author: Birdsong, Presiding Judge. Blackburn, Judge, Eldridge, Judge,

text:
    A97A2191.
    COFFEY et al. v. BROOKS COUNTY et al.
    (500 SE2d 341)
   Birdsong, Presiding Judge.

This is an appeal, inter alia, of an order granting summary judgments to appellees Brooks County et al. This appeal arises from a suit for money damages for wrongful death and injuries sustained when several appellants wrecked their vehicles in a washed out section of road, which appellants claim, inter alia, was improperly inspected, maintained and/or barricaded by law enforcement and road department employees of Brooks County. The road washed out on the night of the incidents, during the course of an unusually heavy rainstorm. Appellees fall into three groups: (a) employers — Brooks County and Sheriff Chafin; (b) road superintendents and employees; and (c) deputy sheriffs. This case involves various claims based on appellees’ omissions, rather than any affirmative act of negligence by them directly causing the death and injuries at issue. Held:

1. Pursuant to the public duty doctrine “ liability does not attach where the duty owed by the governmental unit runs to the public in general and not to any particular member of the public(,) (except where there is) a special relationship between the governmental unit and the individual giving rise to a particular duty owed to that individual.’ ” City of Rome v. Jordan, 263 Ga. 26, 27 (1) (426 SE2d 861). For a special relationship to exist, each of the following requirements must be satisfied: “(1) an explicit assurance by the municipality, through promises or actions, that it would act on behalf of the injured party; (2) knowledge on the part of the municipality that inaction could lead to harm; and, (3) justifiable and detrimental reliance by the injured party on the municipality’s affirmative undertaking.” Id. at 29 (2). The public duty doctrine, however, has been limited in application to situations involving the duty owed by a governmental entity “to provide police protection to individual citizens.” Dept. of Transp. v. Brown, 267 Ga. 6, 8 (3) (471 SE2d 849); accord Hamilton v. Cannon, 267 Ga. 655, 656 (1) (482 SE2d 370). The public duty doctrine likewise appears to have been limited to situations involving the acts or omissions of third parties whose behavior may be unpredictable. Id. But, this limitation apparently is not so narrow as to limit the doctrine’s application only to unpredictable criminal acts committed by third parties.

Whatever limitation was intended by the majority in Hamilton, supra, and Brown, supra, it appears that they have limited the public duty doctrine so as to exclude from its circumscription public servants other than those engaged in law enforcement activities or who are responsible, under respondeat superior principles, for the acts of law enforcement personnel. Compare Hamilton, supra at 656 (2) and 657-659 (dissent). In this context, the law enforcement appellees in the case at bar are Brooks County (to the extent its alleged liability is based on the negligent acts and omissions of the sheriff and his deputies), the sheriff, and his deputies. The public duty doctrine would not be applicable to any other appellees in this litigation, as they would not be providing “police protection” to the public within the meaning of Hamilton, supra and Brown, supra.

We further find, as a matter of first impression, that “police protection” is a concept which is broader in scope than the mere providing of protection to the public against third-party criminal activity and includes the provision of certain other protective police services. - However, in view of the somewhat imprecisely defined limitations in Hamilton, supra, and Brown, supra, the doctrine’s current scope will have to be established on a case-by-case basis. If the public duty doctrine applies in this case, law enforcement personnel will, in effect, be immune from liability as there exists no special relationship, within the meaning of City of Rome, supra, between the police and any of the appellants.

This Court has construed the public duty doctrine to include police protection provided to the general public against the effects of detected hazardous conditions on the roadways of this state caused by the negligence of some third-party persons or entities. Compare Tilley v. City of Hapeville, 218 Ga. App. 39 (459 SE2d 567), cert. vacated, 220 Ga. App. 916. We cannot accept appellees’ contention that appellants’ claims were predicated solely upon a hazardous situation caused by highway department personnel rather than by nature. Certain other states, however, which utilize the public duty doctrine, have employed it when the police are attempting to protect the general public against the effects of hazardous conditions caused by nature (acts of God). Compare Bradley v. Board of County Commrs., 890 P2d 1228, 1232 (8) (Kan. App.) with Mullins v. Town of Clarkstown, 583 NYS 652, 654 (3 & 4), citing Cuffy v. City of N. Y., 69 NY2d 255 (513 NYS2d 372).

Under the facts of this case, including the nature of the hazardous condition and the policies of the law enforcement personnel regarding such hazardous highway conditions, we find that the law enforcement officers were engaged in police protection of the public when they inspected and elected whether to blockade public roads within the county which were in various stages of flooding. However, because the recent cases of Hamilton, supra and Brown, supra, limit the public duty doctrine in this state to those situations involving the duty owed by a governmental entity to provide police protection to individual citizens and, because Brown, supra, also appears to limit the public duty doctrine to police protection situations involving the acts or omissions of third parties whose behavior may be unpredictable, we are compelled not to extend the public duty doctrine to provide immunity from liability to the law enforcement officers engaged in the protection of the public at large from hazardous conditions caused by the weather rather than by a third party. Thus, unless the Supreme Court revisits this issue, future protection, by the public duty doctrine, of law enforcement officials in situations involving hazardous or emergency conditions such as this may depend upon the will of the General Assembly.

2. The uncontroverted evidence establishes there was a major storm in the area; numerous sections of public roads were flooding simultaneously, and law enforcement officials and highway supervisors and employees were working to barricade and close those roads considered to impose the most danger to the public. The sheriff’s dispatchers were so busy receiving radio and telephone calls from concerned citizens and law enforcement officers that all calls were not recorded.

The doctrines of sovereign immunity and official immunity are promulgated in Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983, as amended in 1991. Pursuant to this constitutional provision, county employees have been included within that class of persons entitled to official immunity from suit for discretionary acts performed without malice in their official capacity. Kordares v. Gwinnett County, 220 Ga. App. 848, 851 (470 SE2d 479), citing Woodard v. Laurens County, 265 Ga. 404, 406 (456 SE2d 581). But, no official immunity is provided for ministerial acts negligently performed or for discretionary acts performed with actual malice or an intent to injure. Crisp County School System v. Brown, 226 Ga. App. 800, 802 (2) (487 SE2d 512). Appellants contend that the various county employees were all engaged in the performance of ministerial acts and thus could be held liable for their negligent acts or omissions. Whether acts are discretionary or ministerial depend on the circumstances of the particular case. Id.

In view of the effect of recent holdings of our Supreme Court, as recognized by this Court in some recent cases, there exists a viable issue regarding the extent to which county employees are cloaked with the protection of sovereign as well as official immunity. As clarified in Gilbert v. Richardson, 264 Ga. 744, 750 (4) (452 SE2d 476), any cause of action averred against a county officer or employee in his official, as opposed to his personal, capacity “is in reality a suit against the state and, therefore, involves sovereign [governmental] immunity.” (Emphasis supplied.) Crisp County, supra at 802 (1).

(a) Article IX, Section II, Paragraph IX of the Georgia Constitution of 1983 provides: “ ‘[T]he General Assembly may waive the immunity of counties, municipalities, and school districts by law.’ ” Compare Art. I, Sec. II, Par. IX (a) and (d). “Considering the 1991 [constitutional] amendment [to Art. I, Sec. II, Par. IX,] as a whole, we hold that sovereign immunity is waived by any legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver.” Gilbert, supra at 748 (3); Art. I, Sec. II, Par. IX (e). We are aware of no legislative act which specifically waives the county’s sovereign (governmental) immunity, under the circumstances of this case. Compare Kordares, supra at 848 (OCGA § 32-4-41 does not waive county’s sovereign immunity). Thus, as to all causes of action averred against the county, and against the sheriff, his deputies, the road superintendents, and road employees for negligent acts or omissions in their official capacity there existed no waiver of governmental (sovereign) immunity. Compare Riddle v. Ashe, 269 Ga. 65 (495 SE2d 287) (Georgia Tort Claims Act gives state employees immunity from suit and tort liability for conduct performed within the scope of the employee’s official duties) with Woodard, supra at 405 (1); Gilbert, supra, and Crisp County, supra.

(b) Having discussed the current state of the law regarding sovereign immunity, we will now address the issue of official immunity. Prior to the flooding, road superintendents and their employees were responsible to check the roads and make judgments regarding necessary repairs. This responsibility involved the exercise of personal deliberation and judgment regarding resource allocation. As in Kordares, supra at 851, there was no established procedure or instruction which the individual road supervisors and employees failed to follow during their inspections of the roadways, therefore, the acts relating to the manner of inspection and the action to be taken regarding the results obtained during the inspection, upon which any liability is premised, were discretionary. Kordares, supra at 851; see also Hemak v. Houston &c. School Dist., 220 Ga. App. 110 (469 SE2d 679). Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty. See Gregory v. Cardenaz, 198 Ga. App. 697, 698 (402 SE2d 757) (1991). Decisions by road supervisors and employees, during the storm, as to when to repair or barricade various roads also were discretionary resource-allocation decisions made under emergency conditions. (Appellants’ cited authority, including Nelson v. Spalding County, 249 Ga. 334 (290 SE2d 915) and Joyce v. Van Arsdale, 196 Ga. App. 95 (395 SE2d 275), is distinguishable from the facts of this case.) As to the performance of these discretionary acts by appellees/ defendants, there exists no evidence of record that such acts were performed either with malice or an intent to injure. See Woodard, supra at 406 (2). Accordingly, all appellees who were law enforcement (except for Deputy Rowe, regarding any negligent performance of a ministerial act done in his personal capacity — if properly averred in the complaint), road department supervisors, or road department employees would be shielded by the defense of official immunity from liability for any averred cause of action based on acts or omissions in their individual capacities. Id.

(c) Deputy Rowe did not barricade the road because, based on his inspection, he concluded that he could drive across the road. This decision clearly required the exercise of personal deliberation and judgment and constituted a discretionary act. The decision whether to barricade the road in response to the flooding road lay within the deputy’s discretion. Compare Woodard, supra at 407 (2); see Gregory, supra at 698. Likewise, any decision made by road superintendent Tucker whether to barricade the road constituted a discretionary, as opposed to a ministerial act; moreover, there exists no evidence in the record that Mr. Tucker was aware of the actual conditions on the road in question before the accidents occurred.

(d) Adopting the definition of ministerial and discretionary acts, as announced in Gregory, supra, we also find that the averred negligent conduct of all the appellee employees, except for the requirement Deputy Sheriff Rowe had to report the condition of the flooded road, involved some form of discretionary act or function on their part. The decision by the other law enforcement officers and by road supervisors and employees as to which roads to barricade and close first constituted decisions as to the allocation of resources and, as such, involved discretionary acts or functions. See City of Rome, supra at 28 (1). Therefore both the defense of sovereign and official immunity apply to these appellees/defendants. Further, when the evidence and all inferences are construed in favor of the respondents to the motions, there exists no evidence of record that Deputy Horton was negligent in the performance of any ministerial duty.

However, appellants/plaintiffs also claim that Deputy Rowe negligently failed to report the dangerous road conditions to the dispatcher after coming upon the flooded roadway prior to the accidents. While Deputy Rowe testified that he did report the conditions on more than one occasion, the dispatcher testified that she did not recall such a report being received from Rowe. She also testified that there was no record of such calls in her log book, although the log may not be accurate due to the emergency conditions in the County that evening. Moreover, Rowe also admitted that he made the report to the dispatcher, as far as he could remember, but it had been a long time. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). The reasonable inference to be drawn from this testimony is that Deputy Rowe could not testify unequivocally that he made the calls. If a cause of action has been properly averred against Deputy Rowe for the negligent performance of a ministerial act in his individual capacity, a genuine issue for jury resolution would certainly exist as to whether Rowe, in fact, notified the dispatcher of the condition of the flooded road. If the jury concludes Rowe failed to report the flooding, it would be authorized to conclude that he had negligently failed to perform a ministerial as opposed to a discretionary duty. We find that, under the existing circumstances of this case, the duty of Deputy Rowe to report flooding conditions to the appropriate authorities in order for them to make decisions regarding manpower allocation under emergency conditions is a ministerial function. Further, there exists some evidence that the Sheriff’s Department had a policy requiring deputies to report such conditions, and that Rowe was aware that the situation should be reported. “ ‘A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring the execution of a specific duty.’” Joyce v. Van Arsdale, supra at 96. In this case, Rowe in essence admitted that the policy and road conditions required that the situation be reported. Thus, if appellants/plaintiffs, in fact, adequately averred a cause of action against Deputy Rowe for the negligent performance of a ministerial act in his individual capacity, and a genuine material issue of fact existed as to such claim, Rowe would be protected by neither sovereign nor official immunity, and it would be error to grant him summary judgment as to such cause of action.

Examining the complaint filed against Rowe, we find that it provides sufficient notice pleading of claims of negligence against Rowe for acts done in the scope of his official employment; claims which are barred by the sovereign immunity defense. (Note: Under the narrow interpretation given to OCGA § 33-24-51 with regard to waiver of sovereign immunity, see, e.g., Blumsack v. Bartow County, 223 Ga. App. 392, 396 (1) (477 SE2d 642), any claim against Rowe in his official capacity that he had failed to report the flooded road’s condition while acting in the scope of his official duties, would not give rise to waiver of sovereign immunity even assuming arguendo the County had purchased the requisite liability insurance. The failure to report would not arise from the use of a motor vehicle. Compare Woodard, supra at 405 (1).) Accordingly, the trial court did not err in granting summary judgment to Deputy Rowe as to any claims arising from acts or omissions occurring within his official capacity. A grant of summary judgment must be affirmed if it is right for any reason. Hanna v. McWilliams, 213 Ga. App. 648, 651 (3) (446 SE2d 741) and cases cited therein.

A defendant often is deemed to be sued in his official capacity when the complaint avers negligent acts or omissions which were committed within the official scope of authority (scope of employment rule) of the defendant. Conversely, a defendant often is deemed to be sued in his individual capacity when the complaint avers negligent acts or omissions which were committed outside the scope of authority (scope of employment rule) of the defendant. If we were to apply these rules without modification, the complaint against Rowe would fail to state a cause of action against him in his individual capacity and, for reasons above-discussed, he would be entitled to assert the defense of sovereign immunity against any claims averred against him in his official capacity. However, we find that the Supreme Court in Gilbert, supra, has concluded that a defendant can be sued in his individual capacity for ministerial acts negligently performed within the scope of his authority (scope of employment rule). See generally Gilbert, supra at 752-753. Re-examining the complaint in light of this holding and the notice pleading requirements of the CPA, we find that the allegations concerning the deputy’s negligent failure to perform the ministerial act of notifying the county of the water conditions on the road apply to claims against the deputy in both his official and individual capacity. These latter claims are not barred by the doctrine of sovereign immunity and are not protected by official immunity. Accordingly, the trial court did err in granting summary judgment to Rowe as to all claims. Rowe was not entitled to a grant of summary judgment as to the claim that, in his individual capacity, he had negligently failed to perform the ministerial act of notifying the county of the water conditions on the road.

(e) The sheriff and the road supervisors were exercising discretionary governmental functions, under the facts of this case, in the supervising of their subordinate appellees. See Bontwell v. Dept. of Corrections, 226 Ga. App. 524, 527 (2) (a) (486 SE2d 917); see also Crisp County, supra.

The road supervisors are not liable, in this case, under a respondeat superior theory of liability. See Bob v. Hardy, 222 Ga. App. 550, 553 (4) (474 SE2d 658). However, sheriffs frequently may be held liable for the negligence of their deputies under a respondeat superior theory; “ ‘since deputy sheriffs are employed by the sheriff rather than the county, sheriffs may be liable in their official capacity for a deputy’s negligence in performing an official function.’ ” Brown v. Jackson, 221 Ga. App. 200, 201 (2) (470 SE2d 786). The sheriff and not the county is liable for the misconduct of his deputies. Id.; Wayne County v. Herrin, 210 Ga. App. 747, 751 (3) (437 SE2d 793). In this case, the sheriff who was sued in his official capacity is immune from liability; he is insulated from liability by the defense of sovereign immunity, and that immunity has not been waived in this case. Compare Woodard, supra (unless sovereign immunity is waived that defense bars claims against the county, its commissioners, and its two employees in their official capacity). This case is distinguishable from Gilbert, supra.

(f) Appellants erroneously contend that the various appellees would not be protected by official immunity if their acts were done with reckless disregard for the consequences of their actions. However, “[tjhe 1991 constitutional amendment provides no official immunity defense for ministerial acts negligently performed or for discretionary acts performed with actual malice or an intent to injure.” Crisp County, supra at 802 (2). Acting with implied malice will not deny a defendant an official immunity defense. Id. The record is void of any evidence that the decisions and omissions of any appellees were performed either with actual malice or an intent to injure.

3. Appellants’ final enumeration of error is without merit. None of the appellees listed in the enumeration could be held liable, under the facts of this case, for maintenance of a nuisance. A county is not liable for nuisance claims arising from personal injuries or wrongful death. Kordares, supra at 850 and cases cited therein. See additionally, Division 2, above.

The judgments granting appellees’ motions for summary judgment are affirmed, except that the judgment granting summary judgment to Deputy Rowe as to claims that, in his individual capacity, he negligently failed to perform the ministerial act of notifying the county of the water conditions on the road is reversed. This case is remanded with the direction that the lower court proceed with this suit in a manner not inconsistent with this opinion. In view of the divergent views existing on this Court regarding the legal interpretation to be given the most recent pronouncements of the Supreme Court as to the scope of the sovereign immunity doctrine, we would welcome the grant of certiorari of this case.

Judgments affirmed in part, reversed in part and case remanded with direction.

Andrews, C. J., and Ruffin, J., concur. Blackburn, J., concurs specially. Pope, P. J., Johnson and Eldridge, JJ., concur in part and dissent in part.

Blackburn, Judge,

concurring specially.

I agree that summary judgment was properly granted to all defendants except Deputy Rowe. However, I write separately to clarify the distinction between sovereign and official immunity.

It is true that, “[wjhile suits against public employees in their personal capacities involve official immunity, suits against public employees in their official capacities are in reality suits against the state and, therefore, involve sovereign immunity.” (Punctuation omitted.) Gilbert v. Richardson, 264 Ga. 744, 750 (4) (452 SE2d 476) (1994), quoting Donaldson v. Dept. of Transp., 262 Ga. 49, 56 (414 SE2d 638) (1992). However, the mere fact that a public employee is being sued for actions performed within the scope of his employment does not mean that he is being sued in his official capacity, and is therefore entitled to sovereign immunity.

The Supreme Court extensively addressed the nature of sovereign and official immunity in Gilbert. The court noted that the common-law doctrine of official immunity provided that “while a public officer or employee may be personally liable for his negligent ministerial acts, he may not be held liable for his discretionary acts unless such acts are willful, wanton, or outside the scope of his authority.” Gilbert, supra at 752 (6).

The court then noted that the official immunity doctrine became part of the State constitution pursuant to a 1991 amendment, which provided as follows: “Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. Except as provided in this subparagraph, officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions. The provisions of this subparagraph shall not be waived.” Ga. Const, of 1983, Art. I, Sec. II, Par. IX (d).

In interpreting this section, the Supreme Court stated as follows: “According to the plain language of [the amendment], state officers and employees and those of its departments and agencies are subject to suit only when they negligently perform or fail to perform their ‘ministerial functions’ or when they act with actual malice or intent to cause injury in the performance of their ‘official functions.’ This court has not previously considered the effect of the amendment’s reference to ‘ministerial’ or ‘official’ functions, in contrast to the previous ‘ministerial act’ versus ‘discretionary act’ dichotomy.

“We interpret the term ‘official functions’ to mean any act performed within the officer’s or employee’s scope of authority, including both ministerial and discretionary acts. Under this definition, the 1991 amendment provides no immunity for ministerial acts negligently performed or for ministerial or discretionary acts performed with malice or an intent to injure. It, however, does provide immunity for the negligent performance of discretionary acts, which is consistent with prior law.” (Emphasis supplied.) Gilbert, supra at 752-753.

Thus, Gilbert makes it clear that a public employee may be sued for negligent performance of his ministerial acts, despite the fact that such acts constitute “official functions.” Accordingly, the mere fact that an employee is sued for acts performed within the scope of his employment does not mean that he is sued in his official capacity. To hold otherwise would virtually obliterate the need for a distinction between ministerial and discretionary acts, because a defendant would be able to claim that he is entitled to sovereign immunity regardless of the nature of his actions.

The complaint against Rowe alleged that he negligently failed to perform his ministerial function of notifying the county of the dangerous condition. As such, the suit is one against Rowe in his individual capacity, and he is not entitled to sovereign immunity. For summary judgment purposes, we accept as fact that Rowe failed to notify the dispatcher of the road conditions. This constitutes a failure to perform a ministerial act, and therefore he is not entitled to official immunity.

Eldridge, Judge,

dissenting in part.

Respectfully, I am compelled to dissent in part, because I feel that the grant of summary judgment to the Sheriff of Brooks County and Deputy Rowe should be reversed, because their acts were ministerial in nature and they were not protected by sovereign immunity or official immunity since they were not employees of the county.

Art. I, Sec. II, Par. IX of the 1983 Const, of Ga. was amended by Ga. L. 1990, p. 2435, § 1, which became after ratification the 1991 amendment. The 1991 amendment reads in part: “Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. Except as provided in this subparagraph, officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions.” (Emphasis supplied.) Gilbert v. Richardson, 264 Ga. 744, 746-747 (2) (452 SE2d 476) (1994) held that the 1991 amendment applied to counties, as well as to the State. See also Woodard v. Laurens County, 265 Ga. 404, 405 (1) (456 SE2d 581) (1995). Thus, the 1991 amendment and Gilbert v. Richardson, supra at 752-754, make county employees or the sheriff liable for the negligent performance of ministerial duties in their official capacities.

However, the sheriff is not an employee of a county, because his or her duties are separate and independent from the county as a governmental entity. The sheriff is not an entity of the State, either as an agency or department. Thomas v. Hosp. Auth. of Clarke County, 264 Ga. 40 (440 SE2d 195) (1994). The sheriff is a county officer; however, the sheriff is independent of and not answerable to the governing authorities of the county. See 1983 Ga. Const., Art. IX, Sec. I, Par. III. The duties and function of the office of sheriff are defined by statute or common law. OCGA § 15-16-1 et seq. “The office of sheriff carries with it all of its common-law duties and powers, except as modified by statute.” (Citations and punctuation omitted.) Warren v. Walton, 231 Ga. 495-500 (202 SE2d 405) (1973); see also Wayne County v. Herrin, 210 Ga. App. 747, 753 (3) (437 SE2d 793) (1993). The sheriff and deputies have been held liable on a bond for the faithful performance of their duties since statehood. OCGA §§ 15-6-5; 15-6-6; 15-16-23.

In dicta, Gilbert v. Richardson, supra at 754, recognized that the sheriff individually lacked sovereign immunity in his own name because he is not a subdivision of the state or an agency: “In conclusion, [the sheriff] may not claim the benefit of [the deputy’s] official immunity defense. Because he is being sued in his official capacity, he is entitled to the benefit of [the county’s] sovereign immunity defense. Since, however, the county has waived sovereign immunity to the extent of its liability insurance coverage, [the sheriff’s] sovereign immunity defense is likewise waived to that extent.” Thus, a sheriff in his official capacity has no sovéreign immunity of his own and can be held liable under the doctrine of respondeat superior for employees’ acts or omissions in their official capacity, except where protected by his own official immunity. See Gilbert v. Richardson, supra at 752-754; Lowe v. Jones County, 231 Ga. App. 372 (499 SE2d 348) (1998); Seay v. Cleveland, 228 Ga. App. 836 (493 SE2d 30) (1997); Brown v. Jackson, 221 Ga. App. 200, 201 (2) (470 SE2d 786) (1996).

Gilbert v. Richardson, supra at 746-747 held that sovereign immunity applies to counties as well as county employees. However, the Sheriff of Brooks County and his employees are not Brooks County employees but are the employees of the sheriff. “Since deputy sheriffs are employed by the sheriff rather than the county, sheriffs may be liable in their official capacity for a deputy’s negligence in performing an official function.” Id. at 754. “Deputy sheriffs and deputy jailors are employees of the sheriff, whom the sheriffs alone are entitled to appoint or discharge. (Cit.) They have no duties save alone duties of the sheriff, which as his deputy and his agent they are by law authorized to perform. The sheriff, and not the county, is liable for the misconduct of his deputies. . . . Therefore, the [Brooks] County Sheriff, and not [Brooks] County, would have been the proper party to have sued under a theory of respondeat superior.” (Citations and punctuation omitted.) Brown v. Jackson, supra at 201; see also Lowe v. Jones County, supra; Wayne County v. Herrin, supra at 751. Since the Sheriff of Brooks County is being sued in a respondeat superior capacity, then he does not have the sovereign immunity of Brooks County. Gilbert v. Richardson, supra at 754; see also Brown v. Jackson, supra; Wayne County v. Herrin, supra.

Such acts of alleged negligence by Deputy Rowe, dealing with natural occurrences, fall within ministerial duties, not requiring the exercise of discretion to: (1) furnish immediate notice to the appropriate county agency that can take action; (2) warn the public using that road of the danger by any available means; and (3) temporarily close the road as impassible. Any county employee should have been able to perform such task for the general safety of the public and should have done so under the circumstances without orders from a superior as a ministerial function. This is a case wherein the deputy was on the site of the hazard and failed to do anything to either warn the public or to notify other governmental agencies so that they could act. Such ministerial failure led to successive and repeated car wrecks at the same location of the washed-out roadway, resulting in the wreck of two cars and two trucks with one death. Here, there was a gross dereliction of duty to protect the general public from danger.

The acts and omissions of the sheriff and his deputy were not discretionary acts; I believe that such acts were ministerial or that there existed a jury question as to whether or not the acts were ministerial. “The doctrine of official immunity, developed primarily in Georgia through case law, provides that while a public officer or employee may be personally liable for his negligent ministerial acts, he may not be held liable for his discretionary acts unless such acts are wilful, wanton, or outside the scope of his authority. [Cits.] . . . We interpret the term ‘official functions’ to mean any act performed within the officer’s or employee’s scope of authority, including both ministerial and discretionary acts. Under this, definition, the 1991 amendment [Ga. Const, of 1983, Art. I, Sec. II, Par. IX (d)] provides no immunity for ministerial acts negligently performed or for ministerial or discretionary acts performed with malice or an intent to injure. It, however, does provide immunity for the negligent performance of discretionary acts, which is consistent with prior law. . . . Thus, . . . private employers could be liable for the negligent acts of their employees, despite the employees’ immunity from liability. [Cits.] Following this rule, we hold that the official immunity of a public employee does not protect a governmental entity from liability under the doctrine of respondeat superior. A county may be liable for a county employee’s negligence in performing an official function to the extent the county has waived sovereign immunity. [Cits.]” Gilbert v. Richardson, supra at 752-754.

“Whether the acts upon which liability is predicated are ministerial or discretionary is determined by the facts of the particular case. Nelson v. Spalding County, 249 Ga. 334, 336 (2) (a) (290 SE2d 915) (1982).” Woodard v. Laurens County, 265 Ga. 404, 407 (2) (456 SE2d 581) (1995). Thus, the sheriff is liable under the doctrine of respondeat superior for the acts and omissions of his deputies, even if they, themselves, are immune from liability for discretionary acts. Gilbert v. Richardson, supra at 754; Brown v. Jackson, supra at 201; Wayne County v. Herrin, supra at 751.

“A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” (Citation and punctuation omitted.) Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990); accord Gregory v. Cardenaz, 198 Ga. App. 697, 698 (402 SE2d 757) (1991). There is no evidence that the sheriff or deputies were “invested with a degree of discretion in determining how to respond to [the hazard].” Gregory v. Cardenaz, supra at 698.

The methods of posting a warning or closing a public road are ministerial functions. Joyce v. Van Arsdale, supra at 97; see also Nelson v. Spalding County, 249 Ga. 334, 336 (2) (a) (290 SE2d 915) (1982); Mathis v. Nelson, 79 Ga. App. 639, 642 (54 SE2d 710) (1949). Thus, in temporarily closing the road, putting out warnings on the road of the hazard, or notifying the appropriate county agency, the deputy would be performing a ministerial function as a public servant.

Riddle v. Ashe, 269 Ga. 65 (495 SE2d 287) (1998) deals with a state employee and not a county employee within the ambit of OCGA § 50-21-25 (a), the Georgia Tort Claims Act. OCGA § 50-21-22 (5) expressly excludes counties from the ambit of the act. Gilbert v. Richardson, supra at 747. Thus, Riddle v. Ashe, supra, in no way defines the scope of the county employee’s official duties when OCGA § 50-21-20 et seq. is construed as to state employees. See Gilbert v. Richardson, supra; Woodard v. Laurens County, supra. Instead, Gilbert v. Richardson, supra, has held that official immunity does not arise when ministerial acts are done within the scope of the county employee’s official duties; otherwise, the acts would be personal and not ministerial. “We interpret the term ‘official functions’ to mean any act performed within the officer’s or employee’s scope of authority, including both ministerial and discretionary acts. Under this definition, the 1991 amendment provides no immunity for ministerial acts negligently performed or for ministerial or discretionary acts performed with malice or an intent to injure.” Gilbert v. Richardson, supra at 753. There is no way in which Riddle v. Ashe, supra, leaves such language for further construction as contended by the majority.

Decided March 20, 1998

Reconsideration denied April 2, 1998

Evans & Evans, Larry K. Evans, Samuel F. Greneker, Barry R. Chapman, for appellants.

Long & Denton, Allen D. Denton, Chambless, Higdon & Carson, Thomas F. Richardson, Jon C. Wolfe, Freeman, Mathis & Gary, Theodore Freeman, Hollberg, Weaver & Kytle, George M. Weaver, for appellees.

I am authorized to state that Presiding Judge Pope and Judge Johnson join in this opinion.

       I note that the Georgia Tort Claims Act, enacted under the authority of the 1991 amendment, provides state employees with broad immunity for actions performed within the scope of their official duties, regardless of whether such actions are discretionary or ministerial. OCGA § 50-21-21 (a); see also Riddle v. Ashe, 269 Ga. 65 (495 SE2d 287) (1998). However, this statutory immunity is not applicable to county employees and has no application in this case. See OCGA § 50-21-22 (5).


source: Caselaw Access Project

author: Smith, Judge. McMurray, Presiding Judge, Beasley, Judge, Eldridge, Judge,

license: Public Domain

text:
    A97A2272.
    TUGGLE et al. v. HELMS et al.
    (499 SE2d 365)
   Smith, Judge.

Angela Helms, Deborah Helms, and Donald Helms (the “Helmses”) filed this negligence action against Andrea Leigh Tuggle, Roger Tuggle, and Phyllis Tuggle (the “Tuggles”) to recover damages for injuries Angela Helms received in an automobile accident when she was a passenger in a car driven by Andrea Tuggle. The trial court denied the Tuggles’ motion for summary judgment, and this appeal follows our grant of their application for interlocutory review of the trial court’s order. Because we conclude that the record is devoid of any competent evidence that the automobile accident was caused by any negligent act or omission of Andrea Tuggle, we reverse the denial of the Tuggles’ motion.

The record shows that in the early evening hours of April 16, 1993, Andrea Tuggle drove her two teen-age friends, Angela Helms and Shanda Walker, from the State Line Skating Rink in Bowden, Georgia, to visit another friend who lived in Alabama. After visiting for approximately a half-hour, the three girls were in Alabama en route back to the skating rink when Andrea Tuggle lost control of her vehicle. The girls, who were not wearing seatbelts, were thrown from the vehicle, resulting in serious injuries to Angela Helms and . Shanda Walker’s death.

Neither Angela Helms nor Andrea Tuggle can remember what happened just prior to the collision. The last thing Angela Helms can recall about the evening was being at their friend’s house in Alabama. She acknowledged in her deposition that she could not provide any explanation as to how the accident occurred or any description of Andrea Tuggle’s manner of driving on the way back from their friend’s house, although she did state that, in the past, she had ridden around with Andrea Tuggle and thought “she drove kind of fast.” She could not remember, however, ever having to tell Andrea Tuggle to slow down because she was driving too fast to be safe.

Andrea Tuggle recalled a few more details than Angela Helms. She testified in her deposition that she remembered that the radio was on; that it was a clear day; that there was no traffic; that her parking lights were on, although her headlights were not yet turned on because it was still dusk; and that she was not doing anything in the car other than driving. She had no idea at what speed the car was traveling, and although she acknowledged that the vehicle could have been moving at 45, 55, or 65 mph, she did not think she would have driven in excess of the speed limit. She did not recall seeing a curve sign on the road just before the accident occurred, but she admitted she probably would have “slowed down a lot slower” if she had seen such a sign. She did remember that just prior to the accident, her car was “caught up in” some gravel on the road, although she did not remember if the car slid. None of the girls was drinking alcohol, and Andrea Tuggle did not take any medication that would have affected her driving. She was not prone to seizures, fainting spells, or dizziness, and she had never been cited for a traffic violation.

In their motion below, the Tuggles argued they were entitled to summary judgment because under Alabama’s guest statute, a passenger who is a guest in a driver’s vehicle cannot maintain a cause of action against the driver unless the driver’s conduct is wilful or wanton. Because there was no such evidence of wilfulness or wantonness in this case, the Tuggles argued, the Helmses were precluded from recovery as a matter of law. The Tuggles further contended that because the Alabama Supreme Court has rejected the family purpose doctrine, Roger and Phyllis Tuggle also were entitled to summary judgment as a matter of law. Finally, the Tuggles contended that even if Georgia law, rather than Alabama law, applied, the Tuggles were entitled to summary judgment because no evidence was presented showing that this automobile accident and Angela Helms’s injuries resulted from any act or omission on Andrea Tuggle’s part.

In their response to the Tuggles’ motion, the Helmses asserted that even though the accident occurred in Alabama, Georgia’s choice of law rules mandate that Georgia substantive law govern because Georgia’s interest in this case is superior to that of Alabama. Moreover, because Alabama has rejected the family purpose doctrine and adopted a stricter standard of negligence for automobile guests, Alabama law is contrary to the policy and interests of this state and should not be enforced in Georgia. The Helmses also argued that summary judgment was improper because numerous factual questions remain to be determined regarding Andrea Tuggle’s negligence using the ordinary negligence standard mandated by Georgia law.

In its order denying the Tuggles’ motion, the trial court ruled that applying Alabama law would contravene public policy in this case because Alabama’s guest statute and rejection of the family purpose doctrine would bar the Helmses from a recovery. Applying Georgia substantive law, it went on to rule that the Tuggles were not entitled to summary judgment because it appeared that genuine issues of liability remained for determination by a jury.

1. We need not decide the choice of law issues raised in this appeal because the Helmses are precluded from recovering against the Tuggles under both Georgia and Alabama law.

2. Assuming without deciding that Georgia substantive law governs this case, as alleged by the Helmses and decided by the trial court, we find the trial court erred in denying the Tuggles’ motion for summary judgment.

“To state a cause of action for negligence in Georgia, the following elements are essential: (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty. Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). However, it is axiomatic that the mere fact that an accident happened and the plaintiff may have sustained injuries or damages affords no basis for recovery against a particular defendant unless the plaintiff carries the burden of proof and shows that such accident and damages were caused by specific acts of negligence on the part of that defendant.” (Citations and punctuation omitted.) Cromer v. Hodges, 216 Ga. App. 548 (1) (455 SE2d 94) (1995). This means that a plaintiff cannot rest on generalized allegations, but must come forward with specific facts establishing negligence. Harrison v. Golden, 219 Ga. App. 772, 774 (2) (a) (466 SE2d 890) (1995).

We find that the Helmses have failed to meet their burden of proof in this case because they have failed to establish essential elements of their case against the Tuggles: breach of duty and causation. The record is devoid of any facts to support their generalized allegations that Angela Helms’s injuries were proximately caused by a breach of duty on Andrea Tuggle’s part.

The depositions of Andrea Tuggle and Angela Helms are the only evidence produced by the Helmses in opposition to the Tuggles’ motion for summary judgment. Andrea Tuggle testified in her deposition that she did not know what speed she was driving at the time of the accident, but she did not think she was driving in excess of the speed limit. She further testified that she had not been drinking and had not taken any medication that would have affected her driving, that her parking lights were on, that there was no traffic, and that she was not doing anything in the car but driving.

Angela Helms’s testimony did not rebut Andrea Tuggle’s testimony, because Angela Helms had no recollection of any events immediately preceding the accident. Although she stated in her deposition that she had ridden with Andrea Tuggle several times in the past and thought she drove “kind of fast,” this testimony amounted to no more than pure speculation that Andrea Tuggle was driving too fast on the night in question. See, e.g., Taylor v. N.I.L., Inc., 221 Ga. App. 99, 100 (470 SE2d 491) (1996) (negligence on another occasion not evidence of negligence on particular occasion).

Further, Andrea Tuggle’s acknowledgment that she could have been driving 45, 55, or 65 mph amounts to no more than pure speculation that she was, in fact, driving too fast at the time of the accident, and an argument from this inconclusive testimony that excessive speed was the actual cause of this accident also is pure speculation. “Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment. [Cits.]” Brown v. Amerson, 220 Ga. App. 318, 320 (469 SE2d 723) (1996). A plaintiff “must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough.” (Punctuation omitted.) Niles v. Bd. of Regents &c. of Ga., 222 Ga. App. 59, 61 (2) (473 SE2d 173) (1996). Finally, the fact that the girls were not wearing seatbelts cannot be used in court to establish negligence. See, e.g., OCGA § 40-8-76.1 (d); C. W. Matthews Contracting Co. v. Gover, 263 Ga. 108, 109-110 (428 SE2d 796) (1993).

The record establishes only that Andrea Tuggle lost control of her vehicle just prior to the collision, either when her car was “caught up in” gravel or for some other, unexplained reason. We find that the establishment of this fact alone was insufficient to withstand the Tuggles’ motion for summary judgment. “It is well established that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence.” (Citations and punctuation omitted.) Walker v. MARTA, 226 Ga. App. 793, 798 (1) (487 SE2d 498) (1997). See also Cromer, supra at 549. Because breach of duty and causation are essential elements of a negligence claim, Bradley Center, Inc., supra, we find the trial court erred in denying Andrea Tuggle’s motion for summary judgment.

We also note that the Helmses’ action against Roger and Phyllis Tuggle is predicated upon the family purpose car doctrine and therefore purely derivative in nature. Because the Helmses have failed to establish negligence against Andrea Tuggle, their claims against Roger and Phyllis Tuggle also must fail. See Hughes v. Newell, 152 Ga. App. 618, 623 (4) (263 SE2d 505) (1979).

3. Assuming without deciding that Alabama substantive law governs this case, as alleged by the Tuggles, Alabama law would require the Helmses to carry a higher burden of proof as to Andrea Tuggle’s conduct.

Under the Alabama guest statute, Ala. Code § 32-1-2 (1975), a guest in a car can recover for injuries sustained in an automobile accident only if there is proof that the driver of the car acted with wanton or wilful misconduct. See, e.g., Sellers v. Sexton, 576 S2d 172, 174 (Ala. 1991). The evidence of record demands the conclusion that Angela Helms was a “guest” within the meaning of this Code section. Andrea Tuggle received no benefit “other than hospitality, good will, or the like,” when driving her friends from the skating rink to visit another friend. Dorman v. Jackson, 623 S2d 1056, 1057 (Ala. 1993). See also Rogers v. Kimbrell, 658 S2d 387, 389 (Ala. 1995). Since, as discussed in Division 2, the Helmses have failed to show any facts that could establish negligence, they also have failed to meet the higher burden to demonstrate that Andrea Tuggle was operating her vehicle prior to the accident in a wanton or reckless manner. Accordingly, the Helmses cannot establish their claim against Andrea Tuggle under Alabama law. Id. at 389.

Judgment reversed.

Andrews, C. J, Birdsong, P. J., and Ruffin, J., concur. McMurray, P. J., Beasley and Eldridge, JJ, dissent.

McMurray, Presiding Judge,

dissenting.

I agree with the majority’s application of Georgia law because this state’s higher driver liability standards outweigh Alabama’s lower driver culpability rule, because the parties in this case are all Georgia residents, the fatal collision occurred while Georgia teenagers were briefly traveling (on an interstate road) across their home state’s line, and no Alabama interest is at stake in the case sub judice. See Alexander v. Gen. Motors Corp., 267 Ga. 339 (478 SE2d 123). But I cannot go along with the majority’s holding that these defendants must prevail on summary judgment because the only eyewitnesses able to verify plaintiffs’ claims, Angela Helms and Shanda Walker, are unavailable because of the serious injuries (respectively a state of coma as to Angela Helms and death as to Shanda Walker) they sustained in the fatal collision.

The majority’s holding not only would reward the sort of wrongful conduct which destroys all direct proof of negligence, but also ignores an evidentiary maxim, res ipsa loquitur, upon which Georgia courts have long relied to avert such injustice. Res ipsa loquitur allows a jury to draw an inference of the negligence alleged and, if the requirements of the maxim are met, bars summary judgment for the defendant. From this perspective, I observe that res ipsa loquitur requires “[a] showing (1) that an injury occurred, (2) that the offending instrument was owned or wholly controlled by the defendant, (3) that the occurrence was such as ordinarily would not happen without negligence, and (4) that neither the plaintiff nor anyone else had tampered with the instrumentality causing the injury is sufficient to support an inference of negligence.” (Footnotes omitted.) Green, Ga. Law of Evidence, § 39, p. 86 (4th ed. 1994). These factors are all present in the case sub judice.

It is undisputed that Angela Helms sustained serious injuries while riding as a passenger in a car which Andrea Tuggle was operating; that Angela Helms sustained these injuries during a devastating, single-car collision; that Andrea Tuggle was charged with control of her parent’s car during this collision; that such devastating, single-car collisions ordinarily do not occur without negligence, and that neither plaintiffs nor anyone else tampered with the Tuggles’ car before the collision. Although this proof would not compel a jury to draw an inference of negligence, I believe these circumstances would authorize such an inference. “Whether the inference of negligence is to be drawn is for the jury to decide, provided the manner of the occurrence of the injury or the attendant circumstances are sufficient to warrant the inference.” Green, Ga. Law of Evidence, § 39, p. 86, supra.

I would affirm the trial court’s judgment denying defendants’ motion for summary judgment.

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

Beasley, Judge,

dissenting.

The majority opinion does not decide whether Georgia law or Alabama law applies to the substantive issues in this negligence action, but the two other dissents take the position that Georgia law governs. I agree. Although the accident happened in Alabama just over the state line, there are no Alabama interests to be protected by its laws. The plaintiffs and defendants are Georgia citizens, and the car was titled and permanently located in Georgia. The purpose of the trip was determined in Georgia and was, from the perspective of those in the car, a short excursion for their pleasure. Applying the choice of law principles which were applicable in Alexander v. Gen. Motors Corp., 267 Ga. 339 (478 SE2d 123) (1996), the trial court in this case correctly chose Georgia law.

I also agree with the trial court that there are genuine issues of material fact as to liability. Defendants have not shown that the evidence thus far in the record precludes their liability as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). This is not a “plain and palpable [case] where ‘reasonable minds cannot differ as to the conclusion to be reached.’ [Cit.]” Id. at 493. Defendants have not “demonstrate^] by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the [plaintiffs’] case.” Id. at 495.

The target element here is breach of duty, Andrea’s with respect to her manner of operating the vehicle and her parents’ with respect to their entrustment of the vehicle to her. As pointed out by Judge Eldridge, a driver has a statutory duty to maintain control of the vehicle and obey the Uniform Rules of the Road. Whether she breached this duty or the car left the roadway and crashed for some other reason is not developed sufficiently to conclude that the doctrine of res ipsa loquitur applies. The trial court did not rule on that subject, nor is it a theory advanced by plaintiffs in the trial court or here. It simply is not an issue for our resolution in this appeal.

Eldridge, Judge,

dissenting.

I concur with the majority that Georgia law applies as a matter of choice of law for public policy reasons. I join in the dissent by Presiding Judge McMurray and write to elaborate on his analysis.

Decided March 19, 1998

Reconsideration denied April 2, 1998

Downey & Cleveland, Russell B. Davis, Tara M. Waller, for appellants.

Jack F. Witcher, David L. Smith, Joel R. Cope, for appellees.

Tolbert v. Duckworth, 262 Ga. 622, 624 (1) (423 SE2d 229) (1992) abolished the legal defense in Georgia of “legal accident.” The Supreme Court held that “[t]he defense of inevitable accident ‘is nothing more than a denial by the defendant of negligence, or a contention that his negligence, if any, was not the proximate cause of the injury.’ [Cits.]” Id. at 623-624.

The Uniform Rules of the Road require that a driver maintain and control the vehicle within the lane and not run off the roadway. OCGA §§ 40-6-40; 40-6-41; 40-6-48; 40-6-272. Thus, to lose control of a vehicle and run a vehicle under the defendant’s control off the roadway at a curve and to strike a fixed object is negligence per se. See generally as to loss of control Meacham v. Barber, 183 Ga. App. 533, 537 (4) (359 SE2d 424) (1987); Durden v. Collins, 169 Ga. App. 347, 349 (4) (312 SE2d 842) (1983).

If the defendant ran a vehicle under her exclusive control off the road at a curve without the negligence of another, then such evidence gives rise to an inference of fact that a jury may draw of evidence of negligence per se on the part of the defendant, because drivers do not run off the road absent the negligence of someone, i.e., the driver, passenger, another driver, someone who spills a substance on the road, or the designer and maintainer of the road. See generally as to the doctrine DeVane v. Smith, 154 Ga. App. 442 444-445 (2) (268 SE2d 711) (1980); Wimpy v. Rogers, 58 Ga. App. 67 (4) (197 SE 656) (1938); Ga. Power Co. v. Stonecypher, 47 Ga. App. 386 (170 SE 530) (1933). This is res ipsa loquitur. OCGA § 24-4-9. Where the facts would permit a jury to infer the existence of evidence under res ipsa loquitur, it is error to grant a motion for summary judgment. Dawson v. American Heritage Life Ins. Co., 121 Ga. App. 266 (173 SE2d 424) (1970).

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

       We cannot determine from the record whether or not a curve sign was located on this road at the time of the accident.

       The record contains no other evidence pertaining to this accident such as expert affidavits, police reports, photographs, or statements of witnesses arriving at the scene after the accident.

       We also note that the Alabama Supreme Court has rejected the family purpose doctrine. Winfrey v. Austin, 71 S2d 15 (Ala. 1954).


author: Eldridge, Judge. Birdsong, Presiding Judge,

text:
    A97A2428.
    McGEE v. JONES.
    (499 SE2d 398)
   Eldridge, Judge.

Eddie McGee appeals from a judgment entered upon a jury verdict in favor of Elisa A. Jones. Jones sought damages for injuries Jones sustained when she fell from a swing on the porch of a house she rented from McGee. McGee contends the trial court erred by allowing Jones to introduce in evidence a new swing which was not substantially similar to the actual swing; erred by allowing Jones to testify over his objection that she could not afford to have the surgery her doctors recommended; erred by refusing to allow McGee to introduce evidence of Jones’ Medicaid coverage at the time of the incident; erred by permitting Jones to argue that legal accident was not the law in Georgia; and also erred by giving the jury an unauthorized charge on the liability of a landlord for improper repairs.

The evidence showed that Jones rented a home from McGee in June 1993, and on September 10, 1993, she fell from a swing that was on the front porch of the house. Before he rented the house to Jones, McGee and his family had lived in the house for many years, and he rented the home to other tenants. While he lived in the house, McGee installed the swing in question, which allegedly had been in his family’s possession since before 1931, on the front porch and he used the swing nearly every day. On one occasion, McGee flipped out of the swing while he and his daughter were engaging in horseplay. Other than this incident, however, nothing had occurred with the swing to cause McGee to believe that the swing was dangerous or unsafe.

Before renting the house to Jones, McGee painted and inspected the swing, and he had painted the swing on other occasions and had replaced the chains. About three months after Jones moved into the house, she fell out of the swing. She had only used the swing two or three times in the months she lived there, and she had not noticed any problems with the design, construction, or condition of the swing before her injury.

Jones testified at trial that on the day of her injury she was sitting in the swing and when she turned and leaned back, she flipped out of the swing, fell, and injured her shoulder. Although a bolt attaching the chain to the swing was broken, Jones contends that the bolt broke after she was flipped out of the swing.

Thereafter, Jones filed suit against McGee contending that the swing was defective because it had a propensity to turn over backward, that McGee had actual or constructive knowledge of this defect, and that she was not aware of the defect. The main issue at trial was whether McGee knew or should have known that the swing was defective. After a jury trial, a verdict was reached in favor of Jones for $135,000. This appeal followed. Held:

1. McGee first alleges that during the trial Jones introduced in evidence a swing that he contended was not similar to the swing from which Jones fell, and he contends that it was error to allow the introduction of this new swing because it was not truly similar and because the actual swing was available. Thus, he contends a proper foundation was not laid for introduction of the swing. Jones contends, however, that use of the new swing was warranted because it was similar to the old swing, except for the positions of the chains, and, further, although the swing was not introduced in evidence, use of the new swing also was warranted because she could not use the old swing for demonstrative purposes as it was broken. Thus, Jones asserts that the new swing was merely demonstrative evidence, and that, in any event, McGee waived the issue because he used the new swing in his case in chief and in closing argument.

Use of demonstrative evidence and conducting demonstrations during the course of a trial rest in the sound discretion of the trial judge. See Ruger v. State, 263 Ga. 548 (436 SE2d 485) (1993); Powell v. State, 226 Ga. App. 861 (487 SE2d 424) (1997); Atkinson v. State, 170 Ga. App. 260, 263 (316 SE2d 592) (1984). Although the old swing was available, the record shows that it was broken and not suitable for use to demonstrate how either Jones or McGee was thrown out of the swing. Therefore, under the circumstances of this case, we find no abuse of the trial court’s discretion in allowing the swing to be used as demonstrative evidence.

To the extent that McGee seeks to argue that the trial court should not have allowed Jones to argue that the new swing showed that the old swing was unsafe, that issue is not included within the enumeration of error and we cannot consider it. “ ‘An enumeration of error cannot be enlarged to include other issues not made therein.’ ” Hurston v. Ga. Farm &c. Ins. Co., 148 Ga. App. 324, 326 (250 SE2d 886) (1978). Further, appellate review cannot be enlarged or transformed through switching, shifting, or mending your hold. Ailion v. Wade, 190 Ga. App. 151, 155 (378 SE2d 507) (1989); Redwing Carriers v. Knight, 143 Ga. App. 668, 674 (239 SE2d 686) (1977). Accordingly, this other issue cannot be considered. Sanders v. Hughes, 183 Ga. App. 601, 604 (359 SE2d 396) (1987).

2. McGee contends the trial court erred by allowing Jones to testify that she could not afford to have surgery that her doctors recommended, as this evidence was inadmissible since he had raised no issue regarding her failure to have the surgery. Jones contends, however, that the evidence was admissible because McGee had requested a charge stating that the failure to follow physician’s recommendations can result in the loss of damages.

The financial resources of a party generally are not relevant in a tort action. Worthy v. Kendall, 222 Ga. App. 324, 325-326 (474 SE2d 627) (1996). Further, in Warren v. Ballard, 266 Ga. 408 (467 SE2d 891) (1996), our Supreme Court held that such evidence was not generally admissible because the lack of money to pay medical bills did not relate to any material issue in the case. See also Worthy v. Kendall, supra. While at first blush it would appear that Warren v. Ballard, supra, would demand that this evidence be excluded, Jones contends that this evidence was admissible to show why she did not have the surgery that her doctors recommended. Thus the evidence that Jones could not afford to have the recommended surgery was material -under the circumstances of this appeal, because the record shows that McGee had requested that the jury be charged that “except in cases involving severe and grave operations, one must follow the expert recommendation of her physician or she cannot recover damages which might have been avoided thereby.” Because this evidence of Jones’ worldly circumstances related to an issue to be tried, it was admissible and the trial court did not err by admitting this evidence.

3. McGee also contends the trial court erred by not allowing him to cross-examine Jones about her entitlement for Medicaid and whether Medicaid would pay for the surgery as it had other medical bills, including the bills for the deliveries of her children. Thus, McGee argued that he should be allowed to show that Jones had resources available to pay for the surgery. This is the opposite side of the issue raised in Division 2, and if the trial court was correct in allowing the evidence in the first instance, it would seem that McGee should have been allowed to show that Jones’ testimony was false. Under these circumstances, Warren v. Ballard, supra, would not exclude this evidence because a party is allowed to rebut admissible evidence that is material to issues in the case.

Review of the transcript, however, shows that the trial court excluded evidence of Jones’ entitlement to Medicaid because McGee was unable to prove that Medicaid was available to pay for the surgery Jones required and the trial court did not feel that the burden should be placed on Jones to prove that Medicaid would not pay for her surgery. The trial court specifically ruled, however, that McGee would be allowed to prove that Medicaid would pay for the surgery. Ultimately, McGee made a proffer outside the presence of the jury that some of Jones’ medical bills were paid by Medicaid and some were not.

As a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse. Whisnant v. State, 178 Ga. App. 742, 743 (344 SE2d 536) (1986). The trial court’s ruling allowed McGee to introduce evidence that Medicaid would have paid for the recommended surgery, but McGee did not choose to do so. Under these circumstances, we do not find that the trial court abused its discretion by refusing to allow McGee to inquire of Jones about the availability of Medicaid to pay for the recommended surgery.

4. We also find no error in the trial court giving a charge on the liability of a landlord for improper repairs. A jury charge is authorized by the evidence if there is some evidence from which a legitimate process of reasoning can be carried on in respect to the charge (T. G. & Y. Stores Co. v. Waters, 175 Ga. App. 884, 886 (334 SE2d 910) (1985)), and this is true even if the great preponderance of the evidence is to the contrary. Lyles v. State, 130 Ga. 294 (60 SE 578) (1908). As there is evidence that McGee repainted and put new chains on the swing, that was sufficient to authorize this charge.

5. McGee contends the trial court erred by allowing Jones’ counsel to argue that legal accident is not the law in Georgia. We disagree.

In his closing argument, McGee’s counsel stated, “Ladies and gentlemen, my opinion, or I contend that you should find based on the evidence that what we have here is a legal accident.” Later counsel argued: “At any rate, I think this is a clear case where it is a legal accident. There is no reason for the defendant to foresee that this was going to happen. He didn’t know of a problem with the swing so therefore, how could he warn somebody of a problem with the swing.”

In response, Jones’ counsel argued: “Ladies and gentlemen, that’s a fine argument except for one thing. You’re going to hear the charge of the judge in a minute and his whole argument to you is saying there’s such a thing as legal accident. There’s no such thing.” McGee’s counsel immediately objected: “It’s perfectly proper to argue legal accident. The Supreme Court has ruled that it is not a charge —.” Jones counsel interposed: “That’s improper. Now, he moved in limine not to talk about what appellate courts say and he’s already talked about appeals courts once, letting everybody know he’s going to appéal. You shouldn’t be talking about what the Supreme Court said. He moved in limine.”

After the trial court ruled, “I’m not going to charge accident,” Jones’ counsel continued with his argument: “Because, ladies and gentlemen, it is not. the law in Georgia. There is no such law as legal —.” McGee’s counsel again objected: ‘Your honor, I would like to interpose an objection as argumentative. It’s patently misleading to the jury.” When the trial court again overruled the objection, Jones’ counsel continued: “There is no such thing as legal accident. What he has argued to you is fiction. He is suggesting to you there is a law that provides for legal accident and you won’t hear about one. There is no such thing.” McGee contends the trial court erred by allowing Jones’ counsel to argue in that fashion because it caused the jury to believe that McGee’s counsel had made an illegal and improper argument.

In Tolbert v. Duckworth, 262 Ga. 622 (423 SE2d 229) (1992), the Supreme Court on certiorari affirmed this Court’s holding in Tolbert v. Duckworth, 202 Ga. App. 873 (415 SE2d 911) (1992). This Court held that the charge to the jury of legal accident was not reversible error where the facts of the case supported such charge. In affirming such holding, the Supreme Court held: “We granted the writ of certiorari to determine whether the jury instruction on accident should be eliminated as a defense in civil cases. We conclude that the accident charge should not be given in future civil cases and affirm. . . . We choose to follow the jurisdictions that have repudiated the use of the accident instruction in all civil cases as unnecessary, misleading, and confusing. The defense of inevitable accident is nothing more than a denial by the defendant of negligence, or a contention that his negligence, if any, was not the proximate cause of the injury. The standard instructions on negligence, proximate cause, and burden of proof are sufficient to instruct the jury that the plaintiff may not recover when an injury occurs without the defendant’s fault. Therefore, the instruction on accident should no longer be given in civil cases in Georgia after January 21, 1993, the date this opinion is published in the advance sheets of the Georgia Reports.” (Citations and punctuation omitted.) Tolbert v. Duckworth, supra, 262 Ga. at 622-624; see also Handy v. Speth, 210 Ga. App. 155, 156 (1) (435 SE2d 623) (1993); Horne v. Care More, 208 Ga. App. 718 (431 SE2d 480) (1993); Meeks v. Cason, 208 Ga. App. 658, 660 (1) (431 SE2d 407) (1993); Travitt v. Grand Union Co., 207 Ga. App. 810, 812 (1) (429 SE2d 309) (1993). Thus, the Supreme Court abolished the defense of “legal accident” in Georgia. The defense cannot argue to the jury “legal accident,” because such defense was abolished. Tolbert v. Duckworth, supra, did not sanction such argument, even though footnote 2 reads: “The defense [‘legal accident’] is a more appropriate subject for argument by counsel to the jury. [Cit.]” Id. at 624. This footnote was not saying that “legal accident” survived to be argued to the jury, but that “denial by the defendant of negligence, or a contention that his negligence, if any, was not the proximate cause of the injury” were proper jury arguments by defense counsel.

To allow defense counsel to instruct the jury on “legal accident” and to argue such defense when the trial court is prohibited from charging the jury on “legal accident” creates the absurd result of the two problems that the Supreme Court sought to avoid in its decision. Referring to the then-existing pattern jury charge on “legal accident,” the Supreme Court held: “[t]he first paragraph is misleading in that it implies an accident occurs when the negligence of someone other than the plaintiff or defendant causes the plaintiff’s injuries. The second paragraph’s reference to the word ‘accident’ creates confusion because of the difference between the legal definition of‘accident’ and the commonly understood meaning of the word as an unintended act.” Id. at 623. Therefore, the Supreme Court never intended to permit defense counsel in a partisan fashion to create such problems for the jury through oral argument and then have the trial court sanction the plaintiff’s lawyer for properly objecting or arguing that “legal accident” was not the law of Georgia.

The trial court did not err.

Judgment affirmed.

Pope, P. J., Johnson and Blackburn, JJ., concur. Andrews, C. J., Birdsong, P. J., and Ruffin, J., dissent.

Birdsong, Presiding Judge,

dissenting.

Although I concur with the majority in Divisions 1 through 4, I must respectfully dissent from Division 5 because I cannot agree with the majority’s conclusion that Tolbert v. Duckworth, 262 Ga. 622 (423 SE2d 229) abolished the defense of legal accident. Further, I must also dissent because I cannot agree that the trial court did not err by allowing Jones’ counsel to argue that there is no such thing as a legal accident, by admonishing McGee’s counsel about what he should not be arguing about, and by asserting that McGee’s counsel’s argument was fiction because there is no such thing as a legal accident.

1. Tolbert v. Duckworth speaks for itself; our Supreme Court stated, “[w]e choose to follow the jurisdictions that have repudiated the use of the accident instruction in all civil cases as unnecessary, misleading and confusing. [Cits.] The defense of inevitable accident ‘is nothing more than a denial by the defendant of negligence, or a contention that his negligence, if any, was not the proximate cause of the injury.’ [Cits.] The standard instructions on negligence, proximate cause, and burden of proof are sufficient to instruct the jury that the plaintiff may not recover when an injury occurs without the defendant’s fault. Therefore, the instruction on accident should no longer be given in civil cases in Georgia after January 21, 1993, the date this opinion is published in the advance sheets of the Georgia Reports. [Cit.]” (Footnotes omitted.) Tolbert v. Duckworth, supra at 623-624.

Of course, in footnote 2 the Supreme Court stated: “The defense is a more appropriate subject for argument by counsel to the jury. [Cit.]”

This situation is analogous to the Supreme Court’s actions regarding the defense of flight: “[W]hile the state may offer evidence of and argue flight, it shall be reversible error for a trial court in a criminal case to charge the jury on flight.” Renner v. State, 260 Ga. 515, 518 (3) (b) (397 SE2d 683). Thus prosecutors are allowed to argue that a defendant’s flight from the crime scene is evidence of guilt even though Renner v. State, supra, prohibits a charge on the subject. See, e.g., White v. State, 226 Ga. App. 822 (488 SE2d 83) (physical precedent). Now, however, the majority would take away defendants’ right to argue that they are not liable because the plaintiff’s damages were the result of an accident in which no one was negligent. This is contrary to Tolbert v. Duckworth, and consequently, it is not our law.

2. Additionally, I believe that the trial court erred by its failure to curb Jones’ improper response to McGee’s argument. Although the control of the range of counsel’s argument is vested in the discretion of the trial court and appellate courts will not interfere with the exercise of that discretion unless it can be shown that the discretion has been manifestly abused and some positive injury has been done (Towns v. State, 191 Ga. App. 229, 230 (381 SE2d 405); Sanders v. State, 156 Ga. App. 44, 45 (274 SE2d 88)), the record in this case shows such a manifest abuse of discretion.

I believe McGee’s argument that Jones’ injury was the result of an accident was authorized by footnote 2 of Tolbert v. Duckworth, supra at 624. Therefore, Jones’ response that McGee’s argument was “fiction” and that there is no such thing as a legal accident was a misrepresentation and to the extent that it accused McGee’s counsel of seeking to mislead the jury about the law, it was improper. Garrison v. Rich’s, Inc., 154 Ga. App. 663, 664 (269 SE2d 513). Therefore, I believe the trial court erred by not sustaining McGee’s objections to Jones’ arguments. Moreover, I am concerned that Jones’ counsel was allowed to rebuke McGee’s counsel before the jury regarding comments about the Supreme Court’s decision on this issue. If McGee’s counsel violated a ruling of the trial court, Jones’ remedy is to seek relief from the court and not to admonish opposing counsel. Accordingly, I believe that the trial court failed in its responsibility to control the argument of counsel and abused its discretion in this manner. OCGA § 9-10-185. See Bell v. State, 263 Ga. 776 (439 SE2d 480); Central of Ga. R. Co. v. Swindle, 260 Ga. 685, 686 (398 SE2d 365).

Decided March 20, 1998

Reconsideration denied April 2, 1998.

Beck, Owen & Murray, William M. Dallas III, for appellant.

Christopher C. Edwards, Michele K. Ogletree, for appellee.

Moreover, even if McGee’s argument was mistaken in some respect, it was not fiction and it was not an attempt to mislead the jury as Jones suggested. Thus, I believe the trial court had the responsibility to clarify the matter for the jury and not leave them with the impression that Jones’ comments regarding the defense of accident were correct.

Thus, having found error, I would test for prejudice and in my opinion it exists in this case. Jones’ medical expenses were $2,547 and she faced future medical expenses of $8,000. Although Jones initially requested that the jury award her $75,000 in damages and in closing argument again mentioned $75,000, and she finally requested $100,000, the jury returned a verdict of $135,000. As the amount awarded by the jury was more than one-third more than any sum Jones sought in argument and approaches twice as much as the amount she sought initially, I cannot say that McGee was not prejudiced by allowing the improper argument. Therefore, I would reverse the judgment and remand for a fair trial.

Accordingly, I respectfully dissent.

I am authorized to state that Chief Judge Andrews and Judge Ruffin join in this dissent.


author: Judge Harold R. Banke.

text:
    A98A0108.
    SUMMIT TRANSPORTATION SERVICES, INC. et al. v. NATIONSBANK (SOUTH), N.A.
    (500 SE2d 911)
   Judge Harold R. Banke.

Summit Transportation Services, Inc. (“Summit”) and Commercial Union Insurance Company, its insurer, sued NationsBank for breach of contract, negligence, and conversion in an effort to recover for checks forged by Summit’s bookkeeper, Carole Hamrick Brewer. Enumerating three errors, Summit and its insurer appeal the award of summary judgment to NationsBank.

Summit opened a commercial checking account with The Chattahoochee Bank (“Chattahoochee”) in 1991. BankSouth acquired this bank in May 1994 and NationsBank acquired BankSouth in July 1996. Summit had only two authorized signatories on its commercial account, that of the company president, Brenda Elwell, and the vice-president, Darryl Bishop. Between September 1992 and May 1994, Brewer, Summit’s bookkeeper, forged the signature of Elwell on 349 checks. Brewer pleaded guilty to criminal charges relating to these forgeries.

When Summit initially opened its account, Chattahoochee sent the original canceled checks with the monthly bank statements. Sometime in the fall of 1992, Chattahoochee began sending its customers reduced sized copies or “imaged checks” which appear six to a page instead of the original checks. For the first three months, Chattahoochee sent both the imaged checks and the originals. Thereafter, Chattahoochee sent only imaged copies of the checks processed. On May 5, 1994, Elwell opened the first statement supplied by Bank-South after it acquired Chattahoochee. This statement contained the original canceled checks, and Elwell noticed several checks payable to Brewer on which her own name had been forged. Elwell contacted BankSouth and reported the forgeries. Eventually, Elwell unearthed several hundred forgeries totaling more than $156,000.

Commercial Union paid out the policy limit of $100,000 for Summit’s insurance claim, leaving about $56,000 as an uninsured loss. Summit settled with Brewer for $22,000. Summit and Commercial Union then sought $134,445.54, plus interest from NationsBank. Summit challenges the trial court’s finding that all of its claims are barred by the provisions of OCGA § 11-4-406. Held:

1. Summit contends that the trial court erred in holding as a matter of law that NationsBank made the “items paid” available as required by OCGA § 11-4-406 (l). A bank may charge its depositors only for those items which are properly payable. OCGA § 11-4-401 (1). In general, a bank may not charge an account for a forged check, and is strictly liable for paying on a forged check. Trammell v. Farmers &c. Bank of Summerville, 170 Ga. App. 347, 348 (1) (317 SE2d 323) (1984). However, the Uniform Commercial Code provides certain exceptions and limitations to a bank’s liability. See OCGA § 11-4-406.

Summit argues that because Chattahoochee failed to strictly comply with OCGA § 11-4-406 (1), NationsBank remains liable for improper payment of the forged checks. We disagree. Under this statute, a bank may fulfill its responsibility to its customers: (1) by sending a statement of account accompanied by items paid in good faith in support of the debit entries, or (2) by holding the statement and items pursuant to a request or instructions of its customer, or (3) in a reasonable manner making the statement and items available to its customer. OCGA § 11-4-406 (1). The evidence is unrefuted that both Chattahoochee and BankSouth sent monthly statements to Summit at its correct address. Although Chattahoochee initially sent the actual canceled checks, it switched to sending only imaged copies after January 1993. Elwell testified that she knew that the bank had changed its procedure and Summit offered no evidence that it posed any formal objection to Chattahoochee. Moreover, Elwell admitted that she could request and did request copies of canceled checks from Chattahoochee whenever she needed them. Even assuming arguendo, that the statute required that Chattahoochee send the original. checks and not imaged copies, the evidence shows that Chattahoochee “made the items available to its customer” and thereby complied with the third method. Consequently, Summit’s unauthorized payment claim against NationsBank is limited to those forged checks which Summit discovered and reported within the 60-day limit of OCGA § 11-4-406 (4) (a). Decatur Fed. &c. Assn. v. Litsky, 207 Ga. App. 752, 755 (1) (429 SE2d 300) (1993). See Eason Publications v. NationsBank, 217 Ga. App. 726, 728-729 (1) (458 SE2d 899) (1995).

2. The trial court erred in holding that Summit’s alleged negligence is relevant under OCGA § 11-4-406 (2). As a matter of law, a bank cannot insulate itself from liability if its “customer establishes lack of ordinary care on the part of the bank in paying the item(s).” OCGA § 11-4-406 (3). Thus, Summit’s claim would not be precluded if the evidence showed that Chattahoochee had been negligent in honoring the forged checks.

It is undisputed that NationsBank was unable to produce any document which stated or explained Chattahoochee’s policies as to verifying signatures on checks. Nor was NationsBank able to produce the signature cards or Chattahoochee’s depository agreement with Summit. Similarly, NationsBank was unable to offer any witness to explain Chattahoochee’s verification procedures. Chattahoochee’s vice-president testified that a check had to meet a dollar amount threshold before the bank would verify the signature on a check but she could not recall that amount.

Here, as in Eason Publications, 217 Ga. App. at 729, NationsBank failed to conclusively show that the bank complied with industry standards and exercised the requisite degree of ordinary care in processing Summit’s checks. Inasmuch as NationsBank failed to show what signature verification procedures were used in the 60-day period at issue before Summit reported the forgeries, it cannot be determined whether these procedures were consistent with general industry practice. See id. NationsBank’s dearth of evidence as to the applicable policies and procedures could not and did not shift the evidentiary burden on summary judgment to Summit. See Eason Publications, 217 Ga. App. at 729 (1) (“Even if the bank showed conclusively that it complied with local industry standards, making a prima facie showing simply shifts the burden to . . . [the customer] to produce rebuttal evidence that the bank did not exercise ordinary care.”). Accordingly, a jury must decide whether Chattahoochee’s verification procedures constituted ordinary care.

Decided April 2, 1998

Mozley, Finlayson & hoggins, Charles D. Hailey, Richard D. Hall, for appellants.

Parker, Hudson, Rainer & Dobbs, G. Wayne Hillis, Jr., Nancy H. Baughan, for appellee.

3. Summit contends that the 14-day rule does not apply because a fact question exists as to the bank’s negligence. Again, we agree. The same exception in favor of a bank customer’s rights applies to the 14-day rule. OCGA § 11-4-406 (3). Inasmuch as it cannot be said as a matter of law that Chattahoochee was not negligent in paying the forged checks, summary judgment must be reversed on this issue also.

Judgment affirmed in part and reversed in part.

Beasley and Ruffin, JJ, concur.

       It is undisputed that the pre-July 1, 1996 version of OCGA § 11-4-406 governs the underlying action.


author: Johnson, Judge.

text:
    A98A0174.
    OSBORNE BONDING & SURETY COMPANY v. STATE OF GEORGIA.
    (501 SE2d 264)
   Johnson, Judge.

Osborne Bonding & Surety Company (“Osborne Bonding”) entered into a bond with principal/defendant Juan Martin Olmos in the amount of $5,000. When Olmos failed to appear in court as ordered, a bench warrant and rule nisi scheduling the bond forfeiture proceeding were issued. Olmos failed to appear at the execution hearing, and his bond was forfeited. A writ of fieri facias was issued, but showed the principal’s name as “Olmos Juan Martin.” The writ itself is not included as part of the record on appeal. Osborne Bonding filed a petition to set aside the bond and writ of fieri facias, which the trial court denied. We affirm.

1. In its first enumeration of error, Osborne Bonding contends the trial court erred in upholding a judgment against it that was insufficient and defective on its face. We disagree.

OCGA § 9-13-3 states, [e]very execution shall follow the judgment upon which it issued and shall describe the parties thereto as described in the judgment.” This Court has previously held that minor variances, including a misdescription in the name of the principal, will not invalidate the execution when it can with reasonable certainty be ascertained from the terms of the execution that it was issued upon the judgment with which it is connected. See Smith v. Bell, 107 Ga. 800, 802-803 (1) (33 SE 684) (1899) (execution followed the judgment in all respects, but totally failed to name the plaintiff); Moughon v. Brown, 68 Ga. 207 (1881) (execution named the plaintiffs, but failed to include descriptive words “surviving executor and executrix of Jos. Bond, deceased”).

The Rule Absolute forfeiting Olmos’ bond stated that judgment should be entered against Juan Martin Olmos and Osborne Bonding. However, the fieri facias stated the principal’s name as Olmos Juan Martin. This is not a case where an execution in the name of an entirely different person from the one named in the judgment is entered. See Smith, supra. Rather, the principal’s name, which we note is unusual, was shuffled.

Moreover, while the writ of fieri facias is not part of the record on appeal, the trial court’s order recites that the fieri facias stated the correct case number and the correct judgment amount. Thus, the correct principal could be ascertained with reasonable certainty from the terms of the execution that it was issued upon. We also note that a copy of the fieri facias is attached to Osborne Bonding’s brief. While an attached document to an appellate brief is not sufficient proof of evidence in the record, the inclusion of the copy of this fieri facias in this case may be construed as an admission by Osborne Bonding that it is indeed the writ the trial court had before it. In addition, the attached copy of the fieri facias is consistent with the trial court’s recitation of the facts. For these reasons, the trial court’s order denying Osborne Bonding’s motion to set aside the bond and writ of fieri facias is affirmed.

2. While Osborne Bonding raises three other enumerations of error in its appeal, these issues were not raised in or ruled upon by the trial court. Therefore, we may not consider these issues on appeal. Colley v. State, 225 Ga. App. 198, 201 (3) (483 SE2d 355) (1997).

Judgment affirmed.

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

Decided April 2, 1998.

Boswell & Teske, Stephen E. Boswell, for appellant.

Robert E. Keller, District Attorney, Foster & Foster, Donald R. Foster, for appellee.


text:
    A98A0188.
    ALI et al. v. FLEET FINANCE, INC. OF GEORGIA.
    (500 SE2d 914)
   Judge Harold R. Banke.

Claudette M. Ali and Dale R. Ali (collectively “Ali”) asserted allegations of fraud, negligent misrepresentation, and, inter alia, violations of the Georgia RICO Statute against Fleet Finance, Inc. of Georgia (“Fleet”) and James W. Cooke relating to their purchase of a house which had sustained undisclosed fire damage. Enumerating seven errors, Ali challenges the summary judgment granted to Fleet.

Cooke purchased the subject property from Fleet after it had been damaged by a fire. According to the terms of that sale, Fleet sold the property in an “as is” condition and subject to an escrow agreement requiring that Cooke use insurance proceeds to repair the property. After Cooke purportedly completed the repairs, he placed the house on the market for resale. Ali then purchased the house from Cooke pursuant to an “as is” sale agreement. Shortly after taking possession, Ali discovered structural damage to the beams, floors, and roof, as well as related electrical and plumbing problems allegedly stemming from fire damage. Ali claimed that Fleet, as the mortgage holder on the property when Cooke owned it, and as their lender, knew or should have known about the defects and failed to disclose these facts prior to the real estate closing. Fleet contended that it had no liability for Ali’s tort claims because its sole involvement with Ali was as a lender after Ali assumed Cooke’s existing loan. The trial court summarily disposed of all claims against Fleet. Held:

A review of the evidence in the record confirms that the trial court correctly determined that no genuine issue of material fact remains as to any of Ali’s claims. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). The essential elements of fraud are: (1) wilful misrepresentation of a material fact; (2) made to induce another to act; (3) upon which such person acts to his injury. OCGA § 51-6-2 (a). The uncontroverted evidence shows that Fleet never made representations of any kind to Ali. Both Claudette Ali and Dale Ali admit in their respective depositions that neither of them ever spoke with any person from Fleet or had any contact whatsoever with Fleet prior to the sale. These admissions are fatal to their claims for fraud and fraudulent concealment. Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74, 75-76 (441 SE2d 421) (1994); Hanlon v. Thornton, 218 Ga. App. 500, 502 (2) (462 SE2d 154) (1995) (fraudulent concealment requires proof of same elements as fraud). See Morris v. Cowart, 201 Ga. App. 288, 289 (1) (411 SE2d 81) (1991). Similarly, because Fleet did not make any representations, Ali cannot set forth the requisite elements of negligent misrepresentation. Bates & Assoc. v. Romei, 207 Ga. App. 81, 84-85 (5) (426 SE2d 919) (1993) (supplier of false information must be manifestly aware of and intend its use).

Decided April 2, 1998.

Donald Ellis, for appellants.

Even assuming for the sake of argument only that Fleet inspected the repairs and approved them, and further assuming that the repairs were negligently performed, Ali did not establish that a lender like Fleet owed a duty to disclose any known defects to them as purchasers. Toys ’R’ Us v. Atlanta Economic Dev. Corp., 195 Ga. App. 195, 198 (1) (C) (393 SE2d 44) (1990) (purchaser’s recovery under passive concealment doctrine limited to residential builders and sellers). Compare Jennings v. Smith, 226 Ga. App. 765, 767-768 (2) (487 SE2d 362) (1997). Notwithstanding Ali’s claim to the contrary, Fleet had no duty to disclose any material facts because as a general rule a creditor has no duty to determine or advise its debtor of the status of the collateral involved in the transaction. First Fed. Savings Bank v. Hart, 185 Ga. App. 304, 305 (1) (363 SE2d 832) (1987). Moreover, in light of the fact that Ali failed to offer any authority on which to premise the civil claims for theft by taking and theft by deception/conversion, or any evidence in support thereof, these claims cannot survive summary judgment.

Finally, a necessary predicate for any Georgia RICO claim is a pattern of racketeering activity which Ali neither alleged nor proved. OCGA § 16-14-4 (a). Notwithstanding Ali’s argument to the contrary, the fact that Cooke owns over 100 properties for which Fleet has the first mortgage does not satisfy the requisite pattern of illegal activity. In the absence of any evidence of the requisite unlawful predicate acts, it necessarily follows that Ali’s RICO claim against Fleet also must fail. Emrich v. Winsor, 198 Ga. App. 333 (401 SE2d 76) (1991). Having determined that Fleet was entitled to summary judgment, we need not reach Ali’s remaining enumerations of error.

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

McCullough & Payne, Michael D. Payne, John B. Mangrum, for appellee.


author: Smith, Judge.

text:
    A98A0389.
    TAM v. THE STATE.
    (501 SE2d 51)
   Smith, Judge.

This is the second appearance of this case in this Court. In Tam v. State, 225 Ga. App. 101 (483 SE2d 142) (1997) (Tam I), we found that the evidence supporting Kitman Tam’s conviction for the offenses of DUI and following too closely was sufficient. We reversed and remanded for a new trial, however, because the trial court did not make the necessary findings on the record before admitting evidence of Tam’s two prior DUI convictions as similar transactions. Id. at 102-103 (2). Tam was retried and reconvicted, and he now appeals, enumerating as error the admission of the similar transaction evidence. We find no merit in Tam’s contentions, and we affirm the judgments below.

1. The trial court ruled that the prior DUI convictions were admissible to show Tam’s “bent of mind and/or course of conduct.” Tam recognizes that this Court has held repeatedly that such evidence is properly admitted for that purpose in DUI cases. See, e.g., Guinn v. State, 224 Ga. App. 881, 882-883 (1) (a) (482 SE2d 480) (1997); Fields v. State, 223 Ga. App. 569, 570-571 (2) (479 SE2d 393) (1996); Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638) (1992); Blane v. State, 195 Ga. App. 504, 505 (1) (393 SE2d 759) (1990). But he urges this Court “to rethink the place of prior DUI convictions in a DUI trial,” maintaining that because the crime of DUI does not require intent, the “bent of mind” of the accused is irrelevant. We reject Tam’s invitation to overrule this well established law.

“A ‘crime’ is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.” OCGA § 16-2-1. Intent is therefore an essential element of all crimes except those involving criminal negligence, although some crimes require an additional showing of specific intent. To prove DUI, the State need not prove intent to commit the crime; but it must show the condition of being under the influence of alcohol to the extent of impairment and the intent to drive while in this condition. This general intent may be inferred from the conduct of the accused and other circumstances. OCGA § 16-2-6. A prior conviction for DUI is evidence demonstrating that an accused “has the bent of mind ‘to get behind the wheel of a vehicle when it’s less safe for him to do so.’ ” Fields, supra at 571 (2). It is for that reason our courts have held that a prior act of driving while under the influence “would, regardless of any slight variance of circumstances, be relevant to prove bent of mind or course of conduct. [Cits.]” Kirkland, supra.

Decided April 2, 1998.

Chad A. McGowan, for appellant.

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

2. Tam also argues that even if similar transactions are generally admissible in DUI cases, they were not in this case because the prior offenses were insufficiently similar. We do not agree. We have held that unlike other crimes, the crime of DUI is committed under the same factual circumstances: driving while under the influence. Evidence of prior DUI offenses is therefore admissible regardless of slight variation in circumstances surrounding their commission, such as the type of vehicle driven, the location, or the degree or source of intoxication. Kirkland, supra.

Moreover, the trial court in this case found “striking” similarities, including the time of day, the location, driving characteristics, physical manifestations, and the fact that the offenses were fairly recent. This enumeration is without merit.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.