text:
    A97A2328, A97A2329.
    BARGER v. GARDEN WAY, INC.; and vice versa.
    (499 SE2d 737)
   McMurray, Presiding Judge.

Plaintiff John H. Barger brought this product liability action against defendant Garden Way, Inc. (“Garden Way”) d/b/a Troy-Bilt Manufacturing Company, seeking to recover for personal injuries sustained when his hand was allegedly sucked into the discharge chute while the chipper/shredder was running, as plaintiff bent over to brush away a stray or loose bit of vine extending from the discharge chute.

Plaintiff purchased a Troy-Bilt Tomahawk chipper/shredder for personal use in his garden. On April 3, 1992, plaintiff “read his owner/operator manual, in preparation for use of the chipper/shredder. ... In addition to his careful review of the . . . manual, [plaintiff] prepared ... by sharpening [the] blade, by obtaining an additional discharge screen, by installing a new belt, and by wearing protective eyewear. . . . The owner/operator manual specifies that wet, soggy, or green materials may be shredded in the chipper/shredder.” The manual directs the operator to “remove the discharge screen from the chipper/shredder before shredding wet or green materials such as wet, matted leaves, gone-by vegetables, green vegetation like squash vines, etc.”

On April 4, 1992, plaintiff had wet or green garden materials to shred. He “removed the discharge screen from the chipper/shredder before feeding the wet or green materials into the chipper/shredder, in accordance with the instructions of the . . . manual. . . . [D]espite following all of the safety instructions . . . , [plaintiffs] hand was pulled into the discharge chute of the chipper/shredder when he attempted to remove a vine from outside the discharge chute.” Plaintiff sustained “serious permanent injury to his hand and arm, including dismemberment and permanent loss of use of what remained of his hand.”

The theories of recovery included strict liability for defective design, strict liability for failure to warn, negligent design, and negligent failure to warn. The complaint further demanded punitive damages, as well as the expenses of litigation for Garden Way’s alleged stubborn litigiousness. The case was tried to a jury which returned a verdict for defendant on all theories of liability. This appeal followed. Held:

Case No. A97A2328

1. Before trial, plaintiff moved to require defendant to produce “statements in Garden Way’s possession by other persons injured by the product at issue in this case; and [further, to] allow disclosure of relevant information by persons otherwise prohibited from making disclosures [allegedly] due to the existence of confidentiality orders or agreements.” Garden Way opposed such disclosure of testimony by witnesses who had entered into confidentiality agreements, on the ground that the trial court “cannot order Garden Way to give up its legal rights [as] bargained for and memorialized in Confidential settlement Orders/Agreements entered in[to] in other cases. To the extent Plaintiff seeks the deposition of any ‘other persons’ who have executed Confidential settlement Orders/Agreements with Garden Way, Garden Way will not voluntarily waive any of its rights under any such Orders/Agreements.” We are not shown the location, in a record of over 3,670 pages and a transcript of over 3,500 pages, of the precise language of the Confidential settlement Orders/Agreements as relied on by defendant to preclude discovery of witnesses with relevant knowledge of allegedly similar accidents or injuries.

The trial court denied the motion, concluding it had no authority “which would allow th[e] Court to require Defendant to consent to a breach of confidentiality agreements or the confidentiality orders of other courts.” The denial of this motion, in the nature of a motion to compel discovery, is plaintiff’s first enumeration of error.

(a) OCGA § 13-3-45 provides: “If the consideration [for a contract] is good in part and void in part, the promise will or will not be sustained, depending upon whether it is entire or severable. If the consideration is illegal in whole or in part, the whole promise fails.” “ ‘An illegal consideration consists of any act or forbearance, or a promise to act or forbear, which is contrary to law or public policy.’ ‘It is a general rule that agreements against public policy are illegal and void.’” (Citations omitted.) Hanley v. Savannah Bank &c. Co., 208 Ga. 585, 586 (68 SE2d 581). Moreover, “[i]f the consideration upon which a contract is based was given as a result of a mutual mistake of fact or of law, the contract cannot be enforced.” OCGA § 13-5-4.

(b) The public policy of Georgia applicable to this case is stated generally in OCGA § 24-1-2: “The object of all legal investigation is the discovery of truth. The rules of evidence are framed with a view to this prominent end, seeking always for pure sources and the highest evidence.” More specifically, the applicable public policy of Georgia is established by OCGA § 9-11-26 (b) (1): “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. . . .” See, e.g., Dynin v. Hall, 207 Ga. App. 337, 338 (1) (428 SE2d 89).

(c) In a document memorializing an oral settlement agreement, a “provision that the agreement would be confidential unless disclosed as required by subpoena, [court] order, or law . . .” was found to be valid consideration entitling the parties to enforce that agreement. Mitchell v. Lucas, 210 Ga. App. 821, 822 (437 SE2d 792). Like the trial court, we are not aware of any binding precedent holding that a confidential settlement agreement without such a provision is illegal as against public policy. But we agree with the U. S. District Court for the Southern District of Georgia that a court order purporting to prohibit a witness from testifying in response to a subpoena, subsequent court order, or notice of deposition does violate the public policy of Georgia. See Williams v. Gen. Motors Corp., 147 FRD 270, 272 [3-5] (S.D. Ga. 1993) (“Michigan [court] order [incorporating settlement], by facially prohibiting [expert witness] from testifying as to matters outside the scope of any privilege [recognized in Georgia], violates Georgia public policy [and therefore] the Full Faith and Credit Clause does not require [the U. S. District Court for the Southern District of Georgia] to give full effect to the Michigan court order,” applying Nevada v. Hall, 440 U. S. 410, 421 (99 SC 1182, 59 LE2d 416)). The public policy of Georgia does not “permit parties to contract privately for the confidentiality of documents [or testimony], and [thereby] foreclose others from obtaining, in the course of litigation, materials that are relevant to their efforts to vindicate a legal position. To hold otherwise would clearly not serve the truth-seeking function of discovery in [civil] litigation.” Grumman Aerospace Corp. v. Titanium Metals Corp. of America, 91 FRD 84, 87-88 [1] (E.D. N.Y. 1981).

(d) In our view, a provision that a party to a confidential settlement agreement may nevertheless testify or otherwise comply with a subpoena, court order, or applicable law is an implicit term in such a confidential settlement agreement. “An implicit contractual provision exists where such provision is necessary to effect the full purpose of the contract and is so clearly within the contemplation of the parties that they apparently deemed it unnecessary to state it. See Ellis v. Brookwood Park Venture, 161 Ga. App. 242, 243 (288 SE2d 308).” Herring v. Dunning, 213 Ga. App. 695, 698 (446 SE2d 199). Such an interpretation gives full effect to the legitimate purposes of any confidential settlement agreement without running afoul of the public policies of Georgia. In the case sub judice, the trial court erred in concluding that a confidential settlement agreement, even if incorporated as another court’s final order, can operate to preclude discovery by Georgia litigants of the parties to that confidential settlement agreement.

2. Where a judgment or ruling is based on an erroneous theory of law, or upon a misapprehension of the applicable law, reversal is required. All Phase Elec. Supply Co. v. Foster & Cooper, Inc., 193 Ga. App. 232, 233 (2), 234 (387 SE2d 429). In the case sub judice, the trial court’s erroneous ruling on a discovery matter cannot be deemed harmless in this instance. Consequently, we must reverse and remand for additional discovery consistent with this opinion. Upon a subsequent showing that newly discovered evidence is relevant, admissible, and likely to affect the outcome, a new trial is required.

3. Plaintiff’s remaining enumerations have been considered and are found to have been rendered moot.

Case No. A97A2329

4. In the cross-appeal, defendant first enumerates the denial of its motion for directed verdict as to each of plaintiff’s claims, arguing that plaintiff assumed the risk of an open and obvious hazard, and that plaintiff deliberately misused the chipper/shredder by operating the machine when it was partially disassembled.

Defendant’s responses to interrogatories stated in part: “The discharge tunnel was designed so that the machine could run without a screen or bar grate in place, and thereby reducing the clogging caused by the screen or grate. Different variations of the tunnel were considered, but all were essentially the same configuration as the present tunnel.” Plaintiff testified that, after he had finished mulching wet and green vegetation with the discharge screen removed (as directed by the owner’s manual), he intended to “run all the gasoline out of the machine before [he] put it away for the next time.” Standing next to the machine, plaintiff “noticed this branch here, this vine sticking out. . . . When [plaintiff] reached down to take it off, it went [up into the discharge chute] like that, and what stopped [plaintiff], [his] hand going in there further was . . . the chute caught [his] sleeve. . . . You can’t explain how fast. It was just ‘boom,’ (indicating).”

Plaintiff did not slip or fall into the machine. Nor did he intentionally “stick [his] hand up inside the discharge chute.” In brushing away this bit of vine, plaintiff “wasn’t planning to take and put [his] hand [into the discharge chute] or having [his] hand jerked up in there.” Plaintiff agreed that decals on the machine warned users not to “put your hand up in there” (Emphasis supplied.) But despite having examined these warnings plus those contained in the owner’s manual, plaintiff did not feel he had been warned of the possibility that his “hand will be pulled in . . .” the discharge chute. “Nothing was mentioned about pull-in whatsoever in the instructions [plaintiff] read.” Similarly, the manual makes no “mention about putting [a] rod and pin back in [the service door],” prior to resuming operation.

Based on the evidence recited above, a verdict for defendant was authorized but was not demanded. There is no evidence that plaintiff knowingly tempted fate by intentionally placing his hand into the discharge chute, as would evince his assumption of a known risk. A party’s failure to exercise ordinary care to discover the danger is not properly a matter of assumption of the risk, but of the defense of contributory negligence. Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 823 (4), 824 (409 SE2d 524). Contributory negligence is not a defense to a claim of strict liability for product-caused harm. Deere & Co. v. Brooks, 250 Ga. 517, 518 (1) (299 SE2d 704). See also Continental Research Corp. v. Reeves, 204 Ga. App. 120, 128 (4) (b) (419 SE2d 48) (physical precedent). The trial court did not err in denying defendant’s motion for directed verdict. OCGA § 9-11-50 (a).

5. Defendant’s second and third enumerations of error complain of the denial of motions for directed verdicts as to plaintiff’s claims for punitive damages and expenses of litigation. In light of the possibility of new evidence indicating defendant knew of prior instances whereby a user’s hand was pulled into the discharge chute, these enumerations are not ripe for appellate consideration. Brown v. Tomlinson, 246 Ga. 513, 515 (272 SE2d 258).

6. The fourth enumeration contends the trial court erred in refusing to give defendant’s requested jury instruction 18 “on the avoidance doctrine in strict liability.” Defendant argues the avoidance doctrine can be a defense to strict liability claims where misuse of a partially assembled machine is the sole proximate cause of the injury. The charge requested stated that a plaintiff cannot recover if by ordinary care he could have avoided the consequences to himself of any defect in the chipper/shredder in question.

“ ‘[Contributory negligence is not a defense to a claim of strict liability for product-caused harm. Under this rule, it is held that strict liability recovery is not barred by evidence of nothing more than that the injured person failed to discover a defect in the product which injured him. Similarly, contributory negligence consisting of a careless act by the injured person with respect to the product is no defense, where the actual cause of the injury arises from an unanticipated defect in the product itself, and not from the careless act of the plaintiff.” Deere & Co. v. Brooks, 250 Ga. 517, 518 (1), supra. In the case sub judice, the trial court did not err in failing to instruct the jury on this inapplicable theory of defense to a strict product liability claim.

7. Defendant’s fifth and sixth enumerations complain of the charge on the subject of defendant’s compliance with industry standards. The charge as given stated first: “While you may consider a manufacturer’s proof of compliance with industry-wide practices or state of the art, compliance with these does not eliminate conclusively its liability for its design of defective products.” The trial court subsequently charged: “Compliance with applicable industry standards will not preclude an award of punitive damages if you find by clear and convincing evidence that the manufacturer engaged in a deliberate course of conduct which knowingly endangered those using the product.” (Emphasis supplied.) Defendant argues this charge states only an exception to the general rule of non-liability for punitive damages, as proposed in its Request to Charge No. 81, which stated in part: “Generally, if you find that Garden Way’s chipper/shredder complied with the applicable industry standard, then you should not award punitive damages.”

“[A] manufacturer’s proof of compliance with industry-wide practices, state of the art, or federal regulations does not eliminate conclusively its liability for its design of allegedly defective products. [Cits.]” Banks v. ICI Americas, 264 Ga. 732, 733 (1), 736, n. 6, 737 (450 SE2d 671). But “punitive damages, the purpose of which is to ‘punish, penalize or deter,’ are, as a general rule, improper where a defendant has adhered to [applicable] environmental and safety regulations.” Stone Man, Inc. v. Green, 263 Ga. 470, 471 (1), 472 (435 SE2d 205). This is because “such compliance does tend to show that there is no clear and convincing evidence of ‘willful misconduct, malice, fraud, oppression, or that entire want of care which would raise the presumption of [a] conscious indifference to [the] consequences.’ [Cit.]” Id. at 472 (1).

In the case sub judice, the charge as given is a correct statement of the law and correctly notes the important distinction between tort liability for compensatory damages for defective design despite compliance with industry standards, and the general rule of «.ore-liability for punitive damages. Since the legitimate substance of defendant’s requests was thoroughly and accurately stated, we find no error in the charge. Ploof Truck Lines v. Bennett, 221 Ga. App. 789, 790 (2) (472 SE2d 552).

8. The seventh enumeration complains of the failure of the trial court to give requested jury instructions on “impulse,” as in: “If you find that Plaintiff acted on impulse when brushing the vine away from the discharge area and would have been injured even if the warning suggested by Plaintiff had been given, you must find for Defendant on Plaintiff’s failure to warn claim.”

In our view, the substance of this request was adequately covered by the trial court’s instruction: “If you find that Plaintiff knowingly and willfully took a risk which was so obvious that the act of taking the risk in and of itself amounted to a failure to exercise ordinary care for his safety, then the Plaintiff would not be entitled to recover under the strict products liability theory.” A similar instruction on the failure to exercise ordinary care for one’s own safety was given regarding the negligence theory of liability. Regardless of whether plaintiff placed his hand near the discharge chute knowingly or without conscious thought, the danger to consumer users is foreseeable, as confirmed by the existing warnings. The trial court did not err in refusing to give the requested instruction.

9. The trial court admitted the videotaped deposition of Charles Duran, Jr., who testified that his hand was pulled into a chipper/ shredder under similar circumstances when he was attempting to shred bamboo. “What would happen, it would bog the machine down. It wouldn’t come out and it would stop the machine. We had to remove it and then go back and start the machine again, and at the time that I got my hand on this thing was when I thought that the machine was off because it had stopped, okay, to that point, and it sounded like it sounded all the other times it had stopped. I put my hand down to get this thing to pull it out and it grabbed me and pulled my hand back in rather than out.” This evidentiary ruling is enumerated as error.

“In product liability actions, evidence of other incidents involving the product is admissible, and relevant to the issues of notice of a defect and punitive damages, provided there is a showing of substantial similarity. Mack Trucks v. Conkle, 263 Ga. 539 (436 SE2d 635) (1993). ‘Without a showing of substantial similarity, the evidence is irrelevant as a matter of law [and there is nothing upon which the court’s discretion can operate].’ Carlton Co. v. Poss, 124 Ga. App. 154, 155 (183 SE2d 231) (1971).” Gen. Motors Corp. v. Moseley, 213 Ga. App. 875, 877 (1) (447 SE2d 302).

In the case sub judice, evidence that Charles Duran, Jr.’s hand was suddenly and unexpectedly drawn into the discharge chute was substantially similar to the circumstances as testified to by plaintiff. The trial court did not err in admitting this evidence over defendant’s relevancy objection. Mack Trucks v. Conkle, 263 Ga. 539, 544 (3), supra.

Decided March 13, 1998

Reconsideration denied March 31, 1998

Phears & Moldovan, H. Wayne Phears, Richard E. Harris, for appellant.

Drew, Eckl & Farnham, W. Wray Eckl, Peter H. Schmidt II, for appellee.

Judgment affirmed in Case No. A97A2329. Judgment reversed in Case No. A97A2328 and case remanded with direction.

Beasley and Smith, JJ, concur in Divisions 1, 2, 4, 5, 6, 7, 8, 9, and in the judgments.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A97A2419.
    NEW MADISON SOUTH LIMITED PARTNERSHIP et al. v. GARDNER.
    (499 SE2d 133)
   Beasley, Judge.

Frederick Gardner sued appellant apartment owners and managers seeking damages he sustained allegedly as a result of conduct by John Hales, an employee of appellants. Gardner did not sue Hales. Appellants enumerate as error the denial of their motion for summary judgment in which they claim they are not liable for Hales’ actions when he shot and paralyzed Gardner. They rely on three grounds: (1) Hales’ actions were outside the scope of his employment; (2) appellants took reasonable steps to determine Hales’ competence before hiring him; (3) appellants, as owners or occupiers of property, owed no duty to Gardner because he was shot after he left the property and was no longer an invitee. The applicants’ interlocutory appeal was granted.

Construing the evidence most strongly against appellants, Hales was the “courtesy officer” of the New Madison Apartments (Madison), and appellants are the owner/managers of Madison and Hales’ employer. Madison is an affordable housing complex for low-income individuals located in Savannah. Hales’ duties were to enforce the rules and regulations, handle loitering, “patrol the grounds, report any illegal activity (and) report to management any concerns about residents.” He also had the duty to “walk the property” and was told to take “appropriate action” in response to a problem. Hales was a tenant at Madison. Gardner lived at his girl friend’s apartment at Madison and had for some time. Gardner had known Hales for several years.

On Friday night March 11, 1994, Gardner came home from work at 5:00 p.m. and relaxed on the porch of his girl friend’s apartment drinking Colt 45 Malt Liquor. By 11:00 p.m. he had consumed at least three twenty-two-ounce bottles and was playing music on his radio. Hales approached Gardner at about 11:00 p.m. and, because playing loud music was prohibited at Madison at this hour, asked him to turn down the radio. Gardner went inside, reduced the volume, and returned to the porch.

Gardner was carrying in his jacket pocket, without a license, a .25 caliber automatic pistol. Hales also carried a gun, but Gardner did not notice it. Heated words were exchanged. Gardner testified he said something about Hales’ wife and became angry because Hales said things about him and his girl friend. Hales did not threaten Gardner in any way and left without further incident.

On Saturday morning, at approximately 10:00 a.m., Hales reported the event to Winnetta Carter, the resident manager. She told Hales she would take care of the matter. There is no evidence that Gardner violated any Madison rule or regulation of which Hales was aware after the music was turned down or on Saturday morning.

Shortly after speaking with Carter, Hales was near Gardner’s girl friend’s apartment talking to an acquaintance when Gardner came out. Both men were armed. Gardner approached Hales and said “John, me and you need to talk and try to iron out these differences and stuff like that.” He later contended he was trying to make up with Hales. Gardner testified that Hales said “we’ll iron it out, but we’ll iron it out outside of Madison,” and Gardner replied “ok.” He understood that the differences between them were to be resolved in some other location. Gardner testified that Hales said nothing more, did not threaten him, got in his vehicle, drove off the Madison property and parked near the pool at the neighboring Allen Apartments, which appellants do not own or manage.

Gardner walked from the Madison toward the Allen apartments with his gun in his jacket pocket on the way to the store. He saw Hales and approached him. The two men confronted one another on the grounds of the Allen Apartments and/or in the adjacent street. Hales shot Gardner four times, paralyzing him from the waist down.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).”

1. Scope of Employment/Respondeat Superior

“A master is liable for the willful torts of his servant, committed in the course of the servant’s employment, just as though the master had himself committed them.” This includes a wilful and unjustified assault, and incidents where the servant evinced anger, malice or ill will toward the victim.

But if the injurious act is not within the class of activities performed on behalf of the employer, the employer is not bound. “If a servant steps aside from his master’s business to do an act entirely disconnected from it, and injury to another results from a doing of the act, the servant may be liable, but the master is not liable.” “Thus, the test of liability is whether the tort was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment.” The test is not strictly dependent on whether the incident occurred during the time covered by the employment or at the place of business.

“Whenever there is a mingling of personal motive, and performance of duties of his employer in the doing of any act by a servant, a jury question is created as to whether or not there is a deviation from employment, and if so, whether the deviation was so slight as not to affect the master’s responsibility for the servant’s act.” These motives may be mingled where the employee has been provoked by harsh words related to the manner and method in which he performed his duties.

“The question whether or not the servant at the time of an injury to another was acting in the prosecution of his master’s business and in the scope of his employment is for determination by the jury, except in plain and indisputable cases.”

There is no evidence, direct, circumstantial or inferential, that Hales’ actions off Madison property in shooting Gardner were done within the scope of the actual transaction of any of Madison’s business for accomplishing the ends of his job. After the Friday night incident, the only further action taken by Hales with regard to the loud music was to report the incident to Carter. Hales coincidentally encountered Gardner on the Madison property thereafter but took no official action, enforced no rules, and spoke only of their personal business. There is no evidence that Hales was aware of any rule violations by Gardner at that time. Hales did not threaten Gardner and he left the Madison property. There is no evidence he was on duty when he left. The only evidence of provocation was purely personal statements made by the two men about each other’s wife or girl friend, totally unrelated to Hales’ performance as a courtesy officer.

There was not even evidence of mingling of personal motives and performance of duties. It is undisputed that Hales stepped aside from Madison’s business when he left the property after taking no further action involving Gardner while on the property. Both of them deliberately left to resolve their dispute beyond its borders.

Gardner argues that Hales’ own testimony shows he was acting within the scope of his duties when he stated that he was instructed by his supervisor to handle matters “the way you see fit.” Even if this testimony is admissible, a jury could not reasonably infer that this instruction authorized Ye-initiation of a personal matter off the premises in a violent manner. Hales had full opportunity to take any other official action necessary to accomplish his job when he spoke to Gardner earlier Saturday morning, yet he did nothing. The location of the incident, the subject matter, the time of the incident, and Hales’ actions were outside the scope of employment.

In a separate lawsuit arising out of the same incident, Hales’ allegation that his actions “[arose] out of the performance of his duties as a security guard” are not verified and are insufficient to create an issue of fact. Gardner contends Hales admitted in a deposition in that suit that he was still patrolling on Saturday after he reported the Friday night incident to Carter. First, the deposition is not in the record. Second, the cited testimony does not allow an inference that Hales continued to “patrol” when he left the Madison property.

Comparable to this case are Rogers v. Fred R. Hiller Co. &c., 214 Ga. App. 448 (1) (448 SE2d 46) (1994) (summary judgment for employer appropriate where no reasonable construction can be drawn except servant’s actions were personally motivated even though during work hours in middle of meeting); Worstell Parking v. Aisida, 212 Ga. App. 605, 606 (1) (442 SE2d 469) (1994) (assault by parking attendant motivated purely by personal matters and not for any purpose beneficial to owner); and Big Brother/Big Sister &c. v. Terrell, 183 Ga. App. 496, 498 (3) (359 SE2d 241) (1987) (actions of servant not in furtherance of the master’s business where servant abandons master’s business and pursues own sexual desires). Compare Bacon, supra, 188 Ga. App. at 704 (master may be liable where servant improperly used gun in violation of company policy if act done in pursuit of master’s business); Minnesota Mining, supra, 92 Ga. App. 24 (issue of fact as to whether employee’s actions were within scope of employment where manager of company softball team assaulted stranger who walked across field and some testimony showed he was angry because stranger was slow to leave).

Odum v. Hubeny, Inc. and Gilbert v. Progressive Life Ins. Co. are distinguishable. In Odum, the altercation was in the restaurant and may have started as part of the employee’s attempts to get the patrons to leave. In Gilbert, the altercation occurred on the premises, and there was no evidence that the employee stepped aside from his employer’s business.

Denial of summary judgment on this issue was error.

2. Negligent Hiring and Retention

“An examination of the cases dealing with negligent hiring reveals that in each instance, at the very least the tortious act occurred during the tortfeasor’s working hours or the employee was acting under color of employment. [Cits.]” “[T]he holding in Lear Siegler acts to shield employers from liability for those torts his employee commits on the public in general.”

There is an exception to this rule which provides that the theory of negligent hiring/retention applies even if the tort was committed outside the scope of employment where there is a special relationship such as landlord-tenant between the tortfeasor and the victim and the tortious conduct arises out of the relationship.

An invitee stands in the shoes of a tenant “insofar as they suffer injury due to the negligence of the owner or occupier of the premises.” Even assuming Gardner was an invitee and not a licensee and that Brown and Davis apply, Harvey Freeman is not applicable because Gardner had abandoned his position as invitee at the time of the tort. Gardner testified he voluntarily left the premises to go to the store. He was not on Madison premises when the confrontation occurred. He had no special relationship with appellants when he was shot. Even if appellants were negligent in hiring or retaining Hales, their actions were not, as a matter of law, the proximate cause of Gardner’s injuries. With regard to appellants, at the time he was shot Gardner was merely a member of the general public. For these reasons and because Hales was acting outside the scope of employment, Gardner cannot claim his damages resulted from negligent hiring or retention, and defendants were entitled to summary judgment in this regard as well.

Decided March 18, 1998

Reconsideration denied March 31, 1998

Forbes & Bowman, Morton G. Forbes, Johnny A. Foster, Scot V. Pool, for appellants.

Savage, Herndon & Turner, Robert B. Turner, Robert S. Kraeuter, Shivers & Associates, Wayne C. Wilson, Howard E. Alls, for appellee.

3. Premises Liability

Appellants’ final enumeration of error is that summary judgment should have been granted on Gardner’s claim of failure of appellants to exercise ordinary care to keep the premises safe because Gardner abandoned his status as invitee when he left Madison before the shooting. It is true as Gardner points out that appellants failed to raise this precise issue below. Nevertheless, an owner or occupier of property is not liable for acts of agents that occur off the premises unless the owner or occupier authorizes or ratifies the action. Gardner voluntarily left the Madison premises prior to the fateful encounter with Hales. There is no evidence appellants authorized or ratified any of Hales’ actions prompted by a personal dispute after he left the premises that Saturday morning.

The trial court erred in denying summary judgment to the defendants.

Judgment reversed.

McMurray, P. J., and Smith, J, concur.

       No distinction is made between appellants on appeal, and all are treated as Madison’s owner/manager and Hales’ employer. For the purposes of appeal they are treated collectively.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       (Punctuation omitted.) Nordmann v. Intl. Follies, 148 Ga. App. 77, 78 (2) (250 SE2d 794) (1978). See also OCGA § 51-2-2.

        Broome v. Primrose Tapestry Mills, 59 Ga. App. 70, 74 (200 SE 506) (1938); Minnesota Mining &e. Co. v. Ellington, 92 Ga. App. 24, 28 (87 SE2d 665) (1955).

        Davis v. Childers, 134 Ga. App. 534, 536 (6) (215 SE2d 297) (1975). See Bacon v. News-Press & Gazette Co., 188 Ga. App. 703, 704 (373 SE2d 797) (1988) (simple presence of a personal motive does not exonerate the employer if the servant is acting in the line of his duty and the prosecution of his master’s work).

       Id. at 705.

       (Citations and punctuation omitted.) Smith v. Myrick, 205 Ga. App. 339, 340 (422 SE2d 236) (1992).

       (Citations and punctuation omitted.) Id.

        Jump v. Anderson, 58 Ga. App. 126, 128 (197 SE 644) (1938); Southern Bell Tel. &c. Co. v. Sharara, 167 Ga. App. 665, 667 (307 SE2d 129) (1983) (an employee may deviate from the scope of employment during the hours of employment).

       See Greenfield v. Colonial Stores, 110 Ga. App. 572, 575 (139 SE2d 403) (1964) (employees pursued plaintiff to another store where assault occurred).

        Davis, supra, 134 Ga. App. at 535 (4).

       See Miller v. Honea, 163 Ga. App. 421, 422 (294 SE2d 629) (1982); McCranie v. Langdale Ford Co., 176 Ga. App. 281, 283 (335 SE2d 667) (1985).

        Jump, supra, 58 Ga. App. at 128. See Bacon, supra, 188 Ga. App. at 704.

         179 Ga. App. 250 (345 SE2d 886) (1986).

       79 Ga. App. 219 (53 SE2d 494) (1949).

        Lear Siegler, Inc. v. Stegall, 184 Ga. App. 27, 28 (360 SE2d 619) (1987).

        Harvey Freeman & Sons, Inc. v. Stanley, 259 Ga. 233, 234 (1) (378 SE2d 857) (1989).

       Id. See also Henderson v. Nolting First Mtg. Corp., 184 Ga. 724, 733-739 (2) (193 SE 347) (1937) (employer may be liable for negligent selection even if the tort was not committed in the scope of employment).

        Davis v. Garden Svcs., 155 Ga. App. 34, 35 (1) (270 SE2d 228) (1980); Brown v. Clay, 166 Ga. App. 694, 695 (305 SE2d 367) (1983).

        Greenfield, v. Colonial Stores, supra, 110 Ga. App. at 574.


author: McMURRAY, Presiding Judge.

text:
    A97A2456.
    LAROCHELLE v. THE STATE.
    (499 SE2d 371)
   McMURRAY, Presiding Judge.

Defendant Larochelle has previously appealed his conviction of trafficking in cocaine to this Court, resulting in the vacating of the denial of his motion for new trial and a remand of the case for an evidentiary hearing to determine certain issues arising from his claim of ineffective assistance of trial counsel in that he was not informed of a plea offer made by the State. Larochelle v. State, 219 Ga. App. 792 (466 SE2d 672). The issues to be addressed by the trial court on remand were "whether trial counsel informed Larochelle of the plea offer and, if so, whether Larochelle knowingly and intelligently waived counsel’s potential conflict of interest through a decision to reject the offer and continue to pursue his and his co-defendant’s common defense. If either question is answered in the negative, the court must resolve a third question, whether Larochelle would have accepted the plea offer made or something similar. An affirmative response to this question requires a new trial.” Id. at 794 (3), 796.

Upon remand of the case, the hearing was conducted and the trial court found that Larochelle was informed of the plea offer and had waived trial counsel’s conflict of interest by continuing to pursue a common defense with his co-defendant. While, in view of the affirmative conclusions as to the first two questions, the trial court was not required to address the third and final question concerning whether Larochelle would have accepted the plea offer or something similar, the trial court’s order does express a conclusion with supporting analysis on the third issue. Larochelle’s motion for new trial was again denied, and he appeals. Held:

1. Larochelle’s first enumeration of error maintains that the trial court erroneously refused to consider the record of the hearing on the motion to disqualify defense counsel. This contention is apparently predicated on the trial court’s ruling, during the remand hearing, sustaining an objection to defense counsel’s attempt to reference in his argument certain testimony which occurred during the hearing on the motion to disqualify trial counsel. The sustained objection was that matters outside the evidence at the remand hearing were being argued since no transcript or testimony had been presented to disclose the testimony at that earlier hearing. Larochelle’s argument on appeal is simply that consideration of the complete record is appropriate in passing on a claim of ineffective assistance of counsel, and he notes that both trial courts and appellate courts have consistently followed this procedure.

Contrary to Larochelle’s assertion, the complete record has been considered in deciding his claim of ineffective assistance. The transcript of the hearing on the motion to disqualify was included in the record submitted and considered in his first appeal. Nonetheless, the scope of inquiry on the remand to the trial court for the hearing now being appealed was limited in scope. The trial court was to conduct an evidentiary hearing and make findings and conclusions on specific issues. See Marsh v. Way, 255 Ga. 284 (336 SE2d 795). It is implicit in such direction that the findings derive from the evidence presented at the mandated hearing. It was the duty of the parties to present at the evidentiary hearing any evidence they wished to rely on with regard to the specified issues, and it was not the duty of the trial court to comb the entire record below in search of relevant evidence. The trial court did not err in sustaining the objection to defense counsel’s argument.

2. The trial court did not err in determining that trial counsel informed Larochelle of the plea offer. The State’s evidence presented at the evidentiary hearing shows that attorney John R. Calhoun was retained to represent defendant and co-defendant Blanchard. Jonathan Hunt, the junior associate in Calhoun’s three-lawyer firm, went to the jail to meet with Larochelle and informed him of the plea offer, albeit the terms stated by Jonathan Hunt were more favorable than those which had actually been offered by the prosecutor. Larochelle denied that anyone mentioned a plea offer to him. The trial court resolved the resulting conflict in the evidence by determining that Larochelle had been informed of the plea offer.

The trial court’s determination that trial counsel informed Larochelle of the plea offer is not rendered incorrect, if we assume, as defendant maintains, Larochelle was represented at trial by only the two more senior attorneys in the firm. The evidence shows that Jonathan Hunt conducted his jail visits at the direction of and as agent of John R. Calhoun, the firm’s senior attorney. There was no determination made, or required under the remand directions, as to whether trial counsel informed Larochelle personally rather than through an agent or representative.

3. The trial court’s affirmative finding of fact on the second question submitted by this Court, that is, whether Larochelle knowingly and intelligently waived counsel’s potential conflict of interest through a decision to reject the plea offer and continue to pursue his and his co-defendant’s common defense, is not supported by the evidence developed at the evidentiary hearing. While Larochelle did proceed with the common defense after learning of a plea offer, it cannot be reasonably deduced that this reflected a knowing and intelligent waiver of trial counsel’s potential conflict of interest.

As noted in the trial court’s findings of fact, “[although Hunt did inform Larochelle of the plea offer, he did not discuss it with him nor make any recommendation pro or con” and “the existence of a conflict of interest was never explicitly explained to Larochelle, so far as we know.” Indeed, trial counsel John R. Calhoun did not consider the plea offer a viable offer or pursue further negotiations for a plea agreement since he felt the plea agreement offer had been made solely to create a possible conflict of interest. An opportunity to make Larochelle aware of the possible conflict of interest and record any waiver thereof on the record was lost when he was absent from the hearing on the motion to disqualify trial counsel. The trial court’s order also notes in retrospect that a serious conflict of interest existed between the duty of trial counsel to be loyal to Larochelle and their duty to be loyal to the co-defendant Blanchard.

Larochelle, a native of Haiti, attended 12 years of school in that country, and, as stated in the trial court’s findings of fact, “speaks halting but adequate English.” Particularly, in view of the difficulty demonstrated by the trial court and attorneys in recognizing and understanding the conflict of interest issues in the present case, there would appear to be no reasonable basis for concluding that these issues would be self-evident to a person of Larochelle’s circumstances. As no attempt was made to explain the implications of the plea offer or potential conflict of interest to Larochelle, we must conclude that he lacked an understanding of the alternatives he faced sufficient to support a finding of a knowing and intelligent waiver. Lloyd v. State, 258 Ga. 645, 646 (2), 647-648 (373 SE2d 1); Whitehead v. State, 211 Ga. App. 121, 122 (438 SE2d 128); Muff v. State, 210 Ga. App. 309, 310 (2), 311 (436 SE2d 47).

4. Apparently anticipating that the issue might be reached on appeal, the trial court entered a finding on the third question of whether Larochelle would have accepted the plea offer made or something similar. The trial court determined that Larochelle would not have accepted the plea offer made or something similar. This conclusion is enumerated as error, and even though it could reasonably be argued that, in the light of the positive conclusions on the first two questions, addressing this issue was beyond the scope of the directions to the trial court, this contention has not been raised and defendant’s argument is directed to controverting the factual conclusions of the trial court. Under these circumstances we deem any technical objection to whether the issue is ripe for appellate review to have been waived and as a matter of judicial economy decline to address this issue sua sponte.

At the evidentiary hearing on remand, Larochelle testified that had he been fully advised, he probably would have pleaded guilty and testified against Blanchard. However, the trial court was authorized to find more persuasive the conflicting evidence which showed that it was unlikely that Larochelle would have accepted the offer made by the prosecutor. The plea offer conveyed by attorney Hunt to Larochelle, ten years to serve in return for a plea of guilty, was actually more generous than the offer actually made by the prosecutor which was also conditioned on Larochelle testifying against his co-defendant Blanchard. However, Larochelle had a familial connection to Blanchard in that he had a child by Blanchard’s sister, who along with another sister had employed John R. Calhoun. The trial court deduced that Larochelle’s refusal of the mistaken, more generous, offer inferred that it was unlikely that he would accept the actual offer made by the prosecutor. Also, there was significant evidence of Larochelle’s confidence of acquittal which also made acceptance of a reduced sentence in exchange for a guilty plea unlikely.

Decided March 19, 1998

Reconsideration denied March 31, 1998

Randall A. Schmidt, for appellant.

Spencer Lawton, Jr., District Attorney, Michael K. Dennard, Assistant District Attorney, for appellee.

The evidence supports a finding, implicit in the trial court’s ruling, that there was no reasonable probability that Larochelle would have accepted the actual plea offer. Thus, we find no error in the trial court’s conclusion that trial counsel was reasonably effective within the perspective of the two-prong test provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674). See also Lloyd v. State, 258 Ga. 645, 646 (2), 647-648, supra; Whitehead v. State, 211 Ga. App. 121, 122, supra; Muff v. State, 210 Ga. App. 309, 311 (2), supra; Walker v. State, 210 Ga. App. 33, 35 (435 SE2d 259).

Judgment affirmed.

Beasley and Smith, JJ, concur.


author: Birdsong, Presiding Judge.

text:
    A97A0994.
    LAWRENCE v. STATE OF GEORGIA.
    (501 SE2d 254)
   Birdsong, Presiding Judge.

The relevant appellate history and facts of this case are as follows: Rodney Lawrence appeals from a final order of forfeiture directing forfeiture of certain property pursuant to the provisions of OCGA § 16-13-49. This Court initially received this appeal and certified certain questions to the Supreme Court pursuant to Ga. Const, of 1983, Art. VI, Sec. V, Par. IV and Art. VI, Sec. VI, Par. Ill (7). Lawrence v. State of Ga., 225 Ga. App. 606 (484 SE2d 341). The Supreme Court declined to assist this Court and returned the appeal for our adjudication.

The State filed a complaint for forfeiture of personal property assets valued in excess of $25,000. The assets are items of jewelry which the State contends constituted proceeds derived from or realized from the sale of marijuana in violation of the Georgia Controlled Substances Act. These assets were seized, pursuant to a search warrant for three residences and a jewelry store owned and operated by appellant.

Appellant’s claim to this property is set out in his “Answer to Complaint For Forfeiture Of Assets Valued At Greater Than $25,000.” Appellant claims that he is an owner of the property within the meaning of OCGA § 16-13-49 (a) (7), because he is a consignee and bailee of the jewelry, that is, a lawful bailee of the jewelry pursuant to a consignment agreement between Jerry Gaskins and himself. In support of his contention, appellant produced a two-page, handwritten agreement with three amendments attached; the agreement is undated. In his answer, appellant identifies Jerry Gaskins as the owner of the jewelry.

Appellant’s sole enumeration is that the trial court erred in holding a bailee of seized property is not an “owner” under OCGA § 16-13-49 and therefore has no standing to challenge forfeiture of the property. Held:

This Court recently held in Jackson v. State of Ga., 231 Ga. App. 320 (498 SE2d 159) (1998) that, under OCGA § 16-13-49, a bailee has a possessory interest in the bailed property, and that such possessory interest confers standing to contest the forfeiture of the bailed property in a forfeiture action. This case is controlling. The trial court erred in holding that a bailee lacks standing to contest the forfeiture of the bailed property. Nor can this Court sustain the grant of summary judgment on the right for any reason doctrine. This record reveals unequivocally that the trial court primarily rested its judgment on an erroneous legal theory — that a bailee lacked standing to contest the forfeiture of bailed property under OCGA § 16-13-49. “ ‘ “[Ojrdinarily, a judgment right for any reason must be affirmed, but where it is apparent that the court rests its judgment on reasons which are erroneous or upon an erroneous legal theory, it commits reversible error.” ’ ” (Emphasis omitted.) Huff v. Valentine, 217 Ga. App. 310, 311 (1) (457 SE2d 249) and cases cited therein. (We do not herein address whether appellant is an innocent owner, whether he entered into a valid bailment contract, whether the owner’s failure to assert a claim would negate the consignee’s property interest in a bailment for sale and deprive him of standing to submit a claim, or whether he has adequately stated the nature and extent of his claimant’s interest in the property within the meaning of OCGA § 16-13-49 (o) (3) (D).)

The final order of forfeiture shall be vacated and the case remanded with direction that the trial court hold a hearing to reconsider the legal basis for its grant of partial summary judgment to the State. The parties shall be given notice and an opportunity to be heard; thereafter the trial court shall enter an appropriate ruling which is not inconsistent with our holding in this case. The parties may appeal any new judgment entered within 30 days after filing thereof. Ga. Const, of 1983, Art. VI, Sec. I, Par. IV.

Decided March 31, 1998.

Steven H. Sadow, for appellant.

J. Tom Morgan, District Attorney, Gregory J. Lohmeier, Assistant District Attorney, for appellee.

Judgment vacated and case remanded with direction.

Johnson and Smith, JJ., concur.


author: Blackburn, Judge.

text:
    A98A0007.
    WATSON v. KROGER COMPANY.
    (500 SE2d 631)
   Blackburn, Judge.

Ruby Watson appeals the trial court’s grant of summary judgment to Kroger Company in this slip and fall case. For the reasons discussed below, we reverse.

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

“[I]n 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. 735, 748-749 (2) (b) (493 SE2d 403) (1997). Moreover, “the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and . . . summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Id. at 748 (2) (b).

Watson testified that, on November 7, 1995, she entered the Kroger store with her grandson, DeShunta Hicks, to buy a bell pepper. As Watson was next to the bell pepper table in the produce section, she slipped and fell on something. Hicks testified that he saw Watson fall, and that when he went to look at the site, he noticed a white, oily substance on the floor that appeared to be ranch salad dressing. The incident occurred next to a rack containing salad dressing jars. Watson’s daughter, Mederia Watson, testified that she was parking the car when Watson and Hicks went into the store. When she went into the store after the fall, she noticed a white, oily substance on Watson’s pants and on the floor. She inspected the salad display and noticed that one of the salad dressing jars was dripping.

Hicks testified that, after the fall, an employee in the produce section told him that they had been meaning to clean up that area. Todd Day, a Kroger employee, testified that, 30 seconds to a minute before the accident, “[i]f that long,” he walked past the area where Watson fell for the purposes of inspection. However, Day did not state whether he had observed the salad dressing on the floor at this time.

1. Actual knowledge. There was evidence from which the jury could conclude that Kroger had actual knowledge of the hazard. As discussed above, Hicks testified that, after the fall, a produce department employee told him that they had been meaning to clean up the area where Watson fell. Drawing all reasonable inferences in favor of Watson, this testimony would support an inference that Kroger had actual knowledge of the spilled salad dressing but failed to clean it up prior to the fall.

Kroger, however, contends that the employee’s statement constitutes inadmissible hearsay because the speaker is unidentifiable and therefore cannot be cross-examined. Kroger relies on Johnston v. Grand Union Co., 189 Ga. App. 270 (375 SE2d 249) (1988), wherein we affirmed a grant of summary judgment to the defendant notwithstanding plaintiff’s testimony that an unidentified employee stated that she knew the automatic doors that injured the plaintiff were not working properly. The plurality opinion stated that “[cjlearly an admission against interest by an employee-agent is admissible (§§ 24-3-33; 24-3-34), but only so long as it is not hearsay. The statement [in question] is inadmissible, because its utterer cannot be identified, located, summoned and cross-examined.” (Emphasis supplied.) Id. at 271 (1).

Kroger’s contention is without merit for two reasons. First, the statement from Johnston quoted above was expressly rejected by a majority of judges in that case, who recognized that “an out-of-court declaration made by an agent during the existence and in the pursuance of his agency is admissible against the principal as an exception to the rule against hearsay.” (Punctuation omitted.) Id. at 272-273 (Banke, P. J., concurring in part and dissenting in part). In this case, the statement by the employee was clearly made in the scope of his employment, as it dealt with Kroger’s knowledge of the hazard and intent to clean it up. Accordingly, the statement was admissible as an admission against interest.

Moreover, Kroger’s contention that the speaker’s identity is not sufficiently established to permit cross-examination is without merit. Although Hicks did not know the name of the employee who made the statement, he clearly testified that it was a black male, wearing an apron, who was working in the produce department putting up fruit. Darryl Lewis Huff, the manager of Kroger’s perishables department at the time of the incident, testified that Todd Day was the only person he knew was working in the produce department that day. Day testified that he was the only person working in the produce department at the time of the accident, and that his responsibilities included keeping the section stocked. Therefore, it cannot be said that there is no evidence as to which produce section employee made the alleged statement. Although Day denied talking to Hicks, a jury could disbelieve this testimony and find that he in fact made the statement in question. Accordingly, the jury could conclude that Kroger had actual knowledge of the hazard.

2. Constructive knowledge. There is also evidence from which a jury could conclude that Kroger had constructive knowledge of the hazard. Day testified that he walked by the spot where Watson fell 30 seconds to a minute before the accident, “[i]f that long,” specifically for purposes of inspection. Drawing all inferences in favor of Watson, a jury could conclude from this testimony that Day passed by the area fewer than 30 seconds before the accident.

Mederia Watson testified that, after the accident, she noticed salad dressing dripping from ajar on the display rack. The jury could conclude that it took the salad dressing more than 30 seconds to drip from the jar onto the floor, and that it was therefore on the floor when Day walked by. Day did not say whether he saw salad dressing on the floor at this time. Day did say that he looked at the floor after the fall and did not see anything. This is in conflict with the testimony of other witnesses and raises a jury question on this issue. Accordingly, the jury could conclude that the dressing was on the floor when Day walked by but that he negligently failed to detect it, and that Kroger should therefore be charged with constructive knowledge of the hazard.

3. Plaintiff’s knowledge of the hazard. With respect to the second prong of the Robinson test, plaintiff’s knowledge of the hazard, Watson testified that she was concentrating on the bell pepper table and did not see the salad dressing on the floor. There was evidence that the floor tiles were the same color as the salad dressing, making it difficult to see the dressing. Under Robinson, this is sufficient to raise a jury question as to Watson’s exercise of due care for her own safety. Robinson, supra.

Decided March 31, 1998.

Buzzell, Graham & Welsh, Stephen M. Welsh, for appellant.

Martin, Snow, Grant & Napier, Robert R. Gunn II, Thomas P. Allen III, for appellee.

Judgment reversed.

McMurray, R J, and Senior Appellate Judge Harold R. Banke concur.


author: Johnson, Judge.

text:
    A98A0010.
    FLANTROY v. THE STATE.
    (501 SE2d 10)
   Johnson, Judge.

Charles Flantroy appeals from his conviction for entering an automobile with intent to commit theft and the denial of his motion for new trial.

The trial court appointed an assistant public defender to represent Flantroy. Nine days before trial, Flantroy announced to the trial court that his attorney seemed to be “working for the court instead of for [him],” claiming counsel was too “negative” about the case and not doing the things he requested him to do. Flantroy asked the court to appoint another attorney. The trial court stated that appointed counsel is an “excellent lawyer,” then entertained additional argument from Flantroy and the attorney. Flantroy stated that he would not have this attorney represent him at trial. The trial judge stated that Flantroy had no right to choose, his own appointed counsel and would have to represent himself. Flantroy responded that he would represent himself. The trial judge then instructed the assistant district attorney to explain to Flantroy the consequences of representing himself in the case. The state’s attorney agreed to do so, although no discussion between the district attorney and Flantroy was transcribed. The trial court dealt with other matters and then informed Flantroy that he would be held to the same standard as an attorney and that he would have to figure out and present his own defenses. Flantroy represented himself at trial and was found guilty. With the assistance of appointed counsel here, he appeals.

1. Flantroy contends the trial court erred in refusing his request that the trial court subpoena as a witness the owner of the car he was charged with entering. He claims that had the witness come forward and testified against him, he could have impeached her by showing she had previously been convicted of falsely reporting a crime. This enumeration is without merit.

In lieu of calling as a witness the car’s owner, who did not see the car being entered, the state relied at trial upon the testimony of the owner’s friend, who did see the crime being committed. The witness testified that she came out of a nightclub and saw Flantroy sitting in the car in which she, the owner, and her friends had ridden. When the witness confronted Flantroy, he took the owner’s purse from the car and walked away. We fail to see how Flantroy was harmed by the car owner’s absence as a witness, particularly since he only wanted the witness to testify so that he could impeach her testimony. Flan-troy had the burden of showing harm as well as error, and he has not done this. See generally Scroggins v. State, 198 Ga. App. 29, 37-38 (2) (401 SE2d 13) (1990). Moreover, “[Flantroy] having elected to represent himself, it was his responsibility, not the trial court’s, to ensure the presence of his witnesses by issuance of subpoenas. OCGA §§ 24-10-20 (b); 24-10-21.” Kegler v. State, 267 Ga. 147, 148-149 (4) (475 SE2d 593) (1996).

2. Flantroy contends for the first time that the trial court erred in not showing on the record that he voluntarily and intelligently waived his right to counsel, or that he was made aware of the dangers and disadvantages of self-representation.

Flantroy was represented by new counsel in the hearing on his motion for new trial, but this issue was not raised. Such issues cannot be raised for the first time on appeal. See Hill v. State, 207 Ga. App. 65, 68 (6) (426 SE2d 915) (1993) (any allegation of a violation of right to counsel must be raised at earliest practicable moment, namely in motion for new trial where defendant represented by new counsel); see generally Hobdy v. State, 222 Ga. App. 625, 626 (475 SE2d 686) (1996) (claim that consent to search not freely and voluntarily given cannot be raised for first time on appeal).

In any event, the record shows that Flantroy was represented by counsel but discharged him. We note that Flantroy’s firing of appointed counsel did not trigger a duty upon the part of the trial court to appoint another attorney. See Jefferson v. State, 209 Ga. App. 859, 861 (1) (434 SE2d 814) (1993). Where a defendant does not have a good reason for discharging his court-appointed attorney, the trial court does not err in requiring him to choose between representation by that attorney and proceeding pro se. Id. Whether the trial court committed reversible error as to this issue is determined based on the peculiar facts and circumstances of the case. See Harris v. State, 196 Ga. App. 796 (1) (397 SE2d 68) (1990). The record before us shows sufficiently that Flantroy’s choice was made after he was aware of his right to counsel and that he was aware of the danger of proceeding without counsel. See id. While Flantroy is correct that the trial court did not set out in the record the precise dangers of proceeding pro se, we find his argument unpersuasive in the context of the facts presented in this case. We find no error. Strozier v. State, 171 Ga. App. 703, 704 (1) (320 SE2d 764) (1984).

3. Flantroy complains that the trial court erred in commenting on the case in the presence of the jury. Relying upon OCGA § 17-8-57, he claims the trial court improperly expressed anger and frustration with him in the jury’s presence. While OCGA § 17-8-57 prohibits judges in criminal cases from expressing or intimating their opinion on what has or has not been proven, and mandates reversal for any violation of the Code section, no such violation occurred here.

The trial court’s comments were limited in scope and did not involve Flantroy’s guilt or innocence. Specifically, the trial judge’s comment that he was holding his temper as best he could was not a comment on the case. Nor was the trial court’s response to Flantroy’s accusation that the trial court was “mad” at him — “Oh God. All I’m telling you is to let [the witness] finish her answer before you ask her another question” — a comment on the case. None of the comments were directed toward a material issue or relevant evidence in the case. See Nance v. State, 204 Ga. App. 653, 654 (420 SE2d 348) (1992).

The trial court’s comments that Flantroy could have had his lawyer subpoena the witness and his reference to “Good God almighty” were all made outside of the jury’s presence. Inasmuch as the purpose of OCGA § 17-8-57 is to prevent the jury from being influenced and the jury was not present at the time of these remarks, the statute was not violated. See McDonald v. State, 170 Ga. App. 884 (1) (318 SE2d 749) (1984).

Finally, we note that during the general charge the court instructed the jury that none of its rulings or comments were intended to be expressions of opinion upon the facts of the case, the credibility of the witnesses, the evidence, or the guilt or innocence of the defendant. We do not agree with Flantroy that the remarks made in the jury’s presence impaired his credibility, as was the case in Brundage v. State, 143 Ga. App. 1, 2 (2) (237 SE2d 473) (1977), where the trial judge’s interrogations and comments did raise issues as to what had or had not been proven. Nor has Flantroy shown by the record that the court’s demeanor constituted an expression of opinion on the case as discussed in Milhouse v. State, 254 Ga. 357, 358-359 (2) (329 SE2d 490) (1985). This enumeration is without merit.

Judgment affirmed.

Birdsong, P. J, and Smith, J., concur.

Decided March 31, 1998.

Hurl R. Taylor, Jr., for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Kevin N. Levitas, Assistant District Attorneys, for appellee.


text:
    A98A0072.
    TURNER v. THE STATE.
    (500 SE2d 628)
   Beasley, Judge.

Convicted of sodomy (OCGA § 16-6-2) and of contributing to the delinquency of a minor (OCGA § 16-12-1), Michael Anthony Turner complains that the evidence varied from the indictment. He also contends the court improperly increased his punishment by imposing the registration requirements of OCGA § 42-1-12. Turner’s unopposed enumeration, citing as excessive the 12-month sentence for the contribution to delinquency conviction, is meritorious.

1. “A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.” Some contact between Turner’s sexual organ and the mouth of the minor was all that was required for a conviction.

The sodomy indictment accused Turner, then age 30, of unlawfully performing and submitting to a sexual act involving his sex organ and the mouth of another in that he “did place his penis in the mouth of” the minor. The evidence showed he allowed his 14-year-old stepsister to kiss his sex organ. The indictment does not fatally vary from the evidence.

“ ‘Our courts have departed from an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense.’ [Cit.]” Only if the allegations fail to meet these tests is the variance “fatal.”

Turner was sufficiently informed to defend the sodomy charge proved. The indictment’s wording would also protect him from subsequent prosecutions for the offense charged.

For example, Smith v. State held there was no fatal variance where the sodomy indictment charged defendant with putting his sex organ in the victim’s anus, but the evidence showed that though there was some contact, no penetration occurred. Similarly, Griffis v. State held the defendant was not misled or prejudiced where the indictment alleged he “placed his penis in the victim’s vagina and anus, while the evidence at trial showed [he] only placed his penis on the victim’s vagina and anus.” Compare Legg v. State, where the court held the variance fatal because the indictment alleged the sodomy involved the sex organ of the accused and the mouth of the victim, but the evidence only showed contact between the sex organ of the victim and the mouth of the accused. If the indictment correctly states whose sex organ and whose mouth are involved in the sodomy, there will generally be no fatal variance.

Turner also complains the indictment alleged he performed and submitted to sodomy, but that the evidence showed he only submitted. As charged by the court, a person commits sodomy when he “performs or submits to” the prohibited sexual act. Thus, the “indictment alleged that the crime was committed in more than one way, i.e., conjunctively, and the court charged the jury that the defendant could be convicted if the evidence showed that he committed the crime in either of the ways alleged, i.e., disjunctively. When a defendant is charged with the violation of a penal statute containing disjunctively several ways or methods a crime may be committed, proof of any one of which is sufficient to constitute the crime, the indictment, in order to be good as against a special demurrer, must charge such ways or methods conjunctively if it charges more than one of them. Accordingly, on the trial of a defendant under an indictment so charging, it is not incumbent upon the state to prove all of such separate ways or methods alleged in the indictment, but the state makes a prima facie case upon its establishment by proof of any one of them.” Proof that Turner submitted to (rather than performed) the sexual act was sufficient to sustain the conviction.

2. Turner contends the court erred in imposing as part of his sentence the sexual offender registration requirements of OCGA § 42-1-12, which was enacted after the offenses occurred. He argues that this violated the ex post facto clauses of the Georgia and United States Constitutions.

The court did not require registration under OCGA § 42-1-12 but rather sentenced Turner to twenty years to serve five, with fifteen years probation. None of the general and special conditions of probation referenced the registration requirements of OCGA § 42-1-12. The court simply informed Turner that upon his release to probation the court believed he would be subject to the registration requirements, but that the Department of Corrections would instruct him regarding such upon his release. Because it was not part of his sentence, there can be no error, whether the information was accurate or not. Secondly, Turner “did not raise his constitutional question of [ex post facto] at trial, and this court cannot consider questions raised for the first time on review. [Cit.]”

3. The State in effect concedes that the trial court erred in sentencing Turner to a 12-month term of imprisonment for Contributing to the Delinquency of a Minor count. The sentence exceeds the maximum sentence authorized by law. This being Turner’s first such offense, five months’ imprisonment was the maximum. The sentence on only this count is vacated and the case remanded for resentencing. The judgment on Count 1 remains undisturbed.

Decided March 31, 1998.

B. Dean Grindle, Jr., for appellant.

Albert F. Taylor, Jr., District Attorney, Mary E. Moore, Assistant District Attorney, for appellee.

Judgment affirmed on Count 1; judgment of conviction on Count 2 affirmed; sentence on Count 2 reversed and case remanded in part for resentencing.

Pope, P. J., and Ruffin, J., concur.

       OCGA § 16-6-2 (a).

        Griffis v. State, 222 Ga. App. 322, 323 (1) (474 SE2d 119) (1996); Wimpey v. State, 180 Ga. App. 529, 530 (2) (349 SE2d 773) (1986).

        Hutchison v. State, 218 Ga. App. 601, 602 (462 SE2d 648) (1995).

        Glass v. State, 199 Ga. App. 530, 531-532 (1) (405 SE2d 522) (1991).

       210 Ga. App. 634, 636 (2) (d) (437 SE2d 333) (1993).

       Supra.

       (Emphasis in original.) Id. at 323 (1); see Winter v. State, 171 Ga. App. 511, 512 (1) (320 SE2d 233) (1984) (molestation indictment alleged defendant placed his finger in the victim’s vagina but evidence showed no penetration occurred; no fatal variance); Farmer v. State, 215 Ga. App. 243, 244 (450 SE2d 271) (1994) (molestation indictment alleged defendant caused victim to place her hand on his private part but evidence showed she jerked her hand away upon feeling his pubic hair; no fatal variance).

       207 Ga. App. 399, 401 (4) (428 SE2d 87) (1993).

       Cf. Ross v. State, 195 Ga. App. 624, 625 (1) (b) (394 SE2d 418) (1990) (fatal variance where indictment charged he placed his mouth on the victim’s sex organ but evidence showed he forced her to perform oral sex upon him); Roberson v. State, 187 Ga. App. 485, 487 (370 SE2d 661) (1988) (fatal variance where indictment alleged defendant placed his mouth on the child’s sex organ but evidence showed he placed his sex organ in the child’s mouth).

       OCGA § 16-6-2 (a).

       (Citations and punctuation omitted.) Stander v. State, 226 Ga. App. 495, 497 (1) (486 SE2d 712) (1997); see Locklin v. State, 228 Ga. App. 696, 697 (1) (a) (492 SE2d 712) (1997) (no fatal variance where indictment alleged accused took money from the person and immediate presence of the cashier but evidence showed he only took it from the immediate presence); Lewis v. State, 212 Ga. App. 310, 311-312 (3) (441 SE2d 851) (1994) (no fatal variance where indictment alleged molestation with intent to arouse sexual desires of child and accused but evidence only showed intent of accused); Lubiano v. State, 192 Ga. App. 272, 273-274 (1) (a) (384 SE2d 410) (1989) (no fatal variance where indictment alleged assault by feet and revolver but evidence showed assault by feet only); see generally Casillas v. State, 267 Ga. 541, 542 (1) (480 SE2d 571) (1997) (though indictment conjunctively alleges two methods of committing crime, no fatal variance if evidence shows only one method employed).

       Cf. State of Ga. v. Jackson, 269 Ga. 308 (496 SE2d 912) (1998), which recently held a substantially different though distantly related statute (the central child abuse registry law — OCGA § 49-5-180 et seq.) unconstitutional for lack of due process protection.

       1983 Ga. Const., Art. I, Sec. I, Par. X; U. S. Constitution, Art. 1, Sec. 9.

       See OCGA § 42-1-12 (a) (1) (B) and (b) (3) (A).

        Wimpey, supra, 180 Ga. App. at 530 (2).

       OCGA § 16-12-1 (d) (1).


text:
    A98A0091.
    RISNER v. R. L. DANIELL & ASSOCIATES, P. C. et al.
    (500 SE2d 634)
   Blackburn, Judge.

Beverly Boren Risner sued her former employer, R. L. Daniell & Associates (R. L. Daniell), for intentional infliction of emotional distress, tortious misconduct, and negligent hiring and retention. The trial court granted R. L. Daniell’s motion for summary judgment, holding that Risner’s claims were barred by the statute of limitation, and Risner appeals. For the reasons discussed below, we affirm.

This Court reviews de novo the grant of a motion for summary judgment to determine whether the trial court properly found that no material issues of fact existed and that the movant was entitled to judgment as a matter of law. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Risner was employed by R. L. Daniell, a small engineering firm, as a receptionist and secretary from August 9, 1993 through September 9, 1994. She claims that she was forced to resign due to the hostile working environment created by her supervisor, Chris Johnston, who was also a vice president and partner in the firm. On September 6, 1996, Risner sued R. L. Daniell, asserting claims of negligent hiring and retention, tortious misconduct, and intentional infliction of emotional distress.

Risner testified that, in the first couple of months after she was hired, Johnston showed her two cartoons she described as sexually explicit. Risner did not tell anyone other than Linda Mock, a receptionist, that she found the cartoons offensive. Risner said that Mock talked to her superior, Charolene Miller, about the cartoons, and that she did not recall seeing any other offensive cartoons after this discussion.

During the next several months, Johnston committed other acts that Risner considered offensive. Risner testified that Johnston always seemed to be in her presence and complained that Johnston would eat lunch with her in the office. On one occasion, Johnston told Risner that he did not enjoy having sex with his wife and asked if Risner ever had any problems with sex in her marriage. Risner also testified that Johnston would look at her breasts and her body instead of her eyes when he talked with her. She never told anyone other than Mock that she found this offensive.

Around January 1994, Johnston asked Risner if she had always had “full legs.” Risner testified that, around April 1994, Johnston kissed her on the cheek to thank her for sending a wedding present to his daughter. In May or June, Johnston offered to help Risner move and told her he would love to see her new apartment. In July or August, Risner gave Johnston a ride to pick up his car, and he kissed her on the cheek and told her, “I really appreciate you doing this for me.” In August, Johnston told Risner that he was having problems sleeping, and that he was having “thoughts” about someone.

On August 25, Risner spoke with Charolene Miller about Johnston’s actions. This was the first time Risner had spoken to anyone in authority at the firm about Johnston. Risner said that Miller told her to tell Johnston how she felt if he did anything else.

The next day, Johnston asked Risner if she would like to go to dinner with him. Risner then told Johnston how she felt about his actions. Johnston told her that she was not the person he was interested in, and that he asked her to dinner because he enjoyed her company. Risner then went to tell Miller about the incident. Miller called Risner at home the next morning and said that she had spoken to Johnston. Miller said that Johnston was sorry and had not realized that he had upset Risner.

When Risner reported back to work on August 29, Miller told her that Johnston was not to have any contact with her. Risner testified that she believed this was an appropriate action by the company. Up until the time she resigned, Risner had no further contact with Johnston, except to say hello. Risner testified that Johnston did not appear upset with her, and that he did nothing to upset her from August 26 until she resigned.

On August 30, Risner spoke with Ray Daniell, the company’s president. Daniell told her that he would not tolerate sexual harassment and was going to keep Johnston away from her. He said that she could have come to him sooner, but she said she did not feel like she could. On September 8, Risner submitted her resignation, effective the next day. She testified that the resignation was based on the events occurring prior to August 26, and that Johnston had not done anything new after that date because they had had no interaction. She testified that she resigned because she did not feel that she had a chance working in the office with Johnston. She said nothing particular happened on September 8 to make her decide to resign.

The parties agree that the limitation period for each of Risner’s claims is governed by OCGA § 9-3-33, which provides that claims for personal injury must be brought within two years after the cause of action accrues. The complaint in this action was filed on September 6, 1996. Accordingly, if Risner’s claims accrued before September 6, 1994, they are barred by the statute of limitation.

In her deposition, Risner admitted that she suffered no acts of harassment after August 26, 1994, and that her decision to resign was based on actions occurring prior to that date. Since suit was not filed until more than two years after August 26, 1994, defendant contends that Risner’s claims are barred by the statute of limitation. Risner, on the other hand, contends that defendant’s actions constituted a “continuing tort,” and that the limitation period did not begin running until she resigned.

In Adams v. Emory Univ. Clinic, 179 Ga. App. 620 (347 SE2d 670) (1986) (physical precedent only), we held that a plaintiff’s claims against her employer arising out of a systematic course of harassment by her supervisor were barred by the two-year statute of limitation. In that case, the employee submitted her resignation on August 6, although she continued to work until September 3. The employee argued that the tort was continuing in nature, and that the limitation period did not begin running until September 3. We held, however, that the employee’s cause of action accrued no later than August 6, because she admitted that, from that date on, she was no longer subjected to the conduct for which she filed suit. Id. at 622.

Adams relied on the following language in the Supreme Court’s decision in Hoffman v. Ins. Co., 241 Ga. 328, 330 (245 SE2d 287) (1978): “The test to be applied in determining when the statute of limitations begins to run against an action sounding in tort is in whether the act causing the damage is in and of itself an invasion of some right of the plaintiff, and thus constitutes a legal injury and gives rise to a cause of action. If the act is of itself not unlawful in this sense, and a recovery is sought only on account of damage subsequently accruing from and consequent upon the act, the cause of action accrues and the statute begins to run only when the damage is sustained; but if the act causing such subsequent damage is of itself unlawful in the sense that it constitutes a legal injury to the plaintiff, and is thus a completed wrong, the cause of action accrues and the statute begins to run from the time the act is committed, however slight the actual damage then may be.” (Punctuation omitted.)

Decided March 31, 1998.

Leslie J. Cardin, Sharon L. Hopkins, for appellant.

Sullivan, Hall, Booth & Smith, Roger S. Sumrall, Heather R. Clark, Bates & Baum, Beverly B. Bates, John C. Stivarius, Jr., for appellees.

In Smith v. Tandy Corp., 738 FSupp. 521 (S. D. Ga. 1990), the District Court for the Southern District of Georgia, relying on Adams and Hoffman, rejected the continuing tort theory and held that a plaintiff’s claims for sexual harassment based on acts occurring more than two years before the plaintiff filed suit were barred by the statute of limitation.

In this case, plaintiff admitted that she had no interaction with Johnston after August 26, 1994, and that he1 committed no acts of harassment after that date. She admitted that her decision to resign was based on his actions prior to that date. Although plaintiff argues that her claims are based on defendant’s continuing failure to discipline or terminate Johnston, and that the date of her resignation is therefore the relevant date, she points to nothing new that occurred on or after September 6, 1994 which caused her to resign. In an affidavit filed after her deposition, Risner stated that her supervisor suddenly became more critical of her work after she complained of Johnston’s conduct. Pretermitting the issue of whether this affidavit contradicted her deposition testimony, Risner did not state in her affidavit that her resignation was due to actions occurring on or after September 6, 1994. Indeed, she admits that, by the time she spoke with Ray Daniell on August 30, 1994, she “was totally miserable and felt [she] was being ostracized by [her] co-workers and by management.” Accordingly, her claims accrued prior to September 6, 1994, and are thus barred by the statute of limitation.

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A98A0248.
    LaSONDE et al. v. A & E REAL ESTATE SALES & MANAGEMENT, INC. et al.
    (500 SE2d 636)
   Judge Harold R. Banke.

The underlying case arose after A & E Real Estate Sales & Management, Inc. (“A & E”) sought a writ of possession against Mary B. LaSonde, a tenant. LaSonde answered and counterclaimed for $15,000. Shortly thereafter, Jack LaSonde, her husband, successfully moved to be joined as a party defendant. While the case was pending, the LaSondes moved to stay the proceedings claiming that Jack LaSonde had filed a Chapter 13 bankruptcy petition. They asserted that Jack LaSonde’s bankruptcy filing entitled Mary B. LaSonde, as his co-debtor, to an automatic stay.

When neither Mary LaSonde nor her counsel appeared at trial, the court dismissed her answer and counterclaim and her jury trial demand. The court entered a default judgment only against Mary LaSonde for $9,304 and granted a writ of possession against her. The court later ordered a stay for all proceedings against Jack LaSonde. Enumerating four errors, Mary LaSonde appeals. Held:

1. LaSonde contends that the trial court erred in awarding the default judgment against her because the creditor had actual knowledge of her husband’s bankruptcy petition. She claims that the automatic stay provisions of 11 USC § 362 prohibited the continuation of the action against her.

The order at issue holds only Mary LaSonde, not Jack LaSonde, liable for the past due rent and court costs. It is undisputed that when A & E instituted its action, it sought back rent and late fees as well as the possession of the premises only from Mary LaSonde. Notwithstanding Jack LaSonde’s request to become a defendant, the judgment does not refer to him.

Although Mary LaSonde claims that she and her husband were co-debtors with respect to the subject lease, the record contains no evidence documenting this bare assertion. Further, in the absence of any transcript of the proceedings, we must assume that the evidence authorized the trial court’s implicit determination that Mary LaSonde was not protected by the automatic stay provisions of 11 USC § 362 (a) or the co-debtor stay provisions of 11 USC § 1301. Parks v. Texas Commerce Bank, 229 Ga. App. 467, 468 (494 SE2d 276) (1997). See Burnette v. McCarter, 211 Ga. App. 781, 783 (3) (440 SE2d 488) (1994) (failure to provide transcript precludes consideration of evidence heard by the trial court). Accordingly, we are unable to find that the trial court erred by awarding the default judgment or by refusing to set it aside. See id.

Decided March 31, 1998.

Antonio L. Thomas, for appellants.

Bischoff & White, James E. Bischoff, Lloyd W. Walker, for appellees.

2. LaSonde contends that the trial court erred by permitting the substitution of Allen Philpot for A & E as the plaintiff without motion and notice after the bankruptcy petition was filed. She claims that this substitution of parties violated OCGA § 9-11-25. Inasmuch as Philpot owns the residence being leased and is the real party in interest, it is difficult to envision how LaSonde was harmed by this change in parties even assuming for the sake of argument only that there was error. Stovall v. Fed. Savings &c. Ins. Corp., 260 Ga. 475, 476 (1) (396 SE2d 484) (1990); Lewis v. Uselton, 224 Ga. App. 428, 430 (4) (480 SE2d 856) (1997) (party seeking reversal must show error and harm arising from the asserted error).

3. In light of the above holding, LaSonde’s other enumeration is moot.

Judgment affirmed.

Johnson and Smith, JJ, concur.

       Under 11 USC § 1301 (a) a co-debtor means any individual who is liable on a consumer debt with the debtor.

       Philpot is the sole appellee here.