author: McMurray, Presiding Judge.

text:
    A98A0794.
    DOMINY v. SHUMPERT et al.
    (510 SE2d 81)
   McMurray, Presiding Judge.

Plaintiff Dale E. Dominy, M.D. (“Dr. Dominy”), filed this action for libel (Count 1) and unfair business practices (Count 2) against defendants Cynthia R. Shumpert, M.D. (“Dr. Shumpert”), and Rock-mart-Aragon Family Physicians, P. A. (“RAFP”), alleging that on May 17, 1995, when plaintiff was the emergency room physician at Polk General Hospital under an independent contract with Spectrum Health Care Services (“Spectrum”), he “saw a patient ... for treatment of a cut. [He] treated the patient appropriately and correctly in the emergency room and released her. . . . Shortly after the Plaintiff’s examination and treatment of this patient, the Defendant, [Dr. Shumpert], saw the patient in the [defendant RAFP] facility;. . . On June 5, 1995, [Dr. Shumpert] mailed to Mrs. Sherry Dombi, [of] Spectrum ... a letter libeling and slandering the Plaintiff and the services of the Plaintiff as a physician. . . .” The complaint further alleged “a copy of said libel was maliciously transmitted through the United States [Postal Service] to Mr. Elder Perdue, Administrator of the Polk General Hospital. . . where the Plaintiff practiced his profession as an Emergency Room Physician; [that] Defendant further sought to have the Plaintiff removed from his position as an Emergency Room Physician by sending [the letter] to Mrs. Domby [sic] of Spectrum[; and that the] above [referenced] statements and libel were false and unfounded in fact.” Count 2 claimed a wilful violation of OCGA § 10-1-372 (8) because defendants allegedly “disparaged the services and business of the Plaintiff by making false and misleading representations of fact about the Plaintiff’s services[, for which transgressions plaintiff sought] Attorney’s fees and . . . punitive damages.”

Defendants jointly answered, admitting the sequence of events but denying the material allegations of falsity and malice. The letter Dr. Shumpert sent to Mrs. Dombi of Spectrum, with a copy to Elder Perdue, Administrator of Polk General Hospital is dated May 25, 1995, and recites as follows:

“A patient of mine named Margaret Campbell, (birthdate 1/7/19) was seen in the emergency room at Polk General Hospital on 5/17/95. Dr. Dale Dominy was the ER physician available on that date. According to the patient, Dr. Dominy never touched her during her entire visit in the emergency room. He ordered x-rays, filled out the ER sheet and wrote orders. He noted on the E.R. sheet that she had a 1 cm laceration on the right knee. The patient advised the E.R. personnel that she was allergic to Novocaine. The knee injury was not debrided or irrigated. It was cleansed with Peroxide, dressed with Neosporin and steri strips. The patient fortunately presented herself to my office the next morning. On evaluating her, it was noted that she has at least a 3 cm laceration, that is very deep, almost down to the bone, inferior to the patella, and was full of dirt and gravel. Copious irrigation was instituted by myself. Loose suturing was done, as well as placing a drain. The patient was giv.en both IM and P.O. antibiotics, and followed closely over the next week. Fortunately she has done well and has not sustained a systemic cellulitis from this mismanagement by the physician employed by you. I am enclosing a copy of the ER sheet from the visit. I request that you investigate this fully, as I feel this doctor is incompetent to practice medicine in any capacity. The patient could have lost a leg over this, if she had not received appropriate care. I would appreciate a response from you. . . . s/ Cindy Shumpert, M.D.” (Emphasis supplied.)

By amendment, plaintiff claimed defendants defamed him again by sending another letter on May 25, 1995, addressed to David L. Morgan, M.D., in his capacity as Medical Coordinator for the Composite State Board of Medical Examiners, regarding Dr. Dominy as employed by Spectrum. This letter recites: “I would like to register a complaint regarding the above named physician. He works via Spectrum ... at Polk General Hospital, in Cedartown, Georgia. On 5/17/ 95, a patient of mine was seen there for injuries due to a fall. Most specifically, she had a rather large laceration on her right knee. This physician, according to the patient, never touched her during her entire visit in the emergency room. The knee injury was not irrigated. It was not sutured. She was not given any antibiotics. My biggest concern is that this physician never touched the patient, and yet he has filled out an ER sheet as if he did fully evaluate her. Fortunately the patient presented to my office the next morning and was appropriately managed with copious irrigation of the knee wound, suturing, drain placement, as well as receiving antibiotics. I am enclosing a copy of the ER record. Please contact me for further details. . . . s/ Cindy Shumpert, M.D.” (Emphasis supplied.)

After discovery, defendants moved for summary judgment based on the truthfulness of the statements and also on privilege, supporting their motion with the following evidence: The patient, Margaret Campbell had cataracts. While walking to one physician’s office, she stepped in “a [pot]hole in the street. . . and it threw [her] for a loop. [Her] knee . . . was ruined ... it injured every joint on [one] side [and] was bloody as a hog.” She confirmed the emergency room physician, i.e., plaintiff, “never did touch [her]. [H]e never did get close enough to touch [her]. He acted like he thought [the patient] was a leper or . . . something.” Plaintiff did not “clean [her] bloodied knee [but] told them [the nurses] to put a butterfly on it and that’s all he told them to do.” Plaintiff did not put any medicine on her leg, and denied her request “for a light dose of Demerol” offering Tylenol instead.

Professionally, plaintiff and defendant have never crossed paths before this incident. Dr. Shumpert has “never met Dr. Dominy.” Dr. Dominy knows of no reason why Dr. Shumpert would harbor any malice or ill will towards him. When Mrs. Campbell told Dr. Shumpert that “she’d never been touched by Dr. Dominyt, Dr. Shumpert] did believe her . . . [b]ecause she’s [a] patient and [Dr. Shumpert had] never known her not to tell the truth.” Dr. Shumpert explained that she wrote her letter to Dr. Morgan at the Composite State Board because she “was concerned for [her] patient’s welfare. [Dr. Shumpert] felt [she] had a responsibility as a physician in the State of Georgia to ensure that patients receive proper care. ... So it was [Dr. Shumpert’s] opinion that, ... if the doctor did not touch the patient, . . . other patients could be injured by him [because] [t]he standard of care in trauma care is that the patient be examined fully, particularly in a secondary survey, set forth by advanced trauma life support rules.” Dr. Shumpert “thought it was her duty to report it.” She chose the Composite State Board rather than Dr. Wall, Medical Director of the Emergency Room, because she “had talked to him [Dr. Wall] at other times about some problems [regarding treatment at the emergency room] and he had not given [her] very satisfactory answers.”

Dr. Shumpert wrote to Sherry Dombi, “[b]ecause [she] felt his [plaintiff’s] employer needed to know the situation, [Dr. Shumpert’s] concern for patient welfare.” Similarly, she sent Elder Perdue a copy of her letter because she “was concerned about the welfare of patients being seen in the emergency room by Dr. Dominy, and with him [Elder Perdue] being the administrator of that hospital, . . . felt he had a right to know of [Dr. Shumpert’s] concern.”

In opposition, plaintiff deposed in an affidavit that he “adequately examined and treated Mrs. Campbell’s cut under the standard of care that physicians generally used under the circumstances existing at that time. [He] touched her on several occasions to look at the cuts and to remove her from the backboard. [He also opined that Spectrum was not an entity that] performed peer review under the statute [OCGA § 31-7-130 et seq].” At his deposition, Dr. Dominy testified that the patient arrived “in a cervical collar and on a backboard . . . [w]ith head restraints. [He] noticed there was a clean 4 by 4 gauze just below her knee in the mid tibial plateau. . . . And [he] lifted the gauze and [saw] a clean one centimeter laceration . . . with no indication of any foreign substance whatsoever.” The physician is the “only one that can take off the cervical collar and the head restraints. [He] can’t delegate this authority to anybody else.” Dr. Dominy checked Mrs. Campbell’s ears, nose and throat and also checked her eyes with a flashlight “to be sure she didn’t have any pupil change in size.” He palpated her abdomen “just to be sure there’s no rigidity.”

As for treatment, Dr. Dominy instructed the nurse to “put two one-fourth inch steri strips in an X fashion and put a large Bandaid and . . . also a long-leg splint. [Next, he] sent her to x-rays for both wrists, both knees. [Dr. Dominy] wanted to be sure there was no foreign body within the wound. [He] did not want to give [the patient] an antibiotic since she was allergic to penicillin. [He] didn’t want to irrigate this wound because in so doing [he would] use a large syringe [that] would tend to inject fluid into the subcutaneous tissue.” Dr. Dominy subsequently explained the x-rays of the patient.

The Composite State Board of Medical Examiners “concluded its investigation of [Dr. Shumpert’s] complaint filed against [Dr. Dominy and] determined there had been no violation of the Medical Practice Act and consequently voted to close [the] case.” Nevertheless, plaintiff’s contract with Spectrum was not renewed. His termination notice recites: “Multiple problems over several years. Well documented complaints on file — clinical skill, social [skills] and bad health . . . physician problem.”

The trial court granted defendants’ motion, concluding that Dr. Shumpert’s statements “were true or were her opinion.” The court further concluded that “Dr. Shumpert made her communications to the appropriate people in an attempt to satisfy both the public and the private moral duty. O.C.G.A § 51-5-7[, and that] [t]here is nothing in the evidence to imply that she made her statements with a malice intent.” The trial court further ruled that, since Dr. Shumpert is not liable to plaintiff, defendant RAFP has no vicarious liability to plaintiff. Pursuant to OCGA § 9-11-56 (h), plaintiff filed this direct appeal. Held-.

1. For purposes of this appeal, we assume that the statement “[according to the patient, Dr. Dominy never touched her during her entire visit in the emergency room” is a factual statement capable of being proved correct or false; and further assume it is in fact a false or incorrect statement. We also assume, without deciding, that Dr. Shumpert’s characterizations of Dr. Dominy’s treatment as “mismanagement” and of Dr. Dominy himself as “incompetent to practice medicine in any capacity,” while undoubtedly her professional opinion, are also statements of ultimate fact which can be measured by the standard of medical care established at OCGA § 51-1-27. Consequently, we pretermit the first three enumerations of error and immediately address the fourth and fifth enumerations. We agree with the trial court that the statements made by Dr. Shumpert, reasonably based on the patient’s oral history as corroborated by the physical evidence, provided a proper case for disclosure and so were conditionally privileged. Because the record fails to rebut the privilege with evidence of actual or express malice, we affirm.

2. “The following communications are deemed privileged: . . . Statements made in good faith in the performance of a public duty; [and] . . . Statements made in good faith in the performance of a legal or moral private duty[.]” OCGA § 51-5-7 (1) and (2). “To make the defense of privilege complete, in an action of slander or libel, good faith, an interest to be upheld, a statement properly limited in its scope, a proper occasion, and publication to proper persons must all appear. The absence of any one or more of these constituent elements will, as a general rule, prevent the party from relying on the privilege.” Sheftall v. Central of Ga. R. Co., 123 Ga. 589 (hn. 5) (51 SE 646). Plaintiff complains of the letter to Sherry Dombi (with a copy to hospital administrator Elder Perdue) arguing that, under this test, “Dr. Shumpert cannot show good faith where she never even spoke to Dr. Dominy [plaintiff] before writing his employer[, Spectrum].” We disagree.

“One may publish, by speech or writing, whatever he honestly believes is essential to the protection of his own rights or those of another, provided the publication be not unnecessarily made to others than those who the publisher honestly believes are concerned in the subject-matter of the publication.” Sheftall v. Central of Ga. R. Co., 123 Ga. 589 (hn. 1), supra. According to Section 9.031 of the American Medical Association’s Principles of Medical Ethics, “Physicians have an ethical obligation to report impaired, incompetent, and unethical colleagues in accordance with the legal requirements in each state and assisted by the following guidelines: . . . Incompetence. Initial reports of incompetence should be made to the appropriate clinical authority who would be empowered to assess the potential impact on patient welfare and to facilitate remedial action. The hospital peer review body should be notified where appropriate. Incompetence which poses an immediate threat to the health of patients should be reported directly to the state licensing board. Incompetence by physicians without a hospital affiliation should be reported to the local or state medical society and/or the state licensing or disciplinary board.”

In the case sub judice, it is uncontradicted that defendant Dr. Shumpert’s prior concerns about the proper level of emergency room care (provided by plaintiff and others), as expressed through proper channels to the emergency room medical director, Dr. Wall, were coldly received. After telephone inquiry, she was referred to Mrs. Dombi as the proper recipient of her letter. The applicable medical ethical principles do not direct that the subject of a communication regarding suspected medical incompetence be first notified of the problem, nor do those principles limit such communications solely to peer review groups. In this case, both Sherry Dombi of the physician provider Spectrum, and Elder Perdue as hospital administrator, were properly concerned with the subject matter of Dr. Shumpert’s statements questioning Dr. Dominy’s fitness. Consequently, the grant of summary judgment is not erroneous on the ground that defendant unnecessarily communicated to persons outside the scope of privilege.

3. “In all actions for printed or spoken defamation, malice is inferred from the character of the charge. However, the existence of malice may be rebutted by proof. In all cases, such proof shall be considered in mitigation of damages. In cases of privileged communications, such proof shall bar a recovery.” OCGA § 51-5-5. The fifth enumeration contends the trial court “erred in finding that malice is necessary in the defamation of Dr. Dominy’s profession because malice is inferred under O.C.G.A. § 51-5-5 by the nature of the charge.”

Decided December 1, 1998.

James A. Satcher, Jr., for appellant.

Minor, Bell & Neal, William F. Jourdain, Magruder & Sumner, J. Clinton Sumner, Jr., James E. Looper, Jr., for appellees.

“ ‘Malice in the law of defamation may be used in two senses. First, in a special or technical sense to denote absence of lawful excuse or to indicate the absence of privileged occasion. Such malice is known as “implied” malice or “malice in law.” There is no imputation of ill will with intent to injure. Second, “malice” involving intent of mind and heart, or ill will against a person, ... is classified as “express malice” or “malice in fact.” ’ Proof that the communication is privileged rebuts the prima facie presumption of malice in law. [Cits.]” Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 332 (4) (b) (60 SE2d 802). The “effect of privilege is to require the plaintiff to prove actual malice. [Cits.]” Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 333 (4) (b), supra.

In the case sub judice, Dr. Shumpert’s direct testimony is that she was motivated solely out of a sense of duty and concern for patient safety; and that she bore no animus against plaintiff. Plaintiff testified at his deposition that he knows of no reason why Dr. Shumpert would bear him ill will. “This evidence^ when coupled with the showing of privilege] eliminated any genuine issue of material fact in this regard and placed the burden on [plaintiff] to come forward with a showing of [express] malice. [Plaintiff] having failed to make such a showing, summary judgment against [him] was proper. [Cits.]” Meyer v. Ledford, 170 Ga. App. 245 (1), 247 (316 SE2d 804). Since Dr. Shumpert is not liable to plaintiff, it follows that defendant RAFP is not vicariously liable. Kornegay v. Mundy, 190 Ga. App. 433, 435 (2) (379 SE2d 14).

4. The presence of privilege combined with the absence of malice also eliminates any claim plaintiff alleged under OCGA § 10-1-372 (8). Compare Diedrich v. Miller & Meier & Assoc., 254 Ga. 734, 736 (2) (334 SE2d 308) (damages as well as injunctive relief available to protect registered trade name).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


source: Caselaw Access Project

author: McMURRAY, Presiding Judge.

license: Public Domain

text:
    A98A1218.
    FARM & HOME LIFE INSURANCE COMPANY v. SKELTON. FLEET FINANCE, INC. v. SKELTON.
    A98A1219.
    (510 SE2d 76)
   McMURRAY, Presiding Judge.

Fleet Finance, Inc. of Georgia (“Fleet”) retained attorney John L. Skelton, Jr. to collect accounts receivable, consisting of several purchase money notes and security deeds (“the collateral debts”), which Fleet held as collateral for certain loans (“the capital loans”). Fleet agreed to pay attorney Skelton a 25 percent contingency fee, plus expenses. Attorney Skelton initiated collection proceedings and acquired consent judgments which required periodic payments to satisfy a number of the collateral debts. Upon receiving these installments, attorney Skelton disbursed 75 percent of the proceeds to Fleet and retained 25 percent as attorney fees.

When the capital loans were satisfied, Fleet was obliged to assign the accounts receivable to a subordinate creditor that held interests in the accounts receivable — Chris Herstam, Director of Insurance and Domiciliary Receiver of Farm & Home Life Insurance Company, an Arizona Corporation (“the Receiver”). The Receiver, however, did not retain attorney Skelton and a dispute arose over attorney Skelton’s attorney fee liens (encumbering the Gilmer County, Gordon County and Murray County realty which secured the collateral debts) and attorney Skelton’s retention of 25 percent of the consent judgment installment payments.

Attorney Skelton initiated a declaratory judgment action against the Receiver and Fleet in the Cobb County, Georgia Superior Court, seeking a declaration of his rights to assert liens for 25 percent of the consent judgment installment payments. The Receiver filed a counterclaim, pertinently alleging that attorney Skelton wrongfully clouded title to the Gilmer County, Gordon County, and Murray County realty that secured the collateral debts. The Receiver also filed a motion to dismiss, alleging that attorney Skelton’s declaratory judgment action violated an Arizona order prohibiting the enforcement of any lien against the collateral debts. The Receiver and Fleet later filed cross-motions for summary judgment and attorney Skelton filed a motion for a summary declaration of his rights.

The trial court denied the Receiver’s motion to dismiss and denied Fleet’s motion for summary judgment. The trial court partially granted summary judgment in favor of the Receiver by ordering the dissolution of attorney Skelton’s attorney fee liens in Gilmer County, Gordon County, and Murray County, Georgia. The trial court, however, did not address the Receiver’s defamation of title to realty counterclaim. The trial court granted summary judgment to attorney Skelton by declaring “that [attorney Skelton] may properly and legally enjoy all rights in and to his attorney fees incurred during his employment for Fleet wherein [attorney Skelton] secured installment judgments [and that attorney Skelton] has a right to twenty-five percent of the judgments he secured on behalf of Fleet.” The Receiver appeals this order in Case No. A98A1218, and Fleet cross-appeals in Case No. A98A1219. Held:

“OCGA § 9-4-2 (c) provides that a ‘(r)elief by declaratory judgment shall be available, notwithstanding the fact that the complaining party has any other adequate legal or equitable remedy or remedies.’ However, it has been held that this provision ‘does not mean that a declaratory judgment (action) will lie to have just any justiciable controversy decided.’ Reliance Ins. Co. v. Brooks Lumber Co., 101 Ga. App. 620, 621 (115 SE2d 271) (1960). ‘(T)he plaintiff must show facts or circumstances whereby it is in a position of uncertainty or insecurity because of a dispute and of having to take some future action which is properly incident to its alleged right, and which future action without direction from the court might reasonably jeopardize its interest.’ Phoenix Assur. Co. v. Glens Falls Ins. Co., 101 Ga. App. 530, 532-533 (114 SE2d 389) (1960). ‘A declaratory judgment may not be granted in the absence of a justiciable controversy. (Cits.) “The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated. As many times pointed out by this court, its purpose is to permit one who is walking in the dark to ascertain where he is and where he is going, to turn on the light before he steps rather than after he has stepped in a hole. (Cits.)” (Cit.)’ (Emphasis supplied.) Loyd v. City of Irwinton, 142 Ga. App. 626-627 (1) (236 SE2d 889) (1977).” Oxford Finance Cos. v. Dennis, 185 Ga. App. 177 (363 SE2d 614).

Although the cases sub judice reveal an actual controversy between the parties which is ripe for adjudication, attorney Skelton’s petition for declaratory judgment shows on its face that all possible rights between the parties have accrued and all possible obligations have attached. The attorney fee contract between Fleet and attorney Skelton has been executed, the services under this agreement have been rendered and the factual and legal basis (whether contractual or quantum meruit) for attorney Skelton’s claim to 25 percent of the remaining consent judgment installment payments is set. Attorney Skelton has failed to demonstrate that he was in need of any direction from the trial court with respect to future conduct on his part which might increase his liability or otherwise affect his interests. Attorney Skelton risked liability when he continued retaining 25 percent of the consent judgment installment payments after Fleet’s capital loans were satisfied and after the Receiver disputéd attorney Skelton’s right to these proceeds. He thereby lost any possible jurisdictional basis for declaratory relief. What attorney Skelton was seeking, in effect, was an advisory opinion from the trial court as to which party would succeed on the merits of any claim arising from the parties’ past relationships.

Decided December 1, 1998.

Macey, Wilensky, Cohen, Whittner & Kessler, Susan L. Howick, for appellant (case no. A98A1218).

Womble, Carlyle, Sandridge & Rice, Nisbet S. Kendrick III, for appellant (case no. A98A1219).

«i «rpkg Georgia Declaratory Judgments Act makes no provision for a declaratory judgment which is merely advisory.” (Cits.)’ Hudgens v. Local 315 Retail &c. Store Union, AFL-CIO, 133 Ga. App. 329, 331 (210 SE2d 821) (1974). ‘Our declaratory judgment statutes provide that there must be an actual or justiciable controversy between adverse parties before they can be invoked. (Cit.) When a complaint for declaratory judgment shows upon its face, as [the] one [in the cases sub judice] does, that there is no actual or justiciable controversy between adverse parties, a trial court does not have jurisdiction to render a declaratory judgment. . . . An actual or justiciable controversy was not present in this alleged litigation, and the trial court was without jurisdiction to enter a judgment [as to attorney Skelton’s request for declaratory relief]. This being so, [that part of the trial court’s order granting attorney Skelton’s motion for summary judgment] must be set aside as nugatory.’ Kaylor v. Kaylor, 236 Ga. 777-778 (225 SE2d 318) (1976).” Oxford Finance Cos. v. Dennis, 185 Ga. App. 177, supra. Accordingly, this part of the trial court’s summary judgment must be vacated as nugatory.

Since the Receiver’s defamation of title counterclaim remains pending in the trial court, this Court does not have jurisdiction to entertain the Receiver’s and Fleet’s appeals from that part of the trial court’s order denying their respective motions for summary judgment. See Serco Co. v. Choice Bumper, 199 Ga. App. 846 (406 SE2d 276).

Judgment vacated and appeals dismissed in Case Nos. A98A1218 and A98A1219.

Blackburn and Eldridge, JJ., concur.

Troutman Sanders, Richard W. Gerakitis, Cashin, Morton & Mullins, Harry L. Cashin, Jr., for appellee.

       The Receiver took control of the collateral debts under an Arizona trial court order to rehabilitate the insolvent holder of these assets, Farm & Home Life Insurance Company, an Arizona Corporation.


author: Beasley, Judge. Blackburn, Judge,

text:
    A98A1258.
    COTTON STATES MUTUAL INSURANCE COMPANY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. BATTEN et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. UNITED STATES FIDELITY & GUARANTY COMPANY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. GRANGE MUTUAL CASUALTY COMPANY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. PADGETT et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    A98A1259.
    A98A1260.
    A98A1261.
    A98A1262.
    (510 SE2d 78)
   Beasley, Judge.

The appellants, all of whom are defendants in this declaratory judgment action, are would-be plaintiffs and their insurers in a tort action arising out of a motor vehicle collision. They appeal the grant of State Farm’s motion for partial summary judgment, in which the court ruled that State Farm had not waived its right to enforce the coverage provisions of its auto insurance policy by the payment of excess property damage claims. Defendants also appeal the denial of their motions for summary judgment.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.”

On December 29, 1995, a truck driven by Elizabeth Winkler and owned by her fiancee and passenger, Scott Gray, crossed the center-line. It struck two other cars, killing not only Winkler and Gray but also William N. Padgett and William J. Padgett. Ruby Padgett and Sylvia Padgett were injured. Gray’s truck was insured for minimum limits by Midland Risk Insurance Company (a non-party), which limits were paid to the Padgetts. Their cars had uninsured/underinsured motorist coverage by defendants Cotton States, USF&G and Grange Mutual.

Because Winkler resided with her parents, she was a conditional insured under her father’s State Farm policy. The policy restricts coverage for any relative of the primary insured who resides in the household of such insured to vehicles which are not owned by any resident of such household. Conversely, coverage does not apply to a resident relative if the involved vehicle is owned by any other resident of the household, relative or not. The purpose of this condition is to preclude coverage of multiple vehicles in the same household under a single premium. The parties agreed that for the purposes of the motions for summary judgment, it is assumed that Gray resided in the Winkler household; whether he did or not was reserved for jury determination.

After Midland paid the limits of its property damage coverage, State Farm paid those property damage claims which exceeded Midland’s limits. State Farm then took a recorded statement from its insured, Elizabeth Winkler’s father Larry, and determined that Gray had been living in the Winkler household to some extent. So it sent a reservation of rights letter to its insured, the administrator of Elizabeth’s estate. It then filed this declaratory judgment action contending that because Gray was a non-relative living in the Winkler household, his vehicle would not qualify as a “non-owned car” and, as a result, the collision was not covered under State Farm’s policy.

Defendants countered that State Farm waived the defense of non-coverage (based on Gray’s residence in the Winkler household as an assumed fact) by payment of property damage without reservation of rights. The trial court rejected this contention and ruled that, as a matter of law, State Farm did not waive this defense because it had never undertaken the defense of any tort action without reserving its rights. In fact, no tort action for personal injuries had yet been filed when the court ruled.

One need not actually assume anything with respect to Gray’s residence in connection with this ruling. Waiver is the first question. If there was waiver, it matters not whether Gray was a resident. That is, if State Farm waived its right to show that Gray was a resident at the time of the fatal collisions, then it must proceed based on the fact that he was not because it in effect already accepted as fact that he was a non-resident and acted on this basis. The waiver would be a barrier to proving the fact of residence to be otherwise. That would mean there must be coverage because Gray’s truck would be, for this purpose, a “non-owned car”; it would not be excluded from the policy’s definition by virtue of the fact that Gray, a person who is not a relative of Larry Winkler, resided in the Winkler household. If, on the other hand, State Farm did not waive its right to prove that Gray was a resident, then it preserved the opportunity to deny coverage.

There was no waiver by payment of the excess of property damage. There might have been waiver, if State Farm had undertaken a defense of a tort action without reserving its rights to contest coverage. As ruled in Prescott’s Altama Datsun v. Monarch Ins. Co., the defense of noncoverage may be waived “where the insurer, without reserving its rights, assumes the defense of an action or continues such defense with knowledge, actual or constructive, of noncoverage. [Cits.]” But any such activity, which might have prejudiced its insureds, did not happen.

This appeal does not present a request for an advisory opinion, which of course would not be proper. It meets the criteria for a justiciable case.

Judgment affirmed.

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

Blackburn, Judge,

concurring in part and dissenting in part.

I must dissent from the majority’s opinion because it is an advisory opinion. With respect to the judgment rendered by the majority, I agree that the trial court properly denied the defendants’ motions for summary judgment; however, I dissent from the majority’s judgment wherein it affirms the trial court’s grant of summary judgment to State Farm.

Here, the parties agreed to “assume” Gray’s residency, and the trial court reserved such issue for jury determination. Inasmuch as a jury’s ultimate determination of the issue of Gray’s residence at the time of the collision could well moot the grant of summary judgment by the trial court and any ruling on such grant by this Court, the grant of partial summary judgment to State Farm was improper. While the parties are free to stipulate facts, they cannot be assumed for summary judgment purposes or for appeal. On summary judgment, there must be no issues as to material facts on appeal, they must be undisputed, stipulated, or resolved by the trier of fact. Summary judgment is not proper where there is a question of fact which requires jury determination. See OCGA § 9-11-56.

Decided December 1, 1998

Young, Thagard, Hoffman, Scott & Smith, F. Thomas Young, Henry P. Scott, for appellant (case no. A98A1258).

Preston & Preston, Robert H. Preston, for appellants (case no. A98A1259).

Irwin & Crist, R. Chris Irwin, for appellant (case no. A98A1260).

Roy E. Harkleroad, for appellant (case no. A98A1261).

This Court does not issue advisory opinions, that is, an opinion based on hypothetical or assumed facts. As Judge Beasley stated in In the Interest of 1. B., 219 Ga. App. 268, 269-270 (464 SE2d 865) (1995) (physical precedent only): “The role of the judiciary is to address ‘justiciable cases.’ Thompson v. Talmadge, 201 Ga. 867, 874 (1) (41 SE2d 883) (1947). ‘A controversy is justiciable when it is appropriate for judicial determination. It must be definite and concrete, touching the legal relations of parties having adverse legal interests, rather than being hypothetical, abstract, academic or moot.’ Allstate Ins. Co. v. Shuman, 163 Ga. App. 313, 315 (3) (293 SE2d 868) (1982). ‘A controversy is “justiciable” when there are interested parties asserting adverse claims upon an accrued state of facts. (Cit.)’ Mayor &c. of Savannah v. Bay Realty Co., 90 Ga. App. 261, 262 (1) (82 SE2d 710) (1954). Bankers Life & Cas. Co. v. Cravey, 90 Ga. App. 113, 119 (82 SE2d 150) (1954), clearly states: ‘The courts do not concern themselves with the solution of academic problems or the determination of dead issues.’ ”

The rulings of this Court become the law of the case as do the facts upon which our opinion is based, and must be based. OCGA § 9-11-60 (h). If Gray is a resident of Winkler’s household for the purpose of this appeal, the general rule would require that such fact is established for any other litigation in this matter under the law of the case rule. We are not free to “assume” that Gray was a resident of Winkler’s household on the date of the collision, as this fact is in dispute and has been reserved for later determination by a jury. Summary process could not be appropriate until after this issue of fact has been resolved. State Farm has acknowledged in its brief that there is coverage for Winkler if Gray was not a resident of the Winkler household on the date of the collision.

For these reasons, I would reverse the grant of partial summary judgment to State Farm, affirm the denial of defendants’ motions for summary judgment, and remand the case to the trial court for the resolution of the factual issues.

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

Farrar & Hennesy, Curtis Farrar, for appellants (case no. A98A1262).

John T. Croley, Jr., for appellee.

       (Citation and punctuation omitted.) American Southern Ins. Co. v. Abbensett, 232 Ga. App. 16, 17-18 (501 SE2d 53) (1998).

        Andrews v. Ga. Farm &c. Ins. Co., 226 Ga. App. 316 (487 SE2d 3) (1997); Cincinnati Ins. Co. v. Mullinax, 215 Ga. App. 331, 333 (2) (450 SE2d 336) (1994) (insurer’s payment of property damage benefits to its insureds did not waive its right to rely on exclusion of liability coverage regarding same accident).

       253 Ga. 317, 318 (319 SE2d 445) (1984).

       See In the Interest of I. B., 219 Ga. App. 268, 269-270 (464 SE2d 865) (1995) (physical precedent), cited with approval by the Supreme Court in Collins v. Lombard Corp., 270 Ga. 120 (508 SE2d 653) (1998).


text:
    A98A1532.
    PAYNE et al. v. DUNDEE MILLS, INC. et al.
    (510 SE2d 67)
   McMurray, Presiding Judge.

David Payne and Elizabeth Payne filed this appeal after the trial court denied their motion to intervene in a workers’ compensation subrogation action which Mr. Payne’s employer, Dundee Mills, Inc. (“Dundee Mills”), filed against the tortfeasors that allegedly caused Mr. Payne’s work-related injuries. The trial court found that the Paynes’ motion to intervene was “moot” because Dundee Mills settled and dismissed its complaint against the alleged tortfeasors.

On March 21, 1995, David Payne was injured when sulfuric acid escaped from a tank in the waste water treatment section at Dundee Mills’ plant. Dundee Mills provided Mr. Payne with workers’ compensation and, on March 21, 1997, filed an action under OCGA § 34-9-11.1 (c) against the contractors that allegedly caused Mr. Payne’s injuries, Lockwood Greene Engineers, Inc. and P. F. Moon & Company, Inc. (“the contractors”). Although this action was filed on the last day before expiration of the statute of limitation on Mr. Payne’s tort claim, Mr. Payne did not receive notice of Dundee Mills’ subrogation action until after expiration of this statute of limitation. The Paynes filed a motion to intervene in Dundee Mills’ action against the contractors on August 21, 1997, and Dundee Mills dismissed its subrogation complaint against the contractors on September 12, 1997. The trial court later denied the Paynes’ motion to intervene in an order which provides “[i]t appearing that this action has been voluntarily dismissed by [Dundee Mills], Mr. and Mrs. Payne’s Motion to Intervene is now moot [and] is, therefore, DENIED.” Held:

1. The controlling issue in the case sub judice is whether the trial court abused its discretion in denying the Paynes’ motion to intervene. See AC Corp. v. Myree, 221 Ga. App. 513, 515 (1) (471 SE2d 922).

OCGA § 9-11-24 (a) (1) provides that, upon timely application, a party may intervene as a matter of right “when a statute confers 'an unconditional right’ to intervene.” Dept. of Admin. Svcs. v. Brown, 219 Ga. App. 27, 28 (464 SE2d 7). OCGA § 34-9-11.1 (c) confers such an “unconditional right” to the Paynes in the case sub judice.

OCGA § 34-9-11.1 not only authorized Dundee Mills’ subrogation action, but provides that employers such as Dundee Mills “shall immediately notify the employee of its assertion of such cause of action, and the employee shall have a right to intervene.” OCGA § 34-9-11.1 (c). This right to intervene, however, is dependent upon whether the employee’s motion to intervene is timely and “ ‘whether a motion to intervene is timely is a decision entrusted to the sound discretion of the trial court. (Cits.)’ AC Corp. v. Myree, [supra].Sommers v. State Compensation Ins. Fund, 229 Ga. App. 352 (1), 353 (494 SE2d 82). But where intervention appears before final judgment, where the rights of the intervening parties have not been protected, and where the denial of intervention would dispose of the intervening parties’ cause of action, intervention should be allowed and the failure to do so amounts to an abuse of discretion. See Allgood v. Ga. Marble Co., 239 Ga. 858, 859 (239 SE2d 31); Kubler v. Goerg, 197 Ga. App. 667, 670 (2) (399 SE2d 229); and Sta-Power Indus. v. Avant, 134 Ga. App. 952, 958 (3) (216 SE2d 897).

Decided December 1, 1998

Morgan & Silver, Arthur S. Archibald, for appellants.

Although it is not clear in the case sub judice whether Dundee Mills “immediately” notified Mr. Payne of its subrogation complaint as required by OCGA § 34-9-11.1 (c), it is undisputed that the Paynes moved to intervene before any judgment in Dundee Mills’ subrogation action and before Dundee Mills dismissed its complaint against the contractors. It is also undisputed that the Paynes could not have moved to intervene before expiration of the statute of limitation on Mr. Payne’s tort claim because Dundee Mills did not inform Mr. Payne about its subrogation action until after it filed the action on the last day before expiration of the applicable statute of limitation. Further, there is no indication that granting the Paynes’ motion to intervene would prejudice Dundee Mills in any way and there is no proof that Dundee Mills took any steps to protect the Paynes’ interests before dismissing its suit against the contractors. Under these circumstances, and since it appears that denial of the Paynes’ motion to intervene would bar Mr. Payne’s independent tort claim against the contractors, we find that the trial court abused its discretion in denying the Paynes’ motion to intervene. “We therefore reverse and remand [the case sub judice] for proceedings consistent with this opinion.” Dept. of Admin. Svcs. v. Brown, 219 Ga. App. 27, 29, supra.

2. Dundee Mills’ motion to not participate in the appeal is denied.

Judgment reversed and case remanded.

Blackburn and Eldridge, JJ., concur.

Goldner, Sommers, Scrudder & Bass, Glenn S. Bass, for appellees.


author: Pope, Presiding Judge.

text:
    A98A1533.
    ALLEN v. CITY OF ATLANTA et al.
    (510 SE2d 64)
   Pope, Presiding Judge.

Atlanta Police Officer Kenneth Allen and two other officers were on duty in Gilliam Park where there had been complaints of drug use and prostitution. They approached a parked Jeep with two people in it. The officers identified themselves as police and Allen saw that the vehicle’s steering column was broken. The people sitting in the vehicle ignored the officers’ orders to get out of the Jeep. The person sitting in the driver’s seat started the vehicle and drove toward Allen. As the vehicle came at him, Allen fired a shot from his gun into the driver’s side window. The shot hit the driver and grazed the person sitting in the passenger seat. When the Jeep stopped, the police found cocaine in it and determined that the vehicle had been stolen.

Based on the incident, the Atlanta Police Department charged Allen with violating the department’s employee work rule 6.09 (e), which provides: “A firearm shall not be discharged if the lives of innocent persons may be in danger.” After a hearing on the charge, the department suspended Allen for three days without pay, finding that he violated rule 6.09 (e) by firing his gun and wounding the innocent passenger. Allen appealed his suspension to the Atlanta Civil Service Board, which upheld the suspension. He then filed a petition for writ of certiorari in superior court. The court denied the petition. We granted Allen’s application for discretionary review.

Allen asserts that rule 6.09 (e) is unenforceable because it is in conflict with Georgia’s self-defense and arrest statutes. We agree. The self-defense statute provides: “A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself or a third person against such other’s imminent use of unlawful force; however, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony.” OCGA § 16-3-21 (a). That statute further mandates: “Any rule, regulation, or policy of any agency of the state or any ordinance, resolution, rule, regulation, or policy of any county, municipality, or other political subdivision of the state which is in conflict with this Code section shall be null, void, and of no force and effect.” OCGA § 16-3-21 (c).

Additionally, the state’s arrest statute provides that police officers “may use deadly force to apprehend a suspected felon only when the officer reasonably believes that the suspect possesses a deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; when the officer reasonably believes that the suspect poses an immediate threat of physical violence to the officer or others; or when there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm.” OCGA § 17-4-20 (b). The arrest statute furthers states: “No law enforcement agency of this state or of any political subdivision of this state shall adopt or promulgate any rule, regulation, or policy which prohibits a peace officer from using that degree of force to apprehend a suspected felon which is allowed by the statutory and case law of this state.” OCGA § 17-4-20 (d).

In construing these statutes, we must give all words their ordinary meaning. See Griffin-Spalding County School System v. Daniel, 215 Ga. App. 567, 568 (1) (451 SE2d 480) (1994). So construed, neither the self-defense statute nor the arrest statute automatically prohibits the discharge of a firearm if the lives of innocent people may be in danger. The Atlanta Police Department’s rule 6.09 (e), however, creates such a mandatory prohibition. The trial court concluded that rule 6.09 (e) does not create a mandatory prohibition in conflict with OCGA §§ 16-3-21 and 17-4-20, but instead merely “contemplates the officer’s exercise of good judgment and restraint in discharging his weapon unless necessity dictates as a matter of last resort.” We disagree with the court’s conclusion.

The plain language of rule 6.09 (e) provides that a “firearm shall not be discharged if the lives of innocent persons may be in danger.” (Emphasis supplied.) In its ordinary signification, “shall” is a word of command. State Ethics Comm. v. Long, 223 Ga. App. 621, 626 (1) (478 SE2d 618) (1996). Thus, the language of rule 6.09 (e) is mandatory and, contrary to the trial court’s conclusion, does not allow for any exercise of judgment by an officer faced with a self-defense or arrest situation in which the discharge of a gun might endanger innocent bystanders. In such a situation, rule 6.09 (e) commands an officer not to discharge his or her firearm. In fact, at the hearing before the Civil Service Review Board, the Atlanta Police Department argued that rule 6.09 (e) “requires that if there is an innocent bystander . . . the Officer is forced to use fire restraint and not fire, under the work rule. It’s not an easy circumstance, but the City believes that you simply shouldn’t fire.” Such a mandatory prohibition against an officer’s use of a gun in self-defense or in the execution of an arrest, when circumstances would otherwise authorize the use of a gun, is in conflict with OCGA §§ 16-3-21 and 17-4-20. Accordingly, the mandatory prohibition set forth in rule 6.09 (e) cannot stand. See Ga. Hosp. Assn. v. Ledbetter, 260 Ga. 477, 479 (4) (396 SE2d 488) (1990). See also OCGA §§ 16-3-21 (c) and 17-4-20 (d).

We note that the purpose of rule 6.09 (e) — to ensure the safety of innocent bystanders — is not in conflict with the self-defense and arrest statutes. Rather, it is the mandatory language of the rule that is problematic. The safety of innocent bystanders is perhaps the primary concern for any police officer faced with the decision of what degree of force to use when acting in self-defense or carrying out an arrest. But under state law the presence of a bystander at a crime or arrest scene does not override all other considerations and automatically require that an officer not use deadly force, including the discharge of a weapon. Conversely, the mandatory language of rule 6.09 (e) would lead to such a result. Such a requirement contravenes not only state law, but the Department of Public Safety’s own firearms policy.

That policy provides: “It is the primary intention of this policy to ensure the safety of both the public and the employees of this department. Therefore, while it may become necessary for an employee to discharge a firearm, it is required that the employee first make every effort to avoid such drastic action. In all cases, only the given amount of force shall be used which is consistent with the accomplishment of a mission. The employee shall use caution and act in a calm and deliberate manner when he/she finds the use of a firearm necessary. No employee will be criticized if he/she chooses not to discharge a firearm if the discharge might threaten the life or safety of another or if the discharge might not be clearly warranted by this policy, state law, or reasonable judgment. Nor will criticism be made of an employee who when faced with a situation which threatened life or serious physical injury, discharged a firearm in self defense or in the defense of another. Employees are reminded that use of deadly force cannot be taken lightly and that the employee’s actions in its use must not only be legally warranted and defensible but also within accepted moral and social codes and consistent with rational and human social control in a democracy.”

This policy, like the self-defense and arrest statutes, contemplates the varied circumstances in which an officer may be forced to decide whether to use a gun and the broad judgment an officer must exercise in reaching that decision. Rule 6.09 (e) improperly eliminates that judgment in any situation where innocent persons might be endangered by the firing of a gun. Because rule 6.09 (e) is invalid due to its contravention of state law, not to mention its conflict with the Department of Public Safety’s own policy, the suspension of Allen based on the charged violation of that rule cannot stand.

Judgment reversed.

Beasley and Ruffin, JJ, concur.

Decided December 1, 1998.

Grady K. Dukes, for appellant.

Clifford E. Hardwick IV, Rolesia B. Dancy, Overtis H. Brantley, for appellees.


author: Judge Harold R. Banke.

text:
    A98A1815.
    RASHTON v. THE STATE.
    (510 SE2d 63)
   Judge Harold R. Banke.

Greg James Rashton appeals his convictions of simple battery, battery, simple assault, criminal trespass, and aggravated assault. He contends the trial court erred by allowing the State to introduce evidence that impugned his character and by failing to give curative instructions after the trial court denied a motion for a mistrial. Held:

1. Because she was the victim of the crimes alleged in the indictment, Rashton’s ex-wife testified during the State’s case in chief. During cross-examination by Rashton’s counsel, she then testified that after their divorce and Rashton’s arrest, she and the children visited Rashton several times. She also testified she just wanted Rashton to go on with his life and she wanted to go on with her life and she wanted Rashton to see their children.

In her re-direct examination, the victim acknowledged that she was testifying only because she was under subpoena by the State, and when questioned whether her divorce decree contained provisions regarding visitation, she replied that the decree provided that visitation would be determined when Rashton was released from incarceration. Rashton did not object to this testimony. The prosecutor next questioned her about the number of times they visited Rashton, whether these visits were supervised, and if so, by whom. The victim answered that she had visited Rashton with the children several times since Easter and the visits were “supervised, guards.” Rashton immediately moved for a mistrial contending that the State had injected his character into the case.

The trial court denied the motion because the prosecution was authorized to ask the victim about the visits, a subject introduced by Rashton, to correct any impression that the visits were unrestricted and that the victim had no fear of Rashton. The trial court also found the victim’s testimony regarding “guards” did not rise to the level of a mistrial. Whether to grant a mistrial is within the sound discretion of the trial court and the ruling will not be disturbed absent an abuse of discretion. Buxton v. State, 253 Ga. 137, 139 (3) (317 SE2d 538) (1984). We find no abuse of discretion here.

Decided December 1, 1998.

Maryann F. Blend, for appellant.

J. Tom Morgan, District Attorney, Gregory J. Lohmeier, Barbara B. Conroy, Assistant District Attorneys, for appellee.

The transcript shows the prosecutor expressly had instructed the victim not to mention prison or jail. Even though the trial court considered whether use of the word “guards” was unduly prejudicial, the real basis for the ruling was that the prosecution was entitled to question the victim about the circumstances of the visits with Rashton because visitation was raised by the defense. As Rashton first raised the visits in his cross-examination of the victim, he cannot complain when the State further explored the subject on re-direct examination. See Gentry v. State, 226 Ga. App. 216, 218 (1) (485 SE2d 824) (1997); Briard v. State, 188 Ga. App. 490, 493 (3) (373 SE2d 239) (1988); Hughes v. Newell, 152 Ga. App. 618, 623 (3) (263 SE2d 505) (1979). In any event, Rashton’s failure to object to the victim’s testimony that he was in custody at the time of visitation, precludes a finding of harm. See Jones v. State, 171 Ga. App. 184, 186 (3) (319 SE2d 18) (1984).

2. In view of our holding in Division 1, the trial court did not err by failing to give a curative instruction because such an instruction was unnecessary. Moreover, by failing to request a curative instruction Rashton waived this issue. Underwood v. State, 218 Ga. App. 530, 534 (3) (462 SE2d 434) (1995).

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.


text:
    A98A0846.
    KOPP v. FIRST BANK OF GEORGIA.
    (509 SE2d 384)
   McMurray, Presiding Judge.

Plaintiff-appellee First Bank of Georgia (“FBG”) brought this action for damages, alleging that defendants Jesse T. Hendrix, Jesse T. Hendrix Builders, Inc. (“Builders”), Joseph T. Pécora, and Gerald A. Kopp, individually and as attorney-in-fact for Joseph A. Pécora, acting in concert, fraudulently induced FBG to extend a construction loan secured by two lots of real property while concealing that the property was already subject to unrecorded security deeds. On March 3, 1989, defendant Builders purchased two lots receiving warranty deeds from defendant Joseph T. Pécora, grantor, who simultaneously took back as grantee security deeds to each lot (“the Pécora security deeds”). Builders and defendant Jesse T. Hendrix then obtained from FBG two $75,000 construction mortgages, each secured by one lot respectively. Upon the default of defendants Jesse T. Hendrix and Builders, FBG accepted on July 20, 1990, a warranty deed to the property in lieu of foreclosure, but also on July 20, 1990, defendant Gerald A. Kopp filed the Pécora security deeds, whereas FBG’s warranty deed was not filed until July 24, 1990. FBG ultimately sold each lot, subject to the Pécora security deeds.

After discovery, FBG moved for partial summary judgment as to liability against all defendants. This motion was granted, and in a prior appeal, a majority of this Court affirmed as to defendant Jesse T. Hendrix and defendant Builders, while concluding whether defendants Joseph T. Pécora and Gerald A. Kopp conspired with Jesse T. Hendrix to defraud future potential creditors of Builders was a question of intent for the trier of fact. Pecora v. First Bank of Ga., 217 Ga. App. 190 (1) (457 SE2d 200).

The case was ultimately tried before the superior court without the intervention of a jury. It is undisputed that defendant Gerald A. Kopp did not immediately record the Pécora security deeds executed on March 3, 1989, and it is uncontradicted that FBG exercised due diligence in searching the public records both prior to its extension of credit to defendant Builders and prior to accepting the warranty deed from Builders in lieu of foreclosure. In support of its contention that defendant Gerald A. Kopp conspired to defraud, FBG adduced the following evidence: Gerald A. Kopp is a developer/builder who has taken out as many as 1,500 construction loans. Pursuant to a written power of attorney, Kopp was the attorney-in-fact for defendant Joseph T. Pécora, authorized to sell lots in a particular residential development. Kopp also claimed an interest in the lots through a partnership with defendant Joseph T. Pécora. Through his position as past president of the state home builders’ association, Kopp has known defendant Jesse T. Hendrix for about 20 years. Kopp orally agreed to sell Hendrix two lots, at “$16,500.00 per lot. ... It was supposed to be all cash at closing,. . .” but Kopp ultimately accepted promissory notes for the entire purchase price. The terms of the notes were: “one installment of $9900.00 plus interest sixty days from the date of this instrument and the balance . . . plus all remaining accrued interest. . . due and payable at closing of permanent loan . . . and in no event later than one year. . . .” Hendrix “asked [Kopp] that they [the Pécora security deeds] not be filed immediately . . . [because Hendrix] would like a few days in order to get his supplier contracts lined up, his credit lined up with various suppliers before [Kopp] recorded [the security deeds]. . . .” Kopp conceded that, were he to file the security deeds, “it would show he [Hendrix] did not own those lots free and clear but, instead, would reflect that he owed the full purchase price of the $33,000.00 upon which he was seeking credit to build. . . .” Kopp understood that Hendrix was “slow on his cash supply at the time. . . .” When the $9,900 installment came due in May 1989, Kopp inquired “when [they] were going to get [their] money. At that time, he [Hendrix] said, At my next draw.’ [Kopp now knew] that [Hendrix] had a construction loan on the property.” Accordingly, Kopp waited for payment until Hendrix and Builders actually received a draw. Hendrix subsequently tendered two checks dated June 9, 1989, drawn on the Builders’ account to the order of Joseph T. Pécora, each in the amount of $9,900, with the notation “Part payment per contract.” Kopp “[knew] that the money was coming from the construction loan for the building of the houses on [the] lots, [and that] a deed to secure debt securing that construction loan had been recorded.” His 20 years’ experience gave him reason to “suspect that the bank [which] made the construction loan was unaware the [Kopp’s partner, defendant Joseph T. Pécora] held a deed to secure debt or that [Builders] owed the seller] money on that property.” He further knew that, if Builders had obtained an “acquisition and development” loan, where the developer “borrowts] the money both to buy the property and to build on it, . . . then [the seller] would have been paid up front. . . .” In July 1990, Hendrix told Kopp “he was not going to be able to finish those houses[;] that he was going to give them back to the bank[;] and that he offered to give [Kopp] the houses if [the latter] would assume the construction debt to the bank [but Kopp] refhsed. . . .” On July 20, 1990, Kopp was informed by friendly real estate agents that Hendrix and Builders had given FBG a deed in lieu of foreclosure. The Pécora security deeds were filed that same day.

Jesse T. Hendrix testified that “[i]t was [mutually] understood that [Kopp] would not [file the Pécora security deeds] so [Hendrix or Builders] could obtain the construction loans. . . .” They both understood that “if [Builders] didn’t own the lots that more likely than not in the ordinary course of business that a bank or other financial lending institution would not have made a construction loan. . . .” Hendrix confirmed that Kopp “knew that [he, Hendrix,] intended to obtain construction loans from [FBG] at the time [of] the closing . . . on March 3 of 1989, . . . when [Kopp executed] the warranty deeds [to Builders and that Kopp] knew that the purpose of withholding the security deeds from filing [was] so it would appear to [FBG] that [Builders] owned [the] lots . . . free and clear. . . .” In March 1990, when Hendrix informed FBG that Builders would be unable to repay the construction loan, a bank representative proposed “a deed in lieu of foreclosure in order to save [Hendrix’s] credit, if there was nothing else owed on those lots.” A week before the closing on this proposition, Hendrix spoke with Kopp and told him that if Kopp did not wish to take over the loans himself, then “the time had come that [Hendrix would go] to the bank and give them a deed in lieu of foreclosure.”

In its judgment, the superior court found all defendants jointly and severally liable to plaintiff for actual damages in the amount of $78,254.48 and further found against defendant Gerald A. Kopp for $80,000 in punitive damages and $100,045 as attorney fees and expenses of litigation. This appeal followed. Held:

1. The superior court’s judgment of liability for conspiracy to defraud future potential creditors of Builders is enumerated as error but is not supported by argument and citation of authority. Consequently, the first two enumerations of error are deemed abandoned in accordance with-Court of Appeals Rule 27 (c) (2).

2. In his third enumeration, defendant Gerald A. Kopp objects to the superior court’s imposition of $80,000 in punitive damages. In his brief, he argues the superior court cannot impose punitive damages without first holding the bifurcated hearing contemplated by OCGA § 51-12-5.1 (d) (2), and that the procedural irregularity in failing to bifurcate this hearing further deprived defendant of his opportunity to present closing argument.

Defendant has not shown us where, in a record of some 1,200 pages, he urged this procedural objection to the presiding judge. Through counsel, all parties expressly waived a jury trial and further waived any requirement that the superior court make findings of fact and conclusions of law.

Where a case is tried “without a jury, the trial judge has a much broader discretion in the admission of evidence since it is presumed that in his consideration of the evidence he sifted the wheat from the chaff and selected the legal testimony. Thus, [t]his judgment will not be reversed where there is any legal evidence to support [it]. [Cits.]” Dowling v. Jones-Logan Co., 123 Ga. App. 380, 382 (3) (181 SE2d 75). Accord C & S Bank of Dublin v. Morris State Bldg. Corp., 243 Ga. 169, 170 (2) (253 SE2d 89). In our view, defendant’s failure to object after the entry of judgment amounts to a waiver of the special interrogatory to the jury mandated by OCGA § 51-12-5.1 (d) (1). See Martin v. Williams, 215 Ga. App. 649, 651 (2) (451 SE2d 822); Shaw v. Ruiz, 207 Ga. App. 299, 300 (1) (428 SE2d 98). Similarly, oral argument was waived by the use of post-trial briefs submitted for the superior court’s consideration. The third enumeration is without merit.

3. Next, defendant contends the award of attorney fees is unsupported by any evidence of stubborn litigiousness. But the complaint clearly alleges that the costs of litigation were sought on the basis of “[defendants’ conspiracy in fraudulently inducing [FBG] to accept a warranty deed from Defendant Builders in lieu of foreclosure [while simultaneously] intentionally] withholding . . . the Pécora Security Deeds from recordation. . . .” “[E]very intentional tort[, such as fraud,] invokes the species of bad faith that under the provisions of Code [Ann.] § 20-1404 [now OCGA § 13-6-11] entitles the person wronged to recover the expense of litigation involving attorney’s fees.” Dodd v. Slater, 101 Ga. App. 358, 360 (3) (114 SE2d 167). “If, as here, there is bad faith in the [transaction], [OCGA § 13-6-11] attorney fees are authorized regardless of whether a bona fide controversy otherwise existed between the parties. See Backus Cadillac-Pontiac v. Brown, 185 Ga. App. 746, 747 (365 SE2d 540).” McDonald v. Winn, 194 Ga. App. 459, 460 (2) (390 SE2d 890).

Decided November 17, 1998

Reconsideration denied December 2, 1998

Albert B. Wallace, Stephen B. Wallace II, for appellant.

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

4. The fifth enumeration contends the trial court erred in admitting, over objection, plaintiff’s Exhibit 27 consisting of 52 pages itemizing actual attorney fees incurred in the prosecution of these claims. The record shows that, after voir dire of Robin Lee Bring, the firm administrator, defendant’s only stated objection was not to the admission of the billing statement itself; rather, he objected to preliminary inquiries as “leading questions.” The trial court allowed them as “foundation questions, they have got to be asked.”

Whether to permit leading questions is a matter committed to the sound legal discretion of the trial court, whose decisions “will not constitute reversible error ‘unless palpably unfair and prejudicial to the complaining party.’ [Cits.]” Clary Appliance &c. v. Butler, 139 Ga. App. 233, 235 (2) (228 SE2d 211). In the case sub judice, the trial court did not abuse its discretion in permitting leading questions to establish the foundation for the admissibility of a billing statement as a business record.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A0955.
    ROJAS v. THE STATE.
    (509 SE2d 72)
   Pope, Presiding Judge.

Tania Milagro Rojas was tried and convicted of driving under the influence of alcohol, speeding, having an improper tag and possessing marijuana. She appeals, claiming that the trial court erred in denying her motion to suppress evidence of her refusal to submit to state-administered tests of her blood, breath or urine, because the implied consent warnings she was given did not comply with the statutory language of OCGA § 40-5-67.1.

The evidence at trial showed that on November 26, 1996, Gwinnett County police officer Michael Saunders observed Rojas’ vehicle speeding on 1-85. Saunders activated his blue lights and began following Rojas, who continued driving and then drove over the solid white line demarcating the outside lane. Rojas then drove past the exit ramp and finally pulled over into the emergency lane. When Saunders first approached her car, Rojas would not roll down her window. When Rojas eventually complied with Saunders’ request to roll down the window, Saunders asked for her driver’s license and proof of insurance. Rojas fumbled through some documents and eventually located her Florida driver’s license; she was unable to find her insurance card. While Rojas was looking for the papers, Saunders smelled a strong odor of alcohol on Rojas’ breath and asked her to step out of her car. When she did so, Saunders noticed that Rojas’ eyes were bloodshot and her face was flushed. Saunders retrieved the alco-sensor from his car while Rojas leaned against her car. Saunders asked Rojas to blow into the alco-sensor, but she refused. Saunders then asked Rojas if she would take any other field sobriety tests; she said that she would not.

Saunders testified that Rojas appeared to be under the influence of alcohol to the extent that she was less safe to drive. Accordingly, he placed her under arrest for driving under the influence. Saunders testified that Rojas initially resisted arrest, but that he was able to handcuff her and place her in his patrol vehicle.

Saunders then entered her car to impound it and smelled marijuana. He then discovered three marijuana cigarettes in the ashtray of her car.

Saunders read Rojas the implied consent rights, stating: “[i]f you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year.” Rojas refused to submit to any chemical testing. After Rojas’ refusal, Saunders told her that her license would be suspended “for one year tonight.” At trial, Saunders admitted that this was an incorrect statement because Rojas had a Florida license. Before Rojas was taken from the scene, she again stated that she was not willing to submit to a blood and urine test. She reiterated her refusal to submit to these tests at the jail.

1. In her first enumeration of error, Rojas argues that the court erred in denying her motion to suppress because the officer did not give an implied consent notice exactly tracking the language of OCGA § 40-5-67.1. The written notice which Saunders read to Rojas precisely tracks the language of OCGA § 40-5-67.1 (b). Nevertheless, at trial and at the motion to suppress hearing, Saunders testified that in reading Rojas the implied consent rights, he stated: “[a]fter first submitting to the required state test, you are entitled to an additional chemical test of your blood, breath, urine or other bodily substances at your own expense and from qualified personnel of your own choosing.” The statutory warning provides that a person is entitled to “additional chemical tests,” and it does not contain the word “an.”

Arguing that her motion to suppress should have been granted, Rojas cites various cases interpreting the statute as requiring an exact reading of the notice. In State v. Halstead, 230 Ga. App. 208 (496 SE2d 279) (1998); State v. Barfield, 230 Ga. App. 141 (495 SE2d 622) (1998); and State v. Fielding, 229 Ga. App. 675 (494 SE2d 561) (1997), this Court concluded that the trial court properly granted defendants’ motions to suppress when the implied consent notice at issue informed them that they were entitled to an additional test of their own choosing, rather than to additional tests. While State v. Fielding and State v. Barfield involved additional deviations from the statutory language, in State v. Halstead the sole deviation before the court was the failure to advise the defendant of his right to additional chemical tests. Compare State v. Hopkins, 232 Ga. App. 705 (503 SE2d 590) (1998).

Since the above cases were decided, the legislature has amended OCGA § 40-5-67.1 (b) so that it does not require a verbatim reading of the implied consent notice. In State v. Levins, 234 Ga. App. 739 (507 SE2d 246) (1998) (physical precedent only), this Court stated: “[i]n passing the amendment, the General Assembly declared, but did not codify, ‘that while suspects in (DUI) cases should be informed of their rights regarding the administration of chemical testing, no such suspect is entitled to a notice which tracks the exact language of the implied consent statute, so long as the substance of the notice remains unchanged.’ Ga. L. 1998, p. 210, § 1.” Id. at 739-740. “The amended OCGA § 40-5-67.1 (b), effective March 27, 1998, provides that the implied consent notice ‘shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.’ As [two members of this Court] recently found in State v. Nolen, 234 Ga. App. 291 (508 SE2d 733) (1998) (physical precedent only), this amended statute should be applied retroactively.” Id. at 740.

In light of the recent amendment to the statute, we conclude that the officer’s reading of the implied consent notice was sufficient. In notifying Rojas that after submitting to the required state-administered test, she was entitled to an additional chemical test of her own choosing, the substance of the notice Saunders gave Rojas was unchanged. Officer Saunders alerted Rojas to the fact that she could have additional testing done — that he did not alert her that she could have additional tests performed is not dispositive under the amended OCGA § 40-5-67.1 (b). Furthermore, the officer’s failure to advise Rojas that she was entitled to additional “tests” was not fatal because the record shows that she rejected the opportunity to have any additional test at all. Because of her rejection of any additional test, whether she was advised that she was entitled to more additional “tests” was immaterial.

As explained fully in State v. Levins and State v. Nolen, application of the amended OCGA § 40-5-67.1 (b) in this case will not impair any vested right of Rojas, nor will it alter any of her substantive rights. Accordingly, Rojas’ arguments that the court erred in denying her motion to suppress on this basis are without merit.

Although we are mindful that our holding here conflicts with the result reached in State v. Halstead, 230 Ga. App. 208; State v. Barfield, 230 Ga. App. 141; and State v. Fielding, 229 Ga. App. 675, our instant decision comports with the amendment to OCGA § 40-5-67.1 (b). State v. Halstead, 230 Ga. App. 208; State v. Barfield, 230 Ga. App. 141; and State v. Fielding, 229 Ga. App. 675, were decided before the new amendment was effective and are no longer applicable.

2. Rojas also argues that the implied consent warning was deficient because Saunders gave her false information regarding the consequences of refusing the state-administered chemical test. Although Saunders initially advised Rojas correctly that if she refused the testing her privilege to drive on Georgia highways would be suspended for a minimum period of one year, after she refused to submit to the tests, Saunders told her that her license would be suspended “for one year tonight.” Citing Deckard v. State, 210 Ga. App. 421 (436 SE2d 536) (1993), Rojas argues that Saunders’ statement that her driver’s license would be suspended for “one year tonight” was misleading, since Rojas had a Florida license and Saunders had no authority to suspend it.

We agree with Rojas that Saunders’ statement that her license would be suspended that night was incorrect. See generally OCGA § 40-5-51 (a). Nevertheless, unlike the situation in Deckard v. State, in this case the misstatement was harmless: it was made after Rojas had refused to consent to the state-administered test; and the statement did not coerce Rojas to consent to the state-administered test. See Dept. of Pub. Safety v. Bafford, 223 Ga. App. 639 (478 SE2d 444) (1996). “This is not a case where the state has subtly coerced defendant into choosing the option it had no right to compel, rather than offering a true choice. To the contrary, the State wants defendant to choose to take the test, for the inference of intoxication arising from a positive blood-alcohol test is far stronger than that arising from a refusal to take the test.” (Citations and punctuation omitted.) Sorrow v. State, 178 Ga. App. 83-84 (342 SE2d 20) (1986). The court did not err in refusing to grant her motion to suppress. Compare State v. Coleman, 216 Ga. App. 598 (455 SE2d 604) (1995).

Decided November 5, 1998

Reconsideration denied December 2, 1998

Randall S. Estes, Robert W. Chestney, for appellant.

Gerald N. Blaney, Jr., Solicitor, Allison L. Thatcher, Assistant Solicitor, for appellee.

3. Finally, Rojas claims that the evidence was insufficient to convict her of driving under the influence of alcohol and possession of less than an ounce of marijuana. We reject this argument and find that a rational trier of fact could find from the evidence adduced at trial proof of her guilt of these crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

       Contrary to the State’s arguments we conclude that Rojas properly preserved this error below. Her written motion to suppress argued that she had been “misinformed” under the Georgia implied consent law and that the arresting officer had “made false and misleading statements” regarding OCGA § 40-5-67.1. See generally Turner v. State, 178 Ga. App. 888 (1) (a) (345 SE2d 99) (1986).


text:
    A98A1236.
    HERRIN v. PEECHES NEIGHBORHOOD GRILL & BAR, INC. et al.
    (509 SE2d 103)
   Pope, Presiding Judge.

Joseph Kerwin Herrin filed suit against Peeches Neighborhood Grill & Bar, Inc., C-A-M Development Corporation (“C-A-M”), and other defendants which were subsequently dismissed from the suit, for injuries sustained when he fell from a ladder. Herrin claimed that Peeches and C-A-M were negligent in erecting and maintaining the ladder, which Herrin claimed was improperly affixed to the exterior wall of the premises. Peeches and C-A-M filed a motion for summary judgment; Herrin filed a cross-motion for partial summary judgment. The superior court granted the defendants’ motion, denied Herrin’s motion, and Herrin appeals. For the following reasons, we affirm.

The undisputed facts established that on the date of Herrin’s fall, defendant Peeches was the sole proprietor of “Peeches at the Track” restaurant in Gainesville; C-A-M owned the building in which the restaurant was located. On March 15, 1994, Peeches arranged for Herrin, an independent contractor, to come to the restaurant to repair a walk-in freezer. Herrin needed to go onto the roof of the building to make the repairs. To reach the roof, he climbed the ladder which was affixed to the exterior of the rear of the building.

Herrin carried his freon tank, which weighed under ten pounds, with him up the ladder. He climbed onto the roof without incident. When coming down the ladder he fell and sustained the injuries which are the subject of this lawsuit. Herrin claimed that his fall occurred because he was unable to maintain a firm grasp and stance on the rungs because the ladder was too close to the building.

It was undisputed that Herrin fell from the portion of the ladder near the top of the building. Herrin estimated that he had traversed three or four rungs before his fall.

James Roper, the contractor who installed the ladder at the request of C-A-M, testified that he had been responsible for renovating the building in which Peeches was located. According to Roper, during the renovations the City inspector informed him that he needed to extend the exterior ladder before a certificate of occupancy could be issued. Roper stated that the ladder extension was completed pursuant to the specific instructions of the City inspector, who then approved the extension and issued a certificate of occupancy. Roper recalled that although the president of C-A-M, Milton Robson, was frequently on the premises and toured the site with him, he did not think that Robson had ever climbed the ladder himself.

With his complaint, Herrin filed the affidavit of a professional engineer, Lewis Waldrop, who stated that the clearance between the center of the ladder’s rungs and the wall was about six inches for most of the distance of the ladder from the ground to the roof. Waldrop stated: “at the top of the ladder, the roof protrudes outward from the wall of the building, and the distance from the center of the ladder’s rungs to this portion of the roof is between three and one quarter and four inches.” He also stated that at the time of Herrin’s fall the City of Gainesville had adopted the National Electric Code and that the American National Standards Institute standards (“ANSI”) provided that the distance from the center of the rungs to the wall should not be less than seven inches. He opined that the relevant professional employees were negligent in failing to properly design, construct, and inspect the ladder to bring it into compliance with the ANSI standard. He also opined that Herrin fell from the ladder because of the insufficient clearance.

Waldrop later provided an affidavit in which he stated that the ladder at Peeches did not comply with the rung clearance and step-across distance requirements of the ANSI standards or of the Occupational Safety & Health Administration (“OSHA”) standards. Waldrop stated that because the ladder did not provide safe access to the roof, it also violated the National Electric Code. Waldrop stated that Herrin’s fall was caused by the violations of ANSI and OSHA standards, i.e., that there was insufficient clearance between the ladder and the wall.

There was evidence from the city inspector that a certificate of occupancy would issue only when the provisions of the National Electric Code regarding sufficient clearance were met. Thus, the city inspector testified that the issuance of the certificate of occupancy in this case indicated that the National Electric Code requirements were met.

It was undisputed Herrin had climbed the subject ladder on several occasions before this fall without incident. At his deposition, Herrin estimated that he had used the ladder to get to the roof at least twice, and maybe as many as five times. Indisputably, he climbed the ladder to the roof 15 or 20 minutes before his fall. By his own account, Herrin had already traversed three or four rungs descending the ladder before his fall.

Herrin submitted an affidavit in which he stated that at the time of his accident he was unaware of the insufficient clearance of the ladder and that he was unaware that the ladder was dangerous. Nevertheless, at his deposition, Herrin stated that during his previous use of the ladder he had experienced problems with the ladder. Specifically, he had previously had a problem: “[j]ust trying to get turned around and get started down because of the way that it was situated.” He stated that other ladders were “more stable at the top” were easier to use. Herrin admitted that the condition of the ladder, the building and the roof was unchanged on the incident date from the previous occasions.

The evidence was undisputed that Peeches had never received reports of any falls from the ladder, nor any complaints about the ladder before Herrin’s fall. Similarly, there was no evidence that C-A-M was aware of any incidents involving the ladder before Herrin’s fall. Further, no evidence was presented that Peeches or C-A-M had notice of violations of ANSI, OSHA or the National Electric Code standards before Herrin’s fall.

1. In several enumerations of error, Herrin claims that the superior court erred in various ways by failing to correctly apply Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997), and by concluding that the defendants were not negligent. Herrin claims that the court erroneously concluded that he had equal or superior knowledge of the defective condition of the ladder and that the court erred in determining that defendants lacked actual or constructive knowledge of the ladder’s condition. The premises liability rules set forth in Robinson v. Kroger Co., 268 Ga. 735, apply to this case. See, e.g., Hannah v. Hampton Auto Parts, 234 Ga. App. 392 (506 SE2d 910) (1998) (Robinson applied in a plaintiff’s suit for fall from metal stairs at the back of a store); Yeh v. Arnold, 232 Ga. App. 725 (503 SE2d 645) (1998) (Robinson applied to plaintiff’s suit arising from fall on exterior stairs which he claimed were slippery and unevenly spaced). In Robinson, our Supreme Court stated: “in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.” Robinson v. Kroger Co., 268 Ga. at 748-749.

“Robinson also confirmed that under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), a defendant moving for summary judgment need no longer affirmatively disprove the nonmoving party’s case; instead the burden on the moving party may be discharged by pointing out by reference to the record that there is an absence of evidence to support the nonmoving party’s case. Although Robinson readjusted this burden with regard to the second element of the cause of action (whether plaintiff lacked knowledge of hazard despite ordinary care), the burden remained the same with regard to the first element. Where defendant points to an absence of evidence on the first element, plaintiff must present evidence the defendant had superior actual or constructive knowledge of the hazard, or else suffer summary judgment.” (Citations and punctuation omitted.) Hardee’s Food Systems v. Green, 232 Ga. App. 864, 865 (502 SE2d 738) (1998). In other words, “Robinson emphasized the fundamental basis for an owner or occupier’s liability — that party’s superior knowledge of the hazard encountered by the plaintiff.” (Citations and punctuation omitted.) Hardee’s Food Systems v. Green, 232 Ga. App. at 864.

As stated in Robinson, the defendant’s knowledge of the defect may be actual or constructive. [C]onstructive knowledge may be based either on evidence that the dangerous condition lasted so long that the defendant should have discovered it, or on evidence that an employee of defendant was in the immediate vicinity and could have easily seen the problem. [Cit.]” Collins v. East R. S., Inc., 228 Ga. App. 627 (1) (492 SE2d 351) (1997).

In this case Herrin presented no evidence that either the contractor who extended the ladder or the defendants were aware that the ladder was defective. Further, Herrin presented no evidence that either the contractor or the defendants should have known that the ladder was defective. The evidence here showed only that the defendants had every reason to believe that the ladder did comply with relevant regulations: it had been carefully inspected, and after modifications, the certificate of occupancy on the building had been issued by the city. The extension to the ladder which Herrin claimed was defective was added specifically so that the ladder would pass the city’s inspection. In fact, testimony of the city inspector showed that issuance of the certificate of occupancy indicated that the National Electric Code requirements were met.

In short, there was no reason that defendants should have discovered the defective positioning of the ladder against the wall. Compare Flournoy v. Hosp. Auth. of Houston County, 232 Ga. App. 791 (504 SE2d 198) (1998). Accordingly, the court properly concluded that defendants lacked actual or constructive knowledge of the defect.

Although we are aware that under Robinson, the lack of evidence of defendants’ knowledge of the defect ends our inquiry, given the circumstances of this case we also examine Herrin’s role in this incident. First, Herrin’s status as an independent contractor is important. For “[a]n independent contractor is expected to determine for himself whether his place of employment is safe or unsafe, and ordinarily may not recover against the owner for injuries sustained in the performance of the contract.” (Citations and punctuation omitted.) Hudson v. Santangelo, 228 Ga. App. 768, 774 (3) (492 SE2d 673) (1997). Moreover, it is clear that the allegedly defective ladder was a static condition. “A claim involving a static defect differs from other slip and fall cases in that when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom.” (Citations and punctuation omitted.) Hannah v. Hampton Auto Parts, 234 Ga. App. at 394.

By his own admission, Herrin had traversed the ladder at least twice prior to the date of his fall. Indisputably, he had climbed the ladder to the roof 15 or 20 minutes before his fall. In addition to his status as a contractor and previous climbs on the ladder, Herrin had experienced previously the precise problem with the ladder’s positioning which he claims caused his fall. Even knowing of this problem, he climbed down the ladder laden with the near-empty freon tank. Given all of these facts, it is clear that defendants did not have superior knowledge of the hazard.

2. Herrin claims that the superior court incorrectly granted summary judgment in light of the evidence of violations of ANSI, OSHA and National Electric Code standards. Again, we reject Herrin’s arguments. “Negligence per se is not liability per se. Negligence, it should be remembered, is in itself only one of the essential elements prerequisite to a cause of action in a given case.” Parks-Nietzold v. J. C. Penney, 227 Ga. App. 724, 726 (2) (490 SE2d 133) (1997); see also Hannah v. Hampton Auto Parts, 234 Ga. App. at 395. In this case, Herrin failed to present evidence of defendants’ knowledge of the defect and summary judgment was proper. Compare Davis v. GBR Properties, 233 Ga. App. 550 (504 SE2d 204) (1998) (factual issue existed when ANSI standards were violated because handrail did not extend to the end of a handicapped-accessible ramp and defendants “were charged with knowledge of their ramp”); Flournoy v. Hosp. Auth. of Houston County, 232 Ga. App. 791 (factual issue presented when the slope on hospital ramp did not conform to standard building code and non-skid coating on the ramp had worn away); Hardeman v. Spires, 232 Ga. App. 694 (503 SE2d 588) (1998) (factual issue presented after plaintiff fell on wet ceramic porch tiles and there was evidence of violation of building code requirement that a guardrail be installed on the front porch).

3. In two additional enumerations, Herrin argues that the court erred in denying his motion for partial summary judgment because evidence that the ladder violated the National Electric Code and OSHA standards established negligence per se. For the reasons above, this argument is without merit.

Judgment affirmed.

Beasley and Ruffin, JJ., concur.

Decided November 9, 1998

Reconsideration denied December 2, 1998

Cathey & Strain, James E. Staples, Jr., James R. Acrey, for appellant.

Weissman, Nowack, Curry & Wilco, Leigh M. Wilco, Vicki V. Mott, for appellees.

       Herrin also filed the affidavit of James Stephens, a registered architect, who stated that Herrin’s fall was because of the insufficient clearance between the rungs of the ladder and the roof and wall of the building. Stephens stated that the architect for the project was negligent in failing to appropriately design the ladder for access to the electrical equipment on the roof.

       Our inquiry here is not resolved simply because the defendants did not install the ladder. “ ‘Because the owner or occupier’s duties to keep the premises and approaches safe are statutory (OCGA § 51-3-1), those duties are non-delegable even though the owner has a contract for another party to provide [the renovations]. OCGA § 51-2-5 (4); [cits.]’ ” Johnson v. Kimberly Clark, 233 Ga. App. 508, 510 (_SE2d_) (1998).

       This result comports with pre-Robinson cases in which a plaintiff was barred from recovery regardless of alleged regulatory violations, if he had equal or superior knowledge as the landowner of a dangerous condition and failed to exercise ordinary care for his own safety. See, e.g., Brantley v. Custom Sprinkler Systems, 218 Ga. App. 431, 432-433 (2) (461 SE2d 592) (1995); Sumner v. Ideal Steel Products, 222 Ga. App. 681, 682 (475 SE42d 708) (1996).