text:
    A94A0651, A94A0652.
    FULLER v. JENNINGS et al.; and vice versa.
    (445 SE2d 796)
   Smith, Judge.

Patricia Fuller brought this malicious prosecution action against her father, Charles Jennings, and two uncles, Gerald and Robert Jennings. The trial court denied the Jennings brothers’ motion for summary judgment, and the case proceeded to trial before a jury. At the close of Fuller’s evidence, the trial court directed a verdict in favor of the Jennings brothers. Fuller appeals the grant of the motion for directed verdict, and in their cross-appeal the Jennings brothers appeal the denial of their motion for summary judgment. In the main appeal, we conclude that some evidence existed of malice and absence of probable cause on the part of the Jennings brothers, and accordingly we must reverse the trial court’s grant of a directed verdict. In the cross-appeal, we conclude that material issues of fact remain in dispute as to malice and probable cause, and affirm the trial court’s denial of summary judgment.

“A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict. . . . Where there is ‘some evidence,’ or ‘any evidence’ supporting the respondent’s assertions, disputed issues are created which are for the jury’s resolution.” (Citations and punctuation omitted.) Jones v. Abel, 209 Ga. App. 889, 890 (2) (434 SE2d 822) (1993). Likewise, on summary judgment we construe the evidence most favorably to the non-movant, and give that party the benefit of all favorable inferences and reasonable doubts which may arise from the evidence. Padgett v. M & M Super Market, 195 Ga. App. 799, 800 (395 SE2d 245) (1990).

So viewed, the evidence showed that Fuller is the biological daughter of Charles Jennings. However, he testified that they “weren’t having any relationship,” and she had lived with her grandfather, Vernon Jennings, since the age of three. Fuller testified that her mother had given her to her grandparents to raise, and her father never contributed to her support. She lived with her father and stepmother briefly after graduating from high school, but returned to her grandparents because her father and stepmother physically abused her. There was testimony that Fuller and her husband had a very close relationship with Vernon Jennings and that on a previous occasion Vernon Jennings had given Fuller a check for $1,000 as a birthday present.

Fuller testified that Vernon Jennings signed a check payable to her for $10,000 to reimburse her for the expenses of a private room at the nursing home where he lived, and for clothing and other items she had purchased for him over the years and planned to purchase in the future. Vernon Jennings testified by affidavit, on videotape and in a videotaped deposition that he gave Fuller the money, and . that she did not steal it.

There was some evidence that Charles Jennings originally told the bank that handled Vernon Jennings’s account that Fuller forged the check. The Jennings brothers later contended that Fuller had influenced or tricked Vernon Jennings into signing the check, that his “mind was not accurate” and that he had Alzheimer’s disease. However, Vernon Jennings was examined by a physician and found to be competent, and Fuller called a number of witnesses who testified that he was of sound mind and rational.

There was evidence of substantial ill-feeling between Fuller and the Jennings brothers, particularly regarding the care of Vernon Jennings. Fuller presented evidence that after the death of Vernon Jennings’s wife, Charles and Gerald Jennings sold Vernon Jennings’s residence without his knowledge or consent and placed him in a nursing home. There was evidence that Vernon Jennings was upset and distressed by these events. The sale of the residence was made pursuant to a power of attorney obtained by Charles Jennings; there was evidence that the Jennings brothers misrepresented the nature of the power of attorney to Vernon Jennings and the witnesses to his signature. From the sale of Vernon Jennings’s house, $25,000 went into the account on which the $10,000 check was drawn, and its ultimate disposition was in dispute. Charles Jennings testified that $25,000 was paid to the nursing home, but he also testified that the fees at the nursing home were $48 to $50 per month. There was also evidence that $15,000 from one of Vernon Jennings’s bank accounts was withdrawn and divided among the three brothers. Fuller argues from this evidence that the Jennings brothers were liquidating Vernon Jennings’s assets and dividing them among themselves, and that they sought to take the $10,000 from her for their own benefit.

A police officer conducted a videotaped interview of Vernon Jennings regarding the $10,000 check. A person identified only as “an individual” and another identified only as “an individual Jennings” were present at that interview but not identified at the beginning of the tape. Charles Jennings acknowledged that he and his brother Gerald arranged the interview. During the interview, the police officer asked the other individuals present: “Can y’all think of anything else?” and one or both of them directed several questions to Vernon Jennings which were relayed by the police officer.

Fuller also testified that the same police officer called her on the telephone and told her she was a thief and had stolen from her grandfather. She testified that she refused to discuss the matter with the officer because she did not know who he was and was angry at the accusations. An arrest warrant was executed by this police officer, but it lay dormant for many months. Fuller presented evidence from a court bailiff that Charles Jennings appeared at the courthouse before Fuller’s criminal trial and met with the district attorney, “when he was, they was talking about trying, getting a case to bring to the court.” Asked if Charles Jennings ever told him anything about the case, the bailiff testified that Jennings told him “one of his daddy’s granddaughters was trying to take $10,000 from him, and he wanted it, or had took it, or he thought she did. . . . And he was going to try to get it back. He was going to take, he thought he’d take it to civil court, you know, but said that was going to cost him too much money, said he wouldn’t make any money like that. And he was going to try to get the district attorney to take it to the grand jury, and that way he’d come out better, it wouldn’t cost him anything much.” Approximately one year after the issuance of the arrest warrant, without any further contact from the police and without appearing before a magistrate or the grand jury, Fuller was indicted on two counts of theft by taking. She was acquitted by a jury, and this action followed.

1. In the main appeal, Case No. A94A0651, Fuller appeals the trial court’s directed verdict in favor of the Jennings brothers. The trial court granted a directed verdict on the basis that there was no showing that the Jennings brothers urged Fuller’s prosecution. “Among the essential elements of a claim for malicious prosecution are (1) a prosecution instituted maliciously and (2) without probable cause which (3) has terminated favorably to the plaintiff.” (Citations and punctuation omitted.) Williams v. Taylor, 202 Ga. App. 720, 721 (415 SE2d 498) (1992). Unless the facts regarding probable cause are undisputed, it is a question for the jury. OCGA § 51-7-43; Gantt v. Patient Communications Systems, 200 Ga. App. 35, 38 (2) (a) (406 SE2d 796) (1991). Once a criminal matter is bound over by the magistrate or an indictment issues, that is prima facie but not conclusive evidence of probable cause. Monroe v. Sigler, 256 Ga. 759, 760 (3) (353 SE2d 23) (1987). This prima facie evidence may be rebutted by direct or circumstantial evidence. Auld v. Colonial Stores, 76 Ga. App. 329, 336 (2) (45 SE2d 827) (1947).

In directing a verdict the trial court relied upon Atlantic Zayre v. Zachary, 205 Ga. App. 481 (422 SE2d 667) (1992), to hold there was no evidence that the Jennings brothers urged action or played a role in the decision to prosecute, and they merely provided the authorities with information. However, the facts of this case differ substantially from those in Atlantic Zayre. There, no evidence was presented that Zayre’s agents had any knowledge of the lack of truthfulness of the allegations against the plaintiff. 205 Ga. App. at 482. In this case, in contrast, the alleged victim repeatedly testified before and during the prosecution that no crime had been committed. “ ‘ “[I]f the informer knew that the facts stated were false, it is clear that he attempted to influence the officer’s judgment and he is, therefore, responsible for such subsequent action as may be taken.” ’ [Cit.]” Martin v. Reitz, 152 Ga. App. 854, 856 (264 SE2d 305) (1980).

Moreover, there was evidence from which the jury could have concluded that the Jennings brothers urged action or played a role in the decision to prosecute Fuller. Charles and Gerald Jennings were present during a videotaped police interview of Vernon Jennings, and to some extent directed the questioning. A witness testified that Charles Jennings met with the district attorney, and Charles Jennings stated to the same witness that he was seeking criminal prosecution to recover money for himself, as an alternative to a more expensive civil action. This admission “announced an ulterior motive for the prosecution and raised a strong inference of malice. This, too, is an inference of fact to be drawn by a jury.” Auld, supra, 76 Ga. App. at 337 (3). Evidence that Charles Jennings was observed meeting with the district attorney, standing alone, might be insufficient for the jury to draw any inference regarding the subject of that meeting. However, taken in context with testimony that Jennings was “trying, getting a case to bring to the court,” and Jennings’s statement regarding his purpose in pursuing that case, there was sufficient evidence for Fuller’s claims to go to the jury.

Vernon Jennings testified on at least three occasions before Fuller’s trial that he had given Fuller the money, and she did not steal it from him. “Even if on instigating the prosecution the prosecutor had probable cause at the commencement, if he afterwards acquired knowledge, or the reasonable means of knowledge, that the charge was not well founded, his continuation of the prosecution is evidence of the want of probable cause, requiring that the question be submitted to the jury.” (Citations, punctuation and emphasis omitted.) Munford, Inc. v. Anglin, 174 Ga. App. 290, 291 (1) (329 SE2d 526) (1985). The Jennings brothers contend that this evidence was insufficient because Vernon Jennings was an elderly man, ill and easily confused, and had made statements which could be construed as contradictory. They also discount the testimony of Fuller’s witnesses, whom they characterize as “friends and partisans.” However, this court cannot weigh evidence or decide issues of fact. The jury is present in the courtroom and has the opportunity — indeed, the duty — to observe and evaluate the credibility of witnesses and weigh their conflicting testimony, as we cannot. Three Notch EMC v. Simpson, 208 Ga. App. 227, 229-230 (1) (430 SE2d 52) (1993).

This action is a fiercely disputed contest between close relatives, with widely diverging accounts of the events leading to Fuller’s prosecution and acquittal. “Although a directed verdict would had been proper if [Fuller] simply failed to prove [her] case [cit.], we are satisfied the evidence is in conflict, and with all inferences that reasonably might be drawn therefrom, does not demand a verdict in favor of [the Jennings brothers].” (Emphasis in original.) Moore v. American Suzuki Motor Corp., 203 Ga. App. 189, 190 (1) (416 SE2d 807) (1992). There is some evidence of lack of probable cause as well as of malice. This is an appropriate case for jury resolution, and we must reverse the trial court’s directed verdict in favor of the Jennings brothers.

2. In the cross-appeal, Case No. A94A0652, Fuller’s motion to dismiss is denied. Where a verdict is overturned, the issue of summary judgment is no longer moot. Schirmer v. Amoroso, 209 Ga. App. 682, 683 (434 SE2d 80) (1993). If a directed verdict is granted before a party has the opportunity to present the evidence on which an earlier motion for summary judgment was based, this court may consider the denial of summary judgment. Justus v. Justus, 198 Ga. App. 533, 534 (1) (402 SE2d 126) (1991).

There was evidence presented on summary judgment which was not adduced at trial because the Jennings brothers did not present their case, and the Jennings brothers contend this additional evidence entitles them to summary judgment. However, as discussed in Division 1, above, virtually every point was in dispute and controverted by Fuller either in opposition to the motion or at trial. While there is some evidence that Fuller refused to cooperate with the police, there is also evidence that she was called on the telephone and accused in blunt fashion by an individual whom she did not know, then not contacted again until after her indictment. The Jennings brothers contend Fuller’s deposit of the check was irregular; she offered an explanation for her conduct. The police officer who investigated the case swore by affidavit that he relied wholly upon his independent judgment in investigating the case. However, this affidavit is not uncontroverted. There is evidence that one or more of the Jennings brothers prompted the officer and proposed questions during the videotaped interview of Vernon Jennings, and that the officer deferred to them in his questioning. Moreover, there was testimony that the police officer was hostile to individuals who gave information tending to exonerate Fuller. Finally, there was testimony presented by Fuller on summary judgment that was not presented at trial and which tends further to support her contentions. The record presents disputed issues of material fact which clearly are inappropriate for resolution on summary judgment.

Decided June 23, 1994

Reconsideration denied July 8, 1994

Paul T. Wright, for appellant.

Patricia Fuller, pro se.

Branch, Pike & Ganz, Gregory J. Digel, Mary Jo Schrade, Irwin & Taylor, R. Chris Irwin, William M. Schiller, for appellees.

The Jennings brothers contend there was probable cause for Fuller’s prosecution as a matter of law, because Fuller did not move for directed verdict of acquittal in the criminal prosecution. As the trial court correctly held in its order on summary judgment, this contention has no merit. Bi-Lo, Inc. v. McConnell, 199 Ga. App. 154, 156-157 (4) (404 SE2d 327) (1991). The trial court did not err in denying the Jennings brothers’ motion for summary judgment.

Judgment affirmed in Case No. A94A0652. Judgment reversed in Case No. A94A0651.

Pope, C. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A94A0703.
    CSX TRANSPORTATION, INC. v. FRANKLIN INDUSTRIES, INC.
    (445 SE2d 861)
   Smith, Judge.

This appeal involves an indemnification claim by CSX Transportation, Inc. (CSX), a common carrier by railroad, against Franklin Industries, Inc., owner and operator of a limestone plant in Anderson, Tennessee. Benny Crownover, a member of a CSX train crew, was injured on Franklin’s property. Crownover brought a claim against CSX under the Federal Employers’ Liability Act (FELA), 45 USC § 51 et seq., for breach of CSX’s non-delegable duty to provide a safe workplace. CSX brought a third-party claim against Franklin for allegedly creating and maintaining a dangerous condition on its land causing Crownover’s injury. At the close of CSX’s evidence the trial court granted Franklin’s motion for a directed verdict, and CSX appeals.

Because the accident and injury occurred at Franklin’s Tennessee plant, we apply the rule of lex loci delicti and consider the substantive elements of this cause of action under Tennessee law. Maryland Cas. Ins. Co. v. Glomski, 210 Ga. App. 759, 760 (437 SE2d 616) (1993). “The rule of lex fori controls all matters affecting only the remedy, such as rules of evidence, methods of shifting the burden of proof, and the presumptions arising from given states of fact.” (Citations and punctuation omitted.) Menendez v. Perishable Distrib., 254 Ga. 300, 302 (329 SE2d 149) (1985). The standard of review of a directed verdict therefore is governed by Georgia law. See Abalene Pest Control Svc. v. Orkin Exterminating Co., 196 Ga. App. 463 (1) (395 SE2d 867) (1990) (applying standard of review under Georgia law on summary judgment).

“A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict. . . . Where there is ‘some evidence,’ or ‘any evidence’ supporting the respondent’s assertions, disputed issues are created which are for the jury’s resolution.” (Citations and punctuation omitted.) Jones v. Abel, 209 Ga. App. 889, 890 (2) (434 SE2d 822) (1993). Applying this strict standard to the evidence in this case, we find that under Tennessee law it does not demand a verdict in favor of Franklin, and therefore we must reverse the trial court’s grant of a directed verdict.

Construed most strongly against Franklin, the evidence shows that Franklin and its predecessor in title, Cowan Stone Company, owned a rail siding that was served by CSX. Cowan had been inspected repeatedly and cited by the Tennessee Public Service Commission (TPSC) for maintaining dangerous conditions at the Anderson plant siding, and it is undisputed that after Franklin’s purchase of the plant in 1988 the inspections and citations continued. The dust created by processing and loading the limestone into railcars settled on and about the siding. Drainage at the site was extremely poor, so that any substantial rainfall caused quantities of water to accumulate at the siding, sometimes of sufficient depth to cover the rails completely. The water mixed with the limestone dust to form a particularly tenacious mud that also at times covered the rails and interfered with the operation of switches. The limestone powder on the surface of the water created a “mirror image” reflection so it was impossible to judge the depth of a puddle of water. All witnesses agreed that the siding was very muddy and slippery during and after rain and on the date of Crownover’s injury.

Franklin used a front-end loader to move railcars on its siding. The front-end loader had large rubber tires that gouged out holes of varying depth as the loader skidded on the walkways alongside the tracks. When these holes filled with water mixed with lime dust the reflective surface made it impossible to tell how deep they were. The front-end loader bucket also bumped the corners of the railcars, bending and damaging the angle irons and ribs on the cars.

Franklin was outside the direct regulatory scope of the TPSC. However, the TPSC threatened to close the rail line into Franklin’s property unless Franklin agreed to improve site conditions. Franklin responded to the TPSC and agreed to improve the site conditions by taking certain listed actions, including correcting the drainage problems and scraping and smoothing the walkways daily. The TPSC also recommended that instead of the front-end loader, Franklin use a trackmobile, a self-propelled device designed for moving railcars, to avoid destroying the walkways and damaging the cars. A trackmobile runs on the rails and thus does not gouge out or damage adjoining walkways. Because it couples to the railcars, it does not make intermittent and damaging contact with other parts of the cars. However, Franklin declined to purchase a trackmobile, stating that in its experience “a track mobile is a very high maintenance item,” and it continued to use a front-end loader to move railcars on its siding.

The incident that gave rise to this action occurred on Franklin’s siding on the evening of June 19, 1989. A CSX traincrew arrived at the siding to drop off and collect railcars. Franklin had not smoothed the walkways that day, and the limestone mud was deep enough to cover the top of the engineer’s six-inch boots. Crownover was preparing to board a train to begin the process of switching the cars out. He was aware of the muddy conditions, which he described as “like wet cement,” but saw only “slush, water and mud” on the ground and did not observe any hole. However, as he prepared to board the last rail-car in the train Crownover fell into a hole, severely injuring his knee on a hard object. Crownover’s crew members came to his assistance and attempted to discover the cause of his fall. Only after “feeling around” in the mud with his bare hands did one of the crew discover a mud-encrusted piece of angle iron in the bottom of a hole. It resembled the angle irons that supported ladders on the ends of the rail-cars.

Applying Tennessee law to these facts, we find that the Tennessee “active-passive negligence rule” controls CSX’s claim for indemnity. This rule provides that a tortfeasor guilty only of passive negligence may seek indemnity from another tortfeasor guilty of affirmative or active negligence for damages the first tortfeasor has been compelled to pay to an injured party. Continental Ins. Co. v. City of Knoxville, 488 SW2d 50 (Tenn. 1972); Velsicol Chem. Corp. v. Rowe, 543 SW2d 337 (Tenn. 1976).

In this indemnity action, Franklin’s liability is governed by Tennessee common law, regardless of the application of FELA to the main action, and CSX is subject to any defenses which could have been asserted by Franklin in a direct common-law action against it by Crownover. Southern R. Co. v. Foote Mineral Co., 384 F2d 224, 228 (6th Cir. 1967). Franklin asserts, and the trial court held, there was no evidence to support a finding of negligence on the part of Franklin, because Crownover had equal knowledge of the hazards on Franklin’s property. We therefore look to Tennessee law governing the liability of owners and occupiers of land for conditions existing on their property.

“Before the owner or operator of a premises can be held liable for negligence in allowing a dangerous or defective condition to exist on the premises, such condition must have been created by the owner or operator or his agent, or, if created by someone else, there must be actual or constructive notice on the part of the owner or operator prior to the injury that the condition existed. [Cit.] ... In cases where the peril is not created by the proprietor or his agents, he is not liable for injuries from dangers that are obvious, reasonably apparent, or as well known to the injured party as to the proprietor. [Cit.]” (Emphasis supplied.) Chambliss v. Shoney’s, Inc., 142 SW2d 271, 273 (Tenn. App. 1987). This case by its language raises the question of whether, under Tennessee law, a defense of equal notice can be raised where the defendant or its agents knowingly created the dangerous condition.

The case before us is not a typical slip and fall case where the landowner’s notice or constructive notice of a defect caused by a third or unknown party is in dispute. There was evidence that Franklin itself, by its acts and omissions, created the dangerous condition which caused Crownover’s injury. Franklin failed to correct the drainage problems and did not smooth its walkways daily, as it had agreed to do. Moreover, it continued to use a front-end loader despite recommendations against its use, gouging holes in the walkways and, it could be inferred, knocking from a railcar the angle iron that injured Crownover. Under Tennessee law, this may well place Franklin in a position of liability without regard to actual or constructive notice, and in and of itself, it arguably creates a jury question. However; we need not reach this issue, as we find that jury questions remain on issues of contributory negligence and assumption of the risk.

The doctrines of assumption of the risk and contributory negligence, asserted as defenses by Franklin, “are often used interchangeably. . . . ‘The application of the doctrine is often simply another way of applying the rule of contributory negligence, and frequently the difference between the two is merely a difference in the choice of language or style of expression. In other words, the fact that one knows of potential danger and voluntarily subjects himself thereto may and often does render him contributorily negligent if accident or injury ensues.’ [Cit.]” Dawson v. Sears, Roebuck & Co., 394 SW2d 877, 881 (Tenn. 1965).

Under Tennessee law, knowledge of a general danger does not constitute knowledge of a specific dangerous condition, whether in the context of contributory negligence or assumption of the risk. In Haga v. Blanc & West Lumber Co., 666 SW2d 61 (Tenn. 1984), the plaintiff was aware of the general dangers inherent in climbing on piles of lumber, but he was unaware that the particular piles of lumber he was climbing were unbanded and therefore likely to collapse. The Tennessee Supreme Court held these facts presented jury issues with respect to both contributory negligence and assumption of the risk. Id. at 65. The test of reasonable care for a plaintiff’s own safety requires that “he must not only know the facts which create the danger but he must comprehend and appreciate the danger.” Id. at 64. Similarly, the test for assumption of the risk requires that the plaintiff have knowledge and appreciation of the specific dangerous condition, and voluntarily expose himself to that danger. Id. at 65. See also Mullins v. Precision Rubber Prod. Corp., 671 SW2d 496, 498-500 (Tenn. App. 1984).

Another decision of the Tennessee Supreme Court contrasts knowledge of a general condition with knowledge of a specific hazard concealed by that condition. In Dawson v. Sears, Roebuck & Co., supra, a parking lot was covered by a heavy fall of snow, concealing the concrete barrier curbs and islands within the lot. The plaintiff entered the parking lot and struck a concealed curb. The Tennessee Supreme Court found jury issues as to whether the defendant had time or a duty to clear the parking lot, close it, or warn the plaintiff, and “whether the plaintiff knew of the concealed dangers, or even whether they were dangers.” 394 SW2d at 881. In considering issues of both contributory negligence and assumption of the risk, the court held that whether a danger was open and obvious was a fact question for determination by a jury. Id. at 882.

Decided July 8, 1994.

Casey, Gilson & Williams, Matthew D. Williams, Sandra Gray, for appellant.

Hicks, Casey & Young, William T. Casey, Jr., for appellee.

Like lumber without bands and concrete curbs concealed by snow, the state of Franklin’s siding involves both an obvious and a concealed danger created by Franklin. It is apparent from the uncontradicted evidence that Crownover assumed the risk or knowingly accepted the obvious danger of slipping and falling in the mud. However, the evidence does not demand a finding that Crownover knew or should have known the danger, or knowingly accepted the risk, of stepping into a concealed hole that Franklin failed to fill as agreed, or onto a concealed piece of angle iron knocked from a railcar by Franklin.

Under these circumstances, there is evidence in the record from which a jury could find that Crownover exercised reasonable care, that his negligence was less than that of Franklin, or that he did not knowingly assume the risk of injury. Therefore, the directed verdict in favor of Franklin was erroneous, and must be reversed.

Judgment reversed.

Pope, C. J., and McMurray, P. J., concur.

       Crownover and CSX settled the FELA claim at trial.

       The Tennessee standard for review of a directed verdict is quite similar. See Chambliss v. Shoney’s, Inc., 742 SW2d 271, 272 (Tenn. App. 1987).

       The Tennessee Supreme Court recently abandoned the doctrine of contributory negligence and adopted a modified comparative negligence rule. McIntyre v. Balentine, 833 SW2d 52, 56-57 (Tenn. 1992). Thus negligence on the part of Crownover no longer acts as a complete bar to recovery in all circumstances. Id. at 54. This change, however, has no direct effect on our analysis here.

         This distinction is consistent with Georgia law. See Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139 (351 SE2d 477) (1986) (plaintiffs knowledge of existence of pile of construction debris was not knowledge of specific hazard created by a sharp object hidden in the debris).


author: McMurray, Presiding Judge.

text:
    A94A0780.
    BANKS v. PAYNE.
    (445 SE2d 826)
   McMurray, Presiding Judge.

Andrew C. Banks filed an action against Gussie Watson Payne for damages allegedly sustained after he was struck by an automobile driven by Payne. Payne denied the material allegations of the complaint and alleged that the sole proximate cause of any damages sustained by Banks was his negligence in running into the path of her vehicle. Payne filed a motion for summary judgment and several depositions. We examine this evidence in a light “most favorably toward the party opposing the motion as we must. See Holland v. Sanfax Corp., 106 Ga. App. 1, 4 (126 SE2d 442); Sellers v. Wolverine Soap Co., 19 Ga. App. 295 (1) (91 SE 489); McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178, 179 (1) (129 SE2d 408).” Morris v. Pulliam, 168 Ga. App. 442, 444 (2) (309 SE2d 423).

At about 3:30 in the afternoon on September 11, 1990, Linda Ranné was driving a vehicle occupied by her daughter and her 16-year-old son, Andrew Banks. Banks asked his mother to drop him off at his uncle’s place of business on Ferry Lake Road in Tifton, Georgia. Ranné complied, stopping the vehicle in her lane of traffic “about a half a block up from Eastside Superette store.” She then admonished Banks to look both ways before crossing the street and instructed him to tap the rear of the vehicle when he was ready to cross the road. Banks exited the right side of the car, walked around to the trunk of the vehicle and looked in both directions. He saw a school bus to his left (behind his mother’s car) that had “just tipped [a nearby] hill.” Banks did not see any traffic to his right. He then “paused for a minute[,] hit the trunk of the car[,] looked again both ways [and] still didn’t see nobody so [he] proceeded [jogging] across the street.” When Banks “got beyond . . . the middle of the lane[, he] looked back to [his] right again [and] then . . . spotted [Payne’s vehicle. It] was too late, [Banks] couldn’t do nothing and [Payne, then 75 years of age,] hit [him].” Two weeks earlier, Payne was involved in another traffic collision. She then “ran out in front of a truck . . .” and “totalled” her car.

The trial court granted Payne’s motion for summary judgment. This appeal followed. Held:

“Generally issues of negligence, and in particular the related issues of contributory or comparative negligence, assumption of the risk, lack of ordinary care for one’s own safety and lack of ordinary care in avoiding the consequences of another’s negligence and similar matters are not proper for summary adjudication. See Wakefield v. A. R. Winter Co., 121 Ga. App. 259, 260-261 (174 SE2d 178); Lockhart v. Beaird, 128 Ga. App. 7, 9 (195 SE2d 292); Shuman Supply of Savannah v. Skinner, 128 Ga. App. 431, 433 (197 SE2d 152); Griffin v. Bremen Steel Co., 161 Ga. App. 768, 772 (288 SE2d 874). Likewise, in order for a defendant to obtain summary judgment in his favor it is necessary that the defendant produce evidence which conclusively negates at least one essential element entitling the plaintiff to recover under any theory fairly drawn from the pleadings and the evidence. The plaintiff’s pleadings must be pierced to show to the court that the defendant is entitled to summary judgment as a matter of law irrespective of any issues of fact with regard to other essential elements. See Waldrep v. Goodwin, 230 Ga. 1, 2 (1) (195 SE2d 432); Dunbar v. Green, 229 Ga. 829, 830-831 (194 SE2d 435).” Morris v. Pulliam, 168 Ga. App. 442, 444 (1), supra.

In the case sub judice, Payne testified that she was not speeding when she hit Banks; that her “eyes was [sic] focused on the road . . .” and that Banks unexpectedly ran into her vehicle. Edward Wells testified that he was driving a school bus on the day of the collision; that he observed Banks exit the passenger side of a vehicle stopped ahead of his school bus in his lane of traffic; that he watched the boy traverse the road without looking and that he saw Banks run across the centerline and into Payne’s vehicle. Wells testified that Payne was driving about 30 or 35 mph when she struck Banks and that Payne could not have possibly avoided the collision. Payne argues that this testimony and Banks’ failure to come forward with proof that she failed to keep a proper lookout pierced any allegation that she was negligent. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). We do not agree.

Decided June 30, 1994

Reconsideration denied July 11, 1994

Simpson, Gray & Carter, Ralph F. Simpson, Melanie B. Cross, for appellant.

Sims, Fleming & Spurlin, John C. Spurlin, for appellee.

“[S]ummary judgment cannot be obtained by a movant in a case of the nature of the case sub judice and which rests entirely on opinion evidence. . . . See Griffin v. Bremen Steel Co., 161 Ga. App. 768, 771-772, supra, and cases cited therein.” Morris v. Pulliam, 168 Ga. App. 442, 444 (2), supra. Although Payne and Wells gave persuasive accounts of the incident which forms the basis of the case sub judice, their conclusions that Payne was either not negligent or that Payne could not have avoided striking Banks are not binding because they are conclusions of law or expressions of opinion. See Cameron v. Moore, 199 Ga. App. 800, 801 (2), 802 (406 SE2d 133).

“In Eubanks v. Mullis, 51 Ga. App. 728 (181 SE 604), the court was confronted with a case resembling the [case sub judice]. There, a pedestrian was crossing the road between two parked cars. While the pedestrian was looking to his left for traffic and before he had time to look to the right, he was struck by defendant’s car. The holding in that case is equally applicable to this case: ‘Where in an action for personal injuries there is a question as to whether or not the plaintiff could have avoided the injury to himself by exercising ordinary care, and the evidence does not show such conduct on plaintiffs part as to amount to negligence per se, the question as to the exercise of ordinary care is for the jury. (Cits.)’ Id. p. 732. The holding in Eubanks is dispositive [in the case sub judice].” Hill v. Copeland, 148 Ga. App. 232, 235 (4) (250 SE2d 822). Consequently, the trial court erred in granting Payne’s motion for summary judgment.

Judgment reversed.

Pope, C. J., concurs. Smith, J., concurs in the judgment only.


author: Smith, Judge. McMurray, Presiding Judge,

text:
    A94A0221.
    RABINOVITZ et al. v. ACCENT RENT-A-CAR, INC.
    (446 SE2d 244)
   Smith, Judge.

The appellants were injured in an automobile collision involving a vehicle rented from appellee Accent Rent-A-Car, Inc. The driver was uninsured. Appellants sought recovery against Accent on the theory that since Accent was required to verify that the renting driver was insured before turning the vehicle over to him, its failure to do so was negligence per se and the “proximate cause” of appellants’ injuries. The trial court granted appellee’s motion for summary judgment and denied that of appellants. This appeal followed.

OCGA § 40-9-102 provides that “[a]ny person who rents motor vehicles from a U-drive-it owner is required to provide his own insurance, and insurance companies . . . shall be required ... to provide ‘spot’ insurance, which shall be purchased by such person before the U-drive-it owner shall be authorized to turn a motor vehicle over to such person. If a U-drive-it owner turns over any motor vehicle to any person without first ascertaining that such ‘spot’ insurance has been obtained, the U-drive-it owner shall not, as to that particular rental transaction, be exempted from the provisions of this chapter as provided in Code Section 40-9-4.”

“In determining whether the violation of [a statute] is negligence per se as to a particular person, it is necessary to examine the purpose of the [statute] and decide (1) whether the injured person falls within the class of persons it was intended to protect, and (2) whether the harm complained of was the harm it was intended to guard against. In construing any statute, we must look to the natural and most obvious import of its language.” (Citations and punctuation omitted.) Montgomery Ward & Co. v. Cooper, 177 Ga. App. 540, 541 (1) (339 SE2d 755) (1986).

A plain reading of OCGA § 40-9-102 reveals it is remedial in nature. Its mandate “is in the nature of a bond to guarantee the public against damages by some irresponsible renter of a car of the U-Drive-It.” Continental Cas. Co. v. Owen, 90 Ga. App. 200, 209 (2) (82 SE2d 742) (1954). Its purpose is not specifically to prevent tortious acts by operators of rental vehicles, but rather to assure that such tortfeasors are not uninsured. Since the enactment of the Georgia Motor Vehicle Accident Reparations Act in 1974, owners such as Accent have been required to insure their vehicles in any event. Ga. L. 1974, p. 113, § 3; Jones v. Wortham, 201 Ga. App. 668, 669 (411 SE2d 716) (1991). However, this was not the law in 1951 when the “spot” insurance provision was first enacted. See Ga. L. 1951, p. 565, § 23.

The statute clearly was not designed to prevent or even discourage otherwise uninsured motorists from renting vehicles with companies like Accent. On the contrary, it provides the means by which such persons can obtain the required insurance “on the spot.” Even assuming that the collision in this particular case would not have occurred but for Accent’s failure to confirm that its renting driver had insured himself before it released the vehicle to him, this does not alter our interpretation of the statute on which appellants exclusively rely for recovery from Accent. Since OCGA § 40-9-102 was not designed to prevent the collision which caused appellants’ injuries, the court did not err in granting Accent’s motion for summary judgment.

Judgment affirmed.

Pope, C. J., and McMurray, P. J., concur specially.

McMurray, Presiding Judge,

concurring specially.

I concur in the judgment, but not for the reasons stated by the majority.

Stephen S. Rabinovitz, Judith B. Rabinovitz, Lawrence Rabinovitz and Cindy Mason Rabinovitz filed an action against Accent Rent-A-Car, Inc. (“Accent”), alleging they were injured when James M. Brewer negligently drove an Accent rental car into a taxi cab occupied by the Rabinovitzes. Specifically, the Rabinovitzes allege that Accent negligently entrusted a rental car to Brewer and that Accent was negligent as a matter of law by failing to verify that Brewer had automobile liability insurance as required by OCGA § 40-9-102.

Upon opposing motions for summary judgment, the undisputed evidence reveals that Brewer had no insurance covering the vehicle he rented from Accent and that Accent had the vehicle insured as required by OCGA § 33-34-4. However, there is conflicting evidence regarding Accent’s knowledge of Brewer’s lack of insurance and there is evidence that Accent made only a veiled attempt to determine whether Brewer (or any other customer) had automobile liability insurance before turning a rental car over to him. It is my view that these circumstances raise genuine issues of material fact as to Accent’s compliance with OCGA § 40-9-102, i.e., whether Accent established that Brewer had insurance before renting him a car. However, the majority ignores evidence pertinent to Accent’s compliance, vel non, with this statute and holds that (in any event) the Rabinovitzes cannot recover because “OCGA § 40-9-102 was not designed to prevent the collision which [allegedly] caused [the Rabinovitzes’] injuries. . . .” It is my view that this logic misses the mark.

“ ‘In determining whether the violation of the ordinance is negligence per se as to a particular person, it is necessary to examine the purpose of the ordinance and decide (1) whether the injured person falls within the class of persons it was intended to protect, and (2) whether the harm complained of was the harm it was intended to guard against. (Cit.)’ Rhodes v. Baker, 116 Ga. App. 157, 160 (2b) (156 SE2d 545) (1967).” Montgomery Ward & Co. v. Cooper, 177 Ga. App. 540, 541 (1) (339 SE2d 755). To this end, the Georgia Court of Appeals observed in Continental Cas. Co. v. Owen, 90 Ga. App. 200, 209 (82 SE2d 742), that the purpose of “spot” insurance under Ga. L. 1951, pp. 565, 578, § 23 (now OCGA § 40-9-102) “is ... to guarantee the public against damages by some irresponsible renter of a car of the U-Drive-It.” Id. at 209. With this object in mind, it is my view that the Rabinovitzes fall within the class of persons OCGA § 40-9-102 was intended to protect and that the harm the Rabinovitzes now complain of (i.e., lack of protection from a financially irresponsible rental car driver) is the harm the statute was intended to guard against. I base this conclusion on the undisputed fact that the Rabinovitzes are members of the general public and that they allege damage as a result of the negligence of a financially irresponsible rental car driver. Consequently, it is my view that the controlling issue is whether the Rabinovitzes were harmed by Accent’s alleged failure to comply with OCGA § 40-9-102. Conversely stated, the pivotal issue in the case sub judice is whether the object of OCGA § 40-9-102 was accomplished.

The purpose of OCGA § 40-9-102 “is ... to guarantee the public against damages by some irresponsible renter of a car of the U-Drive-It.” Continental Cas. Co. v. Owen, 90 Ga. App. 200, 209, supra. In the case sub judice, it is my view that the object of OCGA § 40-9-102 was met since it is undisputed that Accent had automobile liability insurance covering the collision. In other words, the Rabinovitzes have a guarantee in Accent’s automobile liability insurance policy against damages allegedly caused by Brewer’s irresponsibility. They are therefore not harmed by Accent’s failure to comply with OCGA § 40-9-102 and this is the sole reason I concur in the judgment of the majority opinion.

Decided July 11, 1994.

F. Clay Bush, for appellants.

Drew, Eckl & Farnham, Hall F. McKinley III, Douglas M. Baker, for appellee.

I am authorized to state that Chief Judge Pope joins in this special concurrence.

       Appellants also suggest that as a result of Accent’s failure to inquire whether the driver was insured, they were wrongfully denied two sources of recovery. However, this is merely a makeweight argument. The injuries complained of resulting from Accent’s omission are the appellants’ physical injuries, not the loss of a second source of recovery. We cannot relitigate this matter for the appellants merely because it would appear that their logic, in the words of the special concurrence, “misses the mark.” It is clear that the appellants do not wish to limit their recovery to that which they would have realized had the uninsured driver purchased “spot” insurance. However, as the special concurrence correctly explains, a less zealous approach would have been just as unsuccessful.

       OCGA § 40-9-102 requires a person who rents a car from a rental agency to acquire “spot” insurance covering the rental vehicle and prohibits the rental agency from turning a motor vehicle over to a renter until such insurance is acquired. “[T]his requirement may be satisfied by a vehicle insurance policy that the renter already holds for his own vehicle and that covers the renter while driving another vehicle. Alternatively, the renter may satisfy the statutory mandate by purchasing at the time of rental, an insurance policy that covers the specific rental vehicle.” (Footnote omitted.) Frank E. Jenkins III and Wallace Miller III, Ga. Auto. Ins. Law (Including Tort Law), pp. 182, 183, § 21-8 (1993 ed.).

       OCGA § 33-34-4 now requires minimum coverage as prescribed in the Georgia Motor Vehicle Safety Responsibility Act. This Code section defines minimum financial responsibility as “$15,000.00 because of bodily injury to or death of one person in any one accident, and subject to said limit for one person, in the amount of $30,000.00 because of bodily injury to or death of two or more persons in any one accident, and in the amount of $10,000.00 because of injury to or destruction of property of others in any one accident. . . .” OCGA § 40-9-2 (5) (A). It appears that the amounts now described as minimum financial responsibility was the coverage Accent provided for the rental car it turned over to Brewer.

       It seems logical that Accent’s compliance with OCGA § 40-9-102 would have greatly increased the likelihood that the Rabinovitzes would now be covered under two automobile liability insurance policies instead of just one, i.e., the coverage Accent maintained pursuant to OCGA § 33-34-4 and the coverage Brewer should have had pursuant to OCGA § 40-9-102. However, without statutory authorization, I do not believe the Court of Appeals has authority to extend the legislative penalty prescribed for noncompliance with OCGA § 40-9-102, exemption “from the provisions of [Georgia’s Motor Vehicle Safety Responsibility Act] as provided in Code Section 40-9-4.” Although OCGA § 40-9-4 is awkwardly drafted, it seems that the penalty of “exemption” means that the rental car agency’s insurance policy will be primary rather than secondary. See Jones v. Wortham, 201 Ga. App. 668, 670 (411 SE2d 716); Atlanta Rent-A-Car v. Jackson, 204 Ga. App. 448, 450 (419 SE2d 489).


author: Judge Harold R. Banke.

text:
    A94A0761.
    COLQUITT v. THE STATE.
    (446 SE2d 247)
   Judge Harold R. Banke.

The appellant, Milbert Colquitt, was convicted by a jury of statutory rape and incest. He appeals the denial of his motion for a new trial.

1. The appellant, who is black, contends that the trial court erred in overruling his challenge to the State’s use of peremptory challenges to strike five black jurors solely on the basis of race. Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). The basis for the trial court’s ruling was that the appellant failed to make a prima facie case of discrimination, because while there were eleven black members of the jury pool (26.2 percent), there were four black jurors (33.3 percent) on the panel that convicted him.

Decided July 11, 1994.

Johnny B. Mostiler, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

The trial court erred in concluding, based solely on the relative percentages of blacks on the jury selected and in the venire, that the appellant failed to establish a prima facie case of discrimination. Weems v. State, 262 Ga. 101 (416 SE2d 84) (1992). The court further erred by failing to scrutinize and rule upon whether the prosecutor’s stated reasons for the strikes were sufficient to rebut the prima facie showing. Accordingly, this case is remanded for the trial court to conduct a hearing to determine the credibility and facial validity of the reasons offered. See Staples v. State, 209 Ga. App. 802, 803 (434 SE2d 757) (1993).

2. The appellant argues that a new trial was required in light of evidence that the victim recanted her testimony. “ ‘That a material witness for the State, who at the trial gave direct evidence tending strongly to show [the] (appellant’s) guilt, has since the trial made statements (even) under oath that his former testimony was false, is not cause for a new trial. (Cits.)’ [Cit.]” Williams v. State, 197 Ga. App. 274 (398 SE2d 381) (1990).

3. Viewed in the light most favorable to the jury’s verdict, the evidence authorized a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment of conviction affirmed and case remanded with direction.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A93A1114.
    SHULER v. THE STATE.
    (446 SE2d 225)
   Judge Harold R. Banke.

The appellant was indicted for one count of burglary occurring on November 28, 1991. After the trial commenced on April 22, 1992, the State announced that it intended to prove the offense actually occurred on November 29, 1991. The appellant moved for a directed verdict of acquittal on the ground that there was a fatal variance between the allegata and the probata. The trial court denied that motion but granted the appellant’s alternative motion for mistrial.

On retrial in October 1992 under the same indictment, the jury was struck from a panel of 30, as provided by the amendment to OCGA § 15-12-160 which became effective July 1, 1992. During the retrial, the trial court denied the appellant’s plea of autrefois acquit and his motion to strike a jury from a panel of 42 as provided in OCGA § 15-12-160 prior to the 1992 amendment. The appellant was convicted, and now appeals from the denial of his motion for new trial. (The appeal was originally docketed with this court and transferred to the Supreme Court, which in turn transferred the case back to this court.)

1. The appellant contends that, as applied in this case, the 1992 amendment to OCGA § 15-12-160 violated the constitutional prohibition against ex post facto laws. This court rejected a similar contention in Stargel v. State, 210 Ga. App. 619 (436 SE2d 786) (1993), involving an amendment to OCGA § 15-12-165 that reduced the number of peremptory challenges for criminal defendants from 20 to 12. As in Stargel, we conclude that the change in the law in the instant case affected only the procedure utilized to choose the jury, and not any substantive right of the appellant.

2. The appellant also contends that the trial court erred in failing to grant a directed verdict of acquittal, on the ground that a fatal variance existed between the allegata and the probata. However, under the circumstances of this case, directed verdict of acquittal was inappropriate.

“ ‘(W)here the variance between the allegata and probata surprises and prejudices the defendant by effectively barring an alibi defense he intends to assert. . . the trial court should grant the defendant a continuance in order to afford him sufficient time to prepare his defense to meet a new date.’ [Cit.]” Ballentine v. State, 194 Ga. App. 560, 562 (3) (390 SE2d 887) (1990). In the instant case, the trial court properly offered the appellant a continuance and granted the appellant’s motion for mistrial, after it was determined that the appellant’s out-of-state witnesses could not be summoned within a reasonable time. This afforded the appellant sufficient time to prepare his defense.

3. We reject the appellant’s contention that the trial court erred in denying his plea of autrefois acquit on retrial under the same indictment. “[I]f a defendant consents to a mistrial, he may not thereafter utilize the mistrial as the basis of a plea of double jeopardy. [Cit.]” McCormick v. Gearinger, 253 Ga. 531, 533 (3) (322 SE2d 716) (1984).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided June 21, 1994

Reconsideration denied July 12, 1994

Banks & Stubbs, Rafe Banks III, for appellant.

Garry T. Moss, District Attorney, C. David Gafnea, Assistant District Attorney, for appellee.


text:
    A94A0026.
    DAY v. SAVAGE et al.
    (446 SE2d 220)
   Judge Harold R. Banke.

The pro se appellant commenced this action against Gwinnett County and several members of the Gwinnett County Police Department, including four John Doe police officers, seeking recovery of personal property or damages for its conversion. However, the defendants were never served because the appellant failed to provide their addresses. Over nine months after the complaint was filed, the trial court discovered that service had never been perfected and entered an order allowing the appellant 30 days in which to do so. Subsequently, when service was not accomplished within that deadline, the trial court dismissed the complaint. This appeal followed.

The plaintiff must act in a reasonable and diligent manner to insure that service was perfected as quickly as possible. Davis v. Johnson, 193 Ga. App. 19, 21 (386 SE2d 900) (1989). In this regard, the burden is on the plaintiff to investigate and learn where the defendants may be served. Jones v. Brown, 174 Ga. App. 632 (331 SE2d 24) (1985).

“If the plaintiff has taken some action to perfect service, the trial judge must determine, exercising a legal discretion, whether the plaintiff was diligent in his efforts. . . . The appellate court should affirm the trial court’s exercise of its discretion in determining whether or not plaintiff has met the burden unless a gross abuse of discretion is shown.” (Citations and punctuation omitted.) Davis v. Johnson, supra at 21-22.

In the instant case, in response to the trial court’s order to perfect service within 30 days, the appellant only filed a “Motion to Perfect Service in Forma Pauperis,” which included the names of the defendants and indicated 75 Langley Drive, Lawrenceville, Georgia (the Gwinnett County government building), as the address where they may be served. He provided no service copies of the complaint and made no further attempt to see that service was accomplished. Under these circumstances, the trial court did not abuse its discretion in dismissing the complaint.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided June 15, 1994

Reconsideration denied July 12, 1994.

Roger C. Day, pro se.

Daniel J. Porter, District Attorney, Michael J. Bowers, Attorney General, for appellees.

Caryl B. Sumner, John E. Underwood, Ann F. Sheldon, amici curiae.


author: Blackburn, Judge.

text:
    A94A0093.
    ROUNDTREE v. THE STATE.
    (446 SE2d 204)
   Blackburn, Judge.

The appellant, Deon Roundtree, was indicted for trafficking in cocaine after more than 200 grams of a cocaine mixture were found in the car in which he was a passenger. The trial court denied Round-tree’s motion to suppress the evidence seized during a warrantless search of the vehicle, and this interlocutory appeal followed.

On November 23, 1993, at approximately 8:00 p.m., an officer with the Dooly County Sheriff’s Department stopped an automobile that was following the vehicle in front of it too closely. The vehicle was driven by Fontella Snipes. After the officer explained to Snipes why he had stopped the car, Snipes apologized and stated that the car belonged to Roundtree’s brother. The officer then spoke with Round-tree, who indicated that his daughter’s mother, Sonya Smith, owned the vehicle. Roundtree and Snipes also stated they were returning to Atlanta from a trip to Florida, but gave conflicting information as to the duration of their trip. Upon further questioning, Snipes denied knowing Sonya Smith.

Because of the conflicting information he received from Snipes and Roundtree, and because Snipes appeared to become increasingly nervous, the officer requested permission from Snipes to search the car. He explained to Snipes that she did not have to consent, and when Snipes refused to consent to the search, the officer told her that due to the circumstances he was going to call for a narcotics detection dog to conduct an exterior search of the vehicle.

The officer then asked Roundtree to step to the rear of the vehicle, where he explained the situation to him. At that time, Roundtree verbally consented for him to go ahead and search the vehicle, but the officer told him that he would rather wait for the drug dog. The officer requested the dog at 8:19 p.m., and the dog arrived on the scene at 8:34 p.m. The drug dog alerted three times when walking around the car, and a search of the trunk revealed a shoe box in which there were several plastic bags containing cocaine.

On appeal, Roundtree contends that his motion to suppress should have been granted, on the grounds that the arresting officer’s true motivation had been to develop an opportunity to search the vehicle, and that there was no probable cause to detain him beyond the limited time allowed for a brief investigative stop.

“In determining when an investigatory stop is unreasonably pretextual, the proper inquiry is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.” (Citation and punctuation omitted.) Caster v. State, 210 Ga. App. 809, 810 (437 SE2d 608) (1993). The standard for pretextual stops is measured by “an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time, and not on the officer’s actual state of mind at the time the challenged action was taken.” (Citations and punctuation omitted.) United States v. Bates, 840 F2d 858, 860 (4) (11th Cir. 1988).

In the instant case, the officer testified at the suppression hearing that he pulled the vehicle over for following another vehicle too closely and that such stops were made to warn the following driver of the dangers caused by such driving. We find a reasonable officer would have stopped Roundtree’s vehicle under the facts presented here. See State v. Chambers, 194 Ga. App. 609, 611 (391 SE2d 657) (1990); Boggs v. State, 194 Ga. App. 264 (390 SE2d 423) (1990). Further, there was no evidence that the arresting officer developed any suspicions of drug trafficking until after he decided to stop the vehicle.

Upon stopping the car, the officer’s suspicions of illegal activity were aroused by the inconsistencies in the explanations given by Snipes and Roundtree concerning the ownership of the car and the duration of their trip to Florida, and Snipes’ increasing nervousness. Under such circumstances, the officer’s suspicions were reasonable, and justified the brief investigative stop that grew out of the lawful traffic stop. See generally Murrell v. State, 200 Ga. App. 231 (407 SE2d 460) (1991); Claybrooks v. State, 189 Ga. App. 431 (375 SE2d 880) (1988).

Approximately 19 minutes passed from the time the arresting officer initiated the traffic stop until the officer requested the drug dog. The drug dog was brought to the scene within 15 minutes of that request. The length of the investigatory stop was not unreasonable and did not go beyond the minimal intrusion authorized by Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). Mann v. State, 196 Ga. App. 730 (397 SE2d 17) (1990); but compare Schmidt v. State, 188 Ga. App. 85 (372 SE2d 440) (1988). Additionally, because the drug dog alerted to the automobile, the officer had probable cause to believe that contraband was contained therein. See Boggs, supra; Donner v. State, 191 Ga. App. 58, 60 (380 SE2d 732) (1989). Accordingly, the trial court correctly denied Roundtree’s motion to suppress.

Decided June 13, 1994

Reconsideration denied July 12, 1994.

Saia, Richardson & Meinken, Joseph J. Saia, Lloyd W. Walker, for appellant.

John C. Pridgen, District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


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

text:
    A94A0275.
    THE STATE v. BRAGG et al.
    (446 SE2d 226)
   Judge Harold R. Banke.

Defendant James Earl Bragg was charged in an indictment with four counts of child molestation and two counts of aggravated sodomy. In the same indictment, defendant Robert William Bragg was charged with three counts of child molestation and two counts of aggravated sodomy. Defendants filed a plea in abatement which was granted by the trial court. The State appeals pursuant to OCGA § 5-7-1 (1).

At the hearing on defendants’ plea in abatement, Investigator John Stevens testified that he was the only witness to testify before the grand jury regarding defendants’ case and that his testimony was not based on personal knowledge. He also stated that he had not talked to the victim or the defendants and that all of his information came from the police report and information he collected through conversations with the victim’s mother, the physician who examined the victim, a prosecutor from the Gwinnett County District Attorney’s office and a detective with the Clayton County Police Department. The trial judge ruled that all of Detective Stevens’ testimony was hearsay; therefore there was no probative evidence before the grand jury.

This case is controlled by Summers v. State, 63 Ga. App. 445 (2) (11 SE2d 409) (1940), in which this court held: “[W]here ... it appears that a competent witness or witnesses were sworn and examined before the grand jury by whom the indictment was preferred, a plea in abatement on the ground that it was found on insufficient evidence, or illegal evidence, or no evidence, will not be sustained, because it comes under the rule that no inquiry into the sufficiency or legality of the evidence is indulged. Competent witnesses having been sworn and examined before the grand jury, the sufficiency of the evidence introduced before it is a question for determination by the grand jury, and not by the court.” Summers, supra at 449. See also Felker v. State, 252 Ga. 351 (2) (314 SE2d 621) (1984).

Decided June 21, 1994

Reconsiderations denied July 12, 1994

Robert E. Keller, District Attorney, Mary D. Hanks, Assistant District Attorney, for appellant.

Nan M. Deegan, Cowen & Cowen, Martin L. Cowen III, for appellees.

Judgment reversed.

Birdsong, P. J., concurs. Blackburn, J., concurs specially.

Blackburn, Judge,

concurring specially.

I recognize that we are constrained to follow the rule established in Summers v. State, 63 Ga. App. 445 (2) (11 SE2d 409) (1940) and confirmed in Felker v. State, 252 Ga. 351, 366 (314 SE2d 621) (1984) with regard to the sufficiency of evidence before a grand jury. However, I cannot agree that the application of this rule in the present case is appropriate.

The indictménts returned by the grand jury against the defendants herein were based wholly upon hearsay evidence, lacking in probative value. It is undisputed that John Stevens, the sole witness appearing before the grand jury, testified from the contents of a police report that he received from the Gwinnett County Police Department. He did not participate in the preparation of the report, did not speak with the individual who prepared the report, and was not a witness to any facts alleged in the report. Hence, Stevens’ testimony before the grand jury derived its value solely from the veracity of others who reported the alleged occurrences to the reporting officer and the veracity of the reporting officer, none of whom were present at the grand jury proceeding.

I believe that hearsay testimony alone should be insufficient to support indictments.


text:
    A94A0292.
    JERSAWITZ v. FORTSON et al.
    (446 SE2d 206)
   Blackburn, Judge.

The appellant, Jack Jersawitz, a private citizen, pro se, brought the instant action for damages and injunctive relief against the appellees, Jane Fortson, chairwoman of the Board of Commissioners of the Atlanta Housing Authority, and the Atlanta Housing Authority (collectively referred to herein as AHA), asserting that he was improperly denied access to a meeting of the Olympic Task Force Selection Committee in violation of OCGA § 50-14-1, Georgia’s Open Meetings Act. Following the filing of its responsive pleadings, AHA moved for summary judgment, and the motion was initially denied by the trial court.

Thereafter, based in part on the trial court’s denial of AHA’s motion for summary judgment, Jersawitz moved for summary judgment in his favor. However, pursuant to AHA’s request for reconsideration, the trial court granted summary judgment in favor of AHA, and this appeal followed.

The record shows that the Olympic Task Force Selection Committee, also referred to as the “Techwood Redevelopment Advisory Committee” and the Proposal Interview Committee, held a meeting on July 11, 1991, at the offices of AHA. It is undisputed that AHA is an agency as defined by OCGA § 50-14-1. The committee consisted of Co-Chairpersons Jane Fortson, Chair of AHA’s Board of Commissioners, and Leon Eplan, Commissioner of the Bureau of Planning of the City of Atlanta, Margie Smith, a member of AHA’s Board of Commissioners and president of the Techwood/Clark Howell Tenants Association, Delmar Corbin, Executive Director of AHA, and Robert Sewell, AHA’s Director of Engineering and Capital Improvements. In addition to the committee members, which included two of the seven commissioners of AHA and two AHA executives, several other individuals affiliated with AHA were present at the meeting, including AHA’s General Counsel, AHA’s Special Counsel, AHA’s Communications Manager, AHA’s purchasing agent, and AHA’s buyer. Others in attendance at the meeting included a representative of the Techwood Tenants Association, a graduate student of the Georgia Institute of Technology, the assistant to the president of the Georgia Institute of Technology, and two production staff persons with the City of Atlanta’s Office of Communications. Of the approximately fifteen individuals present at the meeting, eight were directly associated with AHA, while three of the remaining seven were employed by the City of Atlanta.

The purpose of the July 11, 1991, meeting was to hear oral presentations and review written proposals submitted by various bidders to AHA for the revitalization of the Techwood/Clark Howell housing development in preparation for the 1996 Olympic Games. AHA maintains that this project would enhance the quality of life of residents within that neighborhood. It is undisputed that AHA solicited the requests for the proposals, but Fortson avers in her affidavit that the requests for bids were solicited “through the initiative and activity of [AHA’s] staff.” In her affidavit, she further avers that at the meeting, only those bidders who timely responded to the Authority with proposals would be interviewed by the committee about their respective proposals. In addition, Fortson attested that “[i]t was the responsibility of this committee to determine the most responsive and responsible proposal and to make a recommendation to the Board of Commissioners of the Atlanta Housing Authority.” She further averred that the committee was not “created” by the Board of Commissioners and was not made up exclusively of members of the Board of Commissioners. Two of the seven commissioners of the Board of AHA were actively involved in and participated on the committee.

1. On appeal, Jersawitz asserts that the trial court erred in granting AHA’s motion for summary judgment and in denying his motion for summary judgment. We agree and reverse.

Under Georgia’s Open Meetings Act, OCGA § 50-14-1, all “meetings” of an agency or authority of a municipality shall be open to the public. Meetings are defined under the Act as “the gathering of a quorum of the members of the governing body of an agency or of any committee of its members created by such governing body ... at a designated time and place at which official business or policy of the agency is to be discussed or at which official action is to be taken or, in the case of a committee, recommendations on official business or policy to the governing body are to be formulated or discussed.” OCGA § 50-14-1 (a) (2); see Red & Black Pub. Co. v. Bd. of Regents, 262 Ga. 848, 852 (3) (427 SE2d 257) (1993). However, before we begin our analysis under this Act, “[w]e must bear in mind that the Open Meetings Act must be broadly construed to effect its purposes of protecting the public and individuals from closed-door meetings. [Cit.]” Kilgore v. R. W. Page Corp., 261 Ga. 410, 411 (2) (405 SE2d 655) (1991). “[T]he policy of this state is that the public’s business must be open, not only to protect against potential abuse, but also to maintain the public’s confidence in its officials. [Cit.]” Red & Black Pub. Co., supra at 854. “[T]he test for its applicability is two-pronged: first, is the meeting one of a ‘governing body of an agency’ or any committee thereof?; and second, is the meeting one ‘at which official business or policy of the agency is to be discussed or at which official action is to be taken(?)’ ” Id. at 853.

The Olympic Task Force Selection Committee consists of members of the governing body of AHA and other AHA executives, and was attended by a substantial number of AHA and the City of Atlanta’s representatives. Contrary to AHA and Fortson’s contentions, the statute should not be so narrowly construed to require that a committee consist only of members of AHA’s seven-member Board in order to come within the purview of the Act.

In addition, we cannot say as a matter of law, as AHA asserts, that this committee was solely advisory in nature inasmuch as this committee consisted of several AHA decision-makers and discussed official agency business. The importance of this committee to the agency is reflected in the participation of two commissioners, including the chairwoman of the commissioners, as well as agency executives, in addition to other key individuals in the decision-making process of this project.

This committee acted as a vehicle for AHA to carry out its responsibility to review the proposals submitted to the agency, and because of the responsibility assumed by this committee with the knowledge and full acquiescence of the agency, the agency cannot hide behind the committee and assert that its governing body did not create it. There is no evidence that the formation of this committee by AHA’s staff was denounced at any time by the agency. In fact, the committee’s approval and authority is evidenced by Fortson’s participation on it.

Accordingly, we conclude that the Olympic Task Force Selection Committee was formed with the knowledge and approval of AHA, the committee was a vehicle for the agency to carry out its responsibilities in reviewing and recommending proposals, and that the July 11, 1991, gathering was a meeting within the purview of the Open Meetings Act. Id.

The agency did not substantially comply with the statute by providing Jersawitz with a videotape of the meeting after the agency accepted the recommendation of the committee. On the contrary, viewing an edited videotape of the meeting after the fact is not the equivalent of being present and having an opportunity to provide input to decision-makers on a project such as this which will not only have an impact on a significant number of residents but was designed to improve the quality of life for those residents. The statute requires that members of the general public cannot be excluded from such meetings and a videotape is not an adequate substitute for compliance with the statutory requirements. Moreover, even assuming that the committee meeting was not subject to the Act, the agency waived its right to conduct a private meeting by permitting the presence of other members of the general public not affiliated with either the committee or the agency.

For the foregoing reasons, we conclude that the trial court erred in granting summary judgment in favor of Fortson and AHA and in denying summary judgment to Jersawitz.

Decided June 13, 1994

Reconsideration denied July 12, 1994

Jack Jersawitz, pro se.

Rogers & Hardin, Richard H. Sinkfield, Catherine M. Bennett, for appellees.

2. Based upon our decision in Division 1, Jersawitz’s remaining enumerations of error need not be addressed.

Judgment reversed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.

       In its order granting summary judgment in favor of AHA, the trial court denied Jersawitz’s motions for summary judgment to add Fortson individually as a party defendant.

        Atlanta Journal v. Hill, 257 Ga. 398 (359 SE2d 913) (1987), and McLarty v. Bd. of Regents &c. of Ga., 231 Ga. 22 (200 SE2d 117) (1973), do not control our decision as they were decided under a former version of this Act. (Ga. L. 1988, p. 235, § 1.)


text:
    A94A0661.
    YUSCAVAGE v. JONES.
    (446 SE2d 209)
   Judge Harold R. Banke.

The appellee, Darryl Jones, commenced this medical malpractice action against the appellant, Dr. George Yuscavage, alleging permanent injury resulting from negligent medical treatment following a single-car accident. The jury returned a verdict in favor of the appellee for $1,400,000, and this appeal followed.

Shortly after 8:00 p.m. on June 26, 1989, the appellee lost control of. the car he was driving and ran off the road. The vehicle skidded over 200 feet, rolled over, and came to rest upside down. After the appellee was extricated from the wreckage, he was immobilized with a neck collar and spine board and transported to the emergency room at Baldwin County Hospital. Initially, the appellee had no movement or sensation in his arms and legs, but by the time he arrived at the hospital, he had regained motor function and sensation in his arms, as well as sensation in his legs.

Within 20 minutes of the appellee’s arrival, the appellant ordered the removal of the neck collar and spine board. Based upon his neurological and X-ray examination of the appellee which he interpreted as normal, the appellant released the appellee. However, when two attempts to discharge the appellee failed because he could not stay on his feet, the appellee remained at the emergency room until a neurologist could examine him.

A neurologist eventually examined the appellee approximately seven hours after his admission to the emergency room and transferred him to the Medical Center of Central Georgia, where he was diagnosed as having a central cord syndrome. The appellee was later admitted to the Shepherd Spinal Center for one month, and was treated for brachial plexus injury. The appellee regained full use of his legs, but the neurological impairment to his arms and hands is permanent.

At trial, expert witnesses testified that the appellee most likely sustained an injury to the ligaments of his cervical spine during the automobile collision, causing some instability of the cervical spine. These experts opined that if the appellee had been properly immobilized, his recovery probably would have been complete. However, the premature removal of the immobilization devices subjected the appellee to a secondary injury to his spinal cord caused by movement, and the appellee’s permanent impairment .to his arms and hands resulted from that secondary injury.

1. Although the appellee denied being intoxicated at the time of the accident, he admitted to having drunk two to three 16-ounce cans of beer. Testing of a blood sample drawn at 10:43 p.m. revealed a blood-alcohol level of .06. The appellant contends that the trial court erred in granting the appellee’s pretrial motion in limine to exclude the results of that blood test.

The cause of an injury for which a party seeks medical treatment has no relevancy as to whether the party contributed to a subsequent injury allegedly caused by negligent medical treatment. Overstreet v. Nickelsen, 170 Ga. App. 539, 540 (1) (317 SE2d 583) (1984); see also Martin v. Reed, 200 Ga. App. 775 (5) (409 SE2d 874) (1991). Accordingly, to the extent proffer of the results of the blood-alcohol test was intended to show that the appellee was intoxicated, the test results were properly excluded as irrelevant.

The appellant further contends that the test results were admissible to impeach the appellee’s testimony that he was not drunk at the time of the accident. However, other evidence concerning the appellee’s degree of intoxication was admitted. The investigating officer testified that he observed 31 empty beer cans in the appellee’s car and that the appellee reeked of alcohol. The appellee admitted to the officer that he had been drinking heavily and ultimately pled guilty to the offense of being drunk on the highway. Under these circumstances, even if the test results were admissible for the limited purpose of impeachment, its exclusion was harmless since evidence of similar import was admitted. Mabry v. Henley, 123 Ga. App. 561, 567 (1) (181 SE2d 884) (1971).

The appellant also argues that the blood test results should have been admitted to explain the appellee’s behavior that hindered accurate diagnosis. However, the appellant was not otherwise prevented from developing evidence of the appellee’s intoxication for that purpose, and we find no harm in the exclusion of the test results on that basis.

2. The appellant contends that the trial court erred in admitting into evidence two incident reports prepared by hospital personnel, but excluding a report prepared by the police officer who investigated the accident. We disagree.

During opening statement, the appellant suggested that the appellee’s claim of having fallen during the attempts to discharge him from the emergency room was concocted after he commenced this action. In response, the appellee adduced the testimony and incident reports of the emergency room nurse clinical coordinator and one of the nurses who assisted in the attempted discharge of the appellee. Their incident reports were prepared during or immediately following the appellee’s emergency room admission; one report refers to a complaint by the appellee’s mother that the appellee had fallen, and the other report actually describes the appellee’s fall. During the trial, both nurses testified without objection about all material facts contained in those reports, and any error in the admission of the actual incident reports was harmless. Brewer v. Williams, 167 Ga. App. 151 (6) (305 SE2d 891) (1983).

The report prepared by the investigating officer contained the officer’s opinions regarding the speed of the appellee’s vehicle at the time of the collision, whether the appellee’s vision had been obstructed, whether the appellee was under the influence of alcohol, and regarding the severity of the appellee’s injury. “A document that is otherwise admissible as a business record may nevertheless be excluded from evidence if it contains opinions, conclusions or conjectures. [Cit.] The proffered incident report contains such objectionable material. Accordingly, the trial court did not err in excluding that report.” Luke v. Spicer, 194 Ga. App. 183, 184 (2) (390 SE2d 267) (1990). Moreover, inasmuch as the police officer testified extensively about the matters contained in his report, any error in excluding the report was harmless. Mabry v. Henley, supra.

3. The appellee’s action also asserted a simple negligence claim against Baldwin County Hospital. For that reason, the trial court disallowed the appellant’s cross-examination of the appellee’s expert witnesses regarding the professional standard of care applicable to nurses, and whether the nurses in this case deviated from that standard. The trial court emphasized, however, that the appellant was not precluded from exploring whether the nurses’ conduct caused the appellee’s injury.

“Regulation of the scope of cross-examination is within the sound discretion of the trial court and this discretion will not be controlled unless it is manifestly abused. [Cit.]” Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 547 (6) (309 SE2d 816) (1983). In the instant case, the trial court did not abuse its discretion in disallowing cross-examination of the expert witnesses regarding an irrelevant subject.

4. The appellant next contends that the trial court erred in excluding an affidavit given by the appellee’s mother in a custody action between the appellee and his ex-wife over one year after the injury. The affidavit recalled the ex-wife’s remark, made during the appellee’s emergency room admission, that she intended to leave the appellee because she was tired of making more money than he did.

The appellant contends that the affidavit was admissible to show the intense family dynamic that existed on the night in question and which possibly interfered with the assessment of the appellee’s neurological condition. However, the appellant fully explored that family tension, most of which centered around the appellee having been drinking and driving with his small child in the car, through the testimony of the appellee, his mother and ex-wife, and the appellant’s own observations. He has not shown any harm from the exclusion of this evidence of the appellee’s marital problems that preceded the injury.

5. The appellant also contends that the trial court erred in omitting several jury charges he requested. We find no error.

The trial court properly refused to give the requested charge that a medical malpractice defendant cannot be found negligent on the basis of hindsight if the initial assessment was made in accordance with reasonable standards of medical care. The evidence did not authorize such a charge in this case, where the issue was whether the appellant’s initial assessment comported with the applicable standard of care based upon the information that was before him at the time of that assessment, and not on information that became available later. See McCoy v. Alvista Care Home, 194 Ga. App. 599 (391 SE2d 419) (1990).

The evidence likewise did not support the requested instruction that a difference of opinion as to operating techniques or medical judgments is insufficient to show malpractice where each procedure or judgment is an acceptable and customary medical approach, inasmuch as the dispositive issue in this case was whether the appellant’s assessment and treatment of the appellee was an acceptable medical approach in the first place.

The trial court omitted several requested instructions concerning the basis of liability for medical malpractice and the burden of proof with regard to proximate causation but adequately covered those legal principles in its jury charge as given. Where the jury charge accurately states all the relevant principles of law, it need not be given in the exact language requested. Swint v. Smith, 204 Ga. App. 54 (2) (418 SE2d 375) (1992).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided June 15, 1994

Reconsideration denied July 12, 1994

Alston & Bird, Theodore E. G. Pound, Susan B. Devitt, for appellant.

Williams & Henry, Benjamin S. Williams, Phillip C. Henry, Sullivan, Hall, Booth & Smith, Henry D. Green, Jr., for appellee.


text:
    A94A0881.
    BISHOP CONTRACTING COMPANY, INC. v. CENTER BROTHERS, INC.
    (445 SE2d 780)
   Blackburn, Judge.

This case involves a dispute between a general contractor, Bishop Contracting Company, Inc., and its subcontractor, Center Brothers, Inc., regarding the amount owed by Bishop to Center Brothers under a construction contract. Center Brothers brought the underlying action against Bishop to collect on six extra work orders. The jury returned a verdict in favor of Center Brothers for $8,510.68 as contract damages and $13,530.82 as expenses of litigation. Bishop appeals asserting several enumerations of error.

1. In its first enumeration of error, Bishop contends the trial court erred in denying its motion to enforce the arbitration clause of the construction contract. We agree.

The construction contract was an American Institute of Architects’ (AIA) standard form agreement between contractor and subcontractor, and was entered on February 3, 1988. The contract provided that Center Brothers would perform all work required by the contract documents for “drywall, ceilings, acoustical wall panels, demountable partitions, and plaster.” The contract further established procedures for changes or increases in the work and payment for such changes. Specifically, the contract required that Center Brothers, “prior to the commencement of such changed or revised Work, shall submit promptly to the Contractor written copies of any claim for adjustment to the Contract Sum and Contract Time for such revised Work in a manner consistent with the Contract Documents.”

Of particular relevance to our inquiry, the contract established that “ [a] 11 claims, disputes and other matters in question arising out of, or relating to, this Subcontract, or the breach thereof, shall be decided by arbitration, which shall be conducted in the same manner and under the same procedures as provided in the Contract Documents with respect to disputes between the Owner and the Contractor, except that a decision by the Architect shall not be a condition precedent to arbitration. If the contract documents do not provide for arbitration or fail to specify the manner and procedure for arbitration, it shall be conducted in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. . . . The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.”

This contract is governed by former OCGA § 9-9-82 which provided “[a] written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit any controversy thereafter arising to arbitration is enforceable and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award.” Former OCGA § 9-9-86 (a) provided that upon motion by an aggrieved party, the court shall compel arbitration of an issue upon its determination that the agreement to arbitrate was valid and that the claim was not barred by time limitations.

After the present action was filed in Cobb State Court, Bishop filed a motion to stay, pending arbitration. The court denied the motion and determined that Bishop failed to establish that it was an aggrieved party, that the controversy was governed by a valid agreement to arbitrate, and that arbitration was not barred by limitation of time. However, the court’s determination was erroneous. Bishop was clearly an aggrieved party as Center Brothers was attempting to recover attorney fees in the litigation which were not available to it in arbitration as the construction contract did not provide for such. See Hope & Assoc. v. Marvin M. Black Co., 205 Ga. App. 561 (422 SE2d 918) (1992). Further, there can be no dispute that the subject matter of the litigation was governed by the AIA contract. The extra work orders reflected work on the ceilings at Sprayberry High School. Center Brothers had contracted to perform the ceiling work at Sprayberry High School in the AIA construction contract which contained the arbitration clause. The AIA contract provided for extra work or changes in the work required of the subcontractor. Finally, arbitration was not barred by any contractual time limitation. Georgia courts are required to uphold valid arbitration provisions in contracts, such as the one presented in the case sub judice. See Phillips Constr. Co. v. Cowart Iron Works, 250 Ga. 488, 489 (299 SE2d 538) (1983); Freeman v. C. W. Redfern Enterprises, 182 Ga. App. 205, 207 (355 SE2d 79) (1987).

Center Brothers’ contention that Bishop waived its right to appeal this issue by failing to bring a petition for interlocutory appeal is without merit. In Phillips Constr. Co., supra, the Supreme Court determined that “[a] trial judge’s decision on a motion to stay judicial proceedings pending arbitration is a decision with significant consequences,” (250 Ga. at 489) and it “recommend [ed] that the trial courts, except in the clearest cases, certify orders granting or denying such stays.” Id. at 490. However, neither the Supreme Court nor this court has required parties to attempt an interlocutory appeal of such an order or risk waiving the issue. See id.

Decided June 14, 1994

Reconsideration denied July 12, 1994

Varner, Stephens, Wingfield & Humphries, William W. Hopson, Dorothy H. Bishop, for appellant.

Tony Center, for appellee.

As the trial court erred in denying Bishop’s motion to stay the litigation and enforce the arbitration clause, we must reverse the judgment and remand this case for an order compelling the parties to submit their dispute to arbitration.

2. Due to our holding in Division 1, we need not address Bishop’s additional enumerations of error and Center Brothers’ motion for damages for frivolous appeal is denied.

Judgment reversed and remanded.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A94A1024.
    BARNES et al. v. FULTON.
    (446 SE2d 213)
   Blackburn, Judge.

This is an appeal from the trial court’s grant of a motion for summary judgment in favor of appellee Thomas Fulton in an action for damages brought by the appellants, Charles and Wanda Barnes, individually, and as next friend of their minor daughter Sheree, who was injured while playing on a trampoline on Fulton’s premises. The Barneses maintain that material issues of fact remain for jury resolution as to whether Fulton exercised the requisite degree of care to prevent their daughter’s injury.

The record, viewed in the light most favorable to the nonmovants, the Barneses, shows that as recently as two or three days prior to July 5, 1990, Sheree, a fourth-grader, visited Fulton’s home and played on the trampoline with Adam, Fulton’s son. The Fultons’ home was located up the street from where the Barneses lived. During this visit, Sheree jumped on the trampoline with Adam without incident although this was her first time on a trampoline. The circular trampoline contained padding on the springs and was large enough to accommodate three or four individuals.

At approximately 7:00 p.m. on July 5, 1990, Sheree walked over to Fulton’s home to visit with Adam who was outside alone. Fulton subsequently arrived outside and began raking leaves in front of the home. Sheree did not say anything to Fulton during or after her visit. She talked with Adam for approximately five minutes and afterwards the two children proceeded to the left side of the house where the trampoline was located in a leveled area. Sheree admitted in her deposition that the trampoline was not broken and was not a dangerous apparatus.

Initially, she and Adam performed flips on the ground near the trampoline and afterwards, the two took turns jumping on the trampoline. Although she admitted in her deposition that she was apprehensive about performing flips on the trampoline “ ‘cause [she] didn’t know if [she] was going — if it was going to turn out right, if [she] was going to hurt [her]self or not,’ ” she did not ask Adam to request that someone stand around the trampoline to catch her if she fell. Sheree performed her initial flip on the trampoline while Adam bounced on it, and subsequently fell on her buttocks. During her next attempt, she fell on her right arm in the middle of the trampoline, fracturing the arm. She did not inform Fulton of her injury as she left the premises but she deposed that Fulton was able to see her at the time of her fall.

It is undisputed that Sheree occupied the status of a licensee at the time that she sustained her injury, and under Georgia law, “[a] landowner is not an insurer of the safety of those who venture upon his land whether they are in trespasser, licensee or even invitee status.” Wade v. Mitchell, 206 Ga. App. 265, 267 (424 SE2d 810) (1992). “ ‘One’s status as a trespasser, licensee or invitee is not determined by his age or his capacity, mental or physical.’ [Cit.]” Gregory v. Johnson, 249 Ga. 151, 153 (289 SE2d 232) (1982).

Generally, “ ‘[t]he owner of the premises is liable to a licensee only for willful or wanton injury.’ OCGA § 51-3-2 (b).” Riley v. Brasunas, 210 Ga. App. 865, 867 (438 SE2d 113) (1993). However, “[1] iability under ‘(t)his rule, of course, presupposes that the licensees do not know or have reason to know of the risks involved. (Cits.)’ [Cit.]” Id. “Here, the obvious risk involved in the [use of a trampoline] was falling and hurting oneself. The dangers associated with fire, falling from heights, and from water are said to be normally understood by young children absent other factors creating additional risks of harm. [Cits.] ‘ “No danger is more commonly realized or risk appreciated, even by children, than that of falling. . . .” ’ ” Id. In the case sub judice, the undisputed evidence shows that Sheree knew of and appreciated the possible danger of injuring herself if she fell while using the trampoline. In fact, “[t]he obviousness of the very danger which led to [Sheree’s] injur[y] makes this action one of those cases in which a minor below the age of 14 may be deemed to have assumed the risk as a matter of law. [Cit.]” Id. at 868. Contrary to the Barneses’ assertion, Fulton did not have a duty to warn Sheree of such a known risk. See Walters v. Mableton Wholesale Co., 204 Ga. App. 663 (420 SE2d 354) (1992). Further, any claim for damages under their alternative theory of negligent supervision must also fail because any alleged failure to supervise “cannot be the proximate cause of [Sheree’s] injur[y], for the latter’s knowing exposure of [her]self to danger is a bar to recovery. [Cits.]” Riley, supra at 868.

Decided June 15, 1994

Reconsideration denied July 12, 1994

Joseph M. Todd, for appellants.

Fain, Major & Wiley, Thomas E. Brennan, for appellee.

The evidence in the case sub judice demands a finding that Fulton did not breach the requisite duty of care owed to Sheree as a licensee, and accordingly, summary adjudication was warranted as a matter of law.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.