author: McMURRAY, Presiding Judge.

text:
    A97A0202.
    BONTWELL et al. v. DEPARTMENT OF CORRECTIONS et al.
    (486 SE2d 917)
   McMURRAY, Presiding Judge.

The case sub judice is controlled by the holdings in Dept. of Transp. v. Brown, 267 Ga. 6, 7 (1) (471 SE2d 849); Merrow v. Hawkins, 266 Ga. 390, 391-392 (467 SE2d 336); Gilbert v. Richardson, 264 Ga. 744, 745 (1), 746 (452 SE2d 476); Donaldson v. Dept. of Transp., 262 Ga. 49, 53 (3) (414 SE2d 638); Amdahl Corp. v. Dept. of Admin. Svcs., 260 Ga. 690, 698 (4) (398 SE2d 540); Henderson v. Dade Coal Co., 100 Ga. 568, hn. 3 (28 SE 251); Rhoden v. Dept. of Public Safety, 221 Ga. App. 844, 845 (1) (473 SE2d 537); Davis v. Dublin City Bd. of Ed., 219 Ga. App. 121, 122 (3), 123 (464 SE2d 251); and, the persuasive authority of Lovins v. Lee, 53 F3d 1208, 1209 (II), 1210 (11th Cir. 1995).

On June 24, 1991, plaintiffs Teresa Goodman Bontwell, Maurice Averial Owens, and Harry J. Owens, Jr., individually and as the heirs of Martha Sue Rayburn, deceased, brought this wrongful death action against defendants, the Georgia Department of Corrections (“DOC”) and its Commissioner, David C. Evans; Terrell County, Georgia, and its county commissioner, Wilbur T. Gamble, Jr.; James Kilgore, Warden of Terrell County Correctional Institute, and Tommy Dean in their individual and official capacities. According to the complaint, on July 12, 1989, plaintiffs’ decedent and her guest, Robert Sutton, were “viciously attacked in her residence and [Martha Sue Rayburn] died as a result of massive blunt trauma injuries inflicted by a hammer or bat which fractured her skull and jaw by a person who broke into her home.” The assailant allegedly was an inmate in the custody of the DOC and Terrell County. Defendant Tommy Dean, a Terrell County guard, (allegedly) condoned the practice whereby inmates on work detail outside the Terrell County Correctional Institute (“TCCI”) in Dawson, Georgia, were able to leave their assigned duties. While unsupervised, the inmates would “[search] the adjacent areas for property to trade or barter for drugs.” One inmate, “Benjamin Zellner was arrested and subsequently indicted for the offense of the murder of Martha Sue Rayburn. . . .” Benjamin “Zellner [purportedly] had prior convictions for crimes involving force. . . .”

“The [alleged] practice of allowing prisoners to search and burglarize residences for money and property in order to purchase drugs on their way back to [TCCI] was common knowledge and known or should have been known by all Defendants. . . .” “The acts, conduct, and negligence of Defendant Dean [were] imputed to Defendant Terrell County and Defendant [James] Kilgore[, Warden of TCCI].” Also, Terrell County allegedly was “negligent and wantonly reckless in the hiring, retaining, supervising, training, and disciplining of Defendant Dean. . . .” Warden Kilgore allegedly “failed to adhere to the Rules of the Board of Corrections by employing guards with prior drug convictions, failing to compel employees to obtain state certification, failing to monitor employees for drug use, failing to establish adequate shake down procedures for drugs or weapons, allowing convicted felons access to dangerous weapons and in improperly assigning . . . eight prisoners with felony convictions to outside unsupervised work details, all of which [led] to the death of [plaintiffs’ decedent,] Martha Sue Rayburn.” This amounted to “the [Warden’s] improper and neglectful discharge of those duties imposed by law.”

“Prior to July 12, 1989, Defendant [DOC] was aware that [TCCI] was not in compliance and was in violation of rules regarding security, proper supervision, weapons control, certification of guards, and unregulated use of violent prisoners in or near areas open to the public.” With reasonable investigation, DOC “should have known that State prisoners incarcerated at [TCCI] were permitted to escape, steal, burglarize residences, purchase and sell drugs, and to leave outside work details at will without discipline.” DOC “failed to exercise due care, to ensure proper security measures at [TCCI] and negligently allowed the aforementioned violations to exist with reckless disregard for the safety and well being of the unsuspecting public.” Count 5 of plaintiffs’ complaint alleged a constitutional tort in that the “procedure whereby convicted felons were provided with weapons and transported to residential communities to perform work projects constitutes a custom or policy adopted by the Defendants . . . which [allegedly] deprive[d] the citizens of Georgia and particularly the deceased of State Constitutional Rights. . . .” An amendment also alleged violations of 42 USC § 1983.

Defendants denied the material allegations. After extensive discovery, the trial court heard various motions for summary judgment.

On April 23, 1993, the trial court granted summary judgment to defendants Terrell County; Wilbur T. Gamble, Jr.; DOC and David C. Evans as to plaintiffs’ state law tort claims, on the basis of sovereign immunity. On December 1, 1993, the trial court granted summary judgment to defendants Terrell County and Wilbur T. Gamble, Jr., as to plaintiffs’ federal claims under 42 USC § 1983. On February 28, 1996, the trial court granted summary judgment to DOC and David C. Evans as to plaintiffs’ federal claims under 42 USC § 1983. This direct appeal followed. OCGA §§ 9-11-56 (h); 5-6-34 (d). In ten related enumerations, plaintiffs object to the various grants of partial summary judgment, and in three related enumerations object to the denial of their motion to compel discovery. Held:

1. Plaintiffs’ brief in support of their 13 enumerations of error fails to comply with Court of Appeals Rule 27 (c) (1), which requires that the “sequence of argument or arguments in the briefs shall follow the order of the enumeration of errors, and shall be numbered accordingly.” Scrutiny of that brief reveals no citation of authority or argument offered in support of the fourth enumeration of error. That enumeration is, therefore, deemed abandoned. Court of Appeals Rule 27 (c) (2).

2. “In 1991, the constitutional doctrine of sovereign immunity was amended to extend sovereign immunity ‘to the state and all of its departments and agencies,’ and this immunity is to prevail except as specifically provided therein. Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e).” Gilbert v. Richardson, 264 Ga. 744, 745 (1), 746, supra. That constitutional provision further states: “The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” The 1991 amendment “became effective on January 1, 1991.” Donaldson v. Dept. of Transp., 262 Ga. 49, 53 (3), supra. Plaintiffs’ seventh enumeration contends the trial court erred in granting summary judgment to DOC on the state law tort claims, arguing the admitted existence of liability insurance amounted to a waiver of sovereign immunity. This contention is without merit.

“Under Georgia law, the waiver of sovereign immunity occurs at the time that the action [is commenced], not at the time that the negligent act was committed. Ethridge v. Price, 194 Ga. App. 82 (389 SE2d 784) (1989). [Consequently,] the [S]tate may withdraw its waiver of sovereign immunity at any time before a citizen acts in reliance on that waiver by filing suit. A waiver of sovereign immunity is binding on the [S]tate with respect to any pending action.” Donald son v. Dept. of Transp., 262 Ga. 49, 53 (3), supra. In the case sub judice, the complaint was not filed until June 24, 1991. Under the law in effect at the time the action was commenced, the existence of liability insurance no longer amounted to a waiver of sovereign immunity under 1983 Georgia Constitution, Art. I, Sec. II, Par. IX (e). Davis v. Dublin City Bd. of Ed., 219 Ga. App. 121, 122 (3), 123, supra.

3. It follows that the trial court did not err in also granting summary judgment to Terrell County despite fact questions surrounding the possibility of liability insurance. Such a fact question is not relevant or material to a determination of the county’s sovereign immunity under existing law. Davis v. Dublin City Bd. of Ed., 219 Ga. App. 121, 122 (3), 123, supra. The third enumeration is without merit.

4. The fifth and sixth enumerations contend the trial court erred “in holding DOC Commissioner [defendant David C. Evans] was not negligent for bis failure to properly review, supervise and direct his immediate subordinates . . . and [his failure] to take adequate steps to correct the ongoing problem of .unsupervised medium security state inmates at TCCI[,]” and in further holding that Commissioner Evans was “not liable as a matter of law due to the intervening criminal act of a third party.” Similarly, the first and second enumerations complain of the grant of summary judgment to defendant Terrell County Commission Chairman Wilbur T. Gamble, Jr., arguing the evidence showed defendant’s “failure to exercise due care in the selection of his subordinates charged with the ministerial duty of keeping medium security state prisoners under constant supervision,] and also showed defendant Gamble’s “wanton failure to correct [the alleged] persistent security infractions by leaving medium security state inmates unsupervised.” (Emphasis supplied.)

(a) “The Georgia Tort Claims Act (the ‘Act’) excludes from its waiver of sovereign [and official] immunity ‘losses resulting from . . . (t)he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused.’ OCGA § 50-21-24 (2).” Rhoden v. Dept. of Public Safety, 221 Ga. App. 844, 845 (1) (473 SE2d 537). The Act contains a “definition of discretionary function or duty: ‘a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.’ OCGA § 50-21-22 (2).” Dept. of Transp. v. Brown, 267 Ga. 6, 7 (1), supra.

Contrary to plaintiffs’ contention, the operation of a state or county correctional institute and the related supervision of convicts on work details outside the boundaries of that correctional institute, including the degree of training and supervision to be provided over its officers, is a discretionary governmental function of the DOC and through it, the county warden, as opposed to a ministerial, proprietary, or administratively routine function. Price v. Owen, 67 Ga. App. 58, 61 (19 SE2d 529). See McDay v. City of Atlanta, 204 Ga. App. 621 (1) (420 SE2d 75); Vertner v. Gerber, 198 Ga. App. 645, 647 (402 SE2d 315). See also Merrow v. Hawkins, 266 Ga. 390, 391 (1), n. 3, supra. Evidence that TCCI was deliberately established by Terrell County as a money-making venture, whereby the county was paid by the State to house and supervise state prisoners who in turn were employed as a low-cost labor pool, does not change this governmental function from a discretionary one to a proprietary one. Such a decision could be reached only by choosing among alternatives after consideration of social, political, and economic factors.

In our view, the allegations of prolonged neglectful supervision, assuming they are true, would establish, at best, a gross abuse of discretion. But such an abuse of discretion would not amount to that “actual malice or . . . actual intent to cause injury in the performance of their official functions . . .” as would lift the shield protecting those who exercise a governmental discretion. 1983 Ga. Const., Art. I, Sec. II, Par. IX (d); OCGA § 50-21-24 (2). “[T]he term ‘actual malice,’ as set forth in the 1991 amendment, . . . denote[s] ‘express malice or malice in fact.’ [Cit.]” Merrow v. Hawkins, 266 Ga. 390, 391 (2) , 392, supra. It follows that, in the case sub judice, any misfeasance or nonfeasance in the oversight exercised by defendant DOC Commissioner David C. Evans or defendant Terrell County Commission Chairman Wilber T. Gamble, Jr. is protected by the doctrine of official immunity and the trial court’s grant of summary judgment to these individual defendants as to plaintiffs’ state law tort claims is correct. Id. at 392 (3). Accord City of Atlanta v. McKinney, 265 Ga. 161, 166 (4) (454 SE2d 517); Kelly v. Lewis, 221 Ga. App. 506, 507 (471 SE2d 583).

(b) Alternatively, even if the operation of a state or county correctional institute were not a discretionary function under the Georgia Tort Claims Act, any neglect on the part of DOC Commissioner David C. Evans or of Terrell County Commission Chairman Wilbur T. Gamble, Jr. would not be the proximate cause of the violent death of plaintiffs’ decedent at the hands of an escaped felon. This issue is controlled adversely to plaintiffs by the decision of the Supreme Court of Georgia in Henderson v. Dade Coal Co., 100 Ga. 568, hn. 3, supra. The trial court’s grant of summary judgment was correct for this reason as well. The sixth enumeration is without merit.

5. “Regarding [plaintiffs’] claim for relief under 42 USC § 1983 we conclude, based on Will v. Michigan Dept. of State Police, [491] U. S. [58] (109 SC 2304, 105 LE2d 45) (1989), that the trial court properly granted summary judgment to [DOC] and its commissioned, defendant David C. Evans]. [Cit.]” Amdahl Corp. v. Dept. of Admin. Svcs., 260 Ga. 690, 698 (4), supra. See also Thompson v. Dept. of Transp., 209 Ga. App. 353, 354 (2) (433 SE2d 623). The tenth enumeration is without merit.

Decided May 22, 1997.

Before Judge Etheridge.

Robert H. Benfield, Jr., for appellants.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Deputy Council to the Attorney General, George R Shingler, Deputy Attorney General, John C. Jones, Senior Assistant Attorney General, Hawkins & Parnell, Kimberly Houston Ridley, for appellees.

6. In the eighth and ninth enumerations, plaintiffs contend the trial court erred in granting summary judgment to defendant Terrell County as to plaintiffs’ federal claims under 42 USC § 1983. They argue plaintiffs’ decedent met the required standard for the “special relationship” exception to the general rule that the Due Process Clause does not entitle a citizen to be protected from violence at the hands of non-governmental actors. We disagree, finding their arguments are without merit upon our consideration of persuasive authority from the United States Court of Appeals for the Eleventh Circuit.

In Lovins v. Lee, 53 F3d 1208, 1209 (II), 1210, supra, the Eleventh Circuit explained that the exception relied upon in the case sub judice “is limited to circumstances in which there is a special relationship between the government and the victim of violence or mistreatment, a circumstance that is lacking in the present case.” The “special relationship” exception “‘stand[s] only for the proposition that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.’ [Cit.]” Id.

In the case sub judice, since the government placed no restrictions upon the liberty of plaintiffs’ decedent to act on her own behalf, it assumed no corresponding responsibility for her safety and well-being. Consequently, “[t]here was no special relationship between her and the county; she was in all respects a member of the general citizenry.” Lovins v. Lee, 53 F3d 1208, 1209 (II), 1210, supra.

7. Plaintiffs’ final three enumerations, regarding the denial of their motions to compel discovery, have been considered and are found to be moot in light of our previous rulings.

Judgment affirmed.

Beasley and Smith, JJ, concur in the judgment only.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A97A0262.
    STRICKLAND v. BROWN et al.
    (487 SE2d 105)
   Beasley, Judge.

While driving his automobile Jon Strickland struck a disabled Cadillac driven by Perez Brown and owned by Serene Coppage. Strickland appeals from summary judgment in favor of Brown and Coppage.

1. In a motion for summary judgment, “ £(a)ny doubt as to the existence of substantial issues of fact is resolved against the movant. The party opposing the motion is to be given the benefit of all reasonable doubt and all favorable inferences that may be derived from the evidence produced.’ [Cit.]” City of Atlanta v. North by Northwest Civic Assn., 262 Ga. 531, 537 (4) (422 SE2d 651) (1992). See OCGA § 9-11-56; Rapps v. PHH US Mtg. Corp., 220 Ga. App. 602, 603 (2) (469 SE2d 731) (1996).

The evidence favorable to Strickland shows that before sunlight on a foggy morning in October 1994, Brown borrowed Coppage’s Cadillac to drive to work. Coppage, who had owned the fourteen-year-old car for about one year, had never experienced any problems with it. Brown was driving northbound in the third lane from the right on I-75/85 in Atlanta when the Cadillac made a repeated vibration noise. Even though he was unsure of the cause of the vibration, Brown made no effort to pull off the road to check on it nor to change lanes to be nearer the emergency lane. Two exits later the Cadillac lost power as a result of a sheared-off driveshaft, and Brown was unable to pull over into the emergency lane because of traffic. After the car stopped, Brown left it in the center lane and went for help. It is disputed whether Brown left the Cadillac’s lights on or put the emergency flashers on.

Strickland was proceeding in the same lane when the automobile he was following suddenly swerved and veered left. At that point he first observed the vacant Cadillac stopped in front of him and was unable to prevent a collision with it. Strickland sued Brown and Cop-page for damages on the theory that Brown violated OCGA § 40-6-203 (a) (1) (I), which forbids stopping a vehicle on a controlled-access highway. Brown and Coppage answered that this statute does not apply to vehicles which become suddenly disabled. See OCGA § 40-6-204. Summary judgment followed.

2. “£ “The owner or driver of a motor vehicle must exercise reasonable care in the inspection of his machine to discover any defects that may prevent its proper operation, and is chargeable with knowledge of any defects which such inspection would disclose.” (Cit.)’ [Cit.]” Pouts v. Builders Transport, 222 Ga. App. 568, 578 (10) (474 SE2d 746) (1996). If there is evidence from which a jury could infer that the owner or driver of the vehicle had actual or constructive knowledge of the defective condition of the vehicle, summary judgment is inappropriate. Id.

Decided May 22, 1997.

Before Judge Lee.

Tyron C. Elliott, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Edward A. Miller, Pullin, Knopf, Fouks & Flanagan, Benjamin T. Hughes, for appellees.

A jury could infer from Brown’s testimony concerning the repeated vibration of the Cadillac two exits before it lost power that Brown was on notice of a problem and was negligent in deciding not to take preventive measures such as stopping in the emergency lane and inspecting the car or at least moving into the far right lane so he could access the emergency lane if necessary. Because drivers may not stop on controlled-access highways (OCGA § 40-6-203), and because the exception to this statute applies only when the vehicle is disabled in such a manner “that it is impossible to avoid stopping” and leaving the vehicle temporarily on the highway (OCGA § 40-6-204), a jury could find it was possible for Brown to avoid stopping on the expressway had he addressed the vibration noises as a sign of car trouble and acted accordingly. Brown was not entitled to summary judgment.

In both McCubbin v. Bryant, 197 Ga. App. 874 (399 SE2d 746) (1990), and Brown v. Shiver, 183 Ga. App. 207 (358 SE2d 862) (1987), cited by Brown as examples of summary judgments affirmed under purportedly similar circumstances, defendants had no prior warning that their cars might stall.

3. The Cadillac’s owner Coppage, on the other hand, was not in the car at the time of the vibrations and had no prior notice that there was any problem. Her “ ‘[o]wnership of [the] vehicle alone is not sufficient to establish [her] liability. (Cits.)’ [Cit.]” Alamo Rent-A-Car v. Hamilton, 216 Ga. App. 659, 660 (455 SE2d 366) (1995). Because there is no allegation nor evidence that Brown was in a master-servant or agency relationship with Coppage, she was properly granted summary judgment.

Judgment affirmed in part and reversed in part.

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


text:
    A97A0418.
    BRENNAN v. THE FREIGHT ROOM, INC. et al.
    (487 SE2d 109)
   Beasley, Judge.

Appellant brought this action to recover for injuries sustained in a fall at a public restaurant known as The Freight Room. She appeals the trial court’s grant of a motion for summary judgment filed by appellees, who operated the restaurant.

“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. [Cit.] 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. . . . (Cit.)’ [Cit.]” Bates v. Guaranty Nat. Ins. Co., 223 Ga. App. 11, 12 (476 SE2d 797) (1996).

Viewed from this perspective, the evidence is that at approximately 8:30 p.m. on August 4, 1993, appellant and her son went to the restaurant. Appellant, who had not been there before, entered through the main entrance on the east side of the building. She remained inside until approximately 9:15 p.m., when she and her son went to the parking lot to retrieve an item from her car. The parking lot was poorly illuminated, the terrain was rough, and there was broken asphalt. She and her son exited the restaurant through the main entrance, proceeded to her car in the parking lot, and at the son’s request went to a game room on the north side of the restaurant.

An elevated concrete walkway or porch is attached to the north side of the building. A set of stairs attached to the front of the walkway leads across the walkway to the door of the game room. There is also a set of two steps on the east side of the walkway. The first of these two steps is composed of broken concrete, and the second consists of brick and mortar; both are uneven. These two steps lead to an uneven gravel and dirt area on the ground. Several feet beyond the steps is a curb followed by a drop in elevation.

Appellant ascended the front stairs of the walkway and looked into the game room. She then descended the walkway by walking down the two side steps onto the ground. She testified that this was the most direct route to the main entrance, and the designated pedestrian walkway directly alongside the building appeared to be a safer route than going back out into the rough and broken parking lot by way of the front stairs, even though the direct route was somewhat darker. She and other restaurant patrons testified that the ground below the two side steps appeared to be level and, because it was very dark and the area was poorly illuminated, the curb was not visible.

As appellant was walking down the steps, she was looking down and trying to be very careful because she could not see very well because of the conditions. She was unaware of the drop in elevation and fell as she stepped off the curb. When asked whether she was looking ahead at the time of her fall, she responded, “I had been looking at the ground after negotiating those steps. I don’t know at the time of the fall. I believe I was looking down but I can’t be sure at this point.”

Appellant charges appellees with negligence in failing to properly maintain the walkway and provide adequate lighting for the walkways and approaches to its premises.

1. “Where an owner or occupier of land, by express or implied invitation, induces or leads another to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1.

Appellees argue that a jury could not find they failed in this duty because there is no evidence that the outside lighting was inadequate. To the contrary, appellant’s evidence is that, although some lighting existed, it did not adequately illuminate the approaches to the restaurant.

“The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.” (Citation, punctuation and emphasis omitted.) Emory Univ. v. Duncan, 182 Ga. App. 326, 328 (2) (355 SE2d 446) (1987).

Appellees argue that there is no evidence that they had any knowledge of the allegedly inadequate lighting, in that no other falls had occurred in the area and there had been no complaints regarding the lighting, and that appellant had superior knowledge of any inadequacy in the lighting.

The fact that there had been no prior incidents or complaints concerning the lighting does not absolve appellees of liability. “ An occupier of premises is under a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises. [Cit.]. . .’ [Cit.]” Lawless v. Sasnett, 200 Ga. App. 398, 399 (408 SE2d 432) (1991).

On the issue of superior knowledge, the question is whether appellant had knowledge of the change in elevation, not the lighting of the area. “ ‘ “[I]t is a plaintiff’s knowledge of the specific hazard which precipitates the . . . fall which is determinative, not merely his knowledge of the generally prevailing hazardous conditions. . . .” [Cit.]’ (Emphasis in original.) [Cit.]” Lindsey v. J. H. Harvey Co., 213 Ga. App. 659, 660 (445 SE2d 810) (1994). According to appellant and her witnesses, the change in elevation was obscured due to the poor lighting.

Decided May 22, 1997.

Before Judge Workman.

Alan B. Gordon, for appellant.

2. “The [plaintiff] must exercise ordinary care for [her] own safety, and must by the same degree of care avoid the effect of the [defendant’s] negligence after it becomes apparent to [her] or in the exercise of ordinary care [she] should have learned of it. [She] must make use of all [her] senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to [her].” (Citations and punctuation omitted.) Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

Appellees argue that appellant failed to exercise ordinary care for her own safety under the rule, as applied in Rossano v. American Legion Post No. 29, 189 Ga. App. 610, 611-612 (2) (376 SE2d 698) (1988), that “ ‘[o]ne who chooses to walk in darkness does not exercise ordinary care for (her) safety.’ [Cit.]”

In Rossano, as well as in Wells v. C & S Trust Co., 199 Ga. App. 31 (403 SE2d 826) (1991), also relied upon by appellees, the plaintiffs chose to walk in a poorly illuminated area even though an alternate safe route was readily accessible to them, which they chose not to use. See also Allen v. Roscoe Weston Motels Ga., 220 Ga. App. 402 (469 SE2d 492) (1996) (jury questions whether light sufficient to illuminate abrupt change in level of walkway); Gaydos v. Grupe Real Estate Investors, 211 Ga. App. 811 (440 SE2d 545) (1994); Gateway Mgmt. Co. v. Sutton, 189 Ga. App. 296 (375 SE2d 462) (1988). There is a disputed issue of fact as to whether an alternate safe means of egress was readily accessible to appellant.

Although she walked from the parking lot up the front entrance to the game room without incident, she testified that the area traversed was not safe and that the route she chose as her means of egress appeared safer. Whether appellant failed to exercise reasonable care for her own safety by choosing the untraversed route is a jury question.

Appellees also argue that a jury could not find that appellant was exercising reasonable care, because she does not recall whether she was watching where she was walking at the time of her fall. From appellant’s testimony, a jury could find that she was looking where she was going, including toward the ground, but the darkness prevented her from seeing the curb in front of her.

Judgment reversed.

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

Webb, Carlock, Copeland, Semler & Stair, Wayne D. McGrew III, John W. Sandifer, for appellees.

Samuel T. Hibbitts, pro se.


author: Ruffin, Judge.

text:
    A97A0458.
    MORRIS v. THE STATE.
    (488 SE2d 685)
   Ruffin, Judge.

Jimmy Morris was indicted on two counts of child molestation. Count 1 charged Morris with “fondling the vagina” of the victim, V. D., who was 11 years old at the time of trial. Count 2 charged Morris with engaging in sexual intercourse with V. D. A jury found Morris guilty on Count 1 and not guilty on Count 2. Morris now appeals his conviction, and we affirm.

The record shows the following. V. D. testified that Morris, her mother’s boyfriend, told her that he “wanted to teach [her] about sex” and started touching her “bikini areas” with his hands. V. D. further testified that Morris touched her vagina with his fingers and subsequently had sexual intercourse with her. According to V. D., these incidents began when she was ten years old.

Officer Robbie Pitts testified that during his investigation of the allegations, he interviewed and took statements from both Morris and V. D. In Morris’ statement, which was read to the jury, Morris revealed the following: “I have run my fingers through [V. D.’s] vagina only a couple of times. She was very moist and horny. I did this because she guided my hand between her legs; I really didn’t want to do it. ... I just know that she acts like she wants to have sex with me, and she is constantly caressing me on my penis and guiding my hand through her vagina. I try not to do this but I am a man and [V. D.] knows how to push my buttons sexually.” V. D. indicated in her statement, which also was read to the jury, that “Jimmy Morris has had sexual intercourse with me several times. . . . When I say sexual intercourse, I mean that he stuck his penis in my vagina.”

At trial, Morris denied that he ever had, or attempted to have, sexual intercourse with V. D. Morris further testified that “[a]s far as fondling her, I mean, she would catch me off guard and grab my hand and lead it.” He also admitted telling Officer Pitts that V. D. guided his hand through her vagina.

The jury found Morris guilty of fondling V. D.’s vagina, but not guilty of having sexual intercourse with her. Morris moved for a new trial, which the trial court denied. This appeal followed.

1. Morris claims that the trial court erred in denying his motion for directed verdict of acquittal as to both counts. “A motion for directed verdict in a criminal case should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. If there is any evidence of guilt, it is for the jury to decide whether that evidence, circumstantial though it may be, is sufficient to warrant a conviction.” (Citations and punctuation omitted.) Williams v. State, 195 Ga. App. 476, 480 (4) (394 SE2d 123) (1990).

As to Count 1, V. D. testified that Morris touched her vagina with his fingers. The evidence also showed that Morris told police he touched V. D.’s vagina, although he claimed she “guided” his hand. At trial, Morris similarly did not deny touching V. D. Instead, he testified that V. D. “grab[bed] [his] hand and [led] it.” In light of this evidence, the trial court properly denied Morris’ motion and submitted Count 1 to the jury. Id.

Morris further argues that the trial court erred in denying his motion for directed verdict on Count 2 because the State presented insufficient evidence of venue. The jury, however, found Morris not guilty on Count 2. Even if Morris could show that the trial court erroneously denied his motion on this count, that error would be harmless. Campbell v. State, 207 Ga. App. 902, 907 (9) (429 SE2d 538) (1993).

2. Morris alleges that the trial court erred in denying his motion for new trial because he was “mentally incompetent and incapable of requesting counsel” before trial. Morris further argues that his appointed trial counsel was ineffective. We note that this enumeration fails to comply with the requirement that each error be enumerated separately. Ramsay v. State, 220 Ga. App. 618, 623 (4) (469 SE2d 814) (1996); OCGA § 5-6-40. Nevertheless, we will address the apparently unrelated allegations included within this single enumeration. Ramsay, supra.

The record shows that prior tó trial, Morris was not represented by counsel and planned to defend himself. At arraignment, the trial court informed Morris that the charges against him were serious and advised him to either apply for a court-appointed lawyer or hire counsel. Morris responded: ‘Yes, sir. I was going to — later on if I could get my bond reset, I was going to get a lawyer that’s out of Tallahassee that’s licensed to practice law here in Georgia.” On the day of trial, however, Morris again appeared without counsel. The trial court asked whether Morris desired an attorney, and Morris responded that he “would like one present with [him]. . . .” Counsel was then appointed to assist Morris with his case.

The record further shows that Morris raised no competency issues at trial. At the new trial hearing, however, he presented evidence that he has suffered from a “bipolar disorder manic with psychotic features” since 1989. Therapist George Greer testified that he met with Morris once a week after his indictment but before trial. Greer indicated that Morris was “not doing well at that time” and explained that he was “hypermanic, grandiose, [and had] very poor judgment, [and] very poor insight. ... I advised him that he needed to seek counsel, that he needed a lot of help with this case, but it just did not reach him. He was thinking that it’s not all really that bad and I can handle it.” According to Greer, Morris was not competent to make decisions for his defense or to stand trial.

(a) “ ‘The decision to grant a new trial is one within the sound discretion of the trial judge and his decision will not be reversed unless there is an abuse of discretion.’ [Cit.]” Everett v. State, 253 Ga. 359, 361 (3) (320 SE2d 535) (1984). For the following reasons, we find no abuse in the trial court’s decision rejecting Morris’ claim that his mental incompetency and inability to request counsel mandated a new trial.

(i) At the new trial hearing, Morris argued that his condition rendered him “unable to make decisions such as whether or not he should have had counsel appointed. . . .” The record shows, however, that Morris ultimately recognized his difficult situation and asked for appointed counsel at trial. Although Morris continued to participate directly in the trial and even questioned one witness, appointed counsel assisted him by striking the jury, making opening and closing statements, questioning witnesses, raising objections, and moving for a directed verdict. The trial court exercised its discretion in concluding that Morris was able to make decisions regarding counsel, and thus was not entitled to a new trial on. this ground.

(ii) We further find that the trial court acted within its discretion in rejecting Morris’ competency argument. “ ‘(T)he issue of mental competency to stand trial is the same whether raised before, during or subsequent to trial, and if, in fact, [Morris] was not competent at the time of his trial but is now competent to stand trial, a, new trial should be granted.’ [Cit.]” Levitt v. State, 170 Ga. App. 32 (1) (316 SE2d 6) (1984). Mental competency “relates only to the ability of [Morris], at the time of the trial, to intelligently participate in his trial. The issue is . . . whether [Morris] is capable at the time of the trial of understanding the nature and object of the proceedings going on against him and rightly comprehends his own condition in reference to such proceedings, and is capable of rendering his attorneys such assistance as a proper defense to the indictment preferred against him demands.” (Citations and punctuation omitted; emphasis in original.) Morrow v. State, 162 Ga. App. 183, 184 (2) (290 SE2d 137) (1982).

At the new trial hearing, Morris’ therapist testified that Morris was not competent “to make decisions for his defense and to stand trial.” Morris’ mother also testified to her belief that Morris was not able to understand the trial proceedings. In addition to the evidence presented at the new trial hearing, however, the trial judge was authorized to consider the overall trial proceedings in determining Morris’ competency at the time of trial. See Smalls v. State, 153 Ga. App. 254, 257 (1) (265 SE2d 83) (1980).

The record shows that at arraignment, Morris answered questions cogently, indicated his understanding that the charges against him were serious, and stated that he planned to retain a lawyer. When he subsequently appeared at trial without counsel, he requested that an attorney be appointed to help him defend against the charges. During the trial, Morris examined one witness himself. The transcript reveals that he posed clear questions to this witness, followed trial court rulings on objections, and conferred with appointed counsel for assistance when necessary. Morris also testified on his own behalf, answering questions on both direct and cross-examination and explaining his actions with respect to V. D.

We find that, based on its observation of the trial and the evidence presented at the new trial hearing, the trial court was authorized to conclude that Morris adequately understood the nature of the charges against him, comprehended his own condition with respect to the proceedings, and was capable of aiding in his defense. Levitt, supra at 34. “ ‘Both statute and common law grant the trial judge inherent authority to satisfy himself that the accused has (in this case, had) mental capacity to go to trial.’ [Cit.] The trial judge here exercised that authority, and we find no reason to disturb his ruling.” Smalls, supra at 257 (1).

In addition, we find no evidence that the trial court was under any duty to conduct a competency hearing during trial. “ ‘(C)onstitutional guarantees require the trial court to inquire into competency, even where state procedures for raising competency are not followed, if evidence of incompetence comes to the court’s attention.’ [Cit.]” Thaxton v. State, 260 Ga. 141, 143 (4) (390 SE2d 841) (1990). Morris has not cited, and we have not located, any evidence that his alleged incompetence came to the court’s attention during trial or that his actions at trial required such an inquiry. Id.

(b) Morris also argues that the trial court erroneously denied him a new trial on ineffective assistance of counsel grounds. According to Morris, trial counsel was ineffective for failing to request a competency hearing or psychiatric evaluation for him at trial. We disagree.

“To establish a claim of ineffective assistance of counsel, [Morris] must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). [Morris] must establish both the performance and the prejudice components of the Strickland test.” Johnson v. State, 222 Ga. App. 722, 728 (9) (475 SE2d 918) (1996). Absent clear error, we will affirm the trial court’s finding that Morris received effective assistance of trial counsel. Id.

Trial counsel was appointed to assist Morris on the day of trial. We find no evidence that anything occurred during trial which should have raised doubt in trial counsel’s mind regarding Morris’ competency. The record presents no evidence that trial counsel knew about Morris’ mental disorder, and Morris’ mother testified at the new trial hearing that she never raised the issue of her son’s competency with trial counsel. Furthermore, trial counsel was not called to testify at the new trial hearing regarding his interaction with or perceptions of Morris at trial.

In short, Morris has not shown that trial counsel had any reason to request a competency hearing or psychiatric evaluation. The trial court properly rejected Morris’ ineffective assistance of counsel claim. See Ricks v. State, 240 Ga. 853, 855 (1) (242 SE2d 604) (1978).

3. Morris argues that the trial court erred in not granting a mistrial following a prejudicial, nonresponsive answer from Officer Pitts during cross-examination. We disagree.

On cross-examination, defense counsel asked Officer Pitts who was present when Pitts interviewed Morris during the investigation. Officer Pitts responded: “It was fourteen days after the first interview [with Morris]. And it was myself and [Investigator] Matt Littleton there. And the reason this statement — I took this statement. I was the primary in this interview. Reason is, because I had worked several — I’ve been involved with several child molestations, several child molestation accusations, and I took the lead on this interview and I was the primary. Investigator Littleton was there to — [.]”

Immediately after this response, defense counsel objected and moved for a mistrial, claiming that Officer Pitts’ answer improperly suggested prior sexual misconduct by Morris. The State argued that defense counsel could cure any false impression created by the response through further questioning of Officer Pitts, without any special instructions to the jury or a mistrial. Defense counsel agreed. The trial court permitted the additional questions and told defense counsel that “if you want me to then advise the jury that there was no suggestion of any sexual misconduct, prior complaints against this defendant, then let me know and I’ll do that.” The transcript reveals no subsequent request for a curative instruction or renewed motion for mistrial.

“ '(A) litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of same. He is required to stand his ground and fight in order to successfully enumerate as error an (alleged) erroneous ruling by the trial judge. Acquiescence completely deprives him of the right to complain further; he has agreed that the trial court’s ruling was correct by submitting to it. (Cit.)’ [Cit.]” Sanders v. State, 181 Ga. App. 117, 120 (2) (351 SE2d 666) (1986). In this case, defense counsel agreed that no mistrial was necessary and that any false impressions could be erased through witness testimony. Counsel did not ask for curative instructions or renew his motion for mistrial. This enumeration of error has no merit.

Decided May 22, 1997.

Before Judge Altman.

Kirbo, McCalley & Forehand, David S. Herndon, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

4. Finally, Morris argues that the trial court improperly instructed the jury “that it should not base it’s [sic] verdict on sworn testimony.” We find no error.

A review of the entire charge at issue reveals that Morris’ complaint revolves around a “slip of the tongue” that the trial court corrected immediately. The trial court stated: “Members of the jury, you are not to base your verdict upon the sworn testimony — excuse me. Members of the jury, you are to base your verdict upon the sworn testimony and evidence which is introduced and admitted by the Court for your consideration.” The trial judge immediately recognized his mistake and corrected himself by repeating the charge in its proper form. “The ‘palpable’ slip of the tongue could not have ‘misled or confused the jury.’ [Cit.] There was no reversible error.” Taylor v. State, 261 Ga. 287, 297 (15) (404 SE2d 255) (1991).

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.

       We note that, with respect to this argument, Morris’ brief violates Court of Appeals Rule 27 (c) (1). The argument does not follow the order of the enumerations of error, as required, and is not numbered properly in the brief.


author: Eldridge, Judge.

text:
    A97A1219.
    FREDERICK v. THE STATE.
    (487 SE2d 107)
   Eldridge, Judge.

Appellant Timothy Frederick appeals from a Dawson County jury’s verdict finding him guilty of armed robbery, aggravated assault, and burglary. Without challenging the sufficiency of the evidence against him, appellant makes two legal arguments in support of reversal on the armed robbery and aggravated assault offenses: (1) the trial court erred in denying his motion to suppress based on an illegal search of the cabin in which appellant was staying; and (2) appellant claims as error the trial court’s refusal to allow appellant to apprise the jury of the ten-year minimum mandatory sentence for armed robbery, either through his own testimony or through the testimony of his co-defendant. We disagree with both contentions and affirm appellant’s conviction.

1. There was no error in denying appellant’s motion to suppress evidence based on a warrantless search of the cabin in which appellant was staying.

For approximately a week and a half, appellant had been staying in a cabin with his two co-defendants, Jeremy Gunn and Dominique Lyda. The cabin belonged to the parents of co-defendant Gunn; they lived in another cabin a few yards away. The record demonstrates that prior to the search at issue, two Dawson County deputy sheriffs awoke Mr. and Mrs. Gunn and informed them that their son Jeremy, Lyda, and appellant had been implicated in an armed robbery that occurred two hours earlier; the Gunns cooperated with the officers and accompanied them to the cabin in which the men were staying; the Gunns did not protest the entry and search of the cabin, insisting that “[i]f he [Gunn] did it he needs to go to jail” and “if the boys had done anything like that, go on in and get them, they don’t need to be here.” Further, at the motion to suppress, the Gunns were not called to contest the consent they had given on the night of the search. “A warrantless search of a residence may be authorized by the consent of any person who possesses ... a sufficient relationship to the premises to be [inspected]. United States v. Matlock, 415 U. S. 164 (194 SC 988, 39 LE2d 242) (1974); Peek v. State, 239 Ga. 422 (238 SE2d 12) (1977).” Smith v. State, 264 Ga. 87 (2), 88 (441 SE2d 241) (1994). As the consent came from the owners of the property that was searched, the warrantless search was proper.

Further, one of the touchstones of Fourth Amendment analysis is whether a person has “a possessory interest in the items seized; and whether he took normal precautions to maintain the privacy and security of the items seized.” Sims v. State, 251 Ga. 877, 882 (6) (311 SE2d 161) (1984). However, in the case sub judice, no items were actually seized. At one point, co-defendant Lyda voluntarily gave an officer his jacket which contained money from the armed robbery and less than an ounce of marijuana; however, the record shows that these items were not seized pursuant to a search of the cabin by the police, and appellant would not have standing to challenge the search of his co-defendant’s coat, in any event. Sims, supra; Neely v. State, 159 Ga. App. 737 (285 SE2d 190) (1981).

In fact, a review of the record demonstrates to this Court that the search of the cabin apparently uncovered absolutely nothing at all pertaining to the offenses for which appellant was convicted. What is more, appellant appears to be equally in the dark as, other than his bare assertion that he desires the suppression of “any object, article, thing, statement, or other evidence gained [as] a result of the warrantless search” of the cabin, appellant has not apprised this Court of what these unidentified items might be. At trial, the State introduced no evidence obtained pursuant to a search of the cabin, and certainly, no nexus has been established between the search of the cabin and any subsequent statement made by appellant to the police so as to apply a “fruit of the poisonous tree” rule. Wong Sun v. United States, 371 U. S. 471 (83 SC 407, 9 LE2d 441) (1963). Accordingly, with no identified items seized pursuant to a search of the cabin, and thus, no required possessory interest therein, the trial court correctly denied appellant’s motion to suppress. “A trial court’s ruling will be affirmed if it is right for any reason.” Stovall v. State, 216 Ga. App. 138, 139 (1) (453 SE2d 110) (1995).

2. Appellant contends that the trial court erred by refusing to allow him to present evidence concerning the mandatory sentence to be imposed for an armed robbery conviction; appellant asserts that this evidence was necessary in order to “educate the jury on the potential 10-year mandatory sentence facing the Appellant[,]” since it is “unconscionable that a jury faced with these crimes is not made aware of the serious nature of the crimes and the punishment associated with this [sic] crimes.”

Such evidence concerning punishment is inadmissible as it may “divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.” (Citations and punctuation omitted.) Rivers v. State, 265 Ga. 694, 697 (6) (461 SE2d 205) (1995); Calhoun v. State, 213 Ga. App. 375 (444 SE2d 405) (1994). The consequences of a verdict are irrelevant to a determination of guilt or innocence. Camp v. State, 250 Ga. 228 (297 SE2d 26) (1982). The trial court’s ruling was correct.

Judgment affirmed.

Birdsong, R J., and Ruffin, J., concur.

Decided May 22, 1997.

Before Judge Girardeau.

William A. Maddox, for appellant.

Lydia J. Sartain, District Attorney, Jessica K. Moss, Assistant District Attorney, for appellee.

       Herein, appellant challenges neither the legality of his arrest nor the voluntary nature of any statement to the police.

       The trial court denied appellant’s motion to suppress on the basis of a challenge to appellant’s warrantless arrest, a challenge not repeated before this Court. An additional challenge to the search of the cabin was buried within the hotly debated issue of the existence of “exigent circumstances” surrounding the warrantless arrest.


text:
    A97A1453.
    HOWARD v. STATE OF GEORGIA.
    (487 SE2d 112)
   Eldridge, Judge.

Barbara Howard, as next friend to her minor daughter, appellant Jamy Howard, appeals a Hall County Superior Court’s order dismissing her personal injury claim against appellee “State of Georgia d/b/a Lake Lanier Island” based upon appellant’s failure to comply with the ante litem notice provision contained in our Georgia State Tort Claims Act, OCGA § 50-21-20 et seq. Herein, we affirm the trial court’s dismissal based upon a deficiency in the service of the ante litem notice, but find that such dismissal is without prejudice and that, under the facts of the case sub judice, the time limitation imposed within the ante litem notice provision does not bar the minor plaintiff from refiling her personal injury claim provided that proper ante litem notice has been given prior to refiling. Held-.

1. In the State Tort Claims Act of 1992, our legislature attempted to strike a public policy balance between: (1) the “inherently unfair and inequitable results” which occur in the strict application of the doctrine of sovereign immunity, and (2) the necessity to allow the State government “flexibility” in order to provide and perform a broad range of public services with limited exposure to monetary liability, which would deplete the State’s coffers. Ga. L. 1992, pp. 1883, 1884; OCGA § 50-21-21 (a). To this end, the General Assembly specifically provided that the tort liability of this State shall only be “within the limitations of this article [OCGA § 50-21-20 et seq.] and in accordance with the fair and uniform principles established in this article.” OCGA § 50-21-21 (a); Ga. L. 1992, p. 1884. Thus, the State Tort Claims Act, by its own terms, must be strictly construed.

Under the Act, and as a condition precedent to any tort action being filed against the State, OCGA § 50-21-26 (a) (2) provides for notice ante litem motam, i.e., notice before suit is brought. The statute requires that such notice “shall be given in writing and shall be mailed by certified mail, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services. In addition, a copy shall be delivered personally to or mailed by first-class mail to the state government entity, the act or omissions of which are asserted as the basis of the claim.” OCGA § 50-21-26 (a) (2). Failure to comply with this ante litem notice provision prevents any court from obtaining jurisdiction over the subject matter of the action. OCGA § 50-21-26 (a) (3).

By way of comparison, an ante litem notice provision also exists with regard to an attempt to assign tort liability to local governments and municipalities; however, this provision provides that such notice be served upon “the governing authority.” OCGA § 36-33-5. The lack of specificity therein has furnished this Court with a basis for finding “substantial compliance” when the written ante litem notice is “received by the municipality or one of its departments or officials,” (citations and punctuation omitted) and has thus served its purpose of putting “the city on notice of the grievance.” Burton v. DeKalb County, 202 Ga. App. 676, 677 (415 SE2d 647) (1992); Tanner v. City of Gainesville, 162 Ga. App. 405, 407 (2) (290 SE2d 541) (1982).

In contrast, the State Tort Claims Act cannot be considered unclear or at all open-ended about the service aspect of its ante litem notice provision. In fact, it cannot get any more specific: ante litem notice must be served upon the Risk Management Division of the Department of Administrative Services and whichever state governmental entity the plaintiff holds as liable for the alleged injury.

With these legal principles in mind, we turn to the case sub judice.

A review of the record shows that appellant sent the required ante litem notice to David Milner, an agent with the insurance company for Lake Lanier Islands, Mark Adjustment Services. A copy of the notice was also sent to the State Attorney General’s Office. Such notice is obviously deficient under the statute as notice to an insurer or the Attorney General is not notice to the state agencies specified in the statute. See, e.g., City of LaGrange v. USAA Ins. Co., 211 Ga. App. 19, 21 (438 SE2d 137) (1993). Thus, appellant’s complaint was properly subject to dismissal pursuant to OCGA § 9-11-12 (b) (1), since the trial court did not have subject matter jurisdiction over the action. OCGA § 50-21-26 (a) (3).

In so holding, we are not unmindful of the fact that the record before us contains references to conversations between appellant’s counsel and insurance agent David Milner, which include some unsettling evidence that Milner intimated the requisite notice should be sent to him at Mark Adjustment Services, since he was “handling this matter on behalf of the Department of Administrative Services.” Nonetheless, we find, that the clearly stated directives in the statutory notice provision of OCGA § 50-21-26 (a) (2) cannot give way before this evidence. The explicit ante litem notice provision of the State Tort Claims Act is ignored only at peril to a plaintiff’s cause of action. The specificity of the statute and the expressed public policy rationale therefor demand such a result.

2. Under the facts of this case, appellant’s cause of action may be refiled, as such is not barred by the time restriction contained in the ante litem notice provision.

The statute requires that ante litem notice “shall be given in writing within 12 months of the date the loss was discovered or should have been discovered.” OCGA § 50-21-26 (a) (1). A review of the legislative headnote with regard to this portion of the Code section demonstrates the intent of the General Assembly was “to provide for ante litem notice of claim; to provide procedures and time limits for processing such ante litem notice and claims; [and] to provide a statute of limitations.” Further, it is well established that failure to comply with an ante litem notification provision within the time required thereby is a bar to any right of action. See, e.g., Mattox v. Bailey, 221 Ga. App. 546 (472 SE2d 130) (1996); Langton v. Dept. of Corrections, 220 Ga. App. 445, 446 (469 SE2d 509) (1996); see also USAA Ins. Co., supra at 21; City of Atlanta v. Barrett, 102 Ga. App. 469, 471 (116 SE2d 654) (1960).

In fact, an ante litem time requirement has been held to be, in itself, a form of statute of limitation, with all the general principles applicable to statutes of limitation also applying to ante litem time restrictions, including tolling provisions: “A statute of limitation is any law which fixes the time within which parties must take judicial action to enforce rights or else be thereafter barred from enforcing them. Prudential Insurance Co. v. Sailors, 69 Ga. App. 628 (4) (26 S.E.2d 557) [(1943)]. While the giving of [such] notice is a condition precedent to the bringing of an action, the giving of [the] notice is at once part and parcel of the enforcement of the right and it is an inseparable part of the bringing of the action. It is a part of the procedure for enforcing the right. . . . We, therefore, conclude that the requirement that the notice be given within [12] months from the date of the injuries or else that the action therefor be forever barred is itself a statute of limitation and subject to the general law of this State with respect to the tolling of statutes of limitation.” Barrett, supra at 471-472.

In the case sub judice, appellant is a minor. Such status tolls the time limitation of an ante litem notice requirement until appellant reaches her majority. OCGA § 9-3-90 (a); Price v. Dept. of Transp., 214 Ga. App. 85, 87-88 (446 SE2d 749) (1994); Barrett, supra. Further, this Court has held that statutes of limitation will not run against a minor represented in litigation by a next friend. Price v. Dept. of Transp., supra at 87-88; Ethridge v. Price, 194 Ga. App. 82, 85 (389 SE2d 784) (1989) (Sognier, J., concurring specially); Barnum v. Martin, 135 Ga. App. 712, 715 (219 SE2d 341) (1975); Jones v. Hartford Accident &c. Co., 132 Ga. App. 130 (207 SE2d 613) (1974); Whalen v. Certain-Teed Products Corp., 108 Ga. App. 686, 687 (134 SE2d 528) (1963). Thus, appellant’s cause of action, brought by her mother as next friend, is not barred by virtue of the ante litem notice time limitation contained in OCGA § 50-21-26 (a) (2).

Decided May 22, 1997.

Before Judge Story.

Dozier, Lee, Graham & Sikes, Neal B. Graham, for appellant.

Michael J. Bowers, Attorney General, Hulsey, Oliver & Mahar, Samuel L. Oliver, Abbot S. Hayes, Jr., for appellee.

Judgment affirmed.

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

       See, e.g., Regency Nissan v. Taylor, 194 Ga. App. 645, 648 (3) (391 SE2d 467) (1990): “When a statute is found to be plain and susceptible of but one natural and reasonable construction, an appellate court has no authority to place a different construction upon it, but must construe it according to its terms. . . . [JJudicial construction is both unnecessary and unauthorized, and the legislature’s clear intent... will not be thwarted by invocation of the rule of ‘substantial compliance.’ ”

       Contrary to appellant’s assertions, there is no evidence before this Court that the trial court considered matters outside the record in determining the motion to dismiss. Nor has appellant been able to provide us with any specific evidence considered by the trial court outside the record. Thus, the motion to dismiss was proper without a hearing thereon. OCGA § 9-11-12 (c). Further, “ ‘[t]here has been no assertion that any briefs, affidavits, or other supporting documentation would have been filed . . . prior to the day of (the) hearing. Thus, even though [appellant asserts] harm as a result of the substantive ruling on [appellee’s] motion, [she has] offered nothing to suggest that that ruling would have been any different if a hearing had been held.’ (Citations and punctuation omitted.) [Cit.] [Plaintiff] having shown no harm in being denied a hearing on the motion, no reversal is required. Premium Dist. Co. v. Nat. Dist. Co., 157 Ga. App. 666, 670 (2) (278 SE2d 468) (1981).” Christensen v. State, 219 Ga. App. 10, 12 (4) (464 SE2d 14) (1995).

       As the ante litem notice was deficient, the filing of the complaint was a void act since subject matter jurisdiction was lacking in the Superior Court of Hall County. OCGA § 50-21-26 (a) (3); see OCGA § 9-11-12 (b) (1). However, we note that appellant’s service of process was also deficient. The provision for service of process under OCGA § 50-21-35 is as specific as that of the ante litem notice requirements. Service must be made upon: (1) the governmental entity allegedly responsible for plaintiff’s injury; (2) the director of the Risk Management Division of the Department of Administrative Services; and (3) the State Attorney General. Appellant failed to include service of process upon the Attorney General and upon the Lake Lanier Islands Development Authority, OCGA §§ 12-3-311; 50-21-35.

       Clearly, such ante litem notice provision does not constitute a statute of repose or abrogation. Compare OCGA §§ 51-1-11 (b) (2); 9-3-71 (b), (c); 9-3-51 (b); see also Wright v. Robinson, 262 Ga. 844 (426 SE2d 870) (1993) (a statute of limitation governs the time within which legal proceedings must be commenced after the cause of action is discovered, while a statute of repose or abrogation limits the time within which an action may be brought after the event which is the alleged cause of the proceedings and is not related to the discovery of any cause of action; under a statute of repose, the injury need not have occurred, much less been discovered).

       “Minors and persons who are legally incompetent because of mental retardation or mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.” OCGA § 9-3-90 (a).

        Price v. Dept. ofTransp., supra, includes a discussion on the inconsistent application of the tolling provisions of OCGA § 9-3-90 when applied to a minor represented by a next friend, and when applied to those deemed mentally incompetent who are represented by a next friend; this Court recognized that the difference in the application of the tolling provisions for represented minors and legal incompetents “was rational, since while a person’s status as a minor terminated at a certain time, with legal incompetency the condition might remain a lifetime.” Id. at 87-88.


author: Blackburn, Judge.

text:
    A97A0196.
    PRESTO et al. v. SANDOZ PHARMACEUTICALS CORPORATION et al.
    (487 SE2d 70)
   Blackburn, Judge.

In this prescription-drug products liability case, plaintiffs appeal the trial court’s grant of defendant Sandoz’s motion to dismiss plaintiffs’ complaint, which alleges that the defendants are tortiously liable for the suicide of Greg Presto, for failing to warn him of the dangers of discontinuing the use of the drug Clozaril. The trial court held that the complaint failed to state a claim as to Sandoz, the manufacturer, as its duty to warn was limited to providing such notice only to the prescribing physician, Dr. Warren. Plaintiffs also appeal the trial court’s grant of summary judgment on plaintiffs’ tort and warranty claims to defendant Caremark, whose limited duty it was to dispense the drug, draw the patient’s blood, review his lab results, and provide them to Dr. Warren. Neither Dr. Warren nor Peachford Behavior Health Systems, d/b/a Charter Peachford Hospital, is a party to this appeal.

Greg Presto, the adult son of plaintiffs Charles and Mary Presto, committed suicide in September 1991. The Prestos claim that Greg committed suicide because he suddenly stopped taking Clozaril, a prescription anti-psychotic drug manufactured by defendant Sandoz Pharmaceuticals Corporation, distributed by defendant Caremark, Inc., and prescribed by defendant Dr. Warren.

The Prestos allege the defendants should have warned Greg of the dangers he faced if he discontinued use of the drug. They appeal from the trial court’s rulings which found: (1) that defendant Sandoz had no duty to warn Greg of the dangers of discontinuing the use of Clozaril; (2) that defendant Caremark was not subject to liability for professional negligence because the Prestos did not attach the required expert affidavit to their complaint; and (3) that Caremark was not liable under a warranty theory for an “inadequately labeled” drug.

Greg had previously been treated for mental illness with Clozaril, which had been prescribed to him by defendant Dr. Warren. Because Clozaril can damage a patient’s immune system, defendant Caremark was hired to perform certain tests on Greg, monitor the results of those tests, and dispense the medication to him.

The Clozaril helped Greg’s condition, but it had undesirable side effects. In August 1991, Greg and his mother requested he be taken off the medication and be prescribed a different drug. Dr. Warren agreed, the plaintiffs allege. According to the Prestos’ complaint, neither Greg nor his parents were told of a warning included in the Clozaril packaging. This warning recommended that patients be removed from the drug by gradually reducing the dosage over a one- or two-week period and stated, “[s]hould a patient’s medical condition require abrupt discontinuation . . . , the patient should be carefully observed for the recurrence of psychotic symptoms.”

1. Sandoz, the manufacturer, moved to dismiss the complaint for failure to state a claim, on the ground that it was required to give any warnings only to Greg Presto’s physician. The record shows the trial court granted this motion after considering matters outside the pleadings, specifically documents provided by the plaintiffs and the deposition of Mary Presto. Thus, the motion is construed as one for summary judgment, upon which the parties were given a hearing. See Christensen v. State of Ga., 219 Ga. App. 10, 12 (4) (464 SE2d 14) (1995).

The Prestos acknowledge the settled “learned intermediary rule” of Georgia law that the manufacturer of a prescription drug is not normally required to directly warn the patient of dangers in its use. “Ordinarily, in the case of prescription drugs, a warning as to possible danger in its use to the prescribing physician is sufficient.” (Citations and punctuation omitted.) Singleton v. Airco, Inc., 169 Ga. App. 662, 664 (314 SE2d 680) (1984); see also Hawkins v. Richardson-Merrell, Inc., 147 Ga. App. 481, 482-483 (1) (249 SE2d 286) (1978); Parke, Davis & Co. v. Mayes, 124 Ga. App. 224 (183 SE2d 410) (1971).

The plaintiffs mistakenly claim that Carter v. E. I. DuPont de Nemours & Co., 217 Ga. App. 139 (456 SE2d 661) (1995) weakens this rule. Carter involved plaintiffs who purchased clothing available to the general public without warnings regarding the fabric’s flammability. Carter is not applicable to this case, which involves a prescription drug, available only through a licensed, skilled physician. As we stated in Hawkins, supra at 483 (1), “[t]his special standard for prescription drugs is an understandable exception to the . . . general rule that one who markets goods must warn foreseeable ultimate users of dangers inherent in his products. Prescription drugs are likely to be complex medicines, esoteric in formula and varied in effect. As a medical expert, the prescribing physician can take into account the propensities of the drug, as well as the susceptibilities of his patient. His is the task of weighing the benefits of any medication against its potential dangers.” (Citation and punctuation omitted.)

The Prestos make no claim that Sandoz failed to warn Greg’s physician, Dr. Warren, of this potentially adverse effect of Clozaril. In fact, they point to such a warning included with the medication’s packaging, and the record shows Dr. Warren signed a document stating he was familiar with all Clozaril package labeling. They make no argument that the warning given Dr. Warren was inadequate. Thus, the “learned intermediary” rule of Hawkins applies here, and Sandoz had no duty to directly warn Greg or the Prestos of the potential hazards of the use of Clozaril.

The Prestos, however, claim Sandoz should have warned Greg directly because it did give some direct information in the form of a pamphlet entitled “Understanding Clozaril (clozapine) Therapy: A Guide for Patients and Their Families.” Plaintiffs cite the principle that “[w]here one undertakes an act which he has no duty to perform and another reasonably relies on that undertaking, the act must generally be performed with ordinary or reasonable care.” Stelts v. Epperson, 201 Ga. App. 405, 407 (411 SE2d 281) (1991); see also Mixon v. Dobbs Houses, 149 Ga. App. 481, 484 (254 SE2d 864) (1979). Because Sandoz voluntarily undertook to provide some information directly to patients, the Prestos argue, it should also have warned patients of the dangers of discontinuing use of the medication.

This argument fails because the Prestos could not, as a matter of law, have “reasonably relied” on this pamphlet for such a warning. See Stelts, supra. The pamphlet does not constitute an effort to inform patients of all the dangers of Clozaril and does not purport to do so. The booklet states that it “provides answers to many common questions about CLOZARIL” but cautions the reader: “If there are any other questions about CLOZARIL therapy, be sure to ask the doctor, nurse, or pharmacist.” As the pamphlet covers only general issues concerning the drug, and as the Prestos relied on Dr. Warren to prescribe and supervise Greg’s use of the drug, this theory of liability is without merit.

2. The trial court also granted summary judgment to Caremark on the Prestos’ claims. The complaint alleged that Caremark “possessed actual or constructive knowledge of the dangers inherent in using and abruptly terminating the use of Clozaril” but did not inform Greg Presto of those dangers. A Caremark employee testified that the company’s only role in Greg Presto’s treatment was to draw his blood each week, review his lab results and provide them to Dr. Warren, and dispense the drug. This employee denied that Caremark had any involvement in determining whether Presto should take Clozaril or the dosage which was prescribed. This evidence is undisputed.

Although the Prestos attached to their complaint an expert affidavit alleging the negligence of Dr. Warren, as required by OCGA § 9-11-9.1, that affidavit makes no reference to any negligent act or omission attributable to Caremark.

The Prestos also argue that Caremark contractually assumed the obligation of informing their son of the dangers associated with the drug. They cite regulations of the Georgia State Board of Pharmacy requiring dispensing pharmacists to counsel patients concerning their medication “based on the professional judgment of the pharmacist.” See Rules & Regs, of the State of Ga., § 480-31-.01 (c) (1) (effective January 1, 1993). However, the cited regulations have no application to this claim, which arose over a year before the regulations became effective.

The Prestos’ claims, however labeled, are allegations of professional malpractice on the part of pharmacists or nurses at Caremark. “A suit is a [professional] malpractice action where ... it calls into question the conduct of a professional in his area of expertise.” Knight v. Sturm, 212 Ga. App. 391, 392 (2) (442 SE2d 255) (1994). Whether the action sounds in contract or tort, it still requires the expert affidavit. See Centrust Mtg. Corp. v. Smith & Jenkins, P.C., 220 Ga. App. 394, 396 (1) (469 SE2d 466) (1996) (complaint against lawyer for breach of contractual duties). The failure to attach to the complaint the expert affidavit required by OCGA § 9-11-9.1 required the dismissal of these claims. See Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 866 (1) (463 SE2d 5) (1995) (finding dismissal for failure to attach expert affidavit to complaint was adjudication on the merits); Harrell v. Lusk, 263 Ga. 895, 897-898 (439 SE2d 896) (1994) (expert affidavit required in actions against pharmacists).

Even if the expert affidavit requirement was not a factor, the case of Walker v. Jack Eckerd Corp., 209 Ga. App. 517 (434 SE2d 63) (1993) dictates that the pharmacist had no duty in August 1991 to give the requested warnings regarding side effects associated with the discontinuation of Clozaril. That case is binding precedent for claims arising before January 1, 1993, and both the majority opinion and the dissent in Walker found the pharmacist had no independent duty to give such a warning. “The pharmacist does not . . . have a duty ... to warn customers of the hazardous side effects associated with a drug, either orally or by way of the manufacturer’s package insert.” (Citation and punctuation omitted.) Id. at 525 (Pope, C. J., dissenting).

The Prestos also contend that summary judgment on their claim against Caremark was improper because they asserted warranty claims against Caremark to which the expert affidavit requirement does not apply. A similar claim was rejected in Sparks v. Kroger Co., 200 Ga. App. 135, 136 (2) (407 SE2d 105) (1991), in which the Court held that a pharmacist may not be held liable in the absence of “negligence amounting to professional malpractice.”

The Prestos’ warranty claims are based on the Uniform Commercial Code’s warranties of merchantability (OCGA § 11-2-314) and fitness for a particular purpose (OCGA § 11-2-315). Caremark is entitled to summary judgment on the warranty claim because it neither manufactured nor prescribed the subject drug. Neither would Sandoz be liable under any warranty claim because of the “learned intermediary” doctrine, absent some showing that the product itself was somehow defective and not of its usual or expected quality. The record contains no evidence of defect.

As to warnings, because the product’s labeling provided competent warnings to the physician, it was “adequately . . . labeled as the agreement may require” and was, therefore, “merchantable” pursuant to OCGA § 11-2-314 (2) (e). Furthermore, because the patient is legally deemed to rely on the physician and not the package labeling for this warning, the Prestos cannot show they were “relying on the seller’s skill or judgment to select or furnish suitable goods,” as is required to prove an implied warranty of fitness for a particular purpose. OCGA § 11-2-315.

Finally, damages may be recovered for breach of warranty only if the plaintiff shows his injury proximately resulted from the breach of the warranty. OCGA § 11-2-715 (2) (b). Because the Prestos are legally deemed to have relied on Dr. Warren’s advice, and not on the package labeling, they cannot show any breach of warranty caused by inadequate package labeling proximately caused the injury claimed.

We also acknowledge persuasive authority from other jurisdictions holding that such implied warranties do not apply to the dispensing of medication by a pharmacist. See, e.g., Makripodis v. Merrell-Dow Pharmaceuticals, 523 A2d 374, 376 (Pa. Super. 1987) (druggist does not warrant that prescription drugs are fit for “ordinary uses,” as use of drug is a decision made by the physician); Bichler v. Willing, 397 NYS2d 57, 58-59 (N.Y. App. 1977) (warranties are not implied, as patient places confidence in doctor’s skill, not pharmacist’s); McLeod v. W. S. Merrell Co., 174 S2d 736, 738-739 (Fla. 1965).

Therefore, we affirm the trial court’s rulings in this matter.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

Decided May 13, 1997

Reconsideration denied May 28, 1997

Before Judge Hancock.

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, Dan B. Wingate, for appellants.

Hawkins & Parnell, Lawrence J. Myers, Charles R. Beans, Love & Willingham, Robert P Monyak, Alston & Bird, Lawrie E. Demorest, Troutman Sanders, Amy S. Lettes, for appellees.


author: Judge Harold R. Banke.

text:
    A97A0065.
    JET FOOD STORES, INC. v. KICKLIGHTER.
    (487 SE2d 120)
   Judge Harold R. Banke.

Jet Food Stores, Inc. (“Jet”) appeals the judgment entered on a jury verdict in favor of Barbara Kicklighter in her negligence action. In three enumerations, Jet challenges the denial of its motions for directed verdict.

On appellate review, in the absence of a material legal error, a jury’s verdict and the judgment entered thereon will not be disturbed if there is any evidence to support the verdict. Professional Consulting Svcs. &c. v. Ibrahim, 206 Ga. App. 663, 665 (1) (426 SE2d 376) (1992). Viewed in that light, the evidence showed the following. When Kicklighter entered Jet’s store, she took several steps before falling on an entrance floor mat and sustaining a severely fractured leg. Kicklighter testified that as she started to move to her left the mat turned under her foot. According to her testimony, when she turned the mat twisted with her or pulled up. Neither Anita Taylor nor Steve Aldrich, the only employees present in the store, witnessed Kicklighter’s fall. Both Taylor and Aldrich testified that they knew about prior problems with the floor mats. These flat, carpeted rubber-bottomed floor mats were subject to periodic folding, bunching, rolling, and shifting. Taylor testified that the mats “fairly frequently” required straightening. Aldrich testified that the mats periodically moved under foot traffic, occasionally rolling up, and that part of his job was to straighten them. Held:

1. Jet contends that the trial court erred in denying its motion for directed verdict because there was no evidence that it was negligent on the day Kicklighter fell. A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced with all reasonable inferences therefrom demands a particular verdict. OCGA § 9-11-50 (a); Metromedia Steakhouses Co., L.P. v. Ray, 219 Ga. App. 716, 717 (2) (466 SE2d 618) (1995). On appeal, the standard of review of a trial court’s denial of a motion for directed verdict is the “any evidence” standard. F.A.F. Motor Cars v. Childers, 181 Ga. App. 821 (1) (354 SE2d 6) (1987).

Generally, the owner or occupier of premises is under a duty to discover and either keep the premises safe from or warn of hidden dangers or defects not observable to invitees who are exercising ordinary care. Newell v. Great A & P Tea Co., 222 Ga. App. 884 (1) (476 SE2d 631) (1996); OCGA § 51-3-1. The principle of equal or superior knowledge applies to static defective or dangerous conditions on property. Newell, 222 Ga. App. at 885 (2). Thus, to establish negligence, Kicklighter had to show (1) that Jet had actual or constructive knowledge of the hazard, and (2) that she was without knowledge of the hazard or for some reason attributable to the defendant was prevented from discovering it. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

The testimony of Jet’s two employees establishes Jet’s constructive knowledge of the dangerous propensity of the floor mats to move or slip without warning, thereby satisfying the any evidence standard. Horan v. Pirkle, 197 Ga. App. 151, 153 (2) (397 SE2d 734) (1990). Kicklighter’s uncontroverted testimony that she had no knowledge of the hidden danger satisfies the second prong of Ligón, supra.

Notwithstanding Jet’s claim to the contrary, the testimony of Ruth Conner, its store manager, that she inspected and straightened the floor mats about 15 minutes earlier does not demand a different result. See Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 295 (322 SE2d 737) (1984). Where an obstruction or a danger is in some way hidden, camouflaged or intrinsically unsafe, the issue of ordinary care in inspecting the premises should be left to the jury. Newell, 222 Ga. App. at 887. See Lawless v. Sasnett, 200 Ga. App. 398, 399 (408 SE2d 432) (1991). The fact that the mats needed to be straightened and monitored demonstrates that they did, in fact, move or shift as Kicklighter averred. For this reason, the evidence in the record does not require a finding as a matter of law that no actionable negligence occurred. Russell v. Goza, 143 Ga. App. 455, 456 (1) (238 SE2d 583) (1977).

2. Jet contends that the trial court erred in denying its motion for directed verdict because it satisfied the applicable standard of care by providing a mat that met industry standards. Although Jet asserts in its brief that the “floor mat . . . was commonly accepted and standard in the floor mat industry,” Jet failed to cite to the record showing where evidence of industry standards or customs was presented. In fact, no expert testimony was offered by either side.

Decided May 28, 1997.

Before Judge Hartley.

Fulcher, Hagler, Reed, Hanks & Harper, David P. Dekle, Shivers, Johnson & Wilson, Eleanor L. Martel, for appellant.

Callaway, Neville & Brinson, William E. Callaway, Jr., William J. Neville, Jr., Lovett Bennett, Jr., for appellee.

The testimony of Gilbert Sloan, a route supervisor and former deliveryman for Aramark, Inc., the company which supplied the floor mats to Jet, that these mats were normally and customarily supplied to all of Aramark’s customers, without more, did not establish an industry standard for floor mats used at convenience store entrances. Sloan, who was not tendered as an expert, did not even testify as to how many other customers of Aramark used these mats and whether or not Aramark’s customers experienced problems with them. Compare Cole v. Cracker Barrel, 210 Ga. App. 488, 489-490 (436 SE2d 704) (1993) (wooden floor having no hidden or apparent defect and made of material commonly accepted in building industry was evidence that defendant met applicable standard of care).

3. Jet claims that the trial court erred in denying its motion for directed verdict because even assuming the existence of a defective condition, such condition was open and obvious and Kicklighter accordingly failed to exercise ordinary care for her own safety. We disagree. Questions of negligence, contributory negligence, diligence, the exercise of ordinary care, and proximate cause are solely for the jury except in plain and indisputable cases. Pique v. Lee, 218 Ga. App. 357, 358 (461 SE2d 302) (1995); Kroger Co. v. Green, 190 Ga. App. 318 (1) (378 SE2d 905) (1989). This is not such a case.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J, concurs in the judgment only.

       After surgery, Kicklighter spent 12 days in the hospital. Her recovery necessitated extensive physical therapy, the use of a walker for two years and later a cane.


author: Andrews, Chief Judge. Blackburn, Judge,

text:
    A97A0322.
    WASHINGTON et al. v. SOUTH GEORGIA MEDICAL CENTER.
    (487 SE2d 125)
   Andrews, Chief Judge.

Kenneth Washington, Sr., individually, and his wife Cynthia Washington, individually and as next friend of her son, Kenneth Washington, Jr., appeal from an order of the trial court dismissing their action against South Georgia Medical Center (the hospital) on the basis that the Washingtons wilfully failed to attend their depositions.

This is the Washingtons’ second appeal from a dismissal of their claims against the hospital for failure to attend their depositions. As set forth in the previous appeal, “[t]he Washingtons brought this medical malpractice action against Dr. Roy Swindle and [the hospital] asserting that, as a result of the defendants’ negligence, Mrs. Washington and her son were injured during the child’s delivery.” Washington v. South Ga. Med. Center, 221 Ga. App. 640 (472 SE2d 328) (1996). In Washington, supra, the trial court granted separate sanction motions brought by Swindle and the hospital pursuant to OCGA § 9-11-37 (d) seeking dismissal of the Washingtons’ action because of failure to appear for their depositions. The depositions were noticed by Swindle but not by the hospital. The Washingtons appealed from the dismissal of their claims against both Swindle and the hospital. We affirmed the dismissal of the claims against Swindle on the basis that there was evidence supporting the trial court’s determination that the Washingtons received notice of the depositions from Swindle and wilfully failed to appear at the depositions. We reversed the trial court’s order granting the sanction of dismissal as to the hospital. We did so on the basis that the trial court prematurely considered the hospital’s motion for sanctions prior to the expiration of the response period on the motion, and we “remand[ed] so that the trial court may consider the response proffered by the Washingtons and determine what sanctions, if any, are merited.” Washington, supra at 642 (2). All three judges on the panel in Washington concurred in affirming the dismissal as to Swindle and in reversing the dismissal as to the hospital. Id. at 640-643.

However, in dicta in Washington, supra, two judges on the panel further stated that, upon remand, the trial court would be authorized to impose sanctions sought by the hospital against the Washingtons for failure to attend the depositions, despite the fact that Swindle, and not the hospital, was the party who noticed the depositions. The remaining judge on the panel disagreed with this statement citing Singleton v. Eastern Carriers, 192 Ga. App. 227, 228 (384 SE2d 202) (1989), and Johnson v. Martin, 137 Ga. App. 312, 314 (223 SE2d 465) (1976), as authority that the hospital could not obtain sanctions for the Washingtons’ failure to attend depositions it did not ask for.

On remand, the trial court reconsidered the hospital’s motion for sanctions pursuant to OCGA § 9-11-37 (d) along with the Washingtons’ response, concluded that the Washingtons wilfully failed to attend the depositions noticed by Swindle, granted the hospital’s motion, and dismissed all claims against the hospital. On appeal from the dismissal order, the Washingtons contend that, because the depositions were noticed to them only by the hospital’s co-defendant, Swindle, the trial court had no authority to dismiss their claims against the hospital for their failure to attend the depositions.

We agree. In Singleton, supra, one of three co-defendants served the plaintiff with interrogatories and a request for production of documents. After the plaintiff failed to timely respond to the requested discovery, the defendant seeking the discovery moved for sanctions. The trial court found the plaintiff’s failure to be wilful and dismissed the complaint as to all three defendants. On appeal by the plaintiff, we affirmed the dismissal as to the defendant seeking the discovery but reversed the dismissal as to the other two defendants. We held: “ ‘(T)here is no authority for a co-defendant to become the beneficiary of a dismissal under (OCGA § 9-11-37 (d)) merely because of a failure of the plaintiff to comply with the other co-defendant’s discovery-actions.’ Johnsonl, supra at] 314. Since the requested discovery was sought only by [one of the three defendants], we are constrained to hold that the trial court erred in ordering dismissal as to the other two defendants. . . .” Singleton, supra at 228 (2).

Although Singleton applied this rule to written discovery requests, we conclude it also applies to discovery sought by deposition upon oral examination. Accordingly, we disagree with and will not adopt the position taken in dicta by two-thirds of the panel in Washington, supra, that Singleton does not apply to deposition discovery. Admittedly, deposition discovery differs from interrogatories and other forms of written discovery in that, when a party serves the deponent with notice of a deposition, all the other parties to the action are entitled to notice of the deposition and may attend and examine or cross-examine the deponent as permitted at the trial under the rules of evidence. OCGA § 9-11-30 (b) (1), (c) (1). Thus, as noted in Washington, supra at 642, a party, like the hospital in the present case, may attend a deposition noticed by another party and incur preparation and attendance expenses when the deponent fails to appear. We conclude, however, that this concern is not a sufficient reason to exclude deposition discovery from the rule established in Singleton. A non-noticing party attending a deposition where the deponent fails to appear may seek reimbursement of reasonable preparation and attendance expenses pursuant to: (1) OCGA § 9-11-30 (g) (2) from the party who noticed the deposition, if no subpoena was served on the deponent, or (2) the inherent power of the court to control the conduct of the parties before it in the exercise of discovery. See Millholland v. Oglesby, 114 Ga. App. 745, 751 (152 SE2d 761) (1966), rev’d on other grounds, 223 Ga. 230 (154 SE2d 194) (1967); Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 589 (452 SE2d 159) (1994); OCGA § 15-1-3 (4). Contrary to other concerns expressed in Washington, supra at 642, we do not consider it unreasonable in multi-party litigation to require that, before any party may seek sanctions under OCGA § 9-11-37 (d) for the failure of another party to appear at their noticed deposition, the party seeking the sanctions must have served a deposition notice on the party deponent. Serving a deposition notice provides due process notice of attending parties to a party deponent preparing for a deposition and makes clear to a party deponent who fails to attend which other parties will be entitled to seek the sanctions available under OCGA § 9-11-37 (d) for failure to attend a noticed deposition. This is consistent with our policy of avoiding the harsh application of the drastic sanctions available under OCGA § 9-11-37 (d) and of limiting such sanctions to flagrant cases involving a wilful failure to comply with discovery requests. See Maxey v. Covington, 126 Ga. App. 197, 199 (190 SE2d 448) (1972).

We need not address appellants’ remaining enumerations.

Judgment reversed.

McMurrdy, P. J., Beasley, Johnson, Smith and Eldridge, JJ., concur. Birdsong, P. J., Pope, P. J., Blackburn and Ruffin, JJ., dissent.

Blackburn, Judge,

dissenting.

I cannot agree that the rule of Singleton v. Eastern Carriers, 192 Ga. App. 227 (384 SE2d 202) (1989), applies to the instant case or to Washington v. South Ga. Med. Center, 221 Ga. App. 640 (472 SE2d 328) (1996). Such rule does not preclude a party from obtaining sanctions against a deponent who fails to appear where the deposition was noticed by another party. Nor do I agree with the majority’s attempt to expand the rule of Singleton; therefore, I must respectfully dissent. The rule in Singleton regarding who may obtain discovery sanctions is limited to written discovery, and the majority’s extension of this rule to encompass deposition discovery is unwarranted. The reason for the rule in Singleton is that the party who submits the interrogatories is the only party who would have incurred expenses as a result of the failure to answer the interrogatories. This is not the case when a party appears at a noticed deposition and the deponent fails to appear. I also disagree with the majority’s characterization of pertinent language from Washington, supra, as dicta.

“Dicta” is that which is typically “unnecessary to the holding of the case.” Hoesch America v. Dai Yang Metal Co., Ltd., 217 Ga. App. 845, 847 (459 SE2d 187) (1995). The majority concludes that the language from Washington, supra, holding that a party other than the one noticing the deposition can obtain sanctions when the deponent fails to appear is dicta. This characterization is inaccurate because of another often-observed rule of this Court: that we will address issues on appeal which are likely to arise on remand. See Sellers v. Nodvin, 207 Ga. App. 742, 747 (4) (429 SE2d 138) (1993).

In Washington, this second rule was applied. We remanded the non-noticing party’s motion for sanctions after the deponent failed to appear, and we did so' on procedural grounds. However, because the viability of the motion was certain to be an issue on remand, we addressed the trial court’s options with respect to the motion. For this reason, the language referred to by the majority is not dicta, and it should not be overlooked as such.

With respect to the majority’s extension of Singleton, supra, to include deposition discovery, Singleton is being stretched to include discovery which it never contemplated. In a single paragraph, Singleton held simply, that the defendant whose written discovery requests the plaintiff had failed to answer was entitled to the sanction of dismissal, but co-defendants who were not parties to said written discovery could not also receive dismissal on this basis. Singleton, supra at 228 (2). Singleton cites for authority Johnson v. Martin, 137 Ga. App. 312 (223 SE2d 465) (1976), but Johnson is also limited only to written discovery.

The majority’s finding that a non-noticing party may not obtain sanctions when a deponent fails to appear ignores the economic realities of the practice of law, the scheduling of depositions, and the difficulties inherent in both. As noted in Washington, in cases involving multiple parties, depositions will frequently be attended by all parties and their counsel. The scheduling of such deposition involves a tremendous amount of communication, coordination, and planning. When the deponent fails to appear, it is irrefutable that all parties, not just the noticing party, suffer inconvenience and lost preparation time.

The majority concludes that the reason for requiring formal notice of depositions from every party attending depositions is so that the non-complying party will know who will be entitled to seek sanctions. A non-complying party will already know the identity of the parties involved in the case and, therefore, the potential liability for non-compliance.

Therefore, the majority’s attempted expansion of the written discovery rule to depositions adds no benefit to any party. This Court should interpret the law in a common-sense fashion with a view to efficiency and the reduction of litigation expenses. Such a rule applied to a case involving five plaintiffs and six defendants would require the sending of ten formal notices for the first deposition on a given day and ten for each deposition taken thereafter.

Moreover, the remedies proposed by the majority for non-noticing parties where deponents fail to appear do not adequately address the problem. Inviting such parties to appeal to “the inherent power of the court to control the conduct of the parties before it in the exercise of discovery,” creates additional litigation where an appellate rule would clarify and simplify the process for trial courts already overburdened with discovery disputes.

“The constitution . . . requires that rules of the court ‘provide for the speedy, efficient, and inexpensive resolution of disputes.’ Ga. Const. of 1983, Art. VI, Sec. IX, Par. I. The legislature has addressed that goal in the passage of the Georgia Civil Practice Act which ‘shall be construed to secure the just, speedy, and inexpensive determination of every action.’ OCGA § 9-11-1.” Maddox v. Wilson, 219 Ga. App. 158 (1) (464 SE2d 226) (1995).

Decided May 28, 1997

Before Judge Lilly.

Elizabeth Pelypenko, for appellants.

Young, Thagard, Hoffman, Scott & Smith, F Thomas Young, Elizabeth C. Cleveland, for appellee.

For these reasons, I would find that the defendant hospital could seek sanctions as the plaintiffs had formal notice of the depositions, even though such notice came from another party. The plaintiffs knew when and where the depositions were to be taken and knew that the hospital was a party to the lawsuit with an interest to protect by being present at the deposition. I would affirm the trial court’s grant of the defendant hospital’s motion for sanctions for the plaintiffs’ failure to appear.

I am authorized to state that Presiding Judge Birdsong, Presiding Judge Pope and Judge Ruffin join in this dissent.