2d 23) (1990); Benoit v. Emory Univ., 191 Ga. App. 211 (1) (381 SE2d 394) (1989). We also note that plaintiff has failed to demonstrate that any alleged damage to its office and inventory occurring after it submitted the abovementioned insurance claim was not covered by insurance. Instead, the record shows that plaintiff has simply chosen not to submit an additional claim.

3. We also reject plaintiff’s contention that the trial court improperly directed a verdict as to plaintiff’s claim for lost profits. Plaintiff simply has failed to establish a cause and effect relationship between defendant’s alleged breach of its duty to repair and plaintiff’s decision to go out of business and hold what amounted to a fire sale. There is no indication that plaintiff could not have relocated its business after terminating the lease agreement, or that such a relocation would have been cost prohibitive. Moreover, the burden is on the plaintiff to show both a breach and damage, and this must be done by evidence that will furnish the jury with data sufficient to enable them to estimate the amount of damages with reasonable certainty. The amount cannot be left to mere speculation, conjecture or guesswork. Turner v. Connor, 192 Ga. App. 348, 349 (385 SE2d 19) (1989); Bennett v. Associated Food Stores, 118 Ga. App. 711, 716 (165 SE2d 581) (1968).

In this case, the formula put forth by plaintiff for computing its alleged lost profits assumes that it would have received full retail price for its inventory, even though plaintiff admitted that sometimes it sold its furniture for less than retail. Additionally, plaintiff failed to demonstrate what the fair market value of its inventory was. In fact, plaintiff readily admitted that it bought its inventory in bulk and had no idea as to the cost of any individual item of inventory. Plaintiff also admitted that the sworn statements it filed regarding its 1994 ad valorem taxes showed that the retail value of its inventory was $6,196. Plaintiff further admitted that this is the same inventory that it now contends had a fair market value of $128,000, and was liquidated for $54,105.

Decided June 28, 1996.

Honigman, Miller, Schwartz & Cohn, Charles V. Choyce, Jr., for appellant.

Schwall & Schwall, Emory A. Schwall, for appellee.

Plaintiffs testimony concerning the value of its inventory is vague and equivocal at best, and as such, must be construed against it. Wilson v. Southern R. Co., 208 Ga. App. 598, 602 (2) (431 SE2d 383) (1993); Marett v. Professional Ins. Careers, 201 Ga. App. 178, 182 (1) (c) (410 SE2d 373) (1991). Accordingly, we conclude that the trial court did not err in determining that plaintiff’s claim for lost profits was too speculative to go to a jury.

4. Plaintiff contends that the trial court erred in refusing to allow it to amend its complaint to include a claim for diminution of rent. We agree. It is undisputed that no pretrial order was entered in the case, and plaintiff’s motion to amend was made before any evidence was taken at trial. Accordingly, because there is evidence in the record that defendant breached his duty to repair the roof by failing to replace it, and diminution in rent is an appropriate remedy for such a breach, the amendment should have been allowed as a matter of right. See OCGA § 9-11-15 (a); Jackson v. Paces Ferry Dodge, 183 Ga. App. 502, 503 (1) (359 SE2d 412) (1987). Thus, we remand the case to the trial court with the instruction that plaintiff be allowed to amend its complaint to assert a claim for diminution in rent.

Judgment affirmed in part and reversed in part.

Smith, J., concurs. Andrews, J, concurs in judgment only.