author: Barnes, Judge. Blackburn, Presiding Judge,

text:
    A99A0143.
    SHAW v. THE STATE.
    (519 SE2d 486)
   Barnes, Judge.

Melvin Shaw and a co-defendant were indicted on three counts of aggravated assault on a police officer. A jury convicted the co-defendant of all three assault charges, acquitted Shaw of one assault charge, and convicted him of two assault charges. Shaw, who was 18 and a high school junior at the time of the incident, had no previous convictions and was sentenced to serve 15 years. He appeals the aggravated assault convictions, arguing that the trial court erred in failing to charge on the lesser included offense of reckless conduct, and that insufficient evidence supported the convictions. Because we conclude the trial court should have charged the jury on reckless conduct, we reverse.

The charges arose out of a high speed car chase through east Atlanta. Several officers testified that someone in the Cadillac they were chasing fired at them on three separate occasions. The three aggravated assault charges arose from two of the shooting incidents. The first charge alleged Shaw and his co-defendant assaulted Officer W. C. Jones with a handgun; this was the charge of which Shaw was acquitted. The second and third charges alleged assaults against Officers R. A. Mason and Craig Kailimai, who were riding together.

1. Shaw contends the trial court erred in refusing to charge reckless conduct as a lesser included offense of aggravated assault on a police officer. He argues that a fellow passenger’s statement that Shaw shot into the air while the police were chasing them was sufficient to justify a reckless conduct charge.

In the statement, the passenger said:

When I knew something was going on I had heard the police siren. And so I looked behind us. I saw the police car with the lights on. I asked what was going on. Someone said the police got behind us. We were just riding. We were on the expressway. Before we got to the expressway, Melvin had his hand out the window and I heard about four or five shots. He was pointing up in the air and shooting.

The police officer who took this statement testified that he thought the passenger described a shooting incident that took place before the car entered the expressway.

Slight evidence is sufficient to justify charging on a lesser included offense, and information contained in a statement introduced by the State can constitute such evidence. Edwards v. State, 264 Ga. 131, 132-133 (442 SE2d 444) (1994). The question, then, is whether shooting out of a car into the air while police are pursuing could also constitute the crime of reckless conduct. If so, the trial court erred in failing to give the charge.

Shaw was indicted for “an assault on the person of R. A. Mason [and C. Kailimai] with a handgun, a deadly weapon,” and was convicted on those two counts under a jury charge that permitted his conviction if the jury found that, with a deadly weapon, Shaw either attempted to commit a violent injury to the officers or placed the officers in reasonable apprehension of immediately receiving a violent injury. The trial court further charged that “a person commits the offense of aggravated assault when that person assaults another person with a deadly weapon,” but declined to charge reckless conduct as a lesser included offense. The Code defines reckless conduct as causing bodily harm to or endangering the bodily safety of another person “by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care.” OCGA § 16-5-60 (b).

Both crimes [assault with intent to injure and assault by scaring the victim] proscribe the same general acts, to wit: either the subjection of another to the possibility of personal injury; or, the actual infliction of such an injury on the victim. The two crimes potentially differ only in one respect. In the case of aggravated assault with a deadly weapon, the attempted or the completed injury to the victim is the intended consequence of the defendant’s act. In the case of reckless conduct, the threatened or the actual injury to the victim is, instead, the product of the defendant’s criminal negligence. This similarity between the proscribed acts, coupled with a dissimilarity between the mental culpability which produces those acts, would indicate the potential for reckless conduct to be deemed, as a matter of law, a lesser included offense of aggravated assault with a deadly weapon.

(Emphasis supplied.) Bowers v. State, 177 Ga. App. 36, 38 (1) (338 SE2d 457) (1985).

It is clear that, under the evidence in this case, a reckless conduct charge is not warranted for an aggravated assault committed by placing another in reasonable apprehension of immediately receiving a violent injury. If the victim reasonably fears an immediate violent injury from a firearm, the aggravated assault has occurred. Dunagan v. State, 269 Ga. 590, 593 (2) (b) (502 SE2d 726) (1998); Clark v. State, 191 Ga. App. 386, 387 (3) (381 SE2d 763) (1989). The testimony on which Shaw relies does not alter this result, because one can place another person in reasonable apprehension of violent injury by firing into the air as well as by firing at the victim. The testimony of Officers Mason and Kailimai supported a finding that they were afraid of being shot, and the trial court did not err in declining to charge on reckless conduct on an aggravated assault with a deadly weapon based on conduct falling under OCGA § 16-5-20 (a) (2).

The more difficult question is whether Shaw was entitled to a reckless conduct charge as a lesser included offense of aggravated assault with a deadly weapon based on OCGA § 16-5-20 (a) (1) for attempting to injure another person. Here, the evidence, though slight, indicated that Shaw might have merely fired a gun out of the car up into the air while the police were chasing the car in which he was riding. If he did fire a gun into the air instead of at the pursuing officers, he may not have had the intent to attempt to commit a violent injury to another, although such an action certainly would constitute criminal negligence. “Threatened or actual injury to a victim by means of a deadly weapon that results from a defendant’s criminal negligence constitutes the offense of reckless conduct.” Dunagan, supra, 269 Ga. at 592. Therefore, the trial court erred in refusing to charge the jury on the offense of reckless conduct as a lesser included offense of an aggravated assault by attempting to injure. Compare Hy v. State, 232 Ga. App. 247, 249 (1) (501 SE2d 583) (1998) (evidence that defendant may have fired gun into air too ambiguous and equivocal to warrant reckless conduct charge).

As charging errors are presumed harmful unless the record shows the error was harmless, we must reverse. Foskey v. Foskey, 257 Ga. 736, 737 (2) (363 SE2d 547) (1988); Barton v. State, 79 Ga. App. 380, 387-388 (2) (53 SE2d 707) (1949). Nothing in the record shows that the jury did not convict Shaw for attempting to injure the officers with a deadly weapon, or that the jury was not misled by the lack of a charge on reckless conduct. Therefore, because we cannot say the error was not harmful, we reverse for a new trial Shaw’s two convictions of aggravated assault with a deadly weapon on a police officer. See Pearson v. State, 216 Ga. App. 333, 334 (454 SE2d 205) (1995); Stewart v. State, 158 Ga. App. 378 (1) (280 SE2d 403) (1981).

2. Shaw also contends the evidence was insufficient for a rational trier of fact to find him guilty of aggravated assault on a police officer beyond a reasonable doubt. On appeal, we do not weigh the evidence or decide witness credibility, but view the evidence in a light most favorable to the verdict. Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997).

Construed to support the verdict, Officer Mason testified that after his police car pulled behind the Cadillac, he saw a person, whom he recognized as Shaw, lean out of the front passenger side of the Cadillac and fire a gun at him and Officer Kailimai. Kailimai, who was driving, also saw someone hanging out of the front passenger side of the Cadillac and then saw Officer Mason recoil in his seat, though he did not see a weapon. Both Mason and Kailimai identified Shaw at trial as the shooter.

Shaw disputed this version of the chase, testifying that he was in the back seat on the driver’s side during the entire chase. Three passengers, including Shaw’s co-defendant, testified that Shaw was never in the front passenger seat, which according to Officer Mason’s testimony is where the shot originated.

After the chase ended, the police found a handgun on the front seat of the Cadillac that tested positive for Shaw’s fingerprints. Shaw testified at trial that he shot a gun out of the car window, but only up in the air before the police began chasing them. Two of the Cadillac’s passengers also testified that Shaw did not shoot during the police pursuit.

In the circumstances of this case, an aggravated assault with a deadly weapon can be committed in two ways: either by attempting to commit a violent injury to the person of another; or by committing an act that places another in reasonable apprehension of immediately receiving a violent injury. OCGA §§ 16-5-20; 16-5-21 (a) (2). The indictment was sufficient to charge Shaw with aggravated assault based on either method of assault, and the trial court properly charged the jury as to both methods.

We conclude the evidence was sufficient for a rational trier of' fact to find Shaw guilty beyond a reasonable doubt of aggravated assault on a police officer, either by attempting to commit a violent injury with a deadly weapon (OCGA § 16-5-20 (a) (1)) or by placing him in reasonable apprehension of immediately receiving a violent injury (OCGA § 16-5-20 (a) (2)). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Dunagan v. State, supra, 269 Ga. 593 (2) (b).

Judgment reversed.

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

Blackburn, Presiding Judge,

concurring specially.

I specially concur. I do not dispute the analysis and result of the majority opinion. I am bothered by a holding that a person who fires a gun out the window of a vehicle while being pursued in a police auto chase would, under any circumstances, be entitled to a charge on reckless conduct for such conduct. If that is the law, it is wrong.

Decided June 15, 1999

Reconsideration denied June 30, 1999 — Cert. applied for.

Gayle D. Bacon, Maryann F. Blend, for appellant.

J. Tom Morgan, District Attorney, Sheila A. Connors, Robert M. Coker, Assistant District Attorneys, for appellee.

I am authorized to state that Senior Appellate Judge Harold R. Banke concurs in this opinion.


source: Caselaw Access Project

author:
Johnson, Chief Judge.
      Andrews, Judge,

license: Public Domain

text:
    A99A0522.
    TAYLOR et al. v. RACETRAC PETROLEUM, INC. et al.
    (519 SE2d 282)
   Johnson, Chief Judge.

Ronald Steed was killed and David Telenko was injured when the car they were in crashed into a utility pole. Robin Taylor, Steed’s sister and the administratrix of his estate, along with his parents, Mack and Bobbie Steed, sued RaceTrac Petroleum, Inc., claiming it is liable for Steed’s death because Telenko, who was under the lawful drinking age of 21, was driving the car while under the influence of beer that he had bought at a RaceTrac store. RaceTrac denied liability, contending, among other things, that Steed, not Telenko, was driving at the time of the accident, and that even if Telenko was driving, Steed assumed the risk of injury by riding with him. The case was tried before a jury, which returned a verdict in favor of RaceTrac.

Taylor and the Steeds appeal from the judgment entered on the verdict. They challenge the admission of evidence regarding Steed’s prior drug and alcohol use and his conduct on prior occasions, the exclusion of an emergency room statement made by Telenko and the jury charge on assumption of risk.

The challenge to the evidence of Steed’s prior drug and alcohol use and his prior conduct is correct, and we reverse the judgment on that ground. Although the challenges to the exclusion of Telenko’s statement and the assumption of risk jury charge are without merit, we address those issues because they are likely to arise again on the retrial of the case.

1. Taylor and the Steeds assert the trial court erroneously admitted evidence of Steed’s prior drug and alcohol use, his reckless driving on other occasions and his conduct on prior occasions. We agree with the assertion.

The trial court allowed RaceTrac to introduce testimony from Telenko that Steed had previously taken LSD and smoked marijuana, that Steed had drunk alcohol with his parents on prior occasions, that Steed liked to engage in risky behavior and that on prior occasions. Steed had driven fast and not obeyed traffic laws.

The court also allowed RaceTrac to elicit testimony from Meghan Robbins, a friend of both Steed and Telenko, that Steed was part of a group that took LSD, drank beer, and smoked marijuana; that Steed and his friends sometimes drank at the Steeds’ house; that Steed engaged in risky behavior; that he once destroyed a pay phone; and that Steed was involved in a fight during a school spring break.

The general character of parties and especially their conduct in other transactions are irrelevant matters. OCGA § 24-2-2. A party’s conduct on the occasion at issue in the case may be proved only by the facts of that event and not by evidence of the party’s prior acts or general character for carelessness or recklessness. Feinberg v. Durga, 189 Ga. App. 733, 735 (3) (377 SE2d 33) (1988). Such evidence is not probative of the issue at hand and may prejudice the jury against that party as to the question of liability in the particular case. Whorton v. Boatwright, 233 Ga. App. 369, 370 (504 SE2d 216) (1998); Whidby v. Columbine Carrier, 182 Ga. App. 638, 639 (1) (356 SE2d 709) (1987), overruled on other grounds, Pender v. Witcher, 194 Ga. App. 72 (389 SE2d 560) (1989). One party is not permitted to influence the jury to find against the other party on account of some act which he may have committed on another occasion, in a different situation and with other parties. Leo v. Williams, 207 Ga. App. 321, 322 (428 SE2d 108) (1993).

In the instant case, the evidence of Steed’s alleged prior drug and alcohol use, alleged reckless driving on other occasions and alleged violent acts on other occasions are irrelevant to the question of liability for the accident in this case. There is a substantial likelihood that this improper evidence may have prejudiced the jury against Steed, his estate and his parents. The court’s admission of the evidence was thus harmful error.

We disagree with RaceTrac’s argument, and the trial court’s ruling, that the evidence of Steed’s alleged drug and alcohol use on other occasions is relevant to the issue of damages because such use will affect his life expectancy. In some cases a person’s long-term drug or alcohol abuse may affect his or her life expectancy. But the anecdotal evidence relied on by RaceTrac was inadequate to prove the effect of drugs or alcohol on the 18-year-old Steed’s potential earning capacity and life expectancy. RaceTrac did not document with any degree of reliability the exact type, frequency and duration of the alleged drug and alcohol use. Additionally, the record before us contains no expert testimony about the effect of drugs and alcohol on Steed’s potential life expectancy and earning capacity. Instead, RaceTrac was allowed to rely on anecdotal evidence of instances of drug and alcohol use by Steed.

The evidence, while perhaps showing that Steed had engaged in such conduct, does not provide any indication as to whether the conduct was fixed and uniform so as to be habitual. And unlike habitual conduct, evidence of a party’s character for performing certain acts is not admissible. Battle v. Kovalski, 202 Ga. App. 471, 472-473 (2) (414 SE2d 700) (1992). RaceTrac’s character evidence, without more, is not probative of life expectancy or earning capacity, and any reasoning that the anecdotes tend to show a shorter life expectancy or lower earning capacity is completely speculative.

“Moreover, even if the evidence was relevant to the issue of damages, the proper procedure to avoid prejudice to the plaintiff on the issue of liability is a separate trial on the issue of damages after liability has been decided. [Cit.]” Leo, supra at 323. Here, the trial court refused the motion of Taylor and the Steeds to bifurcate the trial into liability and damages phases. Instead, the court allowed RaceTrac to introduce the improper evidence of Steed’s character and prior conduct throughout the trial as the jury heard evidence on both liability and damages. The better practice would have been to bifurcate the trial. See generally Whitley v. Gwinnett County, 221 Ga. App. 18, 19-20 (2) (470 SE2d 724) (1996).

Instead, the only step the court took to limit the prejudicial impact of the evidence was in the final jury charge when the court stated that the evidence concerning drug and alcohol use and the propensity to drive fast on other occasions was to be considered in determining the value of Steed’s life and not in deciding liability. This single charge was insufficient to undo the harm of the improper evidence. As discussed above, the evidence of drug and alcohol use, not to mention the evidence of Steed’s purported tendency to drive fast on other occasions, was irrelevant to the issue of damages. Moreover, even if the evidence had been relevant to that issue, it is unlikely the court’s charge actually limited the jury’s consideration of the evidence to damages. Rather, there is a substantial likelihood that the jury considered the evidence in determining liability.

Under these circumstances, the erroneous admission of the irrelevant and prejudicial evidence of Steed’s character and conduct on other occasions mandates that there be a new trial without the improper evidence. The judgment of the lower court is therefore reversed. See Leo, supra; Garner v. Victory Express, 214 Ga. App. 652, 653 (448 SE2d 719) (1994).

2. Taylor and the Steeds contend that the court erred by excluding Telenko’s statement to an emergency room nurse that he consumed six beers during the evening before the accident. Taylor and the Steeds are correct in noting that the statement, though hearsay, is admissible under the hearsay exception allowing a patient’s statements made for purposes of medical diagnosis or treatment. See OCGA § 24-3-4. Moreover, the statement is relevant because it contradicts Telenko’s trial testimony that he drank only two or three beers. See OCGA § 24-9-83.

However, contrary to Taylor and the Steeds’ claim of error, the trial court did not exclude proper evidence'of the statement. The trial court expressly told Taylor and the Steeds that if they called the nurse to whom the statement was made she could testify about it. What the court did not allow was the deposition testimony of a doctor reading the nurse’s written notes that Telenko had made such a statement. The court correctly refused to allow this triple hearsay regarding the alleged statement. See Highsmith v. Fillingim, 171 Ga. App. 548, 549 (320 SE2d 391) (1984).

3. Taylor and the Steeds contend the trial court erroneously charged the jury on assumption of risk, which is a valid defense only in a negligence action, and not in an intentional tort case such as this one. See McEachern v. Muldovan, 234 Ga. App. 152, 156-157 (2) (b) (505 SE2d 495) (1998). They argue that the instant case involves an intentional tort because OCGA § 51-1-40 (b) requires them to prove that RaceTrac wilfully and knowingly sold beer to the underage Telenko.

While it is true that under OCGA § 51-1-40 Taylor and the Steeds must show RaceTrac’s wilful and knowing sale of beer to Telenko, they must also show that Telenko was intoxicated from that beer and that he acted negligently. A person’s potential liability for the negligent acts of a third party to whom they sell alcohol is set forth in OCGA § 51-1-40. See Griffin Motel Co. v. Strickland, 223 Ga. App. 812, 813-814 (479 SE2d 401) (1996); Perryman v. Lufran, Inc., 209 Ga. App. 654, 655 (434 SE2d 112) (1993), disapproved on other grounds, Riley v. H & H Operations, 263 Ga. 652, 655 (436 SE2d 659) (1993). It is the negligence of the third party Telenko, not RaceTrac’s alleged wilful and knowing sale of beer, to which the assumption of risk doctrine applies.

RaceTrac properly asserted as a defense that if Steed was not driving, he assumed the risk of riding in a car with the obviously intoxicated Telenko. See Brown v. Mobley, 227 Ga. App. 140, 143 (488 SE2d 710) (1997) (Smith, J., concurring specially). Because there is some evidence in the record to support such a defense, the court’s jury charge on assumption of the risk was appropriate. See generally Deere & Co. v. Brooks, 250 Ga. 517, 519 (3) (299 SE2d 704) (1983).

Judgment reversed.

McMurray, P. J., concurs. Andrews, J., concurs specially.

Andrews, Judge,

concurring specially.

I disagree with the majority’s conclusion that the evidence was irrelevant on the element of damages; however, I agree the evidence could have prejudiced the jury’s decision on the issue of liability. Therefore, I would hold that the trial court erred in not granting the plaintiffs’ motion to bifurcate the trial on the issues of liability and damages.

“The ‘full value of the life of the decedent’ consists of two elements, the economic value of the deceased’s normal life expectancy and the intangible element incapable of exact proof.” Miller v. Jenkins, 201 Ga. App. 825, 826 (412 SE2d 555) (1991). This intangible element of loss is considered from the standpoint of the deceased. In other words, the deceased’s loss of his relationship with the plaintiffs and others and the associated factors such as the society, advice, counsel, and companionship with the plaintiffs and others are to be compensated by the jury based on these relationships. Wilburn, Ga. Law of Damages § 37-6, 331 (4th ed.). Thus, “[t]he plaintifffs] and others can testify about the relationship [with the plaintiffs] in general or in specific terms so that the jury may determine what intangibles were lost by the deceased in the destructions of such relationship(s).” Id.

In determining what evidence is admissible on the intangible value of the decedent’s life, the law affords those witnesses testifying a wide latitude “so that the jury may consider every fact and circumstance that would throw light upon the value of the decedent’s life.” Overby & Butler, What’s A Human Life Really Worth? Recovering Damages For Decedents’ Non-Economic Losses in Georgia Wrongful Death Actions, 7 Ga. State Univ. L. Rev. 439, 454 (1991), citing Pollard v. Boatwright, 57 Ga. App. 565 (196 SE 215) (1938).

In this case, the plaintiffs introduced evidence that Steed was “loving” and “friendly,” and that he had “charisma,” loved sports and was good in art. They also introduced into evidence a Shamrock High School football program dedicated to Steed, a videotape of Steed’s years in high school, and photo albums from 1973, just after Steed was born, to just before he was killed. As a result, the trial court found the plaintiffs had opened the door to RaceTrac’s introduction of evidence showing that Steed routinely used drugs and drank to excess.

The court allowed RaceTrac to question Telenko about Steed’s propensity to drive fast, not necessarily obeying traffic laws, and using LSD and marijuana. There was also testimony from another friend of Steed’s that they were in a group which got together every day and “would proceed to figure out how we were going to get intoxicated for the rest of the day.” The witness also said that the group “did a lot of acid, drank a lot of beer, smoked a lot of pot.”

Decided June 10, 1999

Reconsideration denied June 30, 1999 — Cert. applied for.

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

This witness further testified that Steed engaged in risky behavior, i.e., “driving on five hits of acid and two joints and ten beers.” She said that Steed had a bad temper, was rowdy and aggressive.

The majority opinion analyzes this evidence of Steed’s behavior only from the standpoint of how it related to Steed’s potential life expectancy and earning capacity and ignores the issues of relevance as to the intangible value of Steed’s life and whether the plaintiffs opened the door to this testimony when they introduced their character evidence. Although the law in Georgia is not well developed on the issue of what is relevant evidence on the intangible value of life, if the plaintiff is allowed to introduce evidence of the deceased’s positive relationships and interests, then it follows that, as the trial court stated in this case, the plaintiffs have opened the door to evidence tending to show the negative aspects of the decedent’s relationships and interests. Therefore, Leo v. Williams, 207 Ga. App. 321 (428 SE2d 108) (1993) cited by the majority as authority for its holding is not applicable because that case does not involve testimony on the intangible value of a decedent’s life.

There is always a danger that evidence admissible for one purpose but not for another will prejudice the jury in reaching its decision on that other issue. This is such a case. Therefore, in cases of this type, the trial court must consider seriously the danger inherent in not bifurcating the trial as to liability and damages. Here, because the evidence concerning Steed’s drug use and drinking and driving was relevant in response to evidence introduced by plaintiffs on the intangible aspects of the value of Steed’s life, and yet was inherently prejudicial on the issue of liability, the trial court erred in denying the plaintiffs’ motion to bifurcate the trial. See Chupp v. Henderson, 134 Ga. App. 808, 812 (216 SE2d 366) (1975) (trial court erred in denying motion to bifurcate in auto accident case because evidence of driver’s propensity for careless and reckless driving, while essential to claim for punitive damages, was irrelevant and prejudicial to claim for compensatory damages). See also Cincinnati Ins. Co. v. Reybitz, 205 Ga. App. 174 (421 SE2d 767) (1992) (trial court erred in denying motion to bifurcate because evidence of no-fault insurance was inherently prejudicial on the issue of liability).

Newman, Sapp & Davis, Alan L. Newman, Michele L. Davis, for appellees.

       OCGA § 51-12-5.1 (d) now requires bifurcated trials on the issue of punitive damages.


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

text:
    A99A0601.
    LEE et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    (517 SE2d 328)
   Judge Harold R. Banke.

An unknown hit-and-run motorist caused an automobile accident in which Bridget Lee and her daughter received significant physical injuries. Lee witnessed her daughter’s suffering, which eventually resulted in the daughter’s death an hour later. State Farm Mutual Automobile Insurance Company and Allstate Insurance Company provided Lee and her husband with uninsured motorist protection and paid out the policy limits on the daughter’s wrongful death claim. Lee brought suit to recover for her own physical injuries and for the emotional distress she experienced from witnessing her daughter’s sufferings and death. Her husband jointly sued for loss of consortium. State Farm intervened on its own behalf, and Allstate has defended in the “John Doe” name of the unknown motorist.

The court entered summary judgment in favor of defendants on Lee’s claim for emotional distress. Claiming error, Lee argues that Georgia law allows a mother to recover for emotional distress from witnessing her child’s injuries and death where the mother is also physically impacted and injured by the same tortious conduct.

1. Based on Georgia’s impact rule, OB-GYN Assoc. of Albany v. Littleton (“Littleton IV”) held such damages are not actionable. Littleton alleged that though medically indicated by signs of fetal distress, the doctor failed to perform a caesarean section surgical delivery of her child, with the resulting prolonged vaginal delivery causing physical injury to both her and the delivered child, who died two days later. Thus, the same force or impact caused the injuries to the child and mother. She sought to recover for the mental distress associated with witnessing her child’s injuries and subsequent death.

Quoting a Court of Appeals decision, the Supreme Court stated:

We emphasize that any potential award of damages to Mrs. Littleton in the malpractice claim for her injuries is limited to compensation for any physical injury she suffered as a result of the alleged negligence, and any mental suffering or emotional distress she incurred as a consequence of her physical injuries. Any mental suffering or emotional distress she suffered as a result of injuries to her child is not compensable in this claim.

Subsequent decisions have reiterated that even though the mother herself may have experienced physical impact and harm from defendant’s tortious conduct, she may not recover for mental distress arising from witnessing her child’s sufferings caused by the same conduct. Recovery for emotional distress must arise out of her own physical injuries, and not out of separate physical injuries to the child.

Thomas v. Carter focused on this distinction. The court allowed a mother to recover for emotional distress associated with the death of her fetus because:

The injury to both the mother and the fetus was caused by the direct force to the mother in the automobile collision which resulted in the in útero death of the fetus. The trauma to the placenta is an injury to the mother, not to the child. It was this injury to the mother, and not any separate injury to the fetus, that caused the death of the fetus. Thus, unlike Littleton, the death of the child was the direct result of an injury to the mother.
In Littleton, the Supreme Court recognized that a plaintiff could bring an action for negligence resulting in injuries to her person. This claim may include a claim for compensation for any emotional distress which is a consequential damage resulting from those injuries. In this case, any emotional distress suffered by [the mother] due to the death of her unborn child was a consequential damage resulting directly from injuries to [the mother] herself.

Relying on Littleton IV, Thomas acknowledged that “where the physical injuries to the mother are separate from the injuries to the child, it is appropriate that the mother not be able to recover for her emotional distress resulting from injuries to the child.” Thomas explained that unless the particular injuries to the mother are themselves the proximate cause of the child’s death (as where a child dies in útero), the mother may not recover for her mental distress caused by witnessing the child’s suffering.

Lee and the dissent cite Southern R. Co. v. Jackson as contrary authority. A close reading of Jackson reveals that it is consistent with the recent authorities cited above. Jackson held in Division 1 that a mother who is physically injured by a negligently run train and whose child is also injured “has a right of action for the wrong to herself.” In Division 2 Jackson held that if the mother were not physically injured and her child was, she could not seek to recover for the ■ emotional distress arising from the child’s injuries. Jackson does not state that physical injuries to the mother would allow her to recover for the mental distress associated with seeing her child hurt.

The dissent’s reliance on a “common force” doctrine is misguided, as no Georgia court decision or statute has referred to such a doctrine or used such a phrase. At most, a form of the concept was briefly referenced in Thomas, but Thomas then explained it was referring to situations where the mother’s injuries themselves proximately caused the child’s injuries. In view of Littleton TV’s clear guidance on this matter, we are not at liberty to create new causes of action or to overrule Supreme Court precedent.

Thus, the court did not err in entering summary judgment on Lee’s claim for mental distress arising from witnessing her daughter’s injuries and death.

2. The ruling in Division 1 moots the question of whether State Farm’s uninsured motorist policy would cover this claim as a “bodily injury’ to Lee.

Judgment affirmed.

Johnson, C. J., McMurray, P. J., and Andrews, J., concur. Blackburn, P. J, Ruffin and Barnes, JJ, dissent.

Blackburn, Presiding Judge,

dissenting.

I must respectfully dissent from the majority’s opinion which relies on precedent, including the Littleton cases, applicable only where a parent and child were not injured by the same force. Here, however, the parent and child were injured by a common force, and an entirely different jurisprudential analysis is required.

The language quoted by the majority, regarding emotional distress damages comes from step 2 of the Littleton analysis and addresses only the rule in those situations where there is no physical injury to both parent and child by a common force. The court in Littleton had previously determined in step 1 that the mother and fetus (who died two days later) had been injured by separate acts of malpractice. Thus, under Littleton, no damages for emotional distress by the mother caused by the death of her child could be recovered, because they were not injured by a common force.

This secondary level of analysis allows a parent, who has satisfied the impact rule requirement, to recover for emotional distress resulting from injuries to the parent’s child, if the parent is physically injured by the same force which injures the child. This analysis, whether referred to in terms of a “common force” or “same force” analysis, or otherwise, must be employed to properly decide the issues now before us, and, it does not comprise a new cause of action and is not in conflict with Supreme Court precedent. In fact, this doctrine was set forth in Southern R. Co. v. Jackson, 146 Ga. 243 (91 SE 28) (1916), which was approved by the Supreme Court in the Littleton cases.

Georgia law does allow a parent, who is physically injured by the same force which injures said parent’s child, to recover for emotional distress caused by witnessing the negligent injury of the child. This element of damages is recoverable only under Georgia’s “common force” rule and is in addition to other damages recoverable for the parent’s own physical injuries and any mental suffering arising therefrom.

1. Georgia permits recovery for mental pain and suffering resulting from negligent, tortious conduct. “Where there is a physical injury or pecuniary loss, compensatory damages include recovery for accompanying ‘mental pain and suffering’ even though the tortious conduct complained of is merely negligent.” Westview Cemetery v. Blanchard, 234 Ga. 540, 543 (216 SE2d 776) (1975).

However, with regard to claims for the negligent infliction of emotional distress, Georgia is in a shrinking minority of states which continue to follow the “impact rule,” which limits damages for emotional distress. For an actionable claim, the impact rule requires an actual bodily impact to plaintiff resulting from defendant’s conduct, except where a wilful act of defendant was directed against the plaintiff. Ga. Law of Damages (1998 ed.), § 1-3, p. 3; Harper, James & Gray, Law of Torts (2nd ed.), § 18.4, p. 687. “In a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.” Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992).

Georgia’s “common force” doctrine authorizes recovery for a parent’s emotional distress resulting from injuries to the parent’s child where the parent has satisfied the impact rule and is physically injured by the same force which injures the child. This is the “common force” rule in Georgia.

The issue to be resolved in the present case, then, is whether Bridget Lee, pursuant to Georgia’s common force doctrine, can recover for the emotional distress she suffered as a result of witnessing her daughter’s death in an automobile collision in which she was also injured. It was stipulated by the parties that Lee sustained physical injuries in the same automobile collision which resulted in the death of her daughter, and that she suffered significant emotional distress in witnessing the death of her child.

The trial court resolved this issue in favor of defendants on their motion for partial summary judgment, concluding that Lee

may not recover damages for her claim of emotional distress because any mental suffering or emotional distress she suffered as a result of the injuries or death to her child, Britnie Lee, is not compensable pursuant to the holding in OB-GYN Assoc. vs. Littleton, 259 Ga. 663, [supra] (Littleton II).

The trial court reasoned:

Because Bridget Lee sustained physical injuries in the subject auto accident, she may recover damages for emotional distress. However, those damages are limited to injuries that Bridget Lee suffered and not due to the injuries or, death that her daughter suffered. The emotional distress damages Bridget Lee is seeking in this case are solely based upon the injuries and death of her child and therefore, are not recoverable.

As the parties stipulated that Lee suffered significant physical injuries and emotional distress in witnessing her daughter’s death arising out of this automobile collision, and the same force which injured Lee also killed her daughter, she is entitled, under Georgia law, to recover for all damages she has incurred from this tortious conduct, including the emotional distress she suffered as a result of witnessing the death of her child in this same incident. The trial court and the majority misconstrued precedent established by the Littleton cases which must be read in conjunction with prior Georgia law in this area.

In Southern R. Co. v. Jackson, 146 Ga. 243 (91 SE 28) (1916), our Supreme Court affirmed that a mother could recover for mental pain and suffering related to injury to her child, when she herself is also a physical victim of the tort, but not otherwise.
As Judge Beasley, citing to Jackson, supra, stated in her special concurrence in Littleton v. OB-GYN Assoc. of Albany, P.C., 192 Ga. App. [at 636, supra] (Littleton I), “Georgia long ago recognized that a mother could recover for mental pain and suffering (nervous shock, fright) related to injury to her child when she herself is also a physical victim of the tort.”
Judge Beasley’s special concurrence was cited with approval by our Supreme Court in OB-GYN Assoc. of Albany v. Littleton, 259 Ga. [at 668, supra] (Littleton II), “(w)e are in agreement with Judge Beasley’s reasoning in her concurring opinion in this case.”

Thomas v. Carter, 234 Ga. App. 384, 386 (506 SE2d 377) (1998).

While the Littleton cases provide some legal guidance, they do not control the holding in this case and are factually distinguishable. As such, the majority opinion conflates two separate jurisprudential doctrines by using the Littleton cases, in which mother and daughter were injured by separate forces, as direct authority for deciding the present case, in which mother and daughter were injured by the same force.

Littleton involved a delivery room situation in which the mother and child were not injured by the same force, but by separate acts of malpractice. In Littleton, a mother sued her doctors for negligent infliction of emotional distress caused by the improper delivery of a full-term baby. Two separate injuries were involved, the injury to the mother and the separate injury to the child after birth. Because the mother and child did not receive their injuries from the same force or impact, the mother’s claim for negligent infliction of emotional distress did not satisfy the “common force” rule and was not allowed.

The Supreme Court in Littleton II held that the “zone of danger” or “fear for another” rules which permit recovery of damages for emotional distress by one who witnesses injury to another are not recognized in Georgia. The Court then discussed whether there is a right of action for emotional distress available to parents not present when injuries are inflicted upon their child due to the negligence of a defendant. The Supreme Court approved the holdings of this Court and of the Court of Appeals of New York in Tobin v. Grossman, 24 NY2d 609 (301 NYS2d 554, 249 NE2d 419) (1969), requiring only that the actions of the defendant must be directed toward the parent in order to authorize a recovery for the parent’s emotional distress caused by the injury to or death of their child. Littleton II, supra.

It is clear that a common force which injures both parent and child satisfies the requirement that the action be directed against the parent. There is no other logical conclusion, as the Supreme Court in Littleton II cites with approval Southern R. Co. v. Jackson, supra, which denied damages to a mother who witnessed the mangling of her child resulting from defendant’s negligence, because the mother was not herself injured by the same force which injured her child.

In Southern R. Co., supra, the court held that where a woman suffers a severe nervous shock from witnessing the death of her child from being run over by an engine, but sustains no personal injury, she is not entitled to recover.

In the case now before us, all prerequisites for allowing the mother’s claim for emotional distress have been satisfied. The mother was physically injured by the impact caused by the collision with the defendant’s car. That same impact caused injuries to the mother’s child. Finally, that same impact caused the mother’s emotional distress by forcing her to witness her daughter’s injuries. In short, one impact, caused by defendant, was involved in this case, and all of the injuries claimed by the mother were directly precipitated by this impact. As such, the mother’s claim against the defendant for negligent infliction of emotional distress is appropriate.

Thomas v. Carter, supra, supports this result. In Thomas, the plaintiff was a woman in her seventh month of pregnancy who, as the result of a car collision, sustained injuries to herself and to her unborn child. The child died in útero, and the mother sued for her mental distress arising out of the child’s death. This Court held that the mother’s claim was actionable because “[t]he injury to both the mother and the fetus was caused by the direct force to the mother in the automobile collision which resulted in the in útero death of the fetus.” Id. at 387. Likewise, in the case at hand, mother and daughter were injured by the same force, and the mother’s claim for emotional distress should be allowed.

It must be noted that, although Georgia’s wrongful death statutes generally control the remedies available to a parent for the death of a child, such statutes do not control in this instance. Here, a parent is suing for injuries inflicted on herself, not injuries inflicted on her child. The parent is not suing to be recompensed for the value of the child’s life. Instead, she is pursuing a remedy for her own suffering. Accordingly, the claim being made falls outside the ambit of wrongful death statutes.

It is clear under Georgia law that recovery for a parent’s emotional distress arising out of injuries to the child of such parent is authorized under the “common force” rule. It would be paradoxical to then hold that such damages may not be recovered for the most severe of such injuries, the death of a child.

For all the reasons set forth above, Lee should be allowed to sue for her emotional distress. To hold otherwise would be to deny a fundamental tenet of the law of torts — that a tortfeasor should be held responsible for the reasonably foreseeable consequences of his or her tortious conduct. Whether analyzed from an ethical, moral, or biological perspective, it is axiomatic that a parent who witnesses the injury or death of his or her child will suffer trauma and shock. This trauma, in fact, is more reasonably foreseeable than other damages that might be incurred.

Tortfeasors take their victims as they find them.

[I]t has long been the rule that a tortfeasor takes a plaintiff in whatever condition he finds him. “A negligent actor must bear the risk that his liability will be increased by reason of the actual physical condition of the other toward whom his act [is] negligent.” Restatement (2d) of Torts, § 461, Comment a (1965).

Coleman v. Atlanta Obstetrics &c., 194 Ga. App. 508, 510 (390 SE2d 856) (1990).

It is foreseeable that adults will have children. We do not allow a tortfeasor to assert that he could not foresee that his car wreck victim would be 80 years old and suffer more injuries than another person not impaired by age would have suffered. The foreseeability argument simply does not stand up. Children happen.

No greater injury can be inflicted than to force a parent to watch his or her child die. To preclude recovery for such damages by a parent arising out of an injury to his or her child on the basis that a parent might fraudulently feign mental distress is unsupportable. This, however, is the reason for the impact rule — to reduce fraud by limiting those who may recover. Georgia has softened the harshness of the law by allowing parents who are also physically injured by the same force that injures their child to recover for their emotional distress resulting from the injury to their child. While Georgia continues to follow the “impact rule,” recovery under the facts of this case is authorized under Georgia law.

2. We also address appellant’s second enumeration of error which is not considered by the majority. The trial court also erred by ruling that State Farm satisfied any liability it owed to Lee for her emotional distress by paying out $25,000 for the wrongful death of Lee’s daughter pursuant to the insurance policy.

The policy in question limits liability in terms of each person injured and each accident which occurs.

Under “Each Person” is the amount of coverage for all damages due to bodily injury to one person. “Bodily injury to one person” includes all damages and injuries to others resulting from this bodily injury. Under “Each Accident” is the total amount of coverage, subject to the amount shown under “Each Person”, for all damages due to bodily injury to two or more persons in the same accident.

State Farm contends that because it has paid the “per person” limit for the wrongful death of Lee’s daughter and because Lee’s action for emotional distress is derivative of her daughter’s death, it has satisfied its obligations under the policy. This contention is misplaced, as State Farm’s policy cannot be considered in isolation, but must be interpreted in conjunction with Georgia’s uninsured motorist legislation.

The purpose of uninsured motorist legislation is to require some provision for first-party insurance coverage to facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist, and thereby to protect innocent victims from the negligence of irresponsible drivers. Uninsured motorist statutes are remedial in nature and must be broadly construed to accomplish the legislative purpose.

(Citations and punctuation omitted.) Smith v. Doe, 189 Ga. App. 264, 265-266 (375 SE2d 477) (1988).

OCGA § 33-7-11 (a) (1) provides:

Decided April 1, 1999

Reconsideration denied June 30, 1999 — Cert. applied for.

Johnson & Ward, Clark H. McGehee, William C. Lanham, for appellants.

Allen & Associates, Twanda Turner-Hawkins, Cooper & Associates, Craig C. Avery, for appellees.

No automobile liability policy or motor vehicle liability policy shall be issued or delivered in this state to the owner of such vehicle or shall be issued or delivered by any insurer licensed in this state upon any motor vehicle then principally garaged or principally used in this state unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within [certain enumerated statutory] limits.

OCGA § 33-7-11 (b) (1) (A) states, “ ‘Bodily injury’ shall include death resulting from bodily injury.” Reading the uninsured motorist statute broadly and in favor of coverage, as we must, Lee’s emotional distress has not been excluded from the statutory definition by the legislature and, therefore, should be considered a bodily injury to her within the meaning of the statute. As such, the policy’s per person limitation with regard to the injuries received by Lee’s daughter does not include Lee’s separate claims. Accordingly, State Farm’s payment of the “per person” limits for Lee’s daughter does not satisfy its obligations for Lee’s emotional distress claims.

For all the reasons set forth above, the trial court’s grant of summary judgment to defendants should be reversed.

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

       See OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 665- 666 (2) (A) (386 SE2d 146) (1989) (“Littleton II”) (the “impact rule” requires actual bodily contact with plaintiff resulting in physical injury to plaintiff for a claim for emotional distress to lie).

       261 Ga. 664 (410 SE2d 121) (1991).

        Littleton v. OB-GYN Assoc. of Albany, P.C., 199 Ga. App. 44, 45 (403 SE2d 837) (1991) (“Littleton III").

       Id. at 46, fn. 1.

       (Citation and punctuation omitted.) Littleton IV, supra, 261 Ga. at 664.

        DeKalb County v. Wideman, 262 Ga. 210, 211 (416 SE2d 498) (1992) (“the mother could not recover for her mental distress over the suffering and death of the baby, although she could claim damages for emotional distress resulting from either negligent conduct causing a personal injury to her, or malicious or wilfully tortious conduct directed against her”) (citation and footnote omitted); Goins v. Tucker, 227 Ga. App. 524, 526 (2) (489 SE2d 857) (1997) (“[a]ny mental suffering or emotional distress plaintiff suffered as a result of injuries to her child is not compensable in this claim”) (citation and punctuation omitted).

        Littleton IV, supra, 261 Ga. at 664; Littleton II, supra, 259 Ga. at 663-664 (the mother’s claim “may include a claim for compensation for any emotional distress which is a consequential damage resulting from [physical] injuries” to her own person).

       234 Ga. App. 384, 387-388 (506 SE2d 377) (1998).

       (Citations and punctuation omitted; emphasis supplied.) Id.

       Id. at 387.

       146 Ga. 243 (91 SE 28) (1916).

       Id. at 243 (1).

       Id. at 243 (2).

       Accord Strickland v. Hodges, 134 Ga. App. 909, 910 (216 SE2d 706) (1975): in [ Jackson] a mother crossing railroad tracks was permitted to sue for her personal injuries sustained in a fall while avoiding the approaching engine operated in a grossly negligent manner, but in the second headnote our Supreme Court held that “the fact that she witnessed the mangling of the child and became frightened and suffered a severe nervous shock therefrom would not entitle her to a recovery.”

       234 Ga. App. at 386-387.

       Id. at 387.

        Littleton v. OB-GYN Assoc. of Albany, P.C., 192 Ga. App. 634 (385 SE2d 743) (1989) (Littleton II); OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 668 (386 SE2d 146) (1989) (Littleton II); Littleton v. OB-GYN Assoc. of Albany, P.C., 199 Ga. App. 44 (403 SE2d 837) (1991) (Littleton III); and OB-GYN Assoc. of Albany, P.C. v. Littleton, 261 Ga. 664 (410 SE2d 121) (1991) (Littleton IV).

       In this case, there is no dispute as to the parent’s right to seek damages for any claim she may have for her own physical injuries and mental suffering arising therefrom.


author: Barnes, Judge.

text:
    A99A0168.
    MARSHALL v. WHALEY.
    (520 SE2d 271)
   Barnes, Judge.

Linda Marshall appeals the grant of summary judgment to Kenneth W. Whaley on her claims against him under the family purpose and negligent entrustment doctrines. After she was involved in an automobile accident with Thomas Eric Whaley, Marshall filed suit against Thomas Eric Whaley and his father, Kenneth W. Whaley. Marshall’s complaint alleged that Kenneth Whaley was liable for his son’s actions because he provided a family purpose vehicle to his son, and he entrusted the vehicle to his son with knowledge of his son’s tendency to drive while intoxicated. The case against Thomas Whaley remains pending below.

Marshall contends the grant of summary judgment to Kenneth Whaley was not authorized because issues of fact remain for trial. We disagree and affirm.

Viewing the evidence and all inferences and conclusions most favorably toward Marshall and giving her the benefit of all reasonable doubts, the evidence shows that this case arose from a collision between Marshall’s vehicle and a pickup truck driven by Thomas Whaley. Thomas Whaley pleaded guilty to driving under the influence at the time of the collision.

Although Kenneth Whaley held the legal title to the pickup truck driven by his son and provided insurance coverage on the pickup, he bought the pickup for Thomas Whaley while his son was in high school. Thomas Whaley testified that he had owned the pickup truck since he was 16. Additionally, Thomas Whaley paid his father for the insurance. More significantly, Thomas Whaley had exclusive use of the pickup and his father did not have a key to the truck. Kenneth Whaley denied that he gave his son permission to use the pickup and also denied that he maintained the pickup for the use of his family. Thomas Whaley denied that he was operating the truck with his father’s permission, denied that he was not the owner of the truck, and denied that he had the keys to the truck with the permission of his father.

After high school, Thomas Whaley worked for a year, served an enlistment in the Navy, and then returned home. While he was in the Navy, no one drove the pickup, and the car stayed in Kenneth Whaley’s garage. At the time of the collision Thomas Whaley was 23 and resided off and on with his parents.

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When 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 therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988). Further, when reviewing a grant of summary judgment, this court conducts a de novo review of the law and the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996).

2. Under the undisputed facts of this case, Kenneth W. Whaley cannot be liable under the family purpose doctrine.

To apply the family purpose doctrine to a given situation, four criteria must be met: (1) the owner of the vehicle must have given permission to a family member to drive the vehicle; (2) the vehicle’s owner must have relinquished control of the vehicle to the family member; (3) the family member must be in the vehicle; and (4) the vehicle must be engaged in a family purpose.

(Citation and punctuation omitted.) Walston v. White, 213 Ga. App. 441, 442 (444 SE2d 855) (1994). The actual test, however, is the authority and control of the vehicle by the person alleged to have provided the vehicle. Gould v. Latorre, 227 Ga. App. 32, 34 (3) (488 SE2d 116) (1997); Williams v. Gant, 218 Ga. App. 493, 494 (462 SE2d 179) (1995).

Further,

[a] defendant is liable under the Family Purpose Doctrine if he had the right to exercise such authority and control that it may be concluded that an agency relationship existed between him and the family member with respect to the use of the vehicle. Thus, in a family purpose situation the crucial issue may be whether the defendant supplied or furnished the vehicle for family purposes. Consequently, a mere showing that the vehicle was registered in the head of household’s name and utilized by a family member alone is not sufficient to establish this to be a family purpose car. The doctrine applies to render the defendant vicariously liable if he had the right to exercise such authority and control that it may be concluded that an agency relationship existed between him and the family member with respect to the use of the vehicle.

(Citations and punctuation omitted.) Wahnschaff v. Erdman, 232 Ga. App. 77, 81 (2) (502 SE2d 246) (1998).

Marshall primarily bases her contention that Kenneth Whaley exercised authority and control over the pickup truck because he instructed his son to park the truck in an incident in June 1995. Pretermitting whether one such instance would be a sufficient exercise of authority and control to invoke the family purpose doctrine, the facts of this particular incident do not support Marshall’s allegation. Both Whaleys testified that Thomas Whaley called his father to ask him to drive Thomas Whaley home because he had been drinking. In response to this request, Kenneth Whaley told him to park the truck and he would come pick him up. Considering the circumstances, Kenneth Whaley’s advice to park the pickup was not sufficient to create a genuine issue of material fact on his authority and control over the pickup.

Marshall also contends that Kenneth Whaley exercised authority and control over the pickup by retaining part of the insurance proceeds for the truck. The evidence showed without contradiction that after the collision with Marshall, Kenneth Whaley kept part of the insurance payment for the truck as compensation for room and board owed him by Thomas Whaley. This evidence also was not sufficient to create an issue for trial on whether Kenneth Whaley exercised authority and control over the pickup.

Thus, the evidence is not sufficient to create a genuine issue of material fact on whether Kenneth W. Whaley exercised authority and control over the pickup truck so that it was a family purpose vehicle. Accordingly, the trial court did not err by granting summary judgment on this claim.

3. The trial court also did not err by granting summary judgment on the claim alleging that Kenneth W. Whaley negligently entrusted the pickup to his son.

Georgia requires that the entrustor of a vehicle have actual knowledge of the incompetence of the person to whom the vehicle is entrusted in order to be held liable. The latest Supreme Court pronouncement of this doctrine is in Gunn v. Booker, 259 Ga. 343, 347 (3) (381 SE2d 286) (1989), where the court explained, citing several earlier cases, that “under the doctrine of negligent entrustment, a party is liable if he entrusts someone with an instrumentality, with actual knowledge that the person to whom he has entrusted the instrumentality is incompetent by reason of his age or inexperience, or his physical or mental condition, or his known habit of recklessness.” (Footnote omitted.) [Cits.]

Carolina Cable Contractors v. Hattaway, 226 Ga. App. 413, 414 (487 SE2d 53) (1997). Therefore, to prevail on this claim, Marshall was required to show that Kenneth Whaley entrusted the pickup to his son and that, before he did so, he had actual knowledge that Thomas Whaley was an incompetent driver because of his tendency to drive while under the influence. Worthen v. Whitehead, 196 Ga. App. 678 (396 SE2d 595) (1990).

Although Marshall points to an incident in which Thomas Whaley was charged with DUI before the collision giving rise to this suit, this incident was long after Kenneth Whaley purchased the pickup for his son and delivered control of the truck to his son. Consequently, Thomas Whaley was not driving a vehicle that had been entrusted to him by his father after his father had actual knowledge of his tendency to drive while intoxicated. Accordingly, the trial court did not err by granting summary judgment on this claim.

Decided June 30, 1999.

Leon Hicks, for appellant.

Beck, Owen & Murray, Samuel A. Murray, for appellee.

Judgment affirmed.

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


text:
    A99A0235.
    GEORGIA ADVOCACY OFFICE v. BORISON et al.
    (520 SE2d 701)
   Judge Harold R. Banke.

The Georgia Advocacy Office (“GAO”) appeals an order of the superior court denying a request by GAO to inspect and to be provided with certain information concerning the records of patients of Richard Borison, M.D. and Bruce Diamond, M.D. The underlying case arose after these two physicians were indicted for criminal misconduct involving fraudulent drug studies. Following the criminal indictments, the State instituted a civil forfeiture action against the assets of Borison and Diamond.

To comply with certain federal statutes, the Governor designated GAO as this State’s protection and advocacy (“P&A”) system to champion the legal rights of individuals with mental illnesses and developmental and other disabilities. 42 USC § 10803. See In the Interest of A. V. B., 222 Ga. App. 241, 242 (474 SE2d 114) (1996). Under the Protection & Advocacy Individual Rights Act (“PAIR”), an advocacy system must protect persons with disabilities who fit neither the statutory definition of mentally ill nor developmentally disabled including individuals who are not in residential facilities. 29 USC § 794e (a).

After a series of articles published in the Atlanta newspapers detailed Borison and Diamond’s bogus clinical trials and alleged incidents of abuse and neglect of study participants, GAO launched its own independent investigation. GAO sought to ascertain whether patients who participated in any of the 82 clinical drug trials conducted by Borison and Diamond had actually been subjected to abuse or neglect. GAO also wanted to inform any victims of such misconduct about their legal rights.

After learning that the court-appointed receiver in the State’s civil forfeiture action had custody and control of the medical records of all participants in the 82 drug studies, GAO contacted that receiver. Citing several federal statutes, GAO asserted that it had a legal right to be provided the full names and addresses of all individuals who participated in any of the 82 drug studies which were the subject of the February 18 indictments. GAO also asked the receiver to make the records available for its inspection.

Notwithstanding the fact that federal law explicitly mandates that all protection and advocacy systems, like GAO, “maintain the confidentiality of patient records to the same extent as is required of the provider” (42 USC § 10806 (a)), the receiver denied GAO’s request, claiming that “all the records of the individuals involved in those studies . . . are confidential and protected from disclosure.” The receiver refused to supply any patient records or names and addresses without releases instructing him to do so.

The receiver filed a Petition for Direction in the Superior Court of Columbia County seeking:

to obtain either the Court’s protection from the requirement to produce the names and the documents listed in the letter of the Georgia Advocacy Office, or in the alternative, the Receiver would request the Court to direct and order the Receiver specifically as to what course of action he is to take.

After a hearing on this petition, the trial court issued an order directing the receiver to deny GAO’s request for information and records. Relying solely on part of one federal statute, PAMII, 42 USC § 10805 (a) (4), the court concluded that GAO failed to demonstrate that it had authority to seek the names, addresses or records of the study participants of the clinical drug trials conducted by Borison and Diamond.

GAO appeals that order, contending that the trial court erred by considering only the most restrictive federal statute and not other applicable federal statutes. It asserts that it has a legal right to the information being sought. Held:

Under the federal statutory framework, to obtain patients’ records, absent an actual client relationship, a P&A system: (1) must have “probable cause” as defined by federal law, and (2) must show that the records sought belong to a person fitting within the contours of one of the pertinent federal statutes, PAMII, PADD, and PAIR, and (3) must show the existence of certain specified circumstances under those laws. See 42 USC §§ 6042 (a) (2) (I) (i); 10805 (a) (4) (A).

Under both PAMII and PADD, a P&A system has a right of access to records of individuals only in three delineated circumstances. A system may obtain the records of any individual who is a client of the system where such individual or his legal guardian or representative has authorized the system to have access. 42 USC §§ 6042 (a) (2) (I) (i); 10805 (a) (4) (A). Alternatively, a system may obtain the records of any individual who is unable to authorize the system to have such access, who does not have a legal guardian or representative or whose guardian is the State, and with respect to whom either a complaint has been received or there is probable cause to.believe that such individual has been subjected to or is being subjected to abuse or neglect. 42 USC §§ 6042 (a) (2) (I) (ii); 10805 (a) (4) (B). A system may also obtain access to the records of any individual who has a legal guardian or representative and with respect to whom there is probable cause to believe that such individual has been subject to abuse or neglect, if such representative has been contacted by the system, the system has offered its assistance to resolve the situation, and the representative has failed or refused to act. 42 USC §§ 6042 (a) (2) (I) (iii); 10805 (a) (4) (C).

Congress broadly defined “probable cause” under PAMII to mean: “reasonable grounds for belief that an individual with mental illness has been, or may be at significant risk of being subject to abuse or neglect.” 42 CFR § 51.2. PADD uses a similar definition of probable cause in this context. 45 CFR § 1386.19. Under the statutory framework, the designated P&A system, not a court, makes the determination as to “probable cause.” See Ala. Disabilities Advocacy Program v. J. S. Tarwater Developmental Center, 97 F3d 492, 498-499 (11th Cir. 1996);

By federal law, where media reports, general investigations, inspection reports and other credible information regarding abuse and neglect create probable cause, P&A systems are authorized and expected to conduct investigations. See 45 CFR § 1386.22 (a) (iii) (probable cause can be the result of monitoring or other activities including media reports and newspaper articles); Tarwater, 97 F3d at 498-499. Based on the criminal indictments against Borison and Diamond, various media accounts, the guilty plea by one defendant, and GAO’s own investigation, GAO plainly had probable cause within the meaning of these federal statutes to investigate further.

Armed with a showing of “probable cause” as defined by federal law, GAO then contacted the receiver to obtain additional facts. But at that juncture, GAO’s efforts became stymied. Although GAO presented probable cause suggesting that numerous persons may have been victimized, it could not identify them by name. Nor could GAO initiate contact with unidentified persons. Without access to the records, GAO could not specifically show which, if any, study participants who were mentally ill or developmentally disabled fit within the parameters of PAMII, PADD, or PAIR and essentially were unable to provide their consent.

Congress intended to require states to have “effective” P&A systems, not pro forma ones. Miss. Protection &c. System v. Cotten, 929 F2d 1054, 1058 (5th Cir. 1991). The Eleventh Circuit court in Tarwater, supra, observed: “[A] state cannot satisfy the requirements of (the Act) by establishing a protection and advocacy system which has this authority in theory, but then taking action which prevents the system from exercising that authority.” Id. at 497. As another court astutely noted, “[o]bviously, it [the P&A system] does not have to have proof of abuse or neglect at the time it seeks to undertake an investigation; if it had proof of abuse or neglect, no further investigation would be necessary.” Md. Disability Law Center v. Mt. Washington Pediatric Hosp., 664 A2d 16, 23 (Md. Ct. of Spec. App. 1995).

On appeal, we accept a trial court’s findings of fact unless clearly erroneous but owe no deference to a trial court’s conclusions of law. Espinoza v. State, 265 Ga. 171, 172 (1) (454 SE2d 765) (1995). Here, the trial court’s order hinged in part on misconstruing the law. The court faulted GAO for failing to show that any inpatient with a mental illness was receiving treatment at a “facility” and was currently at risk of harm. But the federal statutes obligated GAO to investigate past incidents of mistreatment wherein an individual “has been at significant risk of being subject to abuse or neglect.” 42 CFR § 51.2; 45 CFR § 1386.19. By concentrating its analysis only on present participants which, of course, there was none since the experimentation had ceased, the court clearly erred in applying federal law. GAO offered uncontradicted testimony that “[s]ome of the study participants that we have direct knowledge of were/are residents of various facilities including nursing homes and the VA Hospital.”

We, therefore, remand this case to the superior court to exercise its statutory and equitable powers. Ga. Const. of 1983, Art. VI, Sec. I, Par. IV. King v. Bishop, 198 Ga. App. 622, 624 (402 SE2d 307) (1991); see Aetna Cas. &c. Co. v. Ridgeview Institute, 194 Ga. App. 805, 806-807 (1) (392 SE2d 286) (1990).

We direct the court to devise a plan for ensuring an expeditious and confidential review of these records in a manner the court considers appropriate, to determine which, if any, study participants fit within the federal statutory guidelines of PAMII, PADD, or PAIR and were subjected to abuse or neglect. See Ridgeview Institute, 194 Ga. App. at 807. In so doing, the court has the inherent power to conduct in camera reviews and to fashion orders limiting the use and dissemination of records to protect patient privacy interests. Apple Investment Properties v. Watts, 220 Ga. App. 226, 229 (469 SE2d 356) (1996). If GAO obtains a proper release or the consent from an individual or from a guardian where appropriate, then the court must ensure prompt compliance with such record requests after reviewing them to ensure the redaction of any privileged communications. See Plunkett v. Ginsberg, 217 Ga. App. 20, 22 (456 SE2d 595) (1995) (case remanded to trial court to review psychiatric records); see Ridgeview Institute, 194 Ga. App. at 807 (1) (trial court directed to conduct in camera inspection of records).

To hold otherwise would unnecessarily insulate potentially culpable defendants from accountability for their purported misdeeds. See Watts, 220 Ga. App. at 229. This we refuse to do.

Judgment vacated and case remanded with direction.

Blackburn, P. J., and Barnes, J., concur specially.

Blackburn, Presiding Judge,

concurring specially.

I agree with the analysis and the holding of the majority. I write separately to suggest that the trial court appoint a guardian ad litem as an additional measure to protect the rights of the patients. Although a special master could protect the confidentiality of the patients’ records, the appointment of a special master would be for the court’s benefit, e.g., as the majority noted the trial court could conduct an in camera inspection of the records itself. The appointment of a guardian ad litem, however, would be for the benefit and protection of the patients’ rights and interests.

Decided June 30, 1999 — Cert. applied for.

Cristina C. Higgins, Robert J. Raubach, for appellant.

Garrett & Gilliard, Michael C. Garrett, Jay M. Sawilowsky, for appellees.

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

       The Protection & Advocacy for Mentally 111 Individuals Act (“PAMII”) codified at 42 USC § 10801 et seq. and the Protection & Advocacy of the Developmentally Disabled Act (“PADD”) codified at 42 USC § 6041 et seq. require that each state which accepts federal funds for certain services must establish a protection and advocacy system.

       In February 1998, GAO sent ante litem notice to the State, alleging various tort and breach of contract claims on behalf of a class of 500 to 1,500 individuals. GAO asserted that the tortious conduct occurred while these persons were misused as human “guinea pigs” in “bogus drug studies” while they were residents or outpatients of Georgia Regional Hospital at Augusta or the Medical College of Georgia or its adjunct facilities.

       The Restatement of Bill of Rights for Mental Health Patients guarantees the “right not to participate in experimentation in the absence of such person’s informed, voluntary, written consent. .. .” 42 USC § 10841 (1) (E).

       GAO’s investigative coordinator offered several hearsay accounts of incidents allegedly triggering pulmonary complications, impotence, attempted suicide, and exacerbation of major depression. The affidavit averred that some of the patient participants at Georgia Regional Hospital and at the VA Hospital lacked the capacity to realize that they had been part of drug trials.

       In its brief, GAO states that “[n]umerous counts of a one hundred twenty count indictment describe persons with disabilities being subjected to venapuncture by unlicensed personnel, being subjected to the unauthorized practice of medicine, or being switched to other drug studies, not out of concern for health, but for the profit of the doctors.” GAO claims that “few of the people subjected to abuse have been identified by GAO.”

       As the district court noted in Robbins v. Budke, 739 FSupp. 1479, 1485 (N. M. 1990), “[a] P & A [system] also has a protected First Amendment right to communicate and consult with the population it was created to serve. United Transportation v. Michigan Bar, 401 U. S. 576, 580-81, 91 S.Ct. 1076, 1079-80, 28 L.Ed.2d 339 (1971).”

       The receiver contends that GAO’s inquiry is time-barred since any incidents of abuse or neglect are more than 90 days old. See 42 USC § 10805 (a) (1) (C) (ii). But that subsection applies to the pursuit of “administrative, legal, and other remedies” and not to investigations of incidents. Compare 42 USC § 10805 (a) (1) (A). Moreover, these federal statutes safeguard the rights of past victims who “may have been subjected to abuse.”


author: Blackburn, Presiding Judge.

text:
    A99A0810, A99A1184.
    GENTRY et al. v. VOLKSWAGEN OF AMERICA, INC. et al.; and vice versa.
    (521 SE2d 13)
   Blackburn, Presiding Judge.

This is a product liability action. In Case No. A99A0810, Ralph Gentry and Sandra Gentry appeal from the trial court’s grant of partial summary judgment to Volkswagen on the grounds that the National Traffic & Motor Vehicle Safety Act (the Safety Act) preempted the Gentrys’ wrongful death claim for the death of their daughter Lori Gentry. In Case No. A99A1184, Volkswagen appeals, pursuant to interlocutory grant, the denial of its motion for summary judgment as to the Gentrys’ claims of violations of the Racketeer Influenced & Corrupt Organizations Act (RICO). OCGA § 16-14-1 et seq.

On appeal of the grant of summary judgment, this Court applies a de novo review of the evidence to determine whether any question of material fact exists. Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A defendant meets this burden by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.

(Citation and punctuation omitted.) Phelps v. BellSouth Advertising &c. Corp., 235 Ga. App. 147, 148 (508 SE2d 779) (1998). Additionally, this Court reviews de novo whether federal law preempts state law claims. See Irving v. Mazda Motor Corp., 136 F3d 764 (11th Cir. 1998).

Viewed in this light, the record shows that the Gentrys are the parents of Lori Gentry, who was killed in an automobile crash in 1989 while riding in a 1981 Volkswagen Rabbit. The 1981 Rabbit was equipped with a fully passive restraint system, which consisted of a passive (automatic) two-point shoulder belt harness, a ramped seat and a deformable knee bolster (the VWRA system). The Rabbit did not have a lap belt but used the ramped seat and deformable knee bolster to restrain the lower part of a passenger’s body. The Gentrys brought suit asserting claims of strict liability in tort, negligence, wrongful breach of warranty, fraud, failure to warn, misrepresentation and concealment, wilful or wanton acts and RICO violations.

Case No. A99A0810

In Case No. A99A0810, the Gentrys appeal the trial court’s determination that their common law claims are preempted by the Safety Act. The Gentrys assert that the specific design selected by Volkswagen for its fully passive restraint system (the VWRA system) was defective. Volkswagen argues that if the Gentrys are allowed to bring their state law claim, any liability would effectively eliminate the fully passive restraint system as a manufacturer’s option under Motor Vehicle Safety Standard 208, thereby creating a conflict between the state law claim and the federal law.

1. State Law Claims.

An automobile manufacturer’s compliance with federal regulations does not eliminate liability for design defects under Georgia law. Doyle v. Volkswagenwerk Aktiengesellschaft, 267 Ga. 574 (481 SE2d 518) (1997). Under the risk utility analysis applied to claims asserting design defects, compliance with applicable federal standards is simply one of the factors to consider. Id. at 577. Thus, Volkswagen’s compliance with the requirements of the Safety Act does not bar the Gentrys from asserting a product liability claim under Georgia law. Whether that liability is preempted by federal law is the question on appeal.

2. Federal Preemption.

The Supremacy Clause of the United States Constitution provides that the laws of the United States “shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U. S. Const. art. VI. Thus, state law that conflicts with federal law is “without effect.” Cipollone v. Liggett Group, Inc., 505 U. S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992). And, “common law liability may create a conflict with federal law, just as other types of state law can.”
Whether federal statutes or regulations preempt state law is “a question of congressional intent.” . . . Congress — through federal laws and regulations — may effectively preempt state law in three ways: (1) express preemption; (2) field preemption (regulating the field so extensively that Congress clearly intends the subject area to be controlled only by federal law); and (3) implied (or conflict) preemption.

(Citations omitted.) Irving, supra at 767. See Macon-Bibb County Hosp. Auth. v. Nat. Treasury Employees Union, 265 Ga. 557, 558 (2) (458 SE2d 95) (1995) (federal preemption of state law is “a question of Congressional intent”).

Volkswagen argues only that the Gentrys’ claims are impliedly preempted. Volkswagen’s preemption argument is based on Motor Vehicle Safety Standard 208, which concerns occupant crash protection. When the 1981 Rabbit in which Gentry was riding was manufactured, Volkswagen was required to comply with one of three occupant protection options. 49 CFR § 571.208 S4.1.2. As amended in 1974, Standard 208 allows a manufacturer to use a fully passive restraint system, in lieu of the seat belt systems otherwise required, to meet the performance requirements of S4. See 39 Fed. Reg. 3834 (“Option two exists, in fact, to accommodate the introduction of passive restraint systems like Volkswagen’s which cannot meet all requirements of option one.”). Volkswagen contends that the VWRA system in the 1981 Rabbit complied with this second option, 49 CFR § 571.208 S4.1.2.2, as amended.

Assuming, without deciding, compliance with the federal standards, we turn to Volkswagen’s implied preemption argument. We view this argument with the knowledge that “[w]hen considering implied preemption, no presumption exists against preemption.” Irving, supra at 769. Volkswagen argues that the Safety Act impliedly preempts the Gentrys’ claims because to allow the claims would frustrate the intent of the Safety Act.

“The focus of the Safety Act is to reduce deaths and injuries from automotive accidents by promoting and enhancing safer automobile design.” Doyle, 267 Ga. at 577. Standard 208 “specifies performance requirements for protection of vehicle occupants in crashes,” and its purpose is “to reduce the number of deaths of vehicle occupants, and the severity of injuries by specifying crashworthiness requirements.” 49 CFR § 571.208 S1, S2. As noted above, manufacturers could choose from three restraint options to comply with Standard 208, and one of the options was a fully passive restraint system.

(a) Liability based on design of restraint.

The fully passive restraint option allows manufacturers to design any fully passive restraint system so long as it meets the minimum performance requirements set forth in the regulations. Standard 208 does not mandate any particular fully passive restraint system. Compare S4.1.2.1 and S4.1.2.3 (specifying a seat belt assembly). Holding a manufacturer liable where a fully passive restraint system failed to exceed this minimum standard does not create a conflict, but instead dovetails with congressional intent. Manufacturers are encouraged to design fully passive restraint systems which offer greater occupant protection. And, a manufacturer can meet both the minimum federal standard and the state tort standard by designing its restraint system to meet the latter. See Perry v. Mercedes Benz of North America, 957 F2d 1257 (5th Cir. 1992).

Volkswagen, by characterizing the Gentrys’ claims as a “failure to have a lap belt” claim, contends the claims are preempted. We agree that, to the extent that the Gentrys allege as a design defect a failure to include a lap belt, that claim is preempted by federal law. Irving, supra; Doyle v. Volkswagenwerk Aktiengesellschaft, Case No. L91-CV-1926A, N.D. Ga. (slip op. Sept. 29, 1998). However, our review of the record finds Volkswagen’s characterization of the claim overly simplistic. The Gentrys’ claims assert more than a defect based solely on the lack of a lap belt.

The Gentrys assert that the specific design selected by Volkswagen for its fully passive restraint system (the VWRA system) was defective. The Gentrys’ claims are similar to those asserted in Perry, supra. In that case, Perry alleged that the air bag system, which complied with federal standards, was defective because it was not designed to deploy in the type of crash sustained. The court found that “[I]t would not conflict with Congress’ objectives and methods if [Mercedes Benz] were found liable in tort for failing to design its air bags to perform in a manner that effectively exceeds the federal minimum standards.” Id. at 1264.

We likewise conclude that it would not conflict with congressional intent if Volkswagen were found liable in tort for failing to design a passive restraint system that exceeded federal standards.

(b) Liability based on choice of design option.

Volkswagen relies on two recent federal court decisions in which a state law claim was preempted by the Safety Act. Irving, supra; Doyle, supra at 1:91-CV-1926A, N.D. Ga. (slip op. Sept. 29, 1998). However, in each of these cases the claim was preempted because it eliminated an option granted to manufacturers under the Safety Act. Liability was based on the restraint option selected by the manufacturer, not the design of the option as we have in this case. See, e.g., Pokorny v. Ford Motor Co., 902 F2d 1116 (3rd Cir. 1990) (liability based on restraint option); Taylor v. Gen. Motors Corp., 875 F2d 816 (11th Cir. 1989) (liability based on restraint option); Alvarado v. Hyundai Motor Co., 908 SW2d 243 (Tex. App. 1995) (liability based on design); Perry, supra (liability based on design).

In Doyle, the restraint system in the Jetta was identical to the restraint system in the present case. It consisted of a passive two-point shoulder belt but no lap belt. The Jetta also used a knee bolster to restrain the lower part of the occupant’s body. However, unlike the claims in this case, all of Doyle’s claims were based solely upon the contention that the Jetta was defective because it did not include a lap belt as part of its front seat restraint system. Slip op. at p. 11. The district court found a conflict because the Doyles’ claim sought to hold Volkswagen liable for a restraint system without a lap belt, a' restraint system specifically authorized by Standard 208. The district court observed that

[its] analysis would not apply to a claim that a particular design of seat belt was defective, but would merely preempt the type of claim plaintiffs present in this case, that is, that a restraint system is inherently defective because it contains no lap belt, or no air bag for that matter, because a restraint system without a lap belt or an air bag was an “option explicitly permitted by Congress.” Irving, 136 F.3d at 769.

Doyle, supra at 1:91-CV-1926A, N.D. Ga. (slip op., p. 19, fn. 10).

In Irving, the safety belt system in the Mazda at issue had a passive two-point shoulder belt restraint and a manual lap belt. The Irvings argued that design was inherently defective. However, this specific restraint system option, two-point passive shoulder belt paired with a manual lap belt, was one of the three options available to manufacturers under Standard 208. Thus, the Irvings’ claim was preempted because it challenged the option selected by Mazda. However, the Court noted that preemption would have been less clear if the claim alleged that the specific design selected by Mazda for its two-point system was defective. Id. at 769, fn. 4.

The judgment of the trial court is affirmed as to the Gentrys’ claim the 1981 Rabbit was defective because it did not include a lap belt and reversed as to other claims.

Case No. A99A1184

In Case No. A99A1184, Volkswagen appeals the denial of its motion for summary judgment as to the Gentrys’ RICO claims. For the reasons discussed below, we reverse.

A private cause of action is created in favor of persons injured by violations of OCGA § 16-14-4, [which provides] “(a) It is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property or personal property of any nature including money. (Emphasis added.)”
Thus, the conduct prohibited by the act is the acquisition of (in this case) money through a “pattern of racketeering activity.” The act further provides that “pattern” means engaging in at least two incidents of racketeering activity. OCGA § 16-14-3 (2). Finally, “racketeering activity” is defined to mean the commission of a crime in any of thirty-one specified categories of offenses (known as predicate offenses). OCGA § 16-14-3 (3).

State of Ga. v. Shearson Lehman Bros., 188 Ga. App. 120, 121 (2) (372 SE2d 276) (1988). The predicate offenses which are alleged by the Gentrys are violations of OCGA § 16-10-20 and 18 USC §§ 1341 and 1343 (mail fraud and wire fraud). See OCGA § 16-14-3 (9) (A) (xv), (xxix). We address these predicate offenses in turn.

3. OCGA § 16-10-20 provides:

A person who knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes a false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state shall, upon conviction thereof, be punished by a fine of not more than $1,000.00 or by imprisonment for not less than one nor more than five years, or both.

(Emphasis supplied.) The statute’s application is limited to statements or representations made to state or local government about matters within its jurisdiction. Viewing the record favorably to the Gentrys as the nonmovant, all of the allegations of fraud and misrepresentation concern statements and representations made to the National Highway Traffic Safety Administration (NHTSA), a federal agency, about compliance with NHTSA’s regulations. Volkswagen’s compliance with Standard 208 is a matter outside the jurisdiction of state or local government. The Gentrys have not presented any evidence that Volkswagen made any representations to any department or agency of state or local government.

The Gentrys erroneously rely on OCGA § 40-8-76.1, arguing that it requires all passenger vehicles to be equipped with passenger restraints which comply with Standard 208, and therefore passenger car manufacturers have made a representation to the Georgia Public Service Commission. We disagree. OCGA § 40-8-76.1 simply requires the passenger in the car to “buckle up.” It does not address any reports or statements to a state agency. There is no evidence of a violation of OCGA § 16-10-20, and the Gentrys’ RICO claim cannot be predicated on this offense.

4. Neither can the Gentrys predicate a RICO claim on violations of 18 USC § 1341 or § 1343. To recover under a private cause of action in RICO, a plaintiff must show that the injury suffered flowed directly from the predicate offense. Maddox v. Southern Engineering Co., 231 Ga. App. 802 (500 SE2d 591) (1998). More specifically, “when the alleged predicate act is mail or wire fraud, the plaintiff must have been a target of the scheme to defraud and must have relied to his detriment on misrepresentations made in furtherance of that scheme.” Pelletier v. Zweifel, 921 F2d 1465, 1499-1500 (11th Cir. 1991).

The injuries to Lori Gentry flow only indirectly, not directly, from the alleged misrepresentations to NHTSA. The question is whether the injury was directly caused by any RICO violation, not whether the injury was reasonably foreseeable. Bivens Gardens Office Bldg. v. Barnett Banks of Fla., 140 F3d 898, 908 (11th Cir. 1998). In this case, the alleged misrepresentations were directed to NHTSA, not Lori Gentry. Additionally, there is no evidence that Lori Gentry relied on the misrepresentations as she was not the consumer who purchased the car. “Although [Lori Gentry] may not have been injured but for the misrepresentations, it is clear those misrepresentations were not the proximate cause of [her] injuries.” Maddox, supra at 806. The Gentrys lack standing to pursue a RICO claim based on those misrepresentations. Johnson Enterprises v. FPL Group, 162 F3d 1290, 1318 (11th Cir. 1998).

Decided June 30, 1999.

Pope, McGlamry, Kilpatrick & Morrison, Charles N. Pope, Paul Kilpatrick, Jr., R. Timothy Morrison, William J. Cornwell, Wade H. Tomlinson III, Swift, Currie, McGhee & Hiers, W. Ray Persons, James E. Carter, for appellants.

Welch, Spell, Reemsnyder & Pless, Ronald D. Reemsnyder, Lisa K. Whitfield, Hezekiah Sistrunk, Jr., for appellees.

The trial court’s denial of Volkwagen’s motion for summary judgment on the Gentrys’ RICO claims is reversed.

Judgment affirmed in part and reversed in part in Case No. A99A0810. Judgment reversed in Case No. A99A1184.

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

       The Gentrys brought suit individually and as the parents of their deceased daughter Lori Gentry. Ralph Gentry also brought suit as the administrator of the estate of Lori Gentry.

       Volkswagen of America, Inc. and Volkswagen Aktiengesellschaft are defendants in the action.

       The three options are set out in 49 CFR § 571.208 S4.1.2.1-.3.

       OCGA § 40-8-76.1 (b) states, “[e]ach occupant of the front seat of a passenger vehicle shall, while such passenger vehicle is being operated on a public road, street, or highway of this state, be restrained by a seat safety belt approved under Federal Motor Vehicle Safety Standard 208.”

       Because the Georgia RICO act is modeled upon the federal RICO statute, we look to federal authority. See Maddox, supra.