text:
    A96A0791.
    LANE v. THE STATE.
    (479 SE2d 350)
   Ruffin, Judge.

A jury convicted George Lane of two counts of child molestation. Lane appeals from the trial court’s judgment of conviction and the denial of his motion for new trial. We affirm.

1. Lane asserts the trial court erred in denying his motion for directed verdict. We disagree.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Lane] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]” Ogles v. State, 218 Ga. App. 92, 93 (2) (460 SE2d 866) (1995).

Viewed in this light, the evidence at trial showed that Lane’s son married the victim’s mother. From October 1991 to December 1993, the victim, her brother, their mother and Lane’s son lived with Lane on his property in Pike County. During this time, Lane committed the offenses by molesting the victim in her brother’s presence. See OCGA § 16-6-4 (a). In 1994, a Department of Family & Children Services’ (“DFCS”) caseworker interviewed the victim, who was five years old at the time. The victim told the caseworker that Lane “took her hand and rubbed it . . . [and] also touched her private.” Using drawings, the victim showed the caseworker “that her private was her vaginal area, and that the rubbing it was the male penis on the male drawing [sic].” Similarly, a deputy sheriff with the Pike County Sheriff’s Department testified that the victim told him that Lane let her “play with his privates” and that it had happened many times.

Two other witnesses provided similar testimony. The victim’s brother, who was nine years old at the time of trial, testified that when his mother and stepfather were at work, he would watch television with Lane and the victim. He stated that Lane and the victim would lie on the floor and he could see her “play with George Lane’s private.” The victim’s brother testified that this happened more than once. Finally, the State presented similar transaction evidence showing that in 1989 Lane molested his natural granddaughter by taking her hand and putting it on his penis.

In light of this testimony, there was “ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that [Lane] was guilty of the offenses of which convicted. Jackson v. Virginia, [443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)].” Ogles, supra at 93.

2. Lane asserts the trial court erred when it excused a prospective juror for cause. We disagree.

The voir dire transcript shows that the juror answered positively to the following question: “[H]ave you for any reason formed and expressed any opinion in regard to the guilt or innocence of the accused, George Lane?” Upon further questioning, the juror stated that she would listen to the evidence, but also stated that “I just really don’t believe that he’s guilty. I mean, you know, that’s all I can say. In my heart — .”

“Challenges to individual jurors such as the one at issue here are based on admissions of the juror or facts and circumstances which raise a suspicion that the juror is actually biased for or against one of the parties. [Cit.]” Perry v. State, 264 Ga. 524, 525 (2) (448 SE2d 444) (1994). And, although a defendant is presumed innocent, where a prospective juror is not impartial and shows some bias in favor of a defendant, that juror is subject to be excused for cause. Id. A reading of the record in this case shows that the prospective juror accorded the defendant more than just the presumption of innocence, but that she had actually prejudged the case. “The decision as to whether or not to discharge the prospective juror is within the discretion of the court. [Cit.]” Id. Because the prospective juror’s responses in this case showed a leaning or bias in favor of Lane, the trial court did not abuse its discretion in excusing her for cause. Id.

3. Lane asserts the trial court erred in admitting certain similar transaction testimony. The transcript shows that when the similar transaction witness began to testify, Lane’s attorney moved the court as follows: “I would request limiting instructions to the jury contemporaneously with any testimony or any evidence of the similar transactions being presented.” The trial court gave Lane’s requested instruction, and thereafter, a DFCS caseworker testified that in 1989 she investigated a report that Lane molested his granddaughter, who was si;x years old at the time. In her testimony, the caseworker related the granddaughter’s statement that “Lane had taken her hand and put it on his private.”' Lane did not object to the caseworker’s testimony, and appellate courts have no alacrity for embraced error.

Lane’s request for a limiting instruction, accompanied by his failure to object to the testimony, must be construed as a waiver of any objection he may have had to the testimony. It is well settled in this state that “it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which might have been raised.” (Citations and punctuation omitted.) Curtis v. State, 212 Ga. App. 237, 239 (4) (441 SE2d 776) (1994). Furthermore, Lane did not move in limine to have the court prohibit the testimony, and there is nothing indicating that he was dissatisfied with the court’s handling of his request for a contemporaneous limiting instruction or the testimony that followed. “ ‘In no case will the trial judge’s ruling be reversed for not going further than requested.’ [Cit.]” Garner v. Victory Express, 264 Ga. 171, 173 (2) (442 SE2d 455) (1994). Accordingly, we find no error.

4. Lane asserts the trial court erred in refusing to require the State to provide him with a copy of a videotaped interview of the victim which purportedly contains exculpatory evidence. The trial judge examined the videotape in camera and informed the parties that he would not order the State to produce it unless the State planned to introduce it at trial. The court subsequently denied Lane’s request that the tape be sealed for appellate review.

“Georgia law does not provide that statements given prior to trial by key prosecution witnesses be generally made available for discovery by the defendant in a criminal case. It is well-recognized that Brady [v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963)] does not require the prosecution to open its file for general inspection by the defense or for pre-trial discovery. Accordingly, [Lane’s] complaint that he was not provided with a copy of the [videotape] for his own inspection is without merit; this is not required under the holding in Brady or its progeny.” (Citations and punctuation omitted.) Boatright v. State, 192 Ga. App. 112, 113 (2) (385 SE2d 298) (1989). “Under the attendant circumstances the trial court’s prior examination in camera of the [videotape] was an adequate in camera inspection to satisfy the requirements of Brady and its progeny.” Id. See also Stewart v. State, 210 Ga. App. 474 (3) (436 SE2d 679) (1993).

Neither do we agree with Lane that the judgment should be reversed because the trial court failed to include the videotape in the record for appellate review. Lane has “not made a timely motion to this court requesting that we order [the tape] forwarded for review. As a general rule, we will not call up the state’s files for review unless the appellant can show cause, by showing that particular evidence was suppressed which was material [and exculpatory].” (Citation and punctuation omitted.) Boatright, supra at 113; Gibby v. State, 213 Ga. App. 20 (4) (443 SE2d 852) (1994).

In this case, Lane “has failed to show that any of the withheld information was material and exculpatory; his general assertion that something in the [videotape] would have cast doubt on the reliability of the [victim’s] statements is not enough. [Cit.]” Id. at 23-24. Under these circumstances, “[w]e see no need to depart from this rule in this case. Moreover, [Lane has] now waived any right [he] may have had to assert as error the trial court’s failure to seal and forward the video tape . . . with the trial record. [Cit.]” Boatright, supra at 113. See also Gibby, supra. Accordingly, this enumeration is without merit.

5. Lane asserts the trial court erred in limiting his examination of a witness. The court prohibited Lane from asking a witness whether the victim’s mother in this case had falsely accused the witness of molesting the victim on a prior occasion. Lane contends the question was relevant because the mother also complained of the molestation in this case and the prior false allegation reflects on her credibility. However, Lane has failed to cite any evidence in the record showing the mother complained of the sexual misconduct in this case. We will not search the record for such evidence. Court of Appeals Rule 27 (c) (3) (i). Accordingly, Lane’s contention that the question was relevant is not supported by the record.

Moreover, Lane’s contention that such questioning is proper under Smith v. State, 259 Ga. 135 (377 SE2d 158) (1989) is without merit. The rule announced in Smith concerns “admission of testimony regarding the victim’s alleged past false accusations against persons other than the defendant.” (Emphasis supplied.) Id. at 136. The Supreme Court ruled that such testimony is permissible because it shows “the victim’s propensity to make false statements regarding sexual misconduct. [Cits.]” (Emphasis supplied.) Id. at 137 (1).

In this case, however, the testimony related to the propensity of the victim’s mother to falsely accuse others of sexual misconduct. Because Lane has not cited any evidence that the victim’s mother reported the molestation in this case, we need not decide whether the rule in Smith applies to such facts. Without such evidence, the mother’s past conduct in reporting sexual misconduct is of questionable, if any, relevance. See Moclaire v. State, 215 Ga. App. 360 (7) (451 SE2d 68) (1994) (evidence is relevant if it tends to prove or disprove material fact at issue in case). Under these circumstances, the trial court did not abuse its discretion in limiting Lane’s examination of this witness. See id.

6. Lane asserts the trial court erred in denying his motion to quash the indictment because it did not allege a specific date on which the offense occurred.

The indictment alleged that the offenses occurred “between October, 1991, & December [1993], . . .” “This was a sufficient allegation as to dates. . . . [Lane] offered no alibi evidence, nor did he at any time request a continuance on the ground of surprise, nor did he otherwise express a need for additional time to rebut any evidence presented by the state. Consequently, it does not appear that the failure to allege the specific date[s] of the offense[s] in the indictment materially affected his ability to present a defehse.” (Citation and punctuation omitted.) Hutton v. State, 192 Ga. App. 239, 241 (4) (384 SE2d 446) (1989). Thus, the trial court did not err in denying Lane’s motion. Id.

Decided July 11, 1996

Reconsideration denied December 4, 1996

Virgil L. Brown & Associates, Bentley C. Adams III, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

7. Finally, Lane asserts the trial court erred in excluding the testimony of his expert witness, Dr. James Stark. Lane tendered Dr. Stark as an expert on techniques used by law enforcement and caseworkers and how those techniques could cause false memories or mistaken attributions on the part of children.

“The opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” OCGA § 24-9-67. However, “[generally, an expert cannot state his opinion based upon facts not within his personal knowledge which are not otherwise admitted in evidence. [Cit.]” Brown v. State, 206 Ga. App. 800, 801 (427 SE2d 9) (1992).

In this case, Lane has not shown that Dr. Stark’s- proffered testimony was based upon facts within his knowledge or facts admitted in evidence. The admission of such testimony rests within the trial court’s sole discretion. Stewart, supra at 476. Under the circumstances, Lane has not shown that the trial court abused its discretion.

Judgment affirmed.

McMurray, P. J, and Johnson, J., concur.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A96A1031.
    FETTEROLF v. THE STATE.
    (478 SE2d 889)
   Ruffin, Judge.

Wayne Fetterolf was charged with four counts of child molestation and one count each of aggravated child molestation, sexual battery, rape, statutory rape, incest and contributing to the unruliness of a minor. The indictment alleged that Fetterolf’s daughter, who was under age 14, was the victim of all the offenses. The trial court granted Fetterolf a directed verdict on the charges of sexual battery and contributing to the unruliness of a minor. The jury acquitted Fetterolf of all other offenses except Count 2, in which it found Fetterolf guilty of child molestation for placing his hand on the breast of the victim, which was an immoral and indecent act committed with intent to arouse and satisfy his sexual desires. Fetterolf appeals, and we affirm.

1. Fetterolf asserts that the trial court erred in denying his motion to dismiss the indictment because it did not allege specific dates on which the offenses occurred. The indictment alleged that the offenses occurred “between the 1st day of December, 1991 and the 30th day of April, 1992. . . .” “ ‘This was a sufficient allegation as to dates. . . . [Fetterolf] offered no alibi evidence, nor did he at any time request a continuance on the ground of surprise, nor did he otherwise express a need for additional time to rebut any evidence presented by the State. Consequently, it does not appear that the failure to allege the specific date[s] of the offense[s] in the indictment materially affected his ability to present a defense.’ [Cit.]” Lane v. State, 223 Ga. App. 740, 743-744 (6) (479 SE2d 350) (1996). Accordingly, the trial court did not err in denying the motion. See id.

2. Fetterolf asserts that the trial court erred in failing to answer a question posed by the jury during deliberations. The transcript shows that while deliberating, the jury submitted the following question to the court: “[a]ny offense that we believe happened before 1 December ‘91 or after 30 April ‘92 can we consider in a finding of guilty?” After argument by the State and Fetterolf concerning an appropriate response, the court informed the parties of the instruction it would give the jury. When the court summoned the jury to give them the instruction, the bailiff informed the judge: “[t]hey say leave them alone.” The trial judge then asked the foreperson: “[y]ou don’t need an answer to the question?” The foreperson answered, “[n]o, sir,” and shortly thereafter the jury returned to the courtroom and announced its verdict.

This issue is controlled by Johnson v. State, 254 Ga. 591, 602 (18) (331 SE2d 578) (1985), which involved facts almost identical to those in this case. In Johnson, the Georgia Supreme Court ruled that “ ‘[w]here, after requesting a recharge, the jury returns a verdict before the trial judge has time to recharge, the trial judge’s failure to recharge before the verdict is reached does not require reversal.’ [Cit.]” Id. It is clear in this case that the jury not only informed the court it no longer needed the previously requested instructions, but also that the jury returned its verdict before the court had an opportunity to provide any further instructions. Accordingly, we find no error.

3. Fetterolf asserts that the trial court erred in admitting similar transaction evidence without conducting a legal relevance balancing test. The similar transaction evidence concerned four other incidents of sexual misconduct involving young females, and the court admitted it to show Fetterolf s bent of mind, course of conduct and lustful disposition. Citing Adams v. State, 208 Ga. App. 29, 34 (3) (a) (430 SE2d 35) (1993), Fetterolf argues that the trial court was required to conduct, on the record, a balancing test to determine whether the purposes for which the evidence was introduced outweighed its prejudicial impact. However, as the Georgia Supreme Court noted in Farley v. State, 265 Ga. 622, 625-626 (2) (458 SE2d 643) (1995), “[o]nly four judges concurred in Division 3 of Adams, whereas five judges did not. Accordingly, Division 3 of Adams is not binding authority and is a physical precedent only by virtue of the Court of Appeals own Rule 33 (a). Moreover, Adams’ conclusion that such an express balancing determination is mandated appears to have been created ex nihilo because none of the cases cited supports such a requirement.” Accordingly, Fetterolf s assertion that the trial court was required to conduct such a balancing test on the record is without merit.

4. Fetterolf asserts that the trial court erred in allowing the State to use similar transaction testimony to contradict the victim’s testimony. Fetterolf contends that the victim testified that he, Fetterolf, did not touch her breasts and that there was no conflicting evidence showing that he did touch her breasts. Fetterolf argues that under these circumstances, the State’s sole purpose in introducing the similar transaction testimony was to impeach the victim’s testimony that he did not touch her breasts. We disagree. The evidence showed that Fetterolf did touch the victim’s breasts and that he had similarly abused a young girl of approximately the same age as the victim.

During the trial, the victim testified repeatedly that Fetterolf touched her breasts. Another witness, who frequently visited Fetterolf’s residence, testified that he saw Fetterolf “fondle” the victim’s breasts. The similar transaction witness about whom Fetterolf complains testified that she was friends with the victim in 1990, when they were both in seventh grade. During this time, the similar transaction witness visited the victim’s house on a daily basis and stayed the night on occasion. The witness testified that when she visited the Fetterolf residence, Fetterolf “would touch me, my breasts, but not —■ he would not go up my shirt. He would touch me on my butt.” The witness stated that Fetterolf touched her breasts on approximately five occasions and touched her buttocks on approximately ten occasions. The witness also stated that Fetterolf would often compare her breasts and buttocks with the victim’s.

“ ‘In a child molestation case, the sexual molestation of young children, regardless of sex or type of act, is [of] sufficient similarity to make the evidence admissible.’ ” (Citations omitted.) Green v. State, 212 Ga. App. 250, 251 (2) (441 SE2d 689) (1994). Because there was evidence that Fetterolf touched the victim’s breasts and the similar transaction testimony showed that Fetterolf sexually abused the witness who was also a young female, the trial court did not err in admitting the testimony. See id.

5. Fetterolf asserts that the trial court erred in admitting testimony by a State’s witness describing the content of photographs not in evidence. The witness testified that while visiting the victim at Fetterolf’s residence, the victim showed him a photo album containing pictures of the victim’s “breasts, the butt, and the crotch area.” According to the witness, the pictures were taken when the victim was 12 to 14 years old. The photographs were not introduced into evidence, and Fetterolf objected to the testimony concerning the contents of the photographs on the ground that it was hearsay because he had no opportunity to examine the photographs at trial. We disagree.

Although Fetterolf’s sole ground for objection at trial was based on hearsay, his argument on appeal asserts that the testimony was inadmissible because there was no evidence that the photographs were of the victim or that he had ány connection to the photographs. “[W]e do not consider grounds for objection not raised in the trial court. [Cit.]” Edwards v. State, 219 Ga. App. 239, 246-247 (8) (464 SE2d 851) (1995). Accordingly, because Fetterolf failed to object at trial that a proper foundation was not provided for the testimony, we do not consider such objection here. Moreover, although Fetterolf summarily states in his brief that the testimony was hearsay, he has not. supported any such contention with argument or citation of authority, in violation of Court of Appeals Rule 27 (c) (2). Accordingly, this argument is deemed abandoned. Id.

6. Fetterolf asserts that the trial court erred in denying him an evidentiary hearing on his selective prosecution defense. We disagree.

“Uniform Superior Court Rule 31.1 requires all motions in a criminal case to be filed at or before the time of arraignment, ‘unless time therefor is extended by the judge in writing prior to trial.’ ” Roberson v. State, 195 Ga. App. 379 (1) (393 SE2d 516) (1990). In this case the trial court found, and Fetterolf acknowledged, that the motion was not timely filed and there is no indication that he received an extension. Accordingly, the trial court did not err in denying the motion. See id. Furthermore, we need not address , the trial court’s other reasons for denying the motion, because “[a] trial court’s ruling will be affirmed if it is right for any reason. [Cit.]” Stovall v. State, 216 Ga. App. 138, 139 (1) (453 SE2d 110) (1995).

7. Fetterolf asserts that the trial court erred in excluding from evidence a victim impact statement in which the victim stated that Fetterolf “took [her] virginity.” Fetterolf contends that the statement should have been admissible for impeachment purposes because the victim told another man in a letter that he was her “first.” We disagree.

Decided November 6, 1996.

Novy, James & Vaughan, Eugene Novy, Deborah M. Vaughan, for appellant.

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

Although such evidence might have been admissible if the victim testified that she was a virgin prior to the alleged rape by Fetterolf, the transcript shows that the victim never provided such testimony and the letter to the other man was never brought to the jury’s attention. See Villafranco v. State, 252 Ga. 188, 194 (2) (313 SE2d 469) (1984); Jones v. State, 190 Ga. App. 416, 417 (1) (379 SE2d 189) (1989). Without such testimony by the victim, Fetterolf was prohibited from introducing the disputed evidence under the Rape Shield Statute (OCGA § 24-2-3). Jones, supra. Accordingly, we find no error.

8. Fetterolf asserts that there was insufficient evidence to support his conviction. We disagree. “Any hypothesis of innocent conduct on the part of [Fetterolf] is contradicted by the recurring and continuing incidents of touching the [victim], and by the evidence of similar conduct which illustrated [Fetterolf’s] state of mind and pattern of conduct. Viewed in the light most favorable to the verdict, the evidence authorized a rational trier of fact to find [Fetterolf] guilty beyond a reasonable doubt ... of the offense of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]; [Cit.].” Bragg v. State, 217 Ga. App. 342, 343 (2) (457 SE2d 262) (1995).

Judgment affirmed.

McMurray, P. J, and Johnson, J., concur.


text:
    A96A0887.
    GRANGE MUTUAL CASUALTY COMPANY v. LAW et al.
    (479 SE2d 357)
   Ruffin, Judge.

Terrell and Vivian Law sued their fire insurance carrier, Grange Mutual Casualty Company (“Grange Mutual”), for, among other damages, $118,000 in policy benefits for fire damage to their home, $59,000 in policy benefits for fire damage to their personal property, and bad faith damages. Grange Mutual denied liability under the policy, claiming that the Laws intentionally caused the fire. A jury awarded the Laws the entire amount of their claims for damage to their home and personal property and an additional $2,400 as a bad faith penalty. Grange Mutual moved for judgment notwithstanding the verdict ("j.n.o.v.”) on the jury’s $118,000 award for damages to the home and the bad faith penalty. Grange Mutual appeals from the trial court’s denial of its motion. For reasons which follow, we affirm in part and reverse in part.

On appeal from a trial court’s denial of a motion for j.n.o.v., we must construe the evidence with every inference and presumption in favor of upholding the verdict. Willis v. Brassell, 220 Ga. App. 348 (469 SE2d 733) (1996). If we find any evidence to support the jury’s verdict, we must affirm the trial court’s order. Id.

Viewed in this light, the. evidence shows that on October 24, 1991, a fire damaged the Laws’ home. When the fire department arrived, all the doors to the home were locked and deadbolted. The firemen knocked down the back door and eventually located a fire burning in an interior wall. The Laws were not home at the time of the fire, and the fire department found no signs of forced entry.

Grange Mutual retained Jack Ward, a private fire investigator, to determine the cause and origin of the fire. Ward testified that he discovered more than one point of origin for the fire and that this was a good indicator that it was an intentionally set fire. Ward further testified that he found irregular burn patterns where a flammable, liquid was poured on the stairs and on a closet wall beneath the stairwell. Ward took four samples of the debris in this area, and a forensic chemist who tested the samples testified each contained kerosene. Upon determining that the fire was not caused by faulty wiring or appliances, Ward concluded that the fire was intentionally set and that a flammable liquid was used to start the fire.

After receiving Ward’s report, Grange Mutual broadened its investigation to determine whether the Laws had any motive or the opportunity to start the fire. That investigation revealed that at the time of the fire the Laws were experiencing financial problems. Although Terrell Law told Grange Mutual he had $500 in his checking account, the Laws’ account statement showed that they had over: drawn their checking account on several occasions and that it was overdrawn by $181.87 at the time of the fire. The investigation also revealed that at the time of the fire the Laws were behind on their mortgage payments, three months behind op. one car payment, and one month behind on another car payment. !

Evidence concerning opportunity showed that only four people had keys to the house: Terrell Law, his wife, his daughter, and Vivian Law’s mother. Frankie Holton, a friend of Vivian Law, testified that she drove to the house earlier on the day of the fire and observed a man who identified himself as Lamar Faulkner exiting the house. Faulkner told Holton that he had come to see Terrell Law. After a brief conversation, Faulkner reportedly re-entered the house to investigate a noise, and when he came back out and reported that no one was there, Holton left. Terrell Law told an investigator that Faulkner came by the house and picked up a boat, but that he did not have a key to the house.

Grange Mutual’s insurance policy insured the house for $118,000, which, according to Grange Mutual’s insurance agent, was the full replacement cost of the house. A damage estimate prepared in 1991 estimated fire damage to the house in the amount of $91,030. Although a contractor who testified for the Laws stated that he agreed with the estimate at the time it was prepared, he also stated that at the time of trial it would cost $118,000 or more to repair the damage to the house.

1. Grange Mutual asserts that the trial court erred in denying its-motion for j.n.o.v. as to the jury’s award for $118,000 in damages to the Laws’ home. We disagree.

“The question of damages being one for the jury, a reviewing court should not interfere unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias.” OCGA § 13-6-4. In this case, the jury heard testimony that the cost to repair the house was $118,000 or more. Accordingly, the jury’s award of $118,000 was within the range of damages established by the evidence. See Tyler v. Bennett, 215 Ga. App. 87, 88 (1) (449 SE2d 666) (1994). Under these circumstances, Grange Mutual was not entitled to j.n.o.v. as to the dwelling damages.

2. However, the trial court erred in denying Grange Mutual’s motion for j.n.o.v. as to the jury’s award for bad faith penalties.

To support their claim for bad faith penalties under OCGA § 33-4-6, the Laws had the burden of proving that Grange Mutual’s refusal to pay the claim was made in bad faith. Massachusetts Bay Ins. Co. v. Hall, 196 Ga. App. 349 (3) (395 SE2d 851) (1990). The jury was not authorized to award the Laws bad faith penalties if Grange Mutual had any reasonable ground to contest the claim and there were disputed questions of fact. “ ‘Where the question of liability is close and the facts are disputed so that the insurer has reasonable grounds to contest the claim, no penalty should be permitted.’ ” Id. at 355.

In this case, Grange Mutual presented evidence showing it had reasonable grounds to contest the Laws’ claim. The evidence showed the fire was intentionally started from inside the house and that, due to financial problems, the Laws had a motive to start the fire. The evidence also showed that the house was locked at the time of the fire and that only four family members had keys. Although Lamar Faulkner’s ability to enter the house was not explained, his presence only presents a factual issue as to who had an opportunity, along with the Laws, to start the fire.

Decided September 11, 1996

Reconsideration denied December 4, 1996

Simpson, Gray & Carter, Ralph F. Simpson, Joseph I. Carter, for appellant.

Starling & Starling, Donald A. Starling, for appellees.

Accordingly, because there was evidence to support Grange Mutual’s defense that the Laws intentionally caused the fire, the trial court erred in failing to grant j.n.o.v. on the claim for a bad faith penalty. Id. at 355-356.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Johnson, J., concur.


author: Blackburn, Judge.

text:
    A96A1364.
    PRINGLE v. MAYOR & ALDERMEN OF THE CITY OF SAVANNAH.
    (478 SE2d 139)
   Blackburn, Judge.

We granted Timothy Pringle’s application for discretionary appeal to review the superior court’s order reversing the Workers’ Compensation Board Appellate Division’s (Board’s) order requiring the City of Savannah to pay a portion of Pringle’s housing costs for a handicap-accessible apartment. In a case of first impression, this opinion addresses the extent an employer, pursuant to the Workers’ Compensation Act, must provide handicap-accessible housing to workers injured on the job.

Pringle, during the course of his employment as a sanitation worker with the City of Savannah, was injured when he was struck by an automobile. As a result, Pringle suffered severe injuries to his pelvis, back, and head. In addition, Pringle’s left leg was amputated above the knee. Pringle sometimes uses crutches or a prosthetic device and sometimes uses a wheelchair. Pringle was awarded temporary total disability benefits and was also entitled to rehabilitation benefits under OCGA § 34-9-200.1, because his injuries were considered catastrophic.

At the time of his injury, Pringle lived in a house he rented for $200 a month. Following the accident, this house was no longer suitable for Pringle, and he moved to an apartment (Robinson’s Apartment Complex) which was modified into a handicap-accessible apartment by the City of Savannah. It was soon discovered that the Robinson apartment was only partially accessible to Pringle because the kitchen cabinets could not be reached from his wheelchair and the bathroom was not large enough to accommodate his wheelchair or crutches. The rehabilitation supplier subsequently fouiid a different apartment for Pringle in the Phillips Winters Handicapped Housing Projects (the Phillips Winters apartment). The Phillips Winters apartment is completely accessible to Pringle. The monthly rent for the Phillips Winters apartment is $331 and is calculated according to HUD guidelines based on Pringle’s income.

While Pringle was living at the Robinson apartment, he requested that the City of Savannah provide him and his family with a handicap-accessible home and reimburse him for rent paid since the date of his injury. However, Pringle moved to the Phillips Winters apartment before the administrative law judge (ALJ) reached a final decision regarding Pringle’s request. Subsequently, the ALJ found that the Phillips Winters apartment was the most appropriate housing available. The ALJ also found that the City had subsidized the costs of the Robinson apartment and the Phillips Winters apartment since Pringle moved into them and thus denied his request for reimbursement from the City of Savannah. Pringle appealed to the Workers’ Compénsation Board. During the pendency of the appeal, the City stopped subsidizing Pringle’s rent. The Workers’ Compensation Board found that the City of Savannah was responsible for the cost of Pringle’s rent in excess of the $200 a month he was paying at the time of his injury due to his need for handicap-accessible housing. The superior court reversed, holding that the Board is not authorized to require an employer to pay for an employee’s housing costs.

Pringle claims the City should pay for his handicap-accessible housing because his need for this type of housing is the result of his occupational injury. The City argues that the specialized housing costs do not qualify as medical, income, or rehabilitation benefits under OCGA §§ 34-9-200, 34-9-200.1, and 34-9-261.

OCGA § 34-9-200 (a) provides that tfye employer shall provide medical care and other treatments “which are prescribed by a licensed physician.” Since a physician has not prescribed specialized housing for Pringle, the award of housing costs cannot qualify as a medical benefit. With respect to income benefits, an employee who sustains an injury resulting in total disability is entitled to weekly compensation benefits “equal to two-thirds of [his] average weekly wage.” OCGA § 34-9-261. It is undisputed by the parties that Pringle is receiving the full amount of benefits to which he is entitled to under OCGA § 34-9-261.

As to rehabilitation benefits, OCGA § 34-9-200.1 (a) provides that “the employer shall furnish the employee . . . with reasonable and necessary rehabilitation services.” Workers’ Compensation Board Rule 200.1 (c) (B) (ii) provides that rehabilitation services include “necessary home or vehicle modifications, and in-home care or other services or equipment necessary for a catastrophically injured employee to return to the least restrictive life style possible.” While this statute and the corresponding Board rule clearly provide for the employer to make necessary modifications to the employee’s home, it does not explicitly authorize the payment of housing costs for the employee.

Other jurisdictions, when confronted with this issue, have required the employer to pay for the injured employee’s handicap-accessible housing. In Derebery v. Pitt County Fire Marshall, 347 SE2d 814, 818 (N.C. 1986), an injured volunteer fireman sought recovery of workers’ compensation benefits including the requirement that the employer provide him with handicap-accessible housing. The North Carolina Supreme Court, liberally construing the Workers’ Compensation Act, determined that the statutory language, “other treatment or care,” requires the employer to furnish a handicap-accessible residence for an injured employee.

In Peace River Elec. Corp. v. Choate, 417 S2d 831 (Fla. 1982), the District Court of Appeals of Florida upheld an award of a rent-free, wheelchair-accessible home supplied by the employer. The Court did, however, note the extreme circumstances of its case (injured employee was residing in a dilapidated makeshift dwelling consisting of a trailer and a ramshackle wooden shed that were difficult or impossible to negotiate by wheelchair) and cautioned that the ruling should not be loosely interpreted by practitioners in the workers’ compensation field. This same Florida court required the employer to bear the responsibility of providing appropriate handicap-accessible housing to the employee only after it determined that the injured employee’s apartment could not be modified. Ramada Inn South Airport v. Lamoureux, 565 S2d 376 (Fla. 1990). The court further held that the employer should bear the responsibility only for the difference between the cost of claimant’s current apartment and the cost of a handicap-accessible apartment. Id.

In Polk County Bd. of Commrs. v. Varnado, 576 S2d 833, 838 (Fla. 1991), the Florida District Court of Appeals reversed the trial court’s order requiring the employer to purchase land and build a wheelchair-accessible home for the injured employee. The court stated that “[u]nless there is a specific reason that the existing home is totally inappropriate for modification, the [employer] should have the option of modifying the existing residence in conformance with the medically necessary requirements.” Id.

The Court of Appeals of Arkansas in Pine Bluff Parks &c. v. Porter, 639 SW2d 363 (Ark. 1982), held that the employer was required to fund the cost attributed to rent of a handicap-accessible apartment for the injured employee but other costs would be apportioned according to what services and apparatus the employer is required to furnish under the Workers’ Compensation Act.

Although OCGA § 34-9-23 was amended by Ga. L. 1994, p. 887 to provide for impartial application and construction of Georgia workers’ compensation law to both employers and employees, that statute retained its original language providing for liberal construction of the Act “only for the purpose of bringing employers and employees within [its] provisions . . . and to provide protection for both.” OCGA § 34-9-23. Applying that construction, we conclude that OCGA § 34-9-200.1 (a) and Workers’ Compensation Board Rule 200.1 (c) (B) (ii) permit the Board to require the employer to provide handicap-accessible housing to an injured employee. “[Rehabilitation services undertake the task of restoring the [injured worker] to the maximum usefulness that [he/she] can attain under [his/her] physical impairment. To accomplish that task, employers must furnish employees with rehabilitation services which the board, in its discretion, deems necessary and practical.” (Citations and punctuation omitted.) Jackson v. Peachtree Housing Div. &c., 187 Ga. App. 612, 615 (371 SE2d 112) (1988).

OCGA § 34-9-200.1 and Board Rule 200.1 (c) (B) (ii) clearly require the employer to install handicap apparatus and to make necessary structural modifications to the injured employee’s home in order to permit wheelchair access. This requirement can be satisfied by the employer only if the employee’s apartment or home is capable of being so modified. If not, the employee may have to rent a more expensive apartment that is already handicap-accessible or capable of being modified to be handicap-accessible. The employee, in such a situation, is penalized for having a smaller apartment at the time of injury. The employee, but for the on-the-job injury, would not have been required to move into the larger apartment and, consequently, pay a higher rent. Therefore, the employer should be required to fund the difference between the cost of employee’s previous residence and the cost of a handicap-accessible apartment.

In the present case, there is no question that Pringle was catastrophically injured and that his injuries were compensable under the Workers’ Compensation Act. The Act itself requires reasonable and necessary rehabilitation services, and such services are defined by the Workers’ Compensation Board Rules as requiring home modifications, in-home care, or other services necessary to return Pringle to the least restrictive lifestyle possible. The determination as to which services are necessary is left to the Workers’ Compensation Board’s discretion. See Jackson, supra. Herein, the Workers’ Compensation Board determined that Pringle was in need of specialized housing and modifications and that these increased needs resulted in higher housing costs. These determinations are supported by the facts and the applicable law. Therefore, the Board did not abuse its discretion.

In light of the above, the trial court erred in reversing the Board’s award of benefits requiring the City of Savannah to pay the amount of Pringle’s rent in excess of the $200 a month.

Judgment reversed.

Beasley, C. J., and Birdsong, P. J., concur.

On Motion for Reconsideration.

On motion for reconsideration, the City contends that our opinion should be reconsidered because Workers’ Compensation Board Rule 200.1 was revised by the Board effective July 1, 1996. However, these revisions cannot be applied retroactively because Pringle was injured in 1990 and the new rule states that “[cjases with dates of injury prior to July 1, 1992, will be regulated in accordance with board rules in effect on or before July 1, 1991.” Rule 200.1 (a). See also Thompson v. Wilbert Vault Co., 178 Ga. App. 489, 490-491 (343 SE2d 515) (1986) (administrative regulations subject to general rule that changes will not apply retroactively unless such intention is unequivocal). Furthermore, we cannot say that the revisions made by the Board to its rules would affect the outcome of the issues in the case even if applied. As the City points out in its motion for reconsideration, Board rules may not enlarge the substantive rights of the parties. See Holt Svc. Co. v. Modlin, 163 Ga. App. 283, 284 (1) (293 SE2d 741) (1982).

As to rehabilitation benefits, the revised OCGA § 34-9-200.1 (a) remains unchanged in this regard and still provides that “the employer shall furnish the employee . . . with reasonable and necessary rehabilitation services.” Prior to the Board’s revisions, Rule 200.1 (a) provided that “[f]or cases with dates of injury prior to July 1, 1992, rehabilitation services shall be provided to any injured employee to the extent appropriate and which, in the judgment of the board, will return the employee to suitable employment consistent with employee’s prior occupational level and/or will restore the employee to optimal physical functioning. The period for vocational rehabilitation shall not exceed 26 weeks unless approved by the board.” (Emphasis supplied.) The Board merely deleted the emphasized portion of this paragraph of Rule 200.1 (a). Additionally, former Workers’ Compensation Board Rule 200.1 (c) (B) listed several types of rehabilitation plans in which it specifically authorized that an “Independent Living Plan includes necessary home or vehicle modifications, and in-home care or other services or equipment necessary for a catastrophically injured employee to return to the least restrictive life style possible.” See former Board Rule 200.1 (c) (B) (ii). However, the Board deleted the section listing the types of rehabilitation plans in its 1996 version, apparently leaving the types of plans up to the principal rehabilitation supplier’s discretion, and subject to the Board’s approval. See Workers’ Compensation Board Rule 200.1 (c) (1) (“[t]he board recognized principal supplier shall have sole responsibility for each individual case”) and Workers’ Compensation Board Rule 200.1 (c) (2) (principal suppliers proposed Individualized Rehabilitation Plan submitted to board for approval).

Decided August 8, 1996

Reconsideration denied December 4, 1996

Lorenzo C. Merritt, for appellant.

Oliver, Maner & Gray, Patricia T Paul, Patrick T. O’Connor, Wiseman, Blackburn & Futrell, James B. Blackburn, for appellees.

       Injured employee was placed into a facility designed for paraplegics. The facility, in addition to providing handicap-accessible housing, provided nursing services, custodial care, and other nonmedical services such as housekeeping.

       The same portion of revised Rule 200.1 (a) now provides “[flor cases with dates of injury prior to July 1, 1992, rehabilitation services shall be provided to any injured employee to the extent appropriate and which, in the judgment of the board, will return the employee to suitable employment and/or will restore the employee to optimal physical functioning.”


text:
    A96A1253.
    CLIFTON v. ZEMURRAY.
    (478 SE2d 897)
   Ruffin, Judge.

Nancy Brown, individually and as next friend for Candace Clifton, a minor, sued Joseph Harper and his stepfather Samuel Zemurray III under the family purpose doctrine. In her complaint, Brown sought to recover damages allegedly sustained when Clifton was struck by a pickup truck driven by Harper. Zemurray moved for summary judgment, which the trial court granted on the ground that Zemurray did not exercise the requisite degree of authority and control over Harper’s use of the automobile for liability to attach. For reasons which follow, we reverse.

The correct standard for summary judgment is recited in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Under that standard, a trial court should grant summary judgment only when all the facts and reasonable inferences from those facts, viewed in a light most favorable to the non-moving party, show that there is no triable issue as to each essential element in the case. Id. at 495.

Viewed in that light, the evidence in this case shows that Harper, a minor, was living with his natural mother and stepfather, Samuel Zemurray. In 1992, Harper’s grandparents gave him a pickup truck as a gift, but titled it in his mother’s name. Zemurray purchased the tag for the truck, paid for repairs on the truck, paid the insurance premiums and received the insurance proceeds from the accident. Harper, however, was the only driver of the truck, had the only set of keys, and paid for its gasoline and oil changes. When the collision took place, Harper was driving to his girl friend’s house en route from a school function.

In response to Zemurray’s motion for summary judgment, Brown pointed to portions of Harper’s deposition testimony where he discussed Zemurray’s authority to control his use of the truck. During that testimony, Harper acknowledged that Zemurray “could have prohibited [him] from driving the 1988 Ford Pickup truck as of [the date of the accident].” Similarly, Zemurray testified in his deposition that although his disciplinary authority over Harper was unclear, he could have prohibited Harper from using the truck if he believed Harper was an unsafe driver.

“ Tn Georgia, when an automobile is maintained by the owner for the use and convenience of his family, such owner is liable for the negligence of a member of the family having authority to drive the car while it is being used for a family purpose. To apply the family purpose doctrine to a given situation, four criteria must be met: (1) the owner of thp 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 omitted.) Walston v. White, 213 Ga. App. 441, 442 (444 SE2d 855) (1994).

“Although the four factors prescribe the parameters of the doctrine, the determinative test under the family purpose doctrine is whether the non-driving family member exerted authority and control over the vehicle. [Cit.] In other words, after it is determined that the four factors listed above are present, the inquiry becomes whether the owner of the vehicle exerted sufficient authority and control for the doctrine to be applied.” Bailey v. Butler, 199 Ga. App. 753, 754 (406 SE2d 97) (1991). A defendant is liable under the 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.” Murch v. Brown, 166 Ga. App. 538, 539 (304 SE2d 750) (1983). Because the only issue presented in this appeal is whether there was sufficient evidence of authority and control, we will not address the sufficiency of the evidence concerning the four threshold factors.

It is not necessary that the right and authority to control be proved directly, as long as there is sufficient evidence from which a jury could reasonably infer that the parent had such a right. In Murch, supra, the facts showed that the family member was living at home and subject to her parents’ general supervision. We affirmed the denial of summary judgment to the defendant although there was no direct evidence that the defendant had the right to exercise authority and control over the use of the vehicle. Id. at 540. In Young v. Wooldridge, 187 Ga. App. 661 (1) (371 SE2d 100) (1988), we found the evidence sufficient to create an inference of the right to control where the family member was an unemancipated minor who was a member of the immediate household.

We reached a different conclusion more recently in Williams v. Gant, 218 Ga. App. 493 (462 SE2d 179) (1995). In Williams, the evidence showed that the parents purchased the car for their son for his personal use, paid for insurance, and titled it in the father’s name. Importantly, the facts showed that at the time of the accident, the son was a 19-year-old college student visiting home for the summer. The parents did not impose any rules concerning the use of the car. The only evidence showing the parents had any control was provided by the son who stated "that if his father had become angry, he could have taken the keys from him because ‘(h)e’s my father, he can do what he wants.’ ” Id. We affirmed the grant of summary judgment to the parents "because the undisputed evidence show[ed] that the parents did not retain the right to exercise such authority and control over their son’s use of the vehicle that it could be concluded he was their agent, arising out of that purpose, in the use of the car. [Cits.]” Id. at 494.

While the facts in Williams may not have been sufficient to provide a basis for application of the family purpose doctrine, the facts in the instant case are more compelling. In this case, the trial court found, and it is not disputed, that Zemurray had a property interest in the truck, that Zemurray made the truck available for Harper’s personal use as a family member, and that Harper had Zemurray’s permission to drive the truck at all times. Importantly, the evidence showed that at the time of the accident, Harper was an unemancipated minor living in Zemurray’s home. Under Young, supra, this is sufficient evidence to create an inference that Zemurray had the requisite control over Harper’s use of the vehicle. Evidence that Zemurray could have prohibited Harper from driving the truck further supports this inference. Accordingly, a jury could find that Harper’s use of the truck fell under the family purpose doctrine, and the trial court erred in granting summary judgment to Zemurray. See Young, supra.

Decided November 19, 1996

Reconsideration denied December 4, 1996

Oliver, Maner & Gray, Inman G. Hodges, Timothy D. Roberts, for appellant.

Barrow, Sims, Morrow & Lee, Jordon D. Morrow, Bouhan, Williams & Levy, Frank W. Seiler, Brennan, Hárris & Rominger, Mason White, for appellee.

Judgment reversed.

McMurray, P. J., and Johnson, J., concur.


text:
    A96A1529.
    SARTIN v. THE STATE.
    (479 SE2d 354)
   Ruffin, Judge.

A jury found Timothy Sartin guilty of one count of aggravated child molestation and one count of aggravated sodomy. The trial court sentenced Sartin to 30 years for the aggravated child molestation and 20 years for the aggravated sodomy. Sartin appeals from the trial court’s denial of his motion for new trial, asserting he was denied effective assistance of trial counsel. For reasons which follow, we affirm.

To establish ineffective assistance of counsel, Sartin “must show (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Citations and punctuation omitted.) Minton v. State, 205 Ga. App. 430, 431 (2) (422 SE2d 300) (1992). “ ‘The trial court’s determination that [Sartin] has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.’ [Cit.Y Hudson v. State, 218 Ga. App. 671, 672 (1) (462 SE2d 775) (1995).

1. Sartin, who is represented by new counsel on appeal, first contends that his appointed trial counsel had a conflict of interest which rendered his assistance ineffective. It is undisputed that Sartin did not object to the trial court concerning the purported conflict.

To establish ineffective assistance of counsel due to a conflict of interest on the part of trial counsel, a defendant who raised no objection at trial must prove that counsel “actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance.” (Citations and punctuation omitted.) Capers v. State, 220 Ga. App. 869, 873 (2) (470 SE2d 887) (1996); Meyers v. State, 265 Ga. 149 (2) (454 SE2d 490) (1995).

In this case, trial counsel represented Sartin’s former wife in their 1988 uncontested divorce. During the divorce, counsel drafted an agreement awarding custody of their children (not victims in this case) to Sartin’s former wife and obligating Sartin to pay child support. Sartin asserts that because there is the possibility of future litigation with his former wife concerning child support, a conflict of interest existed.

Although trial counsel acknowledged representing Sartin’s former wife in the divorce, he testified that he has handled approximately 2,000 cases in the eight years since the divorce and did not recall anything about the case. Trial counsel also testified that because the divorce occurred so long ago and was uncontested, he did not perceive any conflict with representing Sartin in this case.

Under these circumstances, Sartin has not shown that trial counsel had an actual conflict. Even if there is a possibility of future litigation concerning child support, “ ‘[w]here the contention is only the possibility of conflict, this is insufficient to impugn a criminal conviction.’ ” Angevine v. State, 171 Ga. App. 658, 660 (4) (320 SE2d 578) (1984).

Moreover, if Sartin thought trial counsel had a conflict, he should have voiced his objection to the court before trial. “ ‘[A] party can not during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.’ [Cits.]” Noble v. State, 220 Ga. App. 155, 158 (2) (469 SE2d 307) (1996).

2. Sartin asserts counsel was ineffective because he failed to object to certain testimony by a State’s witness, a hospital caseworker who evaluated him for depression.

The caseworker testified on direct examination that during his initial interview, Sartin made “statements to the effect of saying, I don’t know how I could have done such a thing.” The caseworker then testified that he asked Sartin “what, specifically, are you referring to . . . [and Sartin replied],“that he had put his penis in the mouth of a daughter of his wife.” Sartin characterizes the statement as an admission of the charges against him and contends that his attorney should have objected to the statement because it was made while he was in custody and there was no evidence- he was advised that it might be used against him.

Pretermitting the question of whether counsel should have objected to the testimony, however, we find that there was not a reasonable probability that but for counsel’s failure to object, the outcome at trial would have been different. The caseworker did not state that Sartin admitted to the molestation, only that he did not understand how he could have done such a thing. Moreover, any ambiguity in the testimony was resolved during Sartin’s cross-examination of the caseworker. The transcript shows that during cross-examination, the caseworker expressly stated that Sartin never admitted to committing the acts with which he was charged. The caseworker further clarified that when Sartin made the statement at issue, he was only telling the caseworker what he was charged with. In light of this testimony, the trial court’s finding that Sartin was provided effective assistance in this instance was not clearly erroneous.

3. Sartin contends he was provided ineffective assistance because trial counsel failed to call certain witnesses. We disagree. The decisions regarding which witnesses to call are matters of trial strategy, and such tactical decisions are within the exclusive province of the lawyer after consultation with the defendant. Hudson, supra.

In this case, trial counsel testified that he did not call one of the witnesses, the victim’s brother, because his testimony would have been cumulative of testimony already presented. Trial counsel further testified that he did not call the other witness, a psychologist, because it would have risked opening the door for evidence concerning past allegations of sexual misconduct involving Sartin. Under these circumstances, counsel’s strategic decisions did not deprive Sartin of effective assistance of counsel. See id. at 673.

4. Sartin asserts trial counsel was ineffective because he failed to move for a directed verdict. Sartin contends that because the evidence of aggravated sodomy and aggravated child molestation was based on the same act of sodomy, the trial court should have directed a verdict as to one of the offenses. We disagree.

Although Sartin’s premise is correct — that he may not be convicted of both aggravated sodomy and aggravated child molestation where both offenses are based on the same act of sodomy — we disagree that such rule requires the court to direct a verdict. See Dobbins v. State, 262 Ga. 161 (4) (415 SE2d 168) (1992). “When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) [o]ne crime is included in the other; or (2) [t]he crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.” (Emphasis supplied.) OCGA § 16-1-7 (a).

Sartin’s “argument confuses the jury’s role in criminal trials with that of the trial court. Under Georgia law, the jury has the responsibility to give a general verdict of guilty or not guilty. Conviction is not the verdict; it is the judgment on the verdict or guilty plea. Therefore, [although] OCGA § 16-1-7 (a) provides that one cannot be ‘convicted’ of more than one crime arising from the same conduct, this Code section has no application to the verdict.” (Citations and punctuation omitted.) Sanders v. State, 212 Ga. App. 832, 833 (2) (442 SE2d 923) (1994). The jury must first find a defendant guilty of more than one such offense before the court has the opportunity to merge the offenses under OCGA § 16-1-7 (a). Id.

Decided September 11, 1996

Reconsideration denied December 4, 1996

Anthony E. Cheatham, for appellant.

Stephen F. Lanier, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.

Accordingly, even if Sartin is correct that both offenses arose out of the same act of sodomy, the jury could find him guilty of both offenses, and the trial court was not required to direct a verdict as to one of the offenses. It follows that trial counsel’s failure to move for a directed verdict on this ground did not amount to deficient performance.

5. In his last enumeration of error, Sartin asserts trial counsel was ineffective because he failed to object to testimony that improperly bolstered the testimony of certain State witnesses. Contrary to Sartin’s assertions in his reply brief, the record shows that he did not raise this claim in his motion for new trial.

Our law requires that a claim for ineffective assistance of counsel must be raised at the earliest practicable moment. Glover v. State, 266 Ga. 183 (2) (465 SE2d 659) (1996). This rule requires that a “claim be raised before appeal if the opportunity to do so is available; that the ability to raise the issue on motion for new trial represents such an opportunity; and that the failure to seize that opportunity is a procedural bar to raising the issue at a later time.” Id. at 184. Accordingly, because Sartin failed to raise this issue in his motion for new trial, he is barred from raising it here.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


author: Johnson, Judge.

text:
    A96A2188.
    WASHINGTON v. GEORGIA BAPTIST MEDICAL CENTER et al.
    (478 SE2d 892)
   Johnson, Judge.

This medical malpractice case arises out of the care and treatment' provided to D’Arcy Washington after he was shot in the chest and shoulder area as he attempted to burglarize a house in Walton County. Because of the severity of the wound, emergency medical technicians at the scene of the shooting applied military anti-shock trousers (MAST), which force blood from the legs to the trunk in order to maintain blood flow to the vital organs. Washington was initially taken to Walton Medical Center where Dr. Jose Porquez and others decided that he needed to be transported by helicopter to Georgia Baptist Medical Center in Atlanta, a trauma facility. Shortly after his arrival at Georgia Baptist, the MAST device was deflated. Dr. Michael Clark performed emergency surgery to repair the vasculature in Washington’s shoulder and called in Dr. George Lee Cross, an orthopedic surgeon, to perform a fasciotomy, a surgical release of pressure, on Washington’s left arm. The emergency surgery saved Washington’s life, but approximately ten days later, both of Washington’s legs had to be amputated as a result of renal failure, sepsis and infection. Washington alleges that the loss of his legs was caused by the failure of his care providers to follow appropriate techniques for use of the MAST device and the subsequent failure to monitor and record compartment pressures in his legs which would have indicated a need for earlier additional fascial release procedures. Washington brought suit against twenty-seven defendants, including the four to whom the trial court granted summary judgment here: Drs. Porquez, Cross and Clark, and Atlanta Vascular Specialists, P.C. (AVS). Washington appeals from the trial court’s adjudication in favor of the three doctors. He does not enumerate as error the judgment entered in favor of AVS. Because the grant of summary judgment in favor of AVS was not appealed, there is nothing to review as to that judgment.

The three doctors filed various separate motions to dismiss or in the alternative for summary judgment, alleging that the affidavit filed by Washington’s expert with the complaint was insufficient in that it failed to set forth any specific negligent acts or omissions committed by the individual defendants. In the alternative, the doctors alleged and submitted affidavits stating that the care and treatment given to Washington met or exceeded the standard of care of physicians generally under similar conditions and like surrounding circumstances.

Oral argument on the motions was scheduled for 9:00 a.m. March 7, 1996, nearly a year after they had been filed. On March 6, 1996, Washington filed an amendment to the affidavit of his expert purporting to satisfy the affidavit requirements of both OCGA §§ 9-11-9.1 and 9-11-56 (e). In a supplemental record filed with this Court, counsel for the doctors have submitted their affidavits as well as their copies of the amended expert affidavit indicating that it was transmitted to them by facsimile at 4:00 p.m. on the eve of the oral argument. The faxed affidavits do not bear a stamp of the clerk of the trial court indicating filing. The amended affidavit in the record, however, bears the stamp of the clerk, showing that it was filed on March 6, 1996, but does not indicate the time it was filed. Counsel for the appellees contend that they urged the trial court at the hearing on the motions not to consider the amended affidavit because it was untimely. No transcript of the hearing is included in the record on appeal. The trial court’s order does not contain separate findings of fact and conclusions of law, but states only that it considered “the appropriate affidavits.” From the trial court’s order, we are unable to determine whether the judge refused to consider the amended affidavit and granted summary judgment because the initial affidavit was insufficient; or whether he exercised his discretion and considered the amended affidavit, granting summary judgment on the merits of the case.

1. (a) As a threshold matter, in our de novo review of the entire record, we evaluated whether, as a matter of law, an amendment to an affidavit can be considered pursuant to OCGA § 9-11-9.1. In Hewett v. Kalish, 264 Ga. 183 (442 SE2d 233) (1994), the Supreme Court allowed supplementary evidence to be presented when the sufficiency of the expert affidavit in a malpractice case was challenged. “[OCGA § 9-11-9.1] (e) is only designed to preclude amendment under § 9-11-15 when the plaintiff completely fails to file an affidavit. . . . Section 9-11-9.1 (e) thus does not preclude a plaintiff from presenting evidence of his or her expert’s competency at a [motion to dismiss] hearing when that expert’s affidavit was initially filed with the complaint.” Id. at 186 (1). Although the ruling in Hewett allowed additional evidence to be presented regarding the expert’s competency, we do not see the holding as being limited to that particular challenge to the affidavit’s sufficiency, and find that when an affidavit has been filed with the complaint, it can be amended to respond to challenges to its sufficiency. Compare Hardman v. Knight, 203 Ga. App. 519 (417 SE2d 338) (1992).

(b) Appellees argue on appeal that this Court should not consider the amended § 9-11-9.1 affidavit because it was not filed and served at least 24 hours before the hearing. See Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 64 (1) (397 SE2d 576) (1990); J. B. H. v. State of Ga., 139 Ga. App. 199, 202 (1) (228 SE2d 189) (1976), overruled on other grounds, In the Interest of R. D. F., 266 Ga. 294, 296 (3) (466 SE2d 572) (1996). It is well settled that the trial court has the discretion to decide whether it will consider affidavits not served within the time limits contemplated by the statutes. Liberty Nat. Life Ins. Co. v. Houk, 248 Ga. 111, 112 (1) (281 SE2d 583) (1981). This Court would have reviewed the trial court’s ruling under an abuse of discretion standard. However, as noted above, the trial court’s order does not allow us to give deference to its decision with regard to the amended affidavit. Because we have no ruling from the trial court regarding the timeliness of the affidavit, there is nothing for us to review. See Willingham v. Willingham, 261 Ga. 674, 675 (2) (410 SE2d 98) (1991).

(c) Washington offered the amended affidavit for the dual purposes of correcting an alleged deficiency in the original affidavit and opposing the motions for summary judgment. An affidavit submitted in opposition to a motion for summary judgment is subject to the requirements of OCGA § 9-11-56 (c), which allows an adverse party to serve opposing affidavits prior to the day of hearing, and OCGA § 9-11-6 (d), which provides that “[ojpposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time.” Again, in the absence of a ruling by the trial court, we will consider the issue of timeliness waived.

In reviewing the grant of summary judgment, “the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. [Cit.] This requires a de novo review of the evidence.” Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). In reviewing the grant of summary judgment this Court construes the evidence and all reasonable inferences in favor of the non-movant. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991). Because the amended affidavit in the record bears the stamp of the clerk of the trial court a day before the hearing, and in the absence of any ruling by the trial court, we construe the affidavit as having been timely filed and will consider it in reviewing the trial court’s ruling on summary judgment.

2. Having determined that the amended affidavit is properly before us for review, we next examine de novo whether it satisfies the pleading requirements of OCGA § 9-11-9.1 and the evidentiary requirements of OCGA § 9-11-56 (e). The affidavit, as amended, is from an expert competent to testify, and it sets forth specifically at least one negligent act or omission claimed to have been committed by each defendant, and the factual basis for each such claim, thus satisfying the pleading requirements of OCGA § 9-11-9.1 (a). See Williams v. Hajosy, 210 Ga. App. 637, 638 (1) (436 SE2d 716) (1993). However, “[a]n affidavit which satisfies the pleading requirements of OCGA § 9-11-9.1 will not necessarily satisfy the evidentiary requirements of OCGA § 9-11-56. [Cit.]” Hailey v. Blalock, 209 Ga. App. 345, 346 (1) (433 SE2d 337) (1993). “To be sufficient to controvert the defendant’s expert opinion and create an issue of fact, the plaintiff’s expert must base his opinion on medical records which are sworn or certified copies, or upon his own personal knowledge; and he must state ‘the particulars in which the defendant’s treatment of the plaintiff was negligent.’ [Cits.]” (Emphasis in original.) Loving v. Nash, 182 Ga. App. 253, 255 (1) (355 SE2d 448) (1987). The affidavit submitted by Dr. W. Leigh Thompson, M.D., Ph.D., Washington’s expert in this case, states his opinions are based on his review of various specified medical records and depositions. He concludes that Dr. Porquez, who was responsible for the initial evaluation of Washington, “violated the appropriate standard of care by failing to monitor both lower extremities of D’Arcy Washington and by failing to follow appropriate techniques for the use of the MAST device -. . . [which] causally contributed to the necessity of amputation of Mr. Washington’s lower legs.” Likewise, he opined that the care provided by Drs. Cross and Clark fell below the appropriate standard of care in that the doctors failed to monitor and record compartment pressures in Washington’s legs which would have “revealed increased pressures and the need for an earlier fascial release by earlier surgery. In my opinion, the delay in relieving the compartment pressures causally contributed to the necessity of amputation of Mr. Washington’s lower legs.” The parties do not contest Dr. Thompson’s competency to testify to the matters stated in his affidavit, and the affidavit contains facts which constitute particulars regarding the doctors’ treatment of Washington.

3. Appellees argue that Dr. Thompson’s affidavit should not be considered because sworn or certified copies of all of the medical records which Dr. Thompson lists as having.been reviewed by him in the preparation of his affidavit were not attached to his affidavit and some are not in the record at all. “A plaintiff’s expert affidavit in opposition to summary judgment, which is based solely on medical records rather than on the affiant’s personal knowledge of the facts, is without probative value if the affidavit neither attaches the medical records nor clearly identifies the matter in the trial record upon which it is based. OCGA § 9-11-56 (e) straightforwardly requires that ‘(s)worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.’ This has been relaxed somewhat for the practical purpose of avoiding duplication by allowing clear identification of records already on file. [Cit.]” Williams, supra at 638-639 (2). The record in this case contains the depositions of Drs. Porquez, Clark, and Cross. Extensive, medical records are attached to all three depositions and were identified and referred to by the doctors in their sworn testimony. The clearly identified medical records relating to the actions of these defendants are in the record of this case. Compare Johnson v. Srivastava, 199 Ga. App. 696, 697 (1) (405 SE2d 725) (1991), in which the medical records referred to in the affidavit were attached to the affidavit but were not a part of the record in the case. In reversing a previous decision of this Court which narrowly construed OCGA § 9-11-56 (e), the Georgia Supreme Court held that “[i]t is the policy of this Court whenever possible to seek substantial justice and judicial economy rather than strict compliance with procedural technicalities. We hold that the office records produced and authenticated by defendant physician and placed in the record were sufficient support to plaintiffs’ opposing affidavit as to satisfy the requirements of OCGA § 9-11-56 (e).” (Citation and punctuation omitted.) Paulin v. Okehi, 264 Ga. 604, 605 (449 SE2d 291) (1994). The testimony of the doctors in their depositions and the documents identified and referred to by them, which are part of the record, provide a sufficient factual basis from which Dr. Thompson formed his opinions as to the care provided by these defendants. That sworn or certified copies of the other records listed by Dr. Thompson, not directly related to the factual allegations made against these defendants, are not in the record is not fatal to the affidavit.

Decided November 13, 1996

Reconsiderations denied December 4, 1996

Zachary & Segraves, J. Ed Segraves, for appellant.

Sullivan, Hall, Booth & Smith, Terrance C. Sullivan, Alston & Bird, Robert D. McCallum, Jr., Harman, Owen, Saunders & Sweeney, H. Andrew Owen, Jr., Gleaton, Scofield, Egan & Jones, Frederick N. Gleaton, Duvall, McCumber & Doverspike, Jerry D. McCumber, for appellees.

“In an action for medical malpractice the affidavit of the defendant stating that [the] care met the appropriate standard of care entitles the defendant to summary judgment if that opinion is not countered by the opinion of another expert.” Augustine v. Frame, 206 Ga. App. 348, 350 (1) (425 SE2d 296) (1992). Here, Washington’s expert’s affidavit, as amended, is sufficient to raise just such a genuine issue of material fact. That in this opinion we have had to address a number of issues to reach this conclusion should not be taken as any indication that this Court has formed any opinion as to the merits of this case. As this Court noted in Jones v. Rodzewicz, 165 Ga. App. 635, 638 (302 SE2d 402) (1983), “[i]n reaching this conclusion, we in no way intimate an opinion as to the likelihood or probability of appellant’s carrying [his] burden at trial or as to the credibility or weight of any evidence offered in support of or in opposition to the motion for summary judgment. Such matters, of course, have no place in the summary judgment procedure. [Cits.]” It follows that the trial court erred in granting summary judgment in favor of Drs. Porquez, Cross, and Clark.

Judgment reversed.

McMurray, P. J., and Ruffin, J., concur.


author: Ruffin, Judge. McMurray, Presiding Judge,

text:
    A96A0903.
    SPARKS v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al.
    (478 SE2d 923)
   Ruffin, Judge.

Tim Sparks sued the Metropolitan Atlanta Rapid Transit Authority (“MARTA”) and Millar Elevator Service Company (“Millar”) for injuries he allegedly sustained at a MARTA station when the escalator he was riding malfunctioned. According to Sparks, he was gripping the escalator handrail when it slipped backwards, causing him to fall and sustain injuries. Sparks appeals the trial court’s grant of summary judgment to MARTA and Millar. For reasons which follow, we affirm.

Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. [Cit.]” Id.

In this case, Sparks alleged that MARTA, the owner and occupier of the premises, was negligent in failing to inspect and maintain the escalator properly. Sparks further alleged that Millar, the company hired by MARTA to inspect and maintain the escalator, negligently failed to perform its duties.

1. The standard of care applicable to common carriers is applicable to MARTA in this case. See Millar Elevator Svc. Co. v. O’Shields, 222 Ga. App. 456 (2) (475 SE2d 188) (1996). That standard provides that “[a] common carrier of passengers is not an insurer of the safety of its passengers, but must exercise extraordinary diligence to protect the lives and persons of its passengers. [Cit.] Extraordinary diligence is defined as ‘that extreme care and caution which very prudent and thoughtful persons exercise under the same or similar circumstances.’ [Cits.]” Southeastern Stages v. Stringer, 263 Ga. 641 (437 SE2d 315) (1993). This duty is non-delegable regardless of whether the common carrier contracts with a third party to perform the maintenance and repairs, and in such cases the common carrier remains liable for slight negligence. Gaffney v. EQK Realty Investors, 213 Ga. App. 653, 655 (445 SE2d 771) (1994).

The extent of Millar’s duty, as the maintenance provider, is less clear. In Millar Elevator we left undecided the issue of whether maintenance providers should be held to the same standard of care as common carriers. We did find, however, that “ ‘[t]he amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it.’ [Cit.]” Millar Elevator, supra at 458.

2. In this case, MARTA and Millar presented evidence showing they used extraordinary diligence in maintaining the escalator. That evidence revealed that on July 14, 1992 and July 31, 1992, Millar conducted regular bi-monthly preventative maintenance on the escalator. The evidence also showed that while there were seven calls concerning problems with the escalator between July 5, 1992 and August 5, 1992, Millar promptly responded and timely repaired all the reported problems by replacing the malfunctioning parts. Although Millar repaired a handrail on August 5, 1992, which was only eight days before Sparks’ accident, that problem was completely unrelated to the malfunction which caused Sparks to fall.

According to John Story, the Millar employee who repaired the escalator on August 5,1992, the escalator malfunctioned at that time because an axle bearing in the handrail drive assembly failed. Story stated in his affidavit that the life expectancy of an axle bearing is variable “with no way of predicting failure.” Robert Lauer, the defendants’ expert engineer, stated in his affidavit that the August 13, 1992 malfunction involved an idler wheel bearing failure. He stated that such bearings are “rugged” and “have a normal long life[,]” but that “there is no way to anticipate an impending failure.” He further stated that the occasional failure of a handrail drive assembly bearing is inevitable and that even with the most extraordinary maintenance, periodic shutdowns are expected. Finally, Lauer stated that Millar’s maintenance on the escalator complied with the most widely recognized and best industry standards.

In response to the defendants’ motion for summary judgment, Sparks pointed to an “emergency call log” contained in the record which evidenced the seven calls concerning problems with the escalator. Sparks also pointed to the deposition testimony of a Millar employee who stated that even after escalators are repaired, he expects them to break again and that a malfunctioning escalator poses a danger to passengers. Finally, Sparks points to a Millar employee’s statement that when a bearing malfunctions, Millar routinely replaces only the broken bearing and not all the bearings, even though replacing the entire bearing assembly or the entire escalator would extend the time between problems.

In light of the evidence presented by MARTA and Millar, the foregoing evidence presented by Sparks was insufficient to give rise to a triable issue. Although the escalator was expected to malfunction, required repairs, and was sometimes dangerous, these facts do not show that MARTA or Millar was negligent in this case.

This Court has long recognized that mechanical devices such as escalators “ 'get out of working order, and sometimes become dangerous and cause injury without negligence on the part of anyone! [Cit.]” (Emphasis supplied.) Millar Elevator, supra at 457-458. This evidence alone, without any showing of slight negligence, does not create a triable issue. Furthermore, Sparks presented no evidence showing that the defendants could have detected a possible failure of the bearing through any type of inspection. Cf. Millar Elevator, supra (evidence showed that on rare occasions a visual inspection could indicate a potential failure). To find the defendants liable in this case based on the evidence cited by Sparks, a jury would necessarily have to conclude that the defendants were slightly negligent in failing to replace the entire handrail assembly or even the entire escalator due to a malfunction of only one small component. Such conduct goes beyond what could be expected of even very prudent and thoughtful people under the same or similar circumstances. See Southeastern Stages, supra.

3. Relying on Ellis v. Sears Roebuck & Co., 193 Ga. App. 797, 798 (2) (388 SE2d 920) (1989), Sparks asserts that the trial court erred in granting MARTA and Millar summary judgment because the evidence showed that they had superior knowledge of the malfunction and failed to warn him of it. We disagree.

In Ellis, the plaintiff fell and was injured when the Sears escalator she was riding malfunctioned. The evidence showed that ten to fifteen minutes prior to the plaintiff’s fall, her husband had a similar experience and informed a Sears’ employee of the malfunctioning escalator. We reversed the trial court’s grant of a directed verdict for Sears because the evidence showed that Sears had actual knowledge of the malfunctioning escalator for a ten- to fifteen-minute period and in that time failed to either remedy the dangerous condition or warn its patrons of the condition. Id.

In this case, however, Sparks presented no evidence showing that the defendants had any prior knowledge that the escalator was malfunctioning. Rather, the evidence discussed in Division 2 clearly showed that “there [was] no way to anticipate an impending failure.” And, unlike the defendant in Ellis, the defendants in this case were not previously informed that the escalator was malfunctioning.

To the extent that Sparks asserts other errors in this enumeration, those assertions are deemed abandoned. See West v. Nodvin, 196 Ga. App. 825, 830 (4) (c) (397 SE2d 567) (1990). Such practice is unauthorized because it “creates a fair risk that ambiguity, misdirection, or confusion as to the errors asserted will occur, thereby giving rise to an increased likelihood of generating inadvertent appellate error.” Id.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Blackburn and Smith, JJ, concur. McMurray, P. J., concurs in part and dissents in part.

McMurray, Presiding Judge,

concurring in part and dissenting in part.

I fully concur in Division 1, holding that the applicable standard of care is that of extraordinary diligence owed by common carriers, established at OCGA § 46-9-1. I also fully concur in Division 3, distinguishing the whole court decision in Ellis v. Sears Roebuck & Co., 193 Ga. App. 797, 798 (2) (388 SE2d 920) on the basis of that defendant’s actual knowledge of the hazard because that plaintiff’s husband had already informed an employee of the malfunctioning escalator. But with respect to Division 2 and the judgment affirming the grant of summary judgment in favor of defendants Metropolitan Atlanta Rapid Transit Authority (MARTA) and Millar Elevator Service Company (Millar), I respectfully dissent.

“The rule applicable in common carrier cases is that whenever a carrier, through its agents or servants, knows or has, [an] opportunity to know of a threatened injury, or might have reasonably anticipated the happening of an injury, and fails or neglects to take the proper precautions or to use proper means to prevent or mitigate such injury, the carrier is liable. It is the common carrier’s duty to use proper care and vigilance to protect passengers from injuries . . . that might reasonably have been foreseen and anticipated. Knowledge of the passenger’s danger, or of facts and circumstances from which that danger may reasonably be inferred, is necessary to fix the carrier’s liability in this class of cases. The carrier is not regarded as an insurer of his passenger’s safety against every possible source of danger; but he is bound to use all such reasonable precautions as human judgment and foresight are capable of, to make his passenger’s journey safe and comfortable.” (Citations and punctuation omitted; emphasis supplied.) Southeastern Stages v. Stringer, 263 Ga. 641, 642 (437 SE2d 315). The evidence, as recited by the majority, indicates that, in addition to regularly scheduled maintenance, there were seven times in the preceding two months when this particular escalator required emergency maintenance service. On August 5, 1992, there was a reported complaint of: “Handrail not working.” This problem with the handrail required defendant Millar to “replace an axle bearing and a 1400 belt to the handrail drive system.” Another handrail problem was reported on August 14, 1992. In the experience of Paul J. Gibbs, it is foreseeable that “if the handrail belt slips, that handrail belt can slip pretty quickly,” while the escalator is moving. A maintenance provider is faced with “a couple of ways of doing that [i.e., repairing bad bearings]. When you go in, you can replace everything in there and not just change one [bearing] that goes out. . . . Then you have a better time of running [between foreseeable repairs].” “If you don’t repair the whole thing, then there’s going to be more of a chance that it’s going to break down sooner.” The evidence in this case indicates that defendants “just fixed what was wrong ... as opposed to going in and . . . replacing the entire bearing structure or fixing the entire escalator.” Gibbs affirmed that “if there were passengers on these escalators when these escalators break down, that could pose a danger to these passengers.” Accordingly, this record contains ample evidence from which a jury could reasonably infer that defendants deliberately and consciously elected a repair program to do the least that was necessary, with foresight of the likely risks posed to its passengers. In my view, a jury and not this Court should determine whether defendants’ minimalist repair, program constituted the use of all such reasonable precautions as human judgment and foresight are capable of. As my colleagues in the majority would nevertheless affirm the unwarranted grant of summary judgment, I respectfully dissent from Division 2 and the judgment.

Decided December 4, 1996.

Eric D. Miller, for appellant.

Lokey & Smith, G. Melton Mobley, for appellees.