text:
    A98A0845.
    GAITHER et al. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al.
    (510 SE2d 342)
   Beasley, Judge.

Georgia State University Police Officer Gaither and his wife appeal from the grant of summary judgment to Metropolitan Atlanta Rapid Transit Authority (MARTA) and its bus driver Parker. Their negligence suit was based on the officer’s being struck by the bus while he was directing traffic on Gilmer Street in the environs of the university.

In a previous decision, this Court held that the fireman’s rule applied to police officers and precluded recovery for negligence from co-defendant Martin, driver of the car being directed by Gaither at the time he was struck. Upon remand, MARTA and its driver sought and won summary judgment based on Martin.

As pointed out in Martin, Martin had stopped in the curb lane on the street adjacent to a “No Stopping or Standing” sign in an attempt to enter a parking lot. Gaither walked in front of her car into the street, stood on the white line dividing the lanes facing Martin with his back to traffic in the inner lane, and told her to move on. As she began to pull away, “Gaither straightened up and was struck by a MARTA bus that had changed lanes in an attempt to go around Martin. The bus [mirror struck the top right side of Gaither’s head and knocked him] into the back of Martin’s car, causing him injury. . . . He and his wife allege that Martin negligently operated her vehicle, creating a traffic hazard. This, it is alleged, in concert with the negligence of the bus driver, caused the injury-producing collision of Gaither first with the bus and then with Martin’s car.”

“[T]he fireman’s rule has been viewed as adopted in Georgia, broadly construed to cover tortfeasors other than those whose acts prompted the presence of the fireman at the place of injury, narrowly construed to exclude subsequent or extrinsic acts of negligence other than the initial reason for the fireman’s professional presence, and . . ., broadly construed to apply to ‘public safety employee(s)’ including police officers.”

This case presents the question whether the fireman’s rule applies to the subsequent negligent acts of a party other than the party whose initial negligence occasioned the engagement of the police officer in the place where he was injured.

The fireman’s rule does not apply because officer Gaither was in the street not because of any negligence of bus driver Parker but because of the separate and earlier alleged negligence of student Martin. Martin did not owe Gaither a duty to exercise care so as not to prompt the fulfillment of his official duty to the public, the breach of which would make her potentially liable if proximate cause were shown. Of course, she did owe a duty to the public to obey the traffic laws and the officer’s instructions. Parker owed Gaither a duty to drive the bus non-negligently so as not to injure him.

Plaintiff Gaither alleges that Parker and MARTA are liable because Parker, while acting within the course and scope of his employment and in furtherance of the business of MAKTA, negligently operated the bus. In particular, plaintiff alleges that Parker failed to keep a proper lookout, failed to exercise reasonable care for the officer’s safety, had the last clear chance of avoiding injury to the officer, and may have been driving too fast for conditions.

Neither the presence of the bus nor any act or omission on Parker’s part required or prompted Gaither to be out in the street fulfilling his duty to direct traffic at the given location. Thus, the basis for the application of the fireman’s rule is missing. As established in Bycom Corp. v. White, “it is a public policy of the State of Georgia that a public safety employee cannot recover for injuries caused by the very negligence that initially required his presence in an official capacity and subjected the public safety employee to harm; that public policy precludes recovery against an individual whose negligence created a need for the presence of the public safety employee at the scene in his professional capacity.”

There are underlying reasons for this. First is that it is the nature of the job undertaken for the employee to be subjected to risks of injury created by people he or she is called upon to serve. By accepting that job the employee assumes a general or primary risk of injury, unlike the specific or secondary assumption of the risk which constitutes an affirmative defense to a tort action brought by one who “ ‘(1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks.’ ” The justification for imposing this general or primary risk is that the employee is paid to encounter it and trained to cope with it.

Second, it would be too burdensome to charge all who negligently cause a need for police services with the injury “suffered by the expert retained with the public funds to deal with those inevitable, although negligently created, occurrences.” So it is public policy not to impose a duty “to exercise care so as not to require the services for which [the public service employee] is trained and paid.”

Neither bus driver Parker nor his employer MARTA, who may be liable by virtue of respondeat superior, instigated the need for police services. Unlike Martin, nothing Parker did or failed to do caused Gaither to step out into the street. He was already there when Parker’s alleged negligence took place. In that way the circumstances were no different than if the bus had struck Gaither when he was directing traffic while standing in the intersection of a busy street. He would have been at that intersection not in response to any act or omission on Parker’s part but because he was assigned the duty of directing traffic there.

Parker and MARTA are in the position described in Martin when we wrote that the fireman’s rule does not include “subsequent or extrinsic acts of negligence other than the initial reason for the [professional’s] presence.” It is precisely the position referred to by the court in Bycom Corp. when it pointed out that “ ‘[t]he relevant inquiry is whether the negligently caused risk which resulted in the . . . injury was the very reason for [the employee’s] presence on the scene in [a] professional capacity. If the answer is yes, then recovery is barred; if no, recovery may be had.’ [Cit.]” Notable is that the defendant to whom the fireman’s rule applied in Bycom Corp. was not even on the premises of the fire, had no owner or occupier interest in it, and was charged with creating a risk of fire and explosion by rupturing a gas pipe and then leaving the area. The same inquiry was made in Wilbanks v. Echols, and it was determined that the plaintiff’s injuries were caused by events extrinsic to the fire’s inception, so the fireman’s rule did not apply.

The reason the fireman’s rule did not apply in McClelland v. Riffle was because the defendant’s injury-causing acts constituted wilful and wanton misconduct, which are not excepted from liability by the rule. A firefighter’s or police officer’s job does not include assuming the general risk of harm from a person’s wilful and wanton or malicious conduct. The court in McClelland honored that.

Judgment reversed.

Pope, P. J., Johnson, P. J., Ruffin, J., and Senior Appellate Judge Harold R. Banke concur. Andrews, C. J., and Smith, J., concur in judgment only.

Decided December 4, 1998.

Joe A. Weeks, for appellants.

Appelbaum & LaRoss, Eve A. Appelbaum, Evan R. Mermelstein, for appellees.

        Martin v. Gaither, 219 Ga. App. 646 (466 SE2d 621) (1995).

       Id. at 647.

       Id. at 650.

       187 Ga. App. 759, 762 (1) (371 SE2d 233) (1988).

        McEachern v. Muldovan, 234 Ga. App. 152, 154 (1) (505 SE2d 495) (1998). As stated by Judge Johnson, there is no evidence that Gaither assumed the risk of injury by the MARTA bus when he stepped out in the street and remained there to instruct Martin. It is not as though he saw the bus coming and stepped out into the street anyway.

        Bycom Corp., supra at 761.

        Bycom Corp., supra at 761, quoting Krauth v. Getter, 31 N. J. 270 (157 A2d 129, 130-131) (1960). The two rationales adopted in Georgia from decisions in other states were recognized in White v. Edmond, 971 F2d 681, 684-685 (11th Cir. 1992). The court-approved application of the fireman’s rule in that case is questionable, however, because the defendant was a car manufacturer whose auto exploded after the firemen arrived at the scene and during the residential fire; it was not caused by the exploding auto. The manufacturer was charged with negligent manufacture, inspection and distribution, i.e., extrinsic (albeit precedent rather than subsequent) negligence to whatever initially caused the fire and the firefighter’s response. The fireman’s rule may or may not have applied to the owners of the residence; they were dismissed by consent order and the opinion does not reveal whether they were originally charged with negligence.

        Krauth v. Getter, supra, quoted with approval in Bycom Corp., supra at 761.

       See Martin v. Gaither, supra, 219 Ga. App. at 651.

       The evidence is undisputed that Martin’s and Parker’s separate acts of negligence were sequential, as described in Martin, supra at 647.

        Martin, supra at 650.

        Bycom, supra at 762, quoting from Pottebaum v. Hinds, 347 NW2d 62, 65 (Iowa 1984).

       209 Ga. App. 210, 211 (433 SE2d 134) (1993) (non-precedential).

       970 FSupp. 1053 (S.D. Ga. 1997).


source: Caselaw Access Project

author: Smith, Judge. Andrews, Chief Judge,

license: Public Domain

text:
    A98A0971.
    HAZELWOOD v. ADAMS et al.
    (510 SE2d 147)
   Smith, Judge.

Thomas Hazelwood, a student at Coosa High School, brought this action against Rick Howard, the school’s principal, and Steve Adams, the football coach, to recover for personal injuries suffered while he was being disciplined. The trial court granted both Howard’s and Adams’s motions for summary judgment, and Hazelwood appeals. For the reasons that follow, we do not consider the summary judgment granted in favor of Howard. We conclude, however, that the summary judgment in favor of Adams must be reversed because issues of fact remain for jury resolution regarding whether Adams acted with actual malice.

1. OCGA § 5-6-37 requires that the notice of appeal “shall set forth ... a concise statement of the judgment, ruling, or order entitling the appellant to take an appeal.” The trial court granted Howard’s motion for summary judgment on August 28, 1997 and that of Adams on December 2, 1997. We recognize that a litigant has the option of appealing a grant of summary judgment that does not dispose of the entire case either at the time it is issued or at the conclusion of the litigation. Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243 (248 SE2d 641) (1978); McConnell v. Moore, 232 Ga. App. 700, 701 (503 SE2d 593) (1998). But the litigant must still specify each order appealed. That was not done here. The notice of appeal recites that “Hazelwood hereby appeals . . . from the Order of the Superior Court of Floyd County, dated December 2, 1997,” which is the order granting summary judgment to Adams. We therefore consider only that judgment. See Blackwell v. Cantrell, 169 Ga. App. 795 (1) (315 SE2d 29) (1984).

2. In reviewing the grant or denial of summary judgment, this court conducts a de novo review of the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996); Gaskins v. Hand, 219 Ga. App. 823, 824 (466 SE2d 688) (1996). Viewed under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), with all inferences in favor of Hazelwood, the evidence showed that Hazelwood, a senior, participated in the 1995 “senior prank” at the high school. A group of students went to the campus during the evening of May 20, 1995. The group split in two, with one faction releasing live chickens into the school through a window that had been left unlocked. Four students, including Hazelwood, proceeded to the football field. There, one student, Leaser, removed a gasoline can from a storage shed. While Hazelwood and the others watched, Leaser poured the gasoline onto the center of the football field in an effort to make the figure “95”. Leaser then lit the gasoline and the four students ran.

The students’ identities were discovered eventually, and Hazel-wood was required to take part in a workday at the school one Saturday along with all of the other prank participants. In addition, Principal Howard directed Hazelwood and Leaser to report to Coach Adams after school each day for a week to work under his direction as punishment for damaging the football field. Hazelwood was informed that if he did not fulfill this task, he would not be allowed to participate in graduation exercises. Howard instructed Adams that Hazelwood and Leaser were both to work five hours for him around the football field.

Hazelwood did not report to the coach on Monday, as directed. But he and Leaser did report on Tuesday. Upon arriving at the field, Leaser and Hazelwood were both given “rusty old” household scissors by Adams, and they were told to cut the weeds under the visitors’ bleachers. Hazelwood offered to buy gasoline for the weedeater and use it, but Adams declined. Adams watched the boys cut grass for a few moments and then left to mow the field on a riding mower. The weeds were very thick and difficult to cut, and the two students cut the weeds for over an hour. Hazelwood attempted to kneel to cut the weeds, but Adams insisted that both boys stand while cutting and allowed no rest breaks. Hazelwood had blisters on his hand and his wrist was swollen when he arrived home. Hazelwood said his wrist began to hurt while he was cutting the weeds, but he did not tell Adams. His mother took him to the emergency room, where he was given a brace and pain medication. Thereafter, he was not required to do anything as discipline that involved his •wrist. When he came to school with the brace on his wrist, however, Coach Adams made fun of him.

Adams raised the defense of official immunity. This defense applies to government officials and employees sued in their official capacities. Hemak v. Houston County School Dist., 220 Ga. App. 110, 112 (469 SE2d 679) (1996). The immunity shields government officials and employees from acts that are discretionary, are done in the course of official duty, and are performed without wilfulness or actual malice. It does not shield acts that are purely ministerial. Id.; Gilbert v. Richardson, 264 Ga. 744, 752 (6) (452 SE2d 476) (1994). In order to avoid summary judgment, therefore, Hazelwood must show either that Adams’s acts in administering discipline to him were ministerial in nature or that they were done with wilfulness or actual malice.

(a) “A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” (Citations and punctuation omitted.) Parrish v. Akins, 233 Ga. App. 442, 443 (504 SE2d 276) (1998). “The task of school officials to monitor, supervise, and control students is a discretionary action protected by the doctrine of official immunity.” (Citations and punctuation omitted.) Payne v. Twiggs County School Dist., 232 Ga. App. 175, 177 (2) (501 SE2d 550) (1998). See also Daniels v. Gordon, 232 Ga. App. 811, 813 (2) (503 SE2d 72) (1998); Wright v. Ashe, 220 Ga. App. 91, 94 (469 SE2d 268) (1996).

In this case, the principal had initially decided no punishment was merited by the chicken incident because no damage was done to the building. After becoming aware of the fire damage to the football field, however, he decided he should learn the identities of the participating students and then discipline them, thereby demonstrating the discretionary nature of his actions. Upon identifying Hazelwood and Leaser, the principal called their parents and the police. After talking to Mrs. Hazelwood and the others, he decided to impose school discipline and did not pursue formal charges. Regarding the after school work, the type of work to be performed by the two students was left to the coach’s discretion. The principal said: “I had turned that over to Coach Adams. [He] was to contact those two kids and make arrangements for them to do their time.” It is apparent that Coach Adams’s actions were discretionary in nature; they were dependent on his needs as a football coach, his judgment as to the work required for their five hours, and the need to punish the two boys for their actions.

Article I, Sec. II, Par. IX (d) of the Georgia Constitution provides that officials “may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.” Because Hazelwood made no allegation that Coach Adams acted with actual intent to cause injury, in this case Adams would be entitled to official immunity unless Hazel-wood showed that he acted with actual malice.

(b) The Supreme Court has stated that in the context of official immunity, as opposed to that of slander, the term “ ‘actual malice’ requires a deliberate intention to do wrong.” Merrow v. Hawkins, 266 Ga. 390, 391 (467 SE2d 336) (1996). The court noted that the term “actual malice” is found in the criminal law and is not typically used in civil litigation, and that the use of the modifier “actual” in the 1991 amendment to the Constitutional provision must be interpreted to exclude “implied malice,” which is “conduct exhibiting a ‘reckless disregard for human life.’ [Cits.]” Id. at 392 (2).

The Constitution, however, also phrases the requirement in the disjunctive, requiring “actual malice” or “actual intent to cause injury” to defeat a defense of official immunity. Teston v. Collins, 217 Ga. App. 829, 830 (1) (459 SE2d 452) (1995). We therefore cannot assume that “actual malice” is identical to “actual intent to cause injury.” As the Supreme Court noted in Merrow, Black’s Law Dictionary defines “actual malice” as “express malice or malice in fact.” Merrow, supra at 392. And “malice in fact” may be “[e]xpress or actual malice. Ill will towards a particular person.” (Emphasis supplied.) Black’s Law Dictionary 957 (6th ed. 1990).

With this definition in mind, we have reviewed the evidence presented, mindful of the purpose of the summary judgment procedure, which affords parties a prompt resolution of their case when the pleadings and all evidence properly considered, together with the reasonable inferences therefrom, show that no issue of material fact exists. It is intended to avoid unnecessary and useless trials and to filter out sham issues from those that are genuine. See Bowers v. Jim Rainwater Builder &c., 203 Ga. App. 254, 255 (416 SE2d 832) (1992); Boston Ins. Co. v. Barnes, 120 Ga. App. 585, 589 (171 SE2d 626) (1969). In this case, we conclude that the issue of whether Adams acted with actual malice is a genuine issue.

Hazelwood’s testimony, while it may have been slightly confusing, shows that he believed Coach Adams acted with ill will towards him. A reasonable person, or a jury, might well agree. Certainly, some punishment was appropriate for a senior prank that at least temporarily destroyed school property. But Hazelwood testified that the coach had called him a “pussy” for damaging the football field and had made cutting motions with his hand directed at Hazelwood while Hazelwood was in study hall prior to reporting. He also testified that Adams had engaged in “constant badgering” of him, even before the senior prank. Hazelwood testified on his deposition that he had been in the coach’s biology class and the coach verbally and physically abused him and “got a real big kick out of it.” In his affidavit, however, Adams stated that Hazelwood was never in his class, and the only knowledge he had of Hazelwood was as a member of the school basketball team. Adams stated he did not “haze, harass, ridicule, insult or belittle” Hazelwood or call him names, but Hazelwood testified that Adams called him a “pussy.” The testimony from Hazel-wood was not so self-contradictory that it entitled the trial court to disregard it. And a reasonable inference arising from Hazelwood’s testimony is that Adams may have been acting with ill will.

Other evidence, some of which was undisputed, and the reasonable inferences drawn from that evidence also suggest ill will: Adams’s choice of rusty, dull scissors for cutting the weeds; his insistence that Hazelwood stand while cutting the weeds; and his refusal to allow Hazelwood to buy gas for the weedeater. The possibility of ill will is also suggested by Hazelwood’s testimony that when he came to school with a brace on his wrist after injuring it carrying out Adams’s assignment, Adams made fun of him. A reasonable inference from this evidence is that Adams had more on his mind than having the weeds cut despite having no fuel for the weedeater, as he testified.

If Adams is to rely on the official immunity granted him as a public school teacher to obtain a summary judgment, he must show without dispute that he acted properly in such a position of public trust. Here, the evidence raises a question of whether he did so. This evidence differs from that presented in the other school cases, where no actual malice was found. See, e.g., Daniels v. Gordon, supra (teacher merely grasped face of disruptive student momentarily, to ensure he was looking at her); Crisp County School System v. Brown, 226 Ga. App. 800 (487 SE2d 512) (1997) (teacher merely instructed student “to try” after student told teacher she did not believe she could traverse monkey bars); Caldwell v. Griffin Spalding County Bd. of Ed., 232 Ga. App. 892 (503 SE2d 43) (1998) (physical precedent only) (issue was school officials’ knowledge of football team hazing).

Here, in contrast, evidence was presented which, if believed, showed that a teacher previously engaged in bullying behavior and that he intentionally devised a punishment that was not only demeaning but had the potential to hurt the student. Of course, this testimony was disputed; Coach Adams denied that he “badgered” Hazelwood. Indeed, he denied even knowing him personally. The trial court apparently chose to resolve this conflict, and this was error. A jury must decide this issue. We therefore reverse the trial court’s grant of summary judgment to Coach Adams.

Judgment reversed.

Pope, P. J., Johnson, P. J, Beasley, Ruffin, JJ, and Senior Appellate Judge Harold R. Banke concur. Andrews, C. J., dissents.

Andrews, Chief Judge,

dissenting.

While I concur fully in Divisions 1 and 2 (a) of the majority, I must respectfully dissent to Division 2 (b), because I believe that there is insufficient evidence of actual malice on the part of Coach Adams toward Hazelwood to merit a trial and that he was entitled to summary judgment.

I note that, although the 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution provides that officials may be liable if they act with “actual malice or with actual intent to cause injury in the performance of their official functions[,]” Hazelwood made no allegation that Coach Adams acted with actual intent to cause injury, only that he “acted intentionally, deliberately, knowingly and/ or with careless disregard for the consequences thereof” in assigning Hazelwood to cut grass with dull scissors, an allegation that amounts, at most, to implied malice, not actual intent to cause injury.

In support of his motion for summary judgment, Adams submitted his unequivocal statement that he did not intend to injure Hazel-wood, had no reason to believe that this use of scissors would injure him, and “did not act out of anger, vengeance or malice.”

In addition to the facts set out in the majority, Hazelwood’s testimony in May 1997 regarding the issue of malice and intent to injure is set out in detail here: “Q. [Wjhat facts or information do you have that Coach Adams intentionally gave you the scissors with the idea that you would hurt your wrist? ... A. They weren’t grass shears — cutting — for grass or garden tools at all. They were school scissors to cut paper. Q. But is it your testimony that Coach Adams gave you the scissors intending to hurt you? A. I believe so. Q. Why? A. They were dull and just old, like the worst pair of scissors you ever seen — possibly could imagine to give someone to cut grass with. Q. [I]t’s your opinion that he gave you the scissors with the express purpose of hurting your wrist? A. Maybe not to hurt my wrist but to somewhat teach me a lessfon] in his mind. Q. So maybe he was negligent and careless, too, like the principal? A. Yes. Q. So it’s your contention that in giving you the dull scissors and telling you to cut grass with dull scissors he was negligent? A. Yes. Q. And he was careless? A. Correct. Q. And he shouldn’t have done that? A. Correct. Q. But as far as giving you the scissors with the sole purpose of injuring your wrist or any other part of your body, you don’t believe he did that? A. He wouldn’t probably would not know what was going to happen.” (Emphasis supplied.)

Additionally, Hazelwood had given an earlier deposition in his federal lawsuit in December 1996. There, he testified: “Q. Do you know that he was being merely negligent or careless, or do you feel that he was being malicious and intentional in what he did to you? A. Yes. . . . Q. And the basis for that is what? A. He thought about what he was going to do before he did it. Premeditated. Q. In other words, the motioning to you at some time before the scissors incident . . . and then him actually having you do it that day indicates to you intentional or malicious — A. Yes. Q. Is there anything else that goes into the feeling that he was intentional or malicious as opposed to merely being careless or negligent? A. Just the constant badgering that he did on me that I figured he didn’t like me. So I knew that there was going to be some type of punishment, severe punishment, that I would have to do. . . . Q. Do you have any reason to know or to suspect that Coach Adams could anticipate that you would have seriously injured yourself when he handed you the scissors and told you to go cut the weeds and the grass with the scissors? ... A. Well, I don’t think he would have done it if he didn’t think that it wouldn’t have hurt me somehow. But I don’t think he knew what, you know, was going to happen.” (Emphasis supplied.)

At best, this testimony is self-contradictory. “Prophecy Corp. [c. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986)] stands for the position that self-contradictory testimony is construed against the equivocator, absent a reasonable explanation for the contradiction. Id., 256 Ga. at 30 (2). The holding ... is based on directed verdict and summary judgment cases which clearly state that the opposing party is entitled to judgment only where the favorable portion of the party’s self-contradictory testimony ‘is the only evidence of his right to recover. . . .’ (Emphasis supplied.) Id. at 28 (1).” Korey v. BellSouth Telecommunications, 269 Ga. 108, 109 (498 SE2d 519) (1998). See also Lipton v. Warner, Mayoue &c., 228 Ga. App. 516, 517 (1) (492 SE2d 281) (1997).

Here, unlike in Korey, there is no other evidence of malice put forth except Hazelwood’s testimony. Even assuming, however, that this testimony is not contradictory, the most that it shows is that Coach Adams and Hazelwood had a bad relationship and that the coach used a method of cutting grass that was more punishment than intended to accomplish the task of cutting the grass and weeds. This is legally insufficient to show actual malice.

In Merrow v. Hawkins, 266 Ga. 390 (467 SE2d 336) (1996), the trial court had denied summary judgment on the ground of official immunity because, while the defendant had not acted with ill will or actual intent to injure, there had been a showing of reckless disregard for the safety of others. In rejecting this standard, the Supreme Court found that “in that context [official immunity], ‘actual malice’ requires a deliberate intention to do wrong. . . . While we recognize that our courts have defined ‘malice’ as involving reckless disregard for the rights of others, [cits.], it is ‘actual malice,’ not mere ‘malice,’ that is addressed in the 1991 amendment to Art. I, Sec. II, Par. IX. We find the term ‘actual malice,’ as set forth in the 1991 amendment, to denote ‘express malice or malice in fact.’ Black’s Law Dictionary, 6th ed. (1990). Express or actual malice ... is found in criminal law and has long been distinguished from ‘implied malice,’ a term which has been defined to mean conduct exhibiting a ‘reckless disregard for human life.’ [Cits.]” (Emphasis supplied.) Id. at 391, 392 (2). See also Smith v. Little, 234 Ga. App. 329 (506 SE2d 675) (1998).

Decided December 4, 1998

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

Law Offices of Richard W. Littlefield, Jr., Steven J. Misner, Donald J. Grate, for appellees.

Actual malice does not encompass conduct exhibiting a reckless disregard for human life or the safety of others, which is the most that Hazelwood has alleged and shown. Daniels v. Gordon, 232 Ga. App. 811 (503 SE2d 72) (1998); Crisp County School System v. Brown, 226 Ga. App. 800 (487 SE2d 512) (1997); Caldwell v. Griffin Spalding County Bd. of Ed., 232 Ga. App. 892 (503 SE2d 43) (1998).

Therefore, I believe summary judgment for Coach Adams was appropriate and should be affirmed.


author: Ruffin, Judge.

text:
    A98A1071.
    BRANDON v. CLARK et al.
    (510 SE2d 153)
   Ruffin, Judge.

Mary Lynette Clark and her son, Albert Clark, Jr., purchased a shrimp boat from Ben Brandon, Jr. The Clarks sued Brandon, alleging that they paid more than the agreed amount and were entitled to the amount of the overpayment, plus interest. Brandon filed a counterclaim for breach of contract, alleging that the Clarks had not paid the entire purchase price. The trial court granted the Clarks’ motion for a directed verdict on Brandon’s counterclaim, and the jury returned a verdict for the Clarks on their main claim. Brandon appeals, asserting that the trial court erred in directing a verdict for the Clarks and in charging the jury. We affirm.

1. Brandon contends that the trial court erred in directing a verdict on his counterclaim because there was a conflict in the evidence regarding the parties’ understanding of the contract. “A motion for directed verdict is proper where 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 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.” (Punctuation omitted.) Hanover Credit Corp. v. Datamatx, Inc., 226 Ga. App. 12, 13 (485 SE2d 571) (1997).

Viewed in this light, the evidence at trial showed that on Decernber 7, 1988, the parties signed an agreement, in Brandon’s handwriting, stating that “I [Brandon] agree to sell the [shrimp boat] ‘Captain Seagle’ for $210,000 to Mary L. and Albert (Jeb) Clark, Jr. with one half the down payment (approximately $20,000) to be paid me at closing and the other half in approximately 6 months.”

On January 19,1989, the parties entered into a subsequent written agreement setting forth in more detail the terms of their agreement. In relevant part, this agreement provided that the Clarks would (1) make a cash payment of $35,000 to Brandon at closing, (2) “assum[e] . . . responsibility for the ship mortgage on [the shrimp boat] held by Production Credit Association (approximately $161,500),” (3) make a cash payment of $5,000 to Brandon within six months of closing, and (4) make a “[c]ash payment of the difference between the agreed upon selling price of $210,000 and the sum of $40,000 plus the outstanding cash principal owed to Production Credit Association at the time of closing.”

On January 20, 1989, the Clarks paid Brandon $35,000, pursuant to section 1 of the agreement. On August 12, 1989, the Clarks paid Brandon an additional $5,518.04, representing the payment due under section 3 of the agreement, plus accrued interest.

On March 2, 1989, pursuant to section 2 of the agreement, the Clarks entered into a loan assumption agreement with South Atlantic Production Credit Association (PCA), the holder of the ship mortgage on the vessel. In this assumption agreement, the Clarks assumed liability on the promissory note secured by the boat. The agreement recited that “the balance due and outstanding with respect to said Note upon the date of this Agreement is $179,496.03.” Brandon’s brother, Richard L. Brandon, was also a party to the assumption agreement, as he was the original borrower under the promissory note. The Clarks subsequently paid off the loan in full, writing checks to PCA in the aggregate amount of $238,275.74.

Although the Clarks did not make any payment to Brandon pursuant to section 4 of the agreement, no payment was due under that section. Section 4 required the Clarks to make a payment equal to the difference between (i) $210,000 and (ii) the sum of $40,000, plus the outstanding cash principal owed to PCA at the time of closing. At the time of the agreement, the parties estimated that the amount owed on the PCA note was $161,500, which would have meant that the Clarks were required to make an additional payment of $8,500. However, as discussed above, the principal amount owed to PCA at closing was actually $179,496.03. Therefore, the amount the Clarks owed under section 4 was a negative number. Regardless of whether the Clarks were entitled to a refund of any amount under this section, it is clear that Brandon was not entitled to any additional payment.

Brandon contends that the actual amount owed under the PCA note was in fact $161,500, and not $179,496.03. The discrepancy between the two numbers is apparently due to the fact that PCA is a cooperative association. As such, when a borrower takes out a loan, he receives shares of stock in the association. When the borrower pays off the loan in full, the association repurchases the shares of stock. Alternatively, the borrower can satisfy the loan by surrendering his shares of stock and by paying the difference between the loan amount and the stock price. At the time Richard Brandon executed the original promissory note, he received shares of stock in the association. Although the Clarks assumed Richard Brandon’s obligations under the note, they did not obtain an assignment of the shares of stock. Therefore, when the Clarks paid off the loan in full, PCA repurchased the stock from Richard Brandon, and not from the Clarks.

Ben Brandon contends that for purposes of computing the payment owed under section 4 of the agreement, the principal amount owed on the loan should be deemed to be $161,500, representing the difference between the $179,496.03 loan amount and the value of the stock. This contention is without merit. Section 4 refers to the “outstanding cash principal owed to [PCA].” As PCA’s representative testified, the amount outstanding on the loan was $179,496.03, notwithstanding the fact that the original borrower, Richard Brandon, owned shares of stock in the association. Although those shares might be redeemable by their owner, this does not change the balance outstanding on the loan. Nothing in the parties’ agreement indicates that the value of stock owned by Richard Brandon was to be subtracted from the principal outstanding under the loan in determining the amount of any payment to be made by the Clarks. Indeed, section 2 of the agreement required the Clarks to assume the entire amount due under the loan, and not merely the amount of the loan less the value of outstanding stock owned by someone else. Because the Clarks did not own the stock, they were not entitled to any credit when they paid off the loan. It stands to reason that the Clarks would thus be given credit for this entire amount when calculating the payment due under section 4.

Because the evidence conclusively demonstrated that the Clarks owed nothing under section 4, and because they made all other payments required under the agreement, the trial court did not err in granting a directed verdict on Brandon’s counterclaim.

2. Brandon contends that the trial court erred in charging the jury regarding unjust enrichment and in failing to give his requested charge numbers 2, 3, 5, and 6.

Although Brandon raised objections to the court’s proposed charge during the charge conference, he failed to renew his objections after the court gave its charge. Indeed, after charging the jury, the trial judge asked for any objections, and Brandon’s attorney responded, “None, your honor.” Accordingly, Brandon has waived his right to raise these issues on appeal. See Smith v. Curtis, 226 Ga. App. 470, 471 (1) (486 SE2d 699) (1997); Shaw v. Ruiz, 207 Ga. App. 299, 300 (2) (428 SE2d 98) (1993).

Decided December 4, 1998.

John S. Myers, for appellant.

Killian & Boyd, Robert P. Killian, for appellees.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.


author: Blackburn, Judge. Andrews, Chief Judge,

text:
    A98A1189.
    REEDER et al. v. GENERAL MOTORS ACCEPTANCE CORPORATION.
    (510 SE2d 337)
   Blackburn, Judge.

The Reeders appeal from the trial court’s grant of summary judgment to General Motors Acceptance Corporation (GMAC) on the Reeders’ counterclaim which asserted counts of fraud, wrongful repossession, waiver, and libel. In addition, the Reeders appeal from the trial court’s denial of several motions, including their motion to correct a court order compelling discovery, their motion for dismissal of GMAC’s motion for summary judgment, their motion for a continuance of the summary judgment hearing and their motion to implead counsel of record as a third party. For the reasons set forth below, we affirm.

.1. As an initial matter, we note that the Reeders have violated OCGA § 5-6-40 and Rule 22 of this Court by failing to timely file separate enumerations of error. Appellants timely filed their brief on April 14, 1998, including within their brief the section entitled “Part 2 Enumeration of Errors.” Separate enumerations of error initially were not filed, but were filed on April 28, 1998.

(a) Our Supreme Court has held that under OCGA § 5-6-48 (b), belated filing of separate enumerations of error is not a basis for dismissal of an appeal. Durham v. Stand-By Labor, 230 Ga. 558 (198 SE2d 145) (1973). See Jarrett v. Butts, 190 Ga. App. 703 (1) (379 SE2d 583) (1989). Compare Taylor v. Columbia County Planning Comm., 232 Ga. 155 (205 SE2d 287) (1974) (failure to comply timely with court order to file enumerations of error resulted in dismissal of appeal).

The authority relied upon by the dissent to support dismissal of the appeal is inapplicable. Both Crozier v. Crozier, 228 Ga. 372 (185 SE2d 411) (1971) and Windsor v. Southeastern Adjusters, 221 Ga. 329 (144 SE2d 739) (1965) were overruled implicitly by Durham, supra. Herron v. Travelers Indem. Co., 125 Ga. App. 541 (188 SE2d 400) (1972) is no longer valid as it relies upon Crozier. Babb v. Cook, 124 Ga. App. 823 (186 SE2d 317) (1971) was overruled implicitly by this Court’s decision in Jarrett, supra. Finally, Rutledge v. Northbank Liquor Store, 176 Ga. App. 243 (335 SE2d 479) (1985) is distinguishable from the present case because the appellant failed to comply with an order to file her brief and enumerations of error. No such order was issued here.

(b) The failure to follow the rules of this Court may, in the discretion of the Court, subject an appeal to dismissal. See Court of Appeals Rule 7. We find that, under the facts of this case, the enumerations of error within the brief were sufficient. Here, since the appellants “have presented an enumeration of error in their appellate brief and it is apparent from the brief, the notice of appeal and the record what judgment is being appealed from and what error is being asserted, we will consider the merits of the appeal to the extent it is supported by argument, citation to the record, and authority.” Anderson v. Svc. Merchandise Co., 230 Ga. App. 551, 552 (1) (496 SE2d 743) (1998).

In Anderson, supra, we chose to exercise our discretion and reach the merits of the appeal (although no separate enumerations of error were filed) because the appeal was substantively complete even if procedurally inadequate. Likewise, in Beman v. KMart Corp., 232 Ga. App. 219 (1) (501 SE2d 580) (1998) the merits of the appeal were considered although the appellant failed to file separate enumerations of error because the error being asserted was evident from the record. See Parks v. Texas Commerce Bank, 229 Ga. App. 467 (494 SE2d 276) (1997) (court chose to exercise its discretion and reach merits of the appeal even though appellant did not file a separate enumerations of error).

This case is not a situation where the appellants have totally failed to file both separate enumerations of error and to include enumerations of error in the brief. See Miles v. Emmons, 234 Ga. App. 487 (507 SE2d 762) (1998). In Miles, there was a complete failure to enumerate error, and dismissal of the appeal was appropriate as the appellate court had no enumerations of error to consider. Likewise dismissal was appropriate in Lowery v. Smith, 225 Ga. 814 (171 SE2d 500) (1969) because the appellant failed to file enumerations of error.

The Appellate Practice Act should be “liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein.” OCGA § 5-6-30. In the case before us, the appeal is, for all intents and purposes, complete. Enumerations of error were filed timely in the brief and also filed separately, although untimely. We will not allow a procedural defect to defeat an appeal which is substantively complete. Our philosophy of justice is couched on concepts of overall fairness, and will not be hindered by procedural minutia.

2. The Reeders contend that the trial court erred by granting summary judgment to GMAC on the counterclaim. On appeal of the grant of summary judgment, this Court applies a de novo review of the evidence to determine whether any question of material fact exists. Moore v. Food Assoc., 210 Ga. App. 780 (437 SE2d 832) (1993). Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).

The record reveals that on May 18, 1994, the Reeders entered into an installment sale contract with McNamara Pontiac-Isuzu-GMC Truck, Inc. for the purchase of a 1994 Isuzu Trooper. This contract was immediately assigned for value to GMAC. Subsequently, the Reeders failed to make payments due under the contract, and the Trooper was repossessed by GMAC in January 1995. After the Trooper was sold at auction, GMAC filed suit against the Reeders to recover the balance owing under the contract, and the Reeders counterclaimed asserting several claims.

All of the Reeders’ claims lack legal or factual basis in the record. With respect to their claim alleging fraudulent inducement to contract, the record is devoid of any evidence of fraud. With respect to their claim alleging wrongful repossession, the undisputed evidence shows the Reeders failed to make payments due under the contract, and GMAC was entitled to repossess its collateral. The Reeders argue that alleged previous late payments accepted by GMAC created a mutual departure from the contract, but the Reeders have not pointed to any evidence in the record that GMAC previously accepted late payments. Moreover, the evidence is that the Reeders were not simply late with payments but rather failed to make payments altogether. With respect to their claim alleging waiver, waiver is a defense and not a cause of action upon which the Reeders can recover. With respect to their claim alleging libel, there is no evidence to support the claim. “A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” OCGA § 51-5-1 (a). The Reeders rely on GMAC’s report to credit bureaus of the Reeders’ default on the sale contract and of the amounts remaining due and owing. However, there is no evidence that the report to the credit bureau was either false or maliciously made. The trial court properly granted summary judgment to GMAC on the Reeders’ counterclaim.

3. The trial court did not err in denying the Reeders’ motion to correct a court order compelling discovery. The record shows that the Reeders served a set of interrogatories on GMAC in March 1996 to which GMAC served objections and responses. After the end of the six-month discovery period, the Reeders filed a motion to compel. On August 26, 1996, the trial court entered an order compelling GMAC to “respond to 1., 8., and 22. of Defendants’ first interrogatories . . . either answering the interrogatory, or specifically objecting to it.” GMAC complied with the order and served responses and specific objections. The Reeders did not raise any question about the order until the hearing on GMAC’s motion for summary judgment in October 1996. There is no evidence that the order was incorrect or that the trial court abused its discretion in denying the motion. “The trial court’s discretion in dealing with discovery matters is very broad, and this court has stated on numerous occasions that it will not interfere with the exercise of that discretion absent a clear abuse.” (Citation and punctuation omitted.) Ostroff v. Coyner, 187 Ga. App. 109, 117 (6) (369 SE2d 298) (1988).

4. The trial court did not err in denying either the Reeders’ motion to dismiss GMAC’s motion for summary judgment as premature or their motion for a continuance of the hearing on the motion for summary judgment. The Reeders argue that GMAC’s motion should not have been heard because they contend that GMAC did not comply with the order to compel discovery, that consequently, discovery was not over and that they were therefore unable to prepare for the hearing. The contention has no merit. The record shows that the discovery period had expired in April, that GMAC had responded in accordance with the trial court’s discovery order, that there were no pending motions with regard to discovery, and that GMAC’s motion for summary judgment had been served in July. The inability to prepare cannot be attributed in any way to an alleged lack of time to obtain discovery. The trial court did not abuse its discretion.

5. The trial court did not err in denying the Reeders’ motion to implead counsel of record as a third party. The Reeders argue that they sought to add GMAC’s counsel with regard to claims for alleged violations of the Fair Debt Collection Practices Act. However, because this argument was not raised before the trial court, it cannot be considered on appeal. Cornelius v. Wood, 223 Ga. App. 339 (2) (477 SE2d 595) (1996). Moreover, their argument is disingenuous as the Reeders have admitted that they do not claim violations of the Fair Debt Collection Practices Act. The Reeders have not articulated any facts to support a claim against counsel of record, and the trial court did not err.

Judgment affirmed.

Johnson, Smith, Eldridge, JJ., and Senior Appellate Judge Harold R. Banke concur. Andrews, C. J., and McMurray, P. J., dissent.

Andrews, Chief Judge,

dissenting.

By failing to file an enumeration of errors as a separate document with this Court within 20 days after the appeal was docketed, the Reeders violated the filing requirements set forth in Court of Appeals Rule 22 (a) and § 5-6-40 of the Appellate Practice Act. Under these requirements, the late filing of an enumeration of errors requires dismissal of the appeal in the absence of a showing of providential cause. Crozier v. Crozier, 228 Ga. 372 (185 SE2d 411) (1971); Windsor v. Southeastern Adjusters, 221 Ga. 329 (144 SE2d 739) (1965); Herron v. Travelers Indem. Co., 125 Ga. App. 541 (188 SE2d 400) (1972); Babb v. Cook, 124 Ga. App. 823 (186 SE2d 317) (1971); Rutledge v. Northbank Liquor Store, 176 Ga. App. 243, 244-245 (335 SE2d 479) (1985). No providential cause for the late filing having been shown, this appeal should be dismissed for the reasons set forth in Judge Ruffin’s dissent in Leslie v. Williams, 235 Ga. App. 657 (510 SE2d 130) (1998).

As this Court stated in its whole court opinion in Rutledge, 176 Ga. App. at 244, dismissing the appeal for failure to timely file enumerations of error, “while we prefer to address the merits of all cases, nevertheless, if it is our mandate to treat all appellants alike, there must be a definite point beyond which we cannot accept the documents.” I reiterate Judge Ruffin’s observation in Leslie that, if this Court will not evenly enforce its filing rules, “[i]t would be better to abolish the rule than to have a rule that is adhered to at the pleasure of the bench and bar.”

Decided December 4, 1998.

William D. Reeder, pro se.

Rochelle Reeder, pro se.

McCullough & Payne, John G. McCullough, Ashley E. Sexton, for appellee.

       GMAC had filed suit against the Reeders to recover a deficiency owing from a retail installment sale contract. The trial court also granted summary judgment to GMAC on its complaint. After the Reeders filed a notice of appeal, GMAC dismissed its complaint, so the only issues on appeal concern the counterclaim.

       Previously, a failure to file timely separate enumerations of error required dismissal of the appeal under the Appellate Practice Act. See Windsor v. Southeastern Adjusters, supra, and Code Ann. § 6-180 as amended Ga. L. 1965, p. 240. Dismissal was required because enumerations of error had to be filed with the trial court, and the enumerations then became part of the record sent up from the trial court. See Code Ann. § 6-180 as amended Ga. L. 1965, p. 240. Consequently, the failure to file separate enumerations of error resulted in an incomplete record from the trial court which mandated dismissal. Windsor, supra. Moreover, the Supreme Court Rules expressly stated that the failure to file timely the enumerations of error may be deemed a failure to complete the appeal. See Taylor v. Columbia County Planning Comm., supra. Under the current Appellate Practice Act the enumerations of error are not part of the record received from the trial court.


author: Pope, Presiding Judge. Beasley, Judge,

text:
    A98A1204.
    DEPARTMENT OF CORRECTIONS v. DERRY.
    (510 SE2d 832)
   Pope, Presiding Judge.

Wayne Correctional Institution Officer Ernest Roberson filed a disciplinary report against inmate Troy Bostic for failing to wear a belt to a meal, as required by prison regulations, and for cursing when Officer Roberson confronted him about the belt. After the report was filed, inmate Bostic asked Corrections Officer Gregory Derry, who had seen the incident regarding the belt, whether he thought Officer Roberson was harassing Bostic. Officer Derry told Bostic that he did believe that Officer Roberson was harassing him. Based on his statements to the inmate, Derry was terminated from his position as a correctional officer for violating Department of Corrections (DOC) and Wayne prison rules prohibiting officers from engaging in personal conversations with inmates and from criticizing other officers in front of inmates. Derry appealed his termination to the State Personnel Board, which upheld the termination. Derry next appealed to superior court. The court reversed the board’s ruling, finding that the inmate’s due process rights to defend himself against the disciplinary report filed by Officer Roberson authorized Derry’s comments to the inmate. We granted the DOC’s application for discretionary review and reverse the superior court’s decision.

1. The court based its decision on OCGA § 45-20-9 (m) (1), which provides that a court may reverse the decision of the board if substantial rights of the petitioner have been prejudiced because the board’s decision violates constitutional or statutory provisions. The court’s rationale under this Code section was erroneous. The court reasoned that the board’s decision to dismiss Derry violated the inmate’s due process rights to defend himself in the disciplinary action taken against him. As the words emphasized above indicate, the court may only reverse the board’s decision if the rights of the petitioner, in this case the rights of Derry, have been prejudiced. The Code section does not authorize the court to reverse the board’s decision based on the rights of a third-party inmate.

Moreover, we disagree with the court’s finding that the DOC prohibitions against an officer engaging in personal conversations with an inmate and criticizing another officer in front of an inmate somehow abridge the inmate’s ability to defend himself in a prison disciplinary action. There is evidence in the record of the procedures to be followed in a disciplinary action, and those procedures allow an inmate to call an officer as a witness at the disciplinary hearing. In fact, the inmate involved in the instant case named Derry as a witness and Derry testified on the inmate’s behalf at the disciplinary hearing. Thus, the enforcement of the DOC regulations, which help ensure the security of both prison officials and inmates, did not prejudice the inmate’s rights.

Nevertheless, even if the inmate’s due process rights were violated by the dismissal of Derry for breaching DOC regulations against having a personal conversation with an inmate, that violation would not provide a legal basis under OCGA § 45-20-9 (m) (1) for reversing the board’s decision. The court could have reversed the board’s decision under that Code section only if it found that the decision prejudiced Derry’s rights. Because the court made no such finding and instead based its ruling on the erroneous legal analysis that the due process rights of an inmate warranted the reversal of the board’s decision to dismiss Derry, the court’s ruling cannot stand. See generally Dept. of Corrections v. Shaw, 217 Ga. App. 33, 35-36 (2) (456 SE2d 628) (1995); Dept. of Transp. v. Nobles, 187 Ga. App. 244 (370 SE2d 11) (1988).

2. The dissent contends that Derry’s improper comments to inmate Bostic cannot be condemned because there are no DOC or Wayne Correctional Institution rules prohibiting a prison guard from engaging in a private conversation with a prison inmate in which the guard criticizes another prison officer’s job performance. While the rules in question do not specifically state that an officer shall not criticize another officer in front of an inmate, the general conduct prohibited by the rules covers such inappropriate criticism of an officer in the presence of an inmate.

The DOC Rules, Chapter 125-2-1-.07 (d), provide: “Employees shall not, without the express written approval of the appropriate Deputy Commissioner, maintain personal association with, engage in personal business or trade with, or engage in non-job related correspondence with, or correspond in behalf of or for, known inmates. . .

Additionally, the Wayne Correctional Institution General Post Orders instruct officers: “Do not establish personal friendships with any inmate. . . . Never become engaged in conversations with inmates that involve the low rating of the Administration or any communications that might be regarded as relating security information to inmates. Act as an authority figure, not a friend. If you are ever in doubt as to the validity of an inmate’s statement, check it out with your supervisor.”

Moreover, the back of Derry’s officer identification card expressly provides: “THERE SHALL BE NO PERSONAL OR BUSINESS DEALING WITH INMATES, PROBATIONERS, OR PAROLEES.”

Contrary to the dissent’s contention, Derry’s criticism of Officer Roberson’s job performance during a private conversation with inmate Bostic is a personal communication that compromised the security of the prison by appearing to pit one officer against another. As the charge against Derry asserted: “In involving yourself in a personal conversation with an inmate in which you revealed information involving a fellow officer you violated the Department’s prohibition against interpersonal dealings with an inmate and, thereby, breached the security of Wayne C.I., compromised your ability to supervise inmates effectively, and jeopardized the safety and welfare of yourself as well as other employees and inmates.” We cannot join in the dissent’s attempt to substitute its judgment for that of the prison and DOC officials, who determined that under their own policies Derry’s criticism of Officer Roberson was an improper personal association with an inmate.

3. In the alternative, the dissent concludes that even if Derry violated DOC and prison policy, his private conversation with the inmate about another prison guard’s job performance is protected speech under the First Amendment. We disagree and believe that the dissent’s conclusion and the First Amendment analysis supporting it are incorrect.

In relying on the First Amendment to uphold the trial court’s ruling, the dissent ignores the fact that the trial court made no mention of the First Amendment in its ruling. As noted in Division 1 of this opinion, the sole basis for the court’s reversal of the board’s decision was the purported violation of the inmate’s due process rights. The court made absolutely no finding concerning Derry’s free speech rights. Thus, contrary to the dissent’s claims, the First Amendment provides no basis for finding that the court’s conclusions of law were correct. Instead, as discussed in Division 1, the court’s conclusions that the inmate’s due process rights were violated and that such violation allows for a reversal of the board’s decision under OCGA § 45-20-9 (m) (1) are incorrect as a matter of law.

(a) Even if we could say that the trial court concluded, like the dissent, that the state violated Derry’s free speech rights by discharging him, such a conclusion would be erroneous. “Although the law is well-established that the state may not demote or discharge a public employee in retaliation for speech protected under the first amendment, a public employee’s right to freedom of speech is not absolute. In Pickering, the landmark case concerning a public employee’s first amendment rights, the Supreme Court held that a public employee’s interests are limited by the state’s need to preserve efficient governmental functions. The state has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the employee as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.” (Citations and punctuation omitted; footnote supplied.) Bryson v. City of Waycross, 888 F2d 1562, 1565 (V) (11th Cir. 1989).

“[A] four-stage analysis has evolved. First, the court must determine if the employee’s speech may be fairly characterized as constituting speech on a matter of public concern. Second, if the speech addresses a matter of public concern, the court must then conduct a balancing test in which it weighs the First Amendment interests of the employee against the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees. Third, if the employee’s claim survives the balancing test, the fact-finder must determine whether the employee’s speech played a substantial part in the government’s decision to discharge the employee. Finally, if the fact-finder determines that the employee’s speech played a substantial part in the employee’s discharge, the state must prove by a preponderance of the evidence that it would have discharged the employee even in the absence of the speech.” (Citations and punctuation omitted.) Smith v. Upson County, Ga., 859 FSupp. 1504, 1510-1511 (M.D. Ga. 1994), aff’d, 56 F3d 1392 (11th Cir. 1995). In the instant case, any free speech claim by Derry does not survive the first two stages of the analysis and therefore we do not reach stages three and four.

(b) In determining the threshold issue, whether the employee’s speech may be fairly characterized as constituting speech on a matter of public concern, the court examines the content, form and context of the employee’s speech. Bryson v. City of Waycross, 888 F2d at 1565. The dissent, in making such an examination, claims that “[hjarassing an inmate is wrongdoing by a correctional officer and thus a matter of public concern.” Three of the cases cited by the dissent reveal the error in the dissent’s claim.

The content and context of the challenged speech in each of the three cases are factually distinguishable from the content and context of Derry’s speech. In Cooper v. Smith, 89 F3d 761 (11th Cir. 1996), the court found that a Camden County deputy sheriff’s statements to the Georgia Bureau of Investigation, which was investigating corruption in the Camden County Sheriff’s Department, involved a matter of public concern. In Fikes v. City of Daphne, 79 F3d 1079 (11th Cir. 1996), the court held that a police officer’s reports to the Alabama Bureau of Investigation of alleged police misconduct (i.e., failure to terminate a dangerous, high-speed chase, and improper use of a confiscated vehicle) involved a matter of public concern. In Tindal v. Montgomery County Comm., 32 F3d 1535 (11th Cir. 1994), the court found that the testimony of a sheriff’s employee about the working environment in the sheriff’s office, given under subpoena at a sexual harassment trial, involved a matter of public concern.

In the three cited cases, the content of the public employees’ speech involved facts; the employees reported actions and described events they had observed. The content of Derry’s speech, however, does not involve facts; Derry did not describe events to the inmate, but instead expressed his personal opinion about another officer’s job performance. See Hansen v. Soldenwagner, 19 F3d 573, 577-578 (11th Cir. 1994). Furthermore, in Cooper and Fikes the speech was made in the context of reports to state investigative authorities, and in Tindal the context of the speech was testimony made under subpoena in a federal jury trial. Unlike those cases, Derry did not speak in any such official context; rather, he spoke in a private conversation with a prison inmate, giving his critical opinion of another officer to the inmate. Given the content and context of Derry’s speech, the cases relied on by the dissent do not support the finding that Derry spoke on a matter of public concern, and in fact support the opposite finding that Derry’s personal opinion was not a matter of public concern.

While we agree with the dissent that harassment of prison inmates is a matter of societal interest, “the mere fact that the topic of the employee’s speech was one in which the public might or would have had a great interest is of little moment.” (Citations and punctuation omitted.) Morgan v. Ford, 6 F3d at 754. Instead, “[a] court must . . . discern the purpose of the employee’s speech — that is, whether [he] spoke on behalf of the public as a citizen, or whether the employee spoke for [himself] as an employee. ... A court may consider the employee’s attempts to make the concerns public, along with the employee’s motivation in speaking.” (Citations, punctuation and footnote omitted.) Id. In the instant case, Derry was not attempting to make his opinion about another officer public by giving that opinion to an inmate in a private conversation. Based on the context and content of Derry’s speech, it is apparent that his purpose was not to speak on behalf of the public, but was to speak for himself by giving his personal opinion.

(c) Nevertheless, even if Derry’s opinion could be considered a matter of public concern, his interest in expressing that opinion does not survive the Pickering balancing test. “Since Pickering the balance has been struck more often than not in favor of the employer’s interests in efficiency, and the employee[’]s interest has been reduced to a particularly narrow interpretation of‘public concern.’ [Cit.] The magnitude of the State’s interest has been given [special] emphasis in the context of dismissals from police, fire departments and other emergency-related positions. In particular, the importance of a close working relationship in such situations, and the possible destruction of that relationship by the employee[’]s speech, has been seen as grounds for upholding termination regardless of the ‘public concern’ quality of the employee[’]s speech.” Abernathy v. City of Cartersville, 642 FSupp. 529, 533 (N.D. Ga. 1986).

“We must consider several factors in balancing the state’s interest in efficient provision of public services against [Derry’s] speech interest, including: (1) whether the speech at issue impedes the government’s ability to perform its duties efficiently, (2) the manner, time and place of the speech, and (3) the context within which the speech was made. [Cits.]” (Punctuation omitted; emphasis in original.) Bryson v. City of Way cross, 888 F2d at 1567. In determining whether Derry’s speech impeded the DOC’s ability to perform its duties in running a prison efficiently, we must examine “whether the statement impairs discipline by superiors or harmony among coworkers, or has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary. [Cit.]” (Punctuation omitted.) Id.

Personal loyalty and confidence between prison officers are certainly necessary for the safe and efficient running of a prison, where a relatively small number of officers must try to control a larger population of prisoners. “It is well established that states have a compelling interest in security and order within their prisons. [Cits.]” Lawson v. Singletary, 85 F3d 502, 512 (11th Cir. 1996). “There are few cases in which the State’s interest in combating the danger posed by a person to both himself and others is greater than in a prison environment, which, by definition, is made up of persons with a demonstrated proclivity for antisocial,] criminal, and often violent, conduct. . . . Prison administrators have not only an interest in ensuring the safety of prison staffs and administrative personnel, but also the duty to take reasonable measures for the prisoners’ own safety.” (Citations and punctuation omitted.) Washington v. Harper, 494 U. S. 210, 225 (110 SC 1028, 108 LE2d 178) (1990).

“Order and morale are critical to successful police work: a police department is a paramilitary organization, with a need to secure discipline, mutual respect, trust and particular efficiency among the ranks . . . different from other public employers. More so than the typical government employer, the [Department of Corrections] has a significant government interest in regulating the speech activities of its officers in order to promote efficiency, foster loyalty and obedience to superior officers, maintain morale, and instill public confidence in the law enforcement institution.” (Citations and punctuation omitted.) Hansen v. Soldenwagner, 19 F3d at 577.

In the current case, the DOC’s significant interest in prohibiting prison officers from criticizing each other in front of inmates in order to promote safety and efficiency, foster loyalty to other officers, and maintain morale was greatly compromised by Derry’s conduct. As the warden of the Wayne Correctional Institution testified, a prison officer should not give a critical opinion about another officer to an inmate because it “could compromise the safety and security of the institution.” He explained: “It could — inmates could manipulate staff, and they have done so in the past, into introducing contraband into the institution, or it could very well pit staff against staff, and another staff member could be viewed as an ally, and that’s always inappropriate.” A correctional sergeant at the Wayne prison also testified that a prison is a very dangerous environment and that Derry’s comments to the inmate could have led to violence against another officer by making the inmate think that Derry was on his side and against the other officer. “It is not difficult to see how [Derry’s] behavior ... could cause serious disciplinary problems, undermine employee morale, and impair harmony among co-workers. Indeed, it is difficult to imagine how it could do anything else.” Morris v. Crow, 117 F3d 449, 458 (11th Cir. 1997).

“Prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” (Citation and punctuation omitted.) Ruble v. King, 911 FSupp. 1544, 1554 (N.D. Ga. 1995). “When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.” (Citation and punctuation omitted.) Zimmer man v. Cherokee County, 925 FSupp. 777, 782 (N.D. Ga. 1995).

Here, the DOC’s decision to discharge Derry for violating regulations against officers engaging in personal conversations with inmates and criticizing other officers in front of inmates must be accorded wide-ranging deference because that decision and those regulations help maintain the officers’ close working relationships and the security in the prison. See Hodnett v. City of Atlanta, 145 Ga. App. 285 (243 SE2d 605) (1978) (police regulation prohibiting officers from communicating official information to anyone who is not a member of the police bureau held to be reasonable in order to maintain police discipline and efficiency); Aycock v. Police Committee, 133 Ga. App. 883 (212 SE2d 456) (1975) (police regulation forbidding officers from criticizing the official acts of superior officers found to be reasonable in order to maintain good order, discipline and efficiency within police department).

Giving such deference to the decision and considering all the circumstances of this case, we conclude that the DOC’s interest in the safe and efficient running of the prison greatly outweighs Derry’s interest in expressing his personal and critical opinion about another officer in front of a prison inmate. See Morris v. Crow, 117 F3d 449 (sheriff’s interest in promoting efficiency of his administration outweighs employee’s interest in criticizing one of her superiors at a polling place); Bryson v. City of Waycross, 888 F2d 1562 (city’s interest in assuring efficient police protection outweighs officer’s interest in reporting misconduct by police chief); Smith v. Upson County, 859 FSupp. 1504 (sheriff department’s interest in providing efficient public services outweighs officer’s interest in reporting superior’s conduct to outside investigators). Because the state’s interest in the efficient running of its prisons outweighs Derry’s speech interest, the discharge of Derry did not violate his First Amendment rights.

Judgment reversed.

Andrews, C. J, McMurray, P. J., Ruffin and Eldridge, JJ, concur. Beasley, J., dissents. Blackburn, J., not participating.

Beasley, Judge,

dissenting.

I respectfully dissent. Not only did Derry not violate any published policy of the Department of Corrections or the prison, but even if his brief response to Bostic had, it was protected First Amendment speech.

Derry, a correctional officer at Wayne prison, observed fellow officer Roberson ask inmate Bostic why he showed up to lunch without his belt. Bostic stated it was lost. Known as an “aggressive” officer, Roberson threatened that if the belt were found in Bostic’s belongings, he would write him up. When a search of the belongings turned up no belt, Roberson filed a disciplinary action against Bostic anyway. Feeling Roberson was harassing Bostic, Derry followed procedure by reporting his observations to the shift supervisor, who stated he would handle the matter. The supervisor did nothing.

Preparing his defense to the disciplinary charge, Bostic approached Derry to determine if he agreed with Bostic that Roberson’s actions were harassment. Derry responded truthfully that he agreed, and the conversation ended. Once the Department assigned an investigator to the matter, Bostic informed him of the conversation with Derry. The investigator did not ask Derry about it, although he included the comment in his report to the same shift supervisor who had ignored Derry’s report of the harassment. Derry was not named as a witness for the upcoming disciplinary hearing.

During the disciplinary hearing, Bostic informed the hearing officer of the conversation with Derry. The hearing officer suspended the proceedings until Derry arrived at work that day and then called him in to testify, whereupon Derry confirmed the conversation. In the written statement he was later asked to prepare, he included that he reported all this to the shift supervisor. Based on Derry’s testimony, the hearing officer reduced the charge against Bostic and issued a verbal warning only.

But the matter was not over for Derry. The hearing officer reported the testimony to Derry’s superior, who terminated Derry for violating the Department’s prohibition against correctional officers having interpersonal dealings with inmates. Arguing that he had not violated any rule and that his First Amendment rights were being violated, Derry appealed to the State Personnel Board, which affirmed the termination. Wayne County Superior Court reversed on different constitutional grounds, holding that since the inmate had a right to gather information (just as does the investigating officer) to meet the disciplinary report that had been lodged against him, so too the witness had a correlative right to answer truthfully when asked his opinion of what he witnessed. Such a response could not be prohibited as “personal association” with an inmate because it related to the fair operation of the prison. This Court accepted discretionary review.

1. A superior court reviewing the actions of the State Personnel Board follows OCGA § 45-20-9 (m), which provides: “The review shall be conducted by the court without a jury and shall be confined to the record. The court shall not substitute its judgment for that of the board as to the weight of the evidence on questions of fact. The court may affirm the decision or order of the board or remand the case for further proceedings. The court may reverse the decision or order of the board if substantial rights of the petitioner have been prejudiced because the board’s findings, inferences, conclusions, decisions, or orders are:

“(1) In violation of constitutional or statutory provisions;

“(2) In excess of the statutory authority of the board;

“(3) Made upon unlawful procedure;

“(4) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

“(5) Arbitrary, capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

The court reversed, holding the Board’s decision violated the inmate’s due process rights to investigate and Derry’s correlative right to respond truthfully. The judgment should be affirmed because Derry violated no rule and if he did, his termination violated his constitutional right of free speech. “[A] trial court’s ruling will be affirmed if it is right for any reason.”

2. The Board’s conclusion that Derry violated a Department rule or regulation is clearly erroneous in view of the reliable, probative, and substantial evidence of record. The charge against Derry read: “In involving yourself in a personal conversation with an inmate in which you revealed information involving a fellow officer you violated the Department’s prohibition against interpersonal dealings with an inmate. . . .”

In making regulations, the Department necessarily must consider “the State’s interests in prison safety and security.” The regulation that Derry allegedly violated provides: “Employees shall not, without the express written approval of the appropriate Deputy Commissioner, maintain personal association with, engage in personal business or trade with, or engage in non job-related correspondence with, or correspond in behalf of or for, known inmates, active probationers, or parolees.”

This regulation does not prohibit conversations between inmates and correctional officers. The Department’s own witnesses and documents affirmed that correctional officers are expected to converse with inmates on matters of prison business. The focus of this rule is to prevent personal or business associations or dealings between inmates and correctional officers, and to keep written communications with inmates restricted to prison business.

Derry responded to Bostic about an incident that Derry had witnessed and that had resulted in a disciplinary charge against Bostic, a matter of prison business. This was not a personal or business association or dealing, nor was it an interchange of written communications about non-prison business. The Board clearly erred in concluding this conversation violated the regulation.

In its decision the Board cited a statement found on the back of Derry’s identification card, in which he agreed to “no personal or business dealing with inmates. . . .” Derry’s conversation was not a business dealing nor a personal dealing with Bostic. It was a conversation related to the charge filed against Bostic, who was quite properly preparing his defense by talking with a witness to the incident.

The Board further quoted from a Code of Ethics, which prohibited correctional officers from discussing, condemning, or criticizing other staff performance or institutional business affairs with an inmate. The Board and the majority opinion focus on this prohibition in finding that Derry violated policy. But the Department twice conceded during the proceedings below that this Code of Ethics had been superseded by the prison’s Standards of Conduct and General Post Orders, both of which documents predated the incident and neither of which contained a similar prohibition. At most the General Post Orders prohibited conversations with inmates “that involve the low rating of the Administration. . . .” But the term “administration” generally refers to the executive management of an institution, not the day-to-day dealings between front-line officers and inmates. And in these particular post orders not only is the term capitalized, indicating a body of executive management, but the final page of the orders confirms that administration refers to the warden and other executives who manage the prison. It does not refer to a fellow correctional officer.

Derry cannot be condemned for violating a superseded Code of Ethics, and he did not violate the then-current policies of the Department or of the prison.

3. Even if Derry’s conversation could be considered a violation of policy, Derry raised at every stage of the proceedings below that such would violate his federal First Amendment right to free speech. He has reasserted that argument here.

“A state may not demote or discharge a public employee in retaliation for protected speech. [The Eleventh Circuit] has developed a four-part test to determine whether an employee suffered such retaliation. First, a court must determine whether the employee’s speech may be fairly characterized as constituting speech on a matter of public concern. If so, the district court must weigh the employee’s first amendment interests against the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees. Should the employee prevail on the balancing test, the fact-finder determines whether the employee’s speech played a substantial part in the government’s decision to demote or discharge the employee. Finally, if the employee shows that the speech was a substantial motivating factor in the employment decision, the state must prove by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct.”

It is undisputed that the reason Derry was terminated was his brief conversation with Bostic. The Department made no claim that it would have terminated Derry absent the statement. Thus, only the first two factors are at issue here. Both issues are a question of law to be determined de novo by this Court.

To determine whether the speech touches a matter of public concern requires “examining the content, form and context of the speech.” “The courts have consistently recognized statements that relate to actual or potential wrongdoing of a public official ... as involving matters of public concern. See Bryson v. City of Waycross, 888 F.2d 1562 (11th Cir. 1989); Morales v. Stierheim, 848 F.2d 1145 (11th Cir. 1988) [cits.]; Eilandl v. City of Montgomery, 797 F2d 953, 956-957 (11th Cir. 1986)].” Indeed, “a core concern of the first amendment is the protection of the ‘whistle-blower’ attempting to expose government corruption.” Further, statements that do not advance an employee’s personal self-interest but the interests of others are speech that touches upon a public concern. Helpful in this analysis is whether the employee “spoke on behalf of the public as a citizen, or whether the employee spoke for herself as an employee.” Statements made in response to legitimate investigations fall in the public concern/citizen arena.

Harassing an inmate is wrongdoing by a correctional officer and thus a matter of public concern. Derry followed prison procedure in immediately reporting this matter to his superior. Derry did not volunteer this information to the inmate but only responded to a routine investigation by the inmate to prepare his defense on the charge brought by the offending officer. Derry’s statement in no way advanced his personal interest, but was a truthful reply that placed him at odds with a colleague. Derry was speaking on a matter of public concern.

Decided December 4, 1998

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, Susan L. Rutherford, Dennis R. Dunn, Senior Assistant Attorneys General, Bryan K. Webb, Assistant Attorney General, for appellant.

4. The second test weighs the employee’s first amendment interests against the interest of the state (as an employer) in promoting the efficiency of the public services it performs through its employees. “We must consider several factors . . ., including: (1) whether the speech at issue impedes the government’s ability to perform its duties efficiently, (2) the manner, time and place of the speech, and (3) the context within which the speech was made.”

Bryson found the employee’s interests were outweighed where a policeman made repeated bitter comments about the police chief to all who would listen in the department. Such speech was indisputably disruptive and impeded the government’s ability to perform its duties efficiently, as it severely undermined morale, created disharmony, and caused some officers to skirt the police station to avoid confrontation. Similarly, in Morris v. Crow and Hansen v. Soldenwagner the speech, though it concerned a public matter, was broadcast by the employee in such an abusive, vulgar, and obnoxious manner that the government’s provision of efficient services was severely impeded.

Such is not the case here. As in Tindal, there is no evidence that Derry’s statement in fact inhibited either his work or the work of the prison. His single truthful response to an inmate’s question regarding an incident for which he faced discipline and to which Derry was a witness did not disrupt the security of the prison. Instead, it facilitated the discovery of the truth at the hearing on that charge.

The superior court’s judgment is correct.

Richard D. Phillips, for appellee.

       When Derry joined the Wayne Correctional Institution staff he signed the DOC Code of Ethics, which did expressly prevent an officer from criticizing another officer in front of an inmate. Section 25 of that Code provided: “Institution business affairs, security policy and procedures, and other staff performance shall not be criticized, condemned or otherwise discussed with an inmate.” Apparently this Code was replaced by the prison’s Standards of Conduct and General Post Orders.

       “The First Amendment provides that ‘Congress shall make no law . . . abridging the freedom of speech....’ U.S. Const, amend. I. This right was made applicable to the states by the Fourteenth Amendment. Everson v. Board of Educ., 330 U.S. 1, 8, 67 S.Ct. 504, 507-508, 91 L.Ed. 711 (1947).” Morgan v. Ford, 6 F3d 750, 753, n. 4 (11th Cir. 1993).

        Pickering v. Bd. of Ed., 391 U. S. 563 (88 SC 1731, 20 LE2d 811) (1968).

       See State Personnel Bd. v. Morton, 198 Ga. App. 845, 847 (1) (403 SE2d 455) (1991).

       (Citations and punctuation omitted.) Holland v. State, 232 Ga. App. 284, 285 (2) (501 SE2d 829) (1997).

        Washington v. Harper, 494 U. S. 210, 223 (110 SC 1028, 108 LE2d 178) (1990).

       OCRR § 125-2-1-.07 (d).

       See Black’s Law Dictionary (5th ed.), p. 41 (1979).

       (Citations and punctuation omitted.) Morgan v. Ford, 6 F3d 750, 753-754 (11th Cir. 1993); see Rankin v. McPherson, 483 U. S. 378 (107 SC 2891, 97 LE2d 315) (1987); Pickering v. Bd. of Ed., 391 U. S. 563, 568 (88 SC 1731, 20 LE2d 811) (1968); Bryson v. City of Waycross, 888 F2d 1562, 1565-1566 (11th Cir. 1989).

        Watkins v. Bowden, 105 F3d 1344, 1353 (11th Cir. 1997); Waters v. Chaffin, 684 F2d 833, 837, n. 10 (11th Cir. 1982).

       (Citations omitted.) Cooper v. Smith, 89 F3d 761, 765 (11th Cir. 1996).

        Johnson v. Waters, 970 FSupp. 991, 999 (M.D. Ala. 1997); see Abernathy v. City of Cartersville, 642 FSupp. 529, 533 (N.D. Ga. 1986).

        Bryson, supra, 888 F2d at 1566; Fikes v. City of Daphne, 79 F3d 1079, 1084 (11th Cir. 1996); see Cooper, supra, 89 F3d at 765.

        Tindal v. Montgomery County Comm., 32 F3d 1535, 1540 (11th Cir. 1994); see Cooper, supra, 89 F3d at 765-766; Morgan, supra, 6 F3d at 754-755.

       (Citations omitted.) Morgan, supra, 6 F3d at 754.

        Cooper, supra, 89 F3d at 765; Fikes, supra, 79 F3d at 1083-1084.

        Bryson, supra, 888 F2d at 1565.

       (Citations and punctuation omitted; emphasis in original.) Id. at 1567; Fikes, supra, 79 F3d at 1084.

       Supra, 888 F2d at 1567.

       117 F3d 449, 458 (11th Cir. 1997).

       19 F3d 573, 577-578 (11th Cir. 1994).

       Supra, 32 F3d at 1540.


author: Blackburn, Judge. Judge Harold R. Banke,

text:
    A98A1255.
    HAMILTON v. WALKER et al.
    (510 SE2d 120)
   Blackburn, Judge.

In this “dog bite” tort action, Sarah B. Hamilton, on behalf of her daughter, Sarah E. Hamilton (Sarah), appeals the trial court’s grant of summary judgment to Richard and Evelyn Walker, contending that the Walkers should have known that their dog had vicious propensities prior to its attack on Sarah, and, as such, the Walkers should be liable for Sarah’s injuries. Because there is no evidence that the Walkers’ dog ever bit anyone prior to biting Sarah, we affirm the trial court’s decision which comports with Georgia’s “first bite” rule.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

At the time of the incident in question, the Walkers’ dog was in their fenced yard, where four-year-old Sarah had been admonished by her playmates not to go. Nevertheless, Sarah entered the fenced yard, approached the dog and was bitten thereby. Although the confined dog had growled, barked, and otherwise appeared threatening to strangers approaching the house or yard in the past, it is undisputed that it had never bitten anyone prior to this incident.

Georgia’s first bite rule holds that a dog owner is liable for damages only if he has knowledge that his dog has the “propensity to do the particular act [biting] which caused injury to the complaining party.” (Punctuation omitted; emphasis supplied.) Smith v. Culver, 172 Ga. App. 183 (322 SE2d 294) (1984); Fitzpatrick v. Henley, 154 Ga. App. 555 (269 SE2d 60) (1980). The test requires two determinations: (1) whether the dog has the propensity to do the act which caused the injury (biting), and (2) if so, whether the owner had knowledge of that propensity. Rowlette v. Paul, 219 Ga. App. 597 (466 SE2d 37) (1995).

With regard to the first prong, this Court consistently has held that the dog must have, on a prior occasion, done the same act which resulted in the injury comprising the tort action. Johnson v. Kvasny, 230 Ga. App. 162 (495 SE2d 651) (1998); Rowlette, supra; Smith, supra; Banks v. Adair, 148 Ga. App. 254 (251 SE2d 88) (1978); Carter v. Ide, 125 Ga. App. 557 (2) (188 SE2d 275) (1972). Thus, where a dog was known to chase people, but had never chased a car or motorcycle, the owner had no knowledge that the dog might chase a motorcyclist causing him to wreck. McNair v. Jones, 137 Ga. App. 13, 14 (2) (223 SE2d 27) (1975). But, summary judgment granted to the dog owner was reversed where the dog was known to chase people and the plaintiff was injured when she fell while being chased by the dog. Evans-Watson v. Reese, 188 Ga. App. 292 (372 SE2d 675) (1988). Likewise, where a dog had on several occasions grabbed or nipped people, or ripped their clothes without actually biting, there was sufficient evidence to support a verdict which found the owner should have had knowledge of the dog’s propensity to bite. Torrance v. Brennan, 209 Ga. App. 65, 67 (2) (432 SE2d 658) (1993).

Acts of aggressive or menacing behavior have not been found to show a dog’s propensity to bite. A dog’s attacks on other animals were insufficient to put an owner on notice that the dog might attack people. Carter, supra. Additionally, a startled dog which had bitten a strangely dressed visitor had not shown a propensity to bite. Rowlette, supra.

In Thomas v. Richardson, 129 Ga. App. 834 (201 SE2d 653) (1973), the plaintiff was bitten when she entered the fenced yard of a playmate whose family owned the dog. In that case, the evidence of the dog’s propensity to bite consisted of a prior incident where a neighbor’s child decided to “test” the dog to see if it would defend the owner’s child. The dog attacked the neighbor’s child, although it was disputed whether the dog bit the child. This Court held these facts did not present a genuine issue regarding the dog’s propensity to bite. Id.

Likewise, the facts in this case do not present a genuine issue regarding the dog’s propensity to bite. Menacing behavior is all that the Hamiltons have shown. This Court has specifically declined to establish a rule that a dog’s menacing behavior should put an owner on notice of a dog’s propensity to bite. “[IJnsofar as [Carter, supra,] suggests that a dog’s menacing behavior would alone be sufficient to apprise its owner of the animal’s vicious propensities, we decline to follow it as controlling precedent, noting the well recognized adage that a dog’s bark is often worse than its bite.” Banks, supra at 255. There is no evidence of the dog’s propensity to bite, the particular act which caused injury here, so the first prong of the test is not met. Accordingly, the trial court appropriately granted summary judgment in favor of the Walkers.

We note that the 1985 modification of the dog bite statute, OCGA § 51-2-7, eliminating strict liability standards on owners of vicious or dangerous animals does not change the result of this case. The 1985 modification simply brings the amount of statutory liability more in line with the liability imposed by common law. The new statute does not purport to change the “first bite” rule. Rather, it supports the limited protection of the “first bite” rule for pet owners by removing an inflexible strict liability standard.

Judgment affirmed.

Andrews, C. J., Johnson, P. J., and Smith, J., concur. McMurray, P. J., Eldridge, J., and Senior Appellate Judge Harold R. Banke dissent.

Judge Harold R. Banke,

dissenting.

At issue is whether Hamilton succeeded in showing the existence of material facts as to the dangerous propensity of the Walkers’ dog. Because my review of the evidence convinces me that we cannot say as a matter of law that this animal was not vicious or dangerous, summary judgment was improper.

I question the majority’s reliance on cases decided under the former dog bite statute, which was radically amended in 1985 to eliminate language which had imposed strict liability on owners of vicious or dangerous animals. OCGA § 51-2-7. The amendment substituted the word “may” for “shall” in the following sentence. “A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured.” (Emphasis supplied.) OCGA § 51-2-7.

The so-called “first bite” rule mitigated the harshness of the former strict liability language. By judicial construction, the rule added a knowledge requirement to the prima facie statutory cause of action. Harvey v. Buchanan, 121 Ga. 384, 385 (49 SE 281) (1904) (“The scienter was the gist of the action.”). The present statute vitiates the need for this judge-made rule and undermines its authority. The latest amendment contemplates a showing of “vicious propensity.” Rather than turning on the owner’s actual or constructive knowledge, dog bite cases under the amended statute must necessarily focus on the degree of vicious propensity, nullifying the precedential value of authority requiring that the animal previously caused the identical harm. See, e.g., McNair v. Jones, 137 Ga. App. 13, 14 (2) (223 SE2d 27) (1975) (summary judgment granted to owner where his dog previously chased people but not motorcycles). While proof of a prior bite may conclusively establish that the animal is vicious and dangerous, under the amended law, that showing may be made in other ways as well. The pre-amendment authority allowing one free bite is no longer viable.

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

Decided December 4, 1998

Harrison & Harrison, Anthony L. Harrison, for appellant.

Whelchel, Brown, Readdick & Bumgartner, Richard A. Brown, Jr., Raleigh W. Rollins, for appellees.