author: Ruffin, Judge. McMurray, Presiding Judge,

text:
    A99A0302.
    GILLIS et al. v. CARDIO TVP SURGICAL ASSOCIATES, P.C. et al. GILLIS et al. v. MEDICAL CENTER OF CENTRAL GEORGIA.
    A99A0619.
    (520 SE2d 767)
   Ruffin, Judge.

Lonnie Gillis sued Cardio TVP Surgical Associates, PC. (“CSA”), Dr. I. J. Shaker, the Medical Center of Central Georgia (the “hospital”) and Jay Livingston for battery, negligence per se, and medical malpractice. According to Gillis, his left leg was permanently injured by Livingston, a physician’s assistant who operated on Gillis’ leg during a coronary bypass operation performed by Dr. Shaker.

CSA, Dr. Shaker and Livingston (hereinafter the “CSA defendants”) moved for partial summary judgment on the battery claim, and Gillis moved for partial summary judgment on both the battery and negligence per se claims. The trial court granted the CSA defendants’ motion and denied Gillis’ motion. The hospital filed a motion for summary judgment on all of Gillis’ claims, and the trial court granted the motion. In Case No. A99A0302, Gillis contends that the trial court erred in denying his motion for partial summary judgment against the CSA defendants and in granting the CSA defendants’ motion for partial summary judgment. In Case No. A99A0619, Gillis challenges the trial court’s grant of summary judgment in favor of the hospital. As the two cases involve the same facts, we have consolidated them for this appeal. For reasons which follow, we affirm in part and reverse in part.

“Summary judgment is appropriate only when the movant establishes that no issues of material fact remain to be tried and the undisputed facts, viewed in the light most favorable to the non-movant, warrant judgment as a matter of law.” Terry v. Collins, 230 Ga. App. 646, 647 (497 SE2d 395) (1998). So viewed, the record establishes that Dr. Shaker is a cardiovascular surgeon who practices with CSA. Livingston is employed by CSA as a physician’s assistant. Since 1986, he has been certified in accordance with the Physician’s Assistant Act, OCGA § 43-34-100 et seq., and he is authorized to assist Dr. Shaker.

On September 16, 1994, Dr. Shaker performed a four-vessel aortocoronary bypass operation on Gillis. Prior to surgery, Gillis signed a consent form which provided, in pertinent part, that Gillis consented to the performance of the bypass operation “by Dr. Shaker [inserted by hand] and any other physicians or other medical personnel who may be involved in the course of [Gillis’] treatment.” (Emphasis supplied.)

During the bypass operation, Dr. Shaker operated on Gillis’ chest while Livingston simultaneously operated on Gillis’ leg to harvest the saphenous vein that was used for the bypass. Gillis maintains that, while operating on his leg, Livingston injured “the left saphe-nous nerve distribution off of [his] left femoral nerve,” resulting in permanent nerve damage.

Case No. A99A0302

1. Gillis contends that the trial court erred in granting summary judgment to the CSA defendants on his claim for battery. “Any unauthorized and unprivileged contact by a doctor with his patient in examination, treatment or surgery [amounts] to a battery.” (Punctuation omitted.) Harris v. Tatum, 216 Ga. App. 607, 608 (1) (b) (455 SE2d 124) (1995). However, a patient’s valid consent to the contact negates any claim of battery. Id. at 609. Such consent is valid if it is “free and not obtained by fraud, and is the action of a sound mind.” (Punctuation omitted.) Id. at 608.

Gillis asserts that he never consented to have a physician’s assistant harvest his saphenous vein. The CSA defendants, on the other hand, argue that by signing the consent form authorizing “other medical personnel” to perform procedures, Gillis expressly consented to Livingston’s participation in the bypass operation. We find that issues of fact remain as to whether Livingston was authorized by law to harvest saphenous veins and, if so, whether Gillis validly consented to Livingston’s performance of that procedure on him.

(a) As an initial matter, we must address Livingston’s authority to harvest Gillis’ saphenous vein. In support of his claim that he did not consent to having Livingston harvest his vein, Gillis argues that Livingston exceeded the scope of his authority under the Physician’s Assistant Act. According to the CSA defendants, Livingston, as a trained physician’s assistant under the direct supervision of Dr. Shaker, was authorized to perform the procedure. In granting summary judgment to the CSA defendants on the battery count, the trial court essentially concluded that Livingston was authorized to perform this procedure as a matter of law. We disagree.

The Physician’s Assistant Act, OCGA § 43-34-100 et seq., establishes rules governing the practice of physician’s assistants in this state. The legislature enacted the Act “to encourage the more effective utilization of the skills of physicians by enabling them to delegate health care tasks to such assistants where such delegation is consistent with the patient’s health and welfare.” OCGA § 43-34-101 (b). However, there are limits to a doctor’s ability to delegate to a physician’s assistant.

Generally, a physician’s assistant may perform tasks specified in his job description after the job description has been approved by the Composite State Board of Medical Examiners (the “Board”). See OCGA §§ 43-34-26.1 (b) (1) (A) and (4); 43-34-103 (g); 43-34-105. Here, however, Livingston’s job description does not specify that he is authorized to harvest saphenous veins. Thus, the only Code section that might authorize Livingston to harvest Gillis’ vein is OCGA § 43-34-105, which provides, in pertinent part, that

nothing in this Code section shall make unlawful the performance of a medical task by the physician’s assistant, whether or not such task is specified in the general job description, when it is performed under the direct supervision and in the presence of the physician utilizing him.

Although this language could be read as giving a physician the authority to delegate any “medical task” to a physician’s assistant so long as the physician is present and supervises the procedure, we do not believe that this provision contains such a broad grant of authority. The statute is phrased in the negative. Although the statute does not itself make it unlawful for a physician’s assistant to perform delegated tasks in the presence of the doctor, it does not give a physician carte blanche to delegate any and all tasks to an assistant. To hold otherwise would allow a brain surgeon to delegate brain surgery, or a neurosurgeon to delegate a spinal fusion, or a plastic surgeon to delegate rhinoplasty, all with impunity.

We do not conclude, as a matter of law, that Livingston exceeded the scope of his authority in harvesting Gillis’ saphenous vein. As a physician’s assistant, Livingston has been trained to harvest veins and, in fact, had performed the procedure numerous times during his 11 years with Dr. Shaker. Moreover, according to Andrew Watry, Executive Director of the Board, physician’s assistants “routinely assist in performing coronary bypass surgery by harvesting the saphenous vein under the supervision of the attending physician.” Thus, a jury could conclude that Livingston was authorized by OCGA § 43-34-105 to harvest Gillis’ vein. We do not believe, however, that the extent of Livingston’s authority is susceptible to summary adjudication. There is a spectrum of tasks that potentially could be performed by physician’s assistants. At one end of the spectrum, there are tasks that are clearly authorized by statute, such as the ordering of “dangerous drugs, medical treatments, [and] diagnostic studies.” OCGA § 43-34-26.1 (b) (2). At the other end of the spectrum are tasks that are clearly beyond the authority of a physician’s assistant. What we have here is a task that falls somewhere along the middle of the spectrum. Rather than declaring that such a procedure is authorized as a matter of law, we believe it raises a question of fact best left to jurors, who must decide whether a particular physician’s assistant has the requisite skill level and training to perform a task not specifically approved by the Board.

(b) Even if Livingston was authorized by law to harvest Gillis’ saphenous vein, he still may be liable for battery if Gillis did not validly consent. The CSA defendants assert that, by signing a consent form containing the words “other medical personnel,” Gillis consented to having a physician’s assistant harvest his vein and, thus, has no claim for battery. Although a “valid general consent [negates] any claim of battery,” Harris, supra at 609 (1) (b), there is an issue of fact as to whether Gillis gave valid consent to have Livingston perform such a procedure.

Pursuant to OCGA § 31-9-6 (d),
[a] consent to surgical or medical treatment which discloses in general terms the treatment or course of treatment in connection with which it is given and which is duly evidenced in writing and signed by the patient or other person or persons authorized to consent . . . shall be conclusively presumed to be a valid consent in the absence of fraudulent misrepresentations of material facts in obtaining the same.

OCGA § 31-9-6.1 sets forth the information a doctor must disclose to patients in obtaining their consent. Subsection (d) states that a doctor’s “failure to comply with the requirements of this Code section shall not constitute a separate cause of action but may give rise to an action for medical malpractice.” OCGA § 31-9-6.1 (d). We do not believe that this subsection abrogates the general rule that a medical professional who performs unauthorized, unprivileged surgery commits a battery. Harris, supra. Rather, this subsection merely recognizes that where a doctor obtains valid consent, but fails to provide each disclosure required by OCGA § 31-9-6.1, the failure to strictly comply with OCGA § 31-9-6.1 does not give rise to a separate cause of action for battery. Thus, for a battery claim, the issue remains whether the doctor obtained valid consent.

In determining whether Dr. Shaker obtained valid consent for Livingston to harvest Gillis’ vein, the signed consent form is presumed valid “in the absence of fraudulent misrepresentations of material facts in obtaining the same.” OCGA § 31-9-6 (d). As this Court recently noted in Cleveland v. Albany Urology Clinic, P.C., 235 Ga. App. 838 (509 SE2d 664) (1998),

[w]here a confidential relationship exists, as here, a person’s silence when he should speak, or his failure to disclose what he ought to disclose, is as much a fraud in law as an actual affirmative false representation. . . . Where a patient suffers injury at the hands of a physician as a result of consent to treatment obtained through the physician’s misrepresentation, non-disclosure, or concealment of a material fact which the patient has a right to know, the patient may recover damages.

(Citations and punctuation omitted.) Id. at 840 (1). Thus, a consent based upon failure to disclose material facts which a patient has a right to know is not valid and cannot satisfy OCGA § 31-9-6 (d).

The trial court apparently concluded that, as a matter of law, Dr. Shaker had no duty to disclose and/or Gillis had no right to know the role that Livingston would play in his surgery. Once again, we disagree. OCGA § 43-34-106 mandates that “[a]ny physician, clinic, or hospital using a physician’s assistant shall post a notice to that effect in a prominent place.” Inherent in this notice requirement is the idea that patients have a right to know when they are dealing with a physician’s assistant rather than a physician. Although this Code section does not require a physician to include such notice on a surgical consent form, it is not unreasonable to expect that this type of information would be included. Thus, we cannot say, as a matter of law, that Dr. Shaker had no duty to disclose Livingston’s major role in Gillis’ surgery. In addition, we cannot conclude, as a mátter of law, that Livingston’s role was immaterial. Rather, we believe these are questions of fact for a jury. See Bailey v. Belinfante, 135 Ga. App. 574, 575-576 (2) (218 SE2d 289) (1975) (scope of consent a jury issue).

Because issues of fact exist regarding the scope of Livingston’s authority and the scope and validity of Gillis’ consent, the trial court erred in granting summary judgment to the CSA defendants on the issue of battery, but properly denied Gillis’ motion for summary judgment on this claim. See Lloyd v. Kramer, 233 Ga. App. 372, 375 (1) (503 SE2d 632) (1998).

2. Gillis contends the trial court erred in granting summary judgment in favor of the CSA defendants on his claim of negligence per se. “Where a statute provides a general rule of conduct, although only amounting to a requirement to exercise ordinary care, the violation thereof is negligence as a matter of law, or negligence per se.” (Punctuation omitted.) Holbrook v. Exec. Conference Center, 219 Ga. App. 104, 107 (2) (464 SE2d 398) (1995).

Gillis bases his claim upon the CSA defendants’ alleged failure to post the notice required by OCGA § 43-34-106, which mandates that “[a]ny physician, clinic, or hospital using a physician’s assistant shall post a notice to that effect in a prominent place.” However, Gil-lis admittedly never went to Dr. Shaker’s office prior to his surgery. Thus, Gillis cannot establish that the CSA defendants’ alleged violation of OCGA § 43-34-106 could have had any causal connection with the injury he claims to have sustained. “[E]ven when negligence per se has been shown, proximate cause must still be proved.” (Punctuation omitted.) Holbrook, supra. Accordingly, the trial court properly granted the CSA defendants’ motion for summary judgment on the negligence per se claim.

Case No. A99A0619

3. Gillis also argues that the trial court erred in granting summary judgment to the hospital on his negligence per se claim. Gillis maintains that he did not see any posted notices at the hospital regarding the hospital’s use of physician’s assistants. On the other hand, Mary Freeman, a Registered Nurse and Vice President of the Surgery Center for the hospital, testified that there is a notice, a “fairly small sign that just says that we use physician’s assistants ... in this facility . . .” posted at the entrance to the emergency center. However, Freeman could not state how long the notice had been posted or whether it was posted in 1994. Pretermitting whether Gillis established

that [the hospital] breached its legal obligation to provide the notification [] required by OCGA § [43-34-106], [Gillis] must still be able to prove he suffered actual damages as a proximate cause of [the hospital’s] negligence. Here, the record is clear that [Gillis’] claimed injury . . . did not proximately flow from [the hospital’s] alleged negligent act.

(Citations and punctuation omitted.) Ridgeview Institute v. Handley, 224 Ga. App. 533, 536-537 (3) (481 SE2d 531) (1997).

The hospital has an obligation to post notices that it uses physician’s assistants. According to the American Heritage Dictionary (2nd ed.), to use means to bring or put into service — to employ. Here, the hospital was not “using” Livingston as the hospital did not bring him into service or employ him. Additionally, there is no evidence that the hospital directed Livingston to harvest Gillis’ saphenous vein. Rather, the record reflects that Dr. Shaker employed Livingston, whom Dr. Shaker directed and supervised. Thus, any notice that the hospital might have posted regarding its use of physician’s assistants would not have put Gillis on notice regarding Dr. Shaker’s use of a physician’s assistant. “While proximate cause is ordinarily a question for the jury, plain and indisputable cases may be decided by the court as a matter of law.” Handley, supra at 537. Because the hospital did not use Livingston, Gillis cannot link his injury to the hospital’s alleged failure to post notice that it uses physician’s assistants. Accordingly, the trial court properly granted the hospital’s motion for summary judgment on the negligence per se claim.

4. Gillis’ remaining tort claims against the hospital (battery and professional negligence) are premised upon the acts of Livingston, who harvested Gillis’ vein, and Dr. Shaker, who directed Livingston to harvest the vein. Neither Livingston nor Dr. Shaker is employed by the hospital. However,

[u]nder the doctrine of apparent agency, a hospital may be held liable for the actions of. . .an independent contractor when (1) the hospital holds out the [independent contractor] as its agent, and (2) the patient’s justifiable reliance on that holding out leads to injury.

North Ga. Med. Center v. Stokes, 238 Ga. App. 60 (517 SE2d 93) (1999).

Gillis’ 28-page brief includes only four sentences in support of his contention that the hospital should be held liable. In those four sentences, Gillis fails to point to any evidence in the record to show how the hospital represented that Dr. Shaker was its agent or how Gillis relied upon any such representation. “It is well-settled that an appellate court will not cull the record in search of error on behalf of one of the parties.” Saffar v. Chrysler First Business Credit Corp., 215 Ga. App. 239, 240 (1) (450 SE2d 267) (1994); see also Blackwell v. Goodwin, 236 Ga. App. 861, 862 (1) (513 SE2d 542) (1999). Because Gillis failed to point to any evidence suggesting that the hospital should be held liable, we cannot say that the trial court erred in granting summary judgment in favor of the hospital.

In addition to urging respondeat superior liability, Gillis also argues that the hospital is liable for its own omissions. Gillis cites Marsh v. Crawford Long Hosp. &c., 213 Ga. App. 262 (444 SE2d 357) (1994) for the proposition that the hospital “had a duty to Mr. Gillis to make sure that the person actually performing the operation had Mr. Gillis [’] permission to perform the operation.” We disagree.

As an initial matter, Marsh does not stand for the proposition cited. Where consent to a surgical procedure is required, it is the responsibility of the physician to ensure that consent is obtained. OCGA § 31-9-6.1 (c). Moreover, even if the hospital did have an affirmative obligation to ensure that Gillis consented to the procedure, it is undisputed that Gillis did sign a consent. Where a patient signs a consent form given to him by his doctor, it is not the function of the hospital to go behind the doctor to ensure that the doctor fully disclosed all pertinent information. As we recognized in Marsh, “ ‘[a] hospital is not an insurer of patient safety.’ ” (Emphasis in original.) Marsh, supra at 264 (1).

Judgment affirmed in Case No. A99A0619.

Johnson, C. J., Pope, P. J., Smith and Eldridge, JJ, concur. McMurray, P. J., and Andrews, P. J., concur in the judgment only.

Judgment affirmed in part and

reversed in part in Case No. A99A0302.

Johnson, C. J., Pope, P. J., Smith and Eldridge, JJ, concur. McMurray, P. J., and Andrews, P. J., concur in part and dissent in part.

McMurray, Presiding Judge,

concurring in the judgment only in part and dissenting in part.

In Case No. A99A0302,1 respectfully dissent from the judgment of partial reversal. In my view of the undisputed circumstances of this case, the responsible physician lawfully delegated the task of harvesting the saphenous vein to a qualified physician’s assistant, and this lawful delegation was impliedly consented to by the patient. Furthermore, the circumstantial evidence of the alleged failure to post notices that the hospital employed physician’s assistants cannot overcome the direct evidence that such notice was given. Consequently, in Case No. A99A0619,1 concur in the judgment only.

Plaintiffs Mr. and Mrs. Lonnie G. Gillis brought this tort action against defendants Cardio TVP Surgical Associates, P.C. (“CSA”), Dr. I. J. Shaker, the Medical Center of Central Georgia (“MCCG”), and Jay Livingston, alleging that during a four-vessel aortocoronary artery bypass operation, Dr. Shaker and Livingston committed battery when Dr. Shaker allowed defendant Livingston, a non-physician, to operate on Lonnie G. Gillis’ left leg without plaintiff Lonnie G. Gil-lis’ permission. The complaint further alleged medical malpractice because, as a result of medical negligence in that operation, nerves in plaintiff Lonnie G. Gillis’ left leg were damaged and permanently injured. Defendants Dr. Shaker, MCCG, and CSA were allegedly liable for the acts and omissions of defendant Livingston. Plaintiff Mrs. Lonnie Gillis claimed loss of consortium. Upon cross-motions for partial summary judgment as to the claim of battery, the following undisputed facts were adduced:

Since 1986, Livingston has been certified by the Composite State Board of Medical Examiners (“the State Board”) as meeting the requirements of the Physician’s Assistant Act, OCGA § 43-34-100 et seq., and is authorized to assist Dr. Shaker. In 1987, Livingston was authorized by defendant MCCG to assist in surgery, review charts, make rounds, write verbal orders on charts for physician signature, assist the medical doctors with procedures, obtain patient histories, start or disconnect IVs, change dressings and remove drains, and remove sutures. Since that time, he has assisted Dr. Shaker during coronary bypass graft operations by harvesting saphenous veins and also learned to assist by sewing the vessels on the heart and the aorta and by helping Dr. Shaker close the chest.

Defendants CSA, Dr. Shaker, and Livingston further supported their motion with Livingston’s certification from the State Board to serve as a physician’s assistant (“PA”) under the supervision of Dr. Shaker and the consent form signed by plaintiff Lonnie G. Gillis. The letterhead of this two-page consent form expressly lists I. J. Shaker, M.D. and M. Jay Livingston, P.A.C., as CSA medical personnel. The form recites that plaintiff Lonnie G. Gillis had explained to him in general terms that he had coronary artery disease requiring coronary artery bypass grafting to remediate blocked arteries; that possible material risks resulting from this procedure included infection, loss of function of any limb or organ, brain damage or death; that if he did not have this procedure plaintiff Lonnie G. Gillis could suffer from continued angina, possible heart failure or death; and that the likelihood of success was only “Fair[.3” On the signature page, plaintiff Lonnie G. Gillis consented to the performance of the procedures described “by Dr. Shaker [inserted by hand] and any other physicians or other medical personnel who may be involved in the course of [plaintiff Lonnie G. Gillis’] treatment.” (Emphasis supplied.)

Plaintiffs’ cross-motion relied on the undisputed fact that defendant Livingston harvested the saphenous vein from plaintiff Lonnie G. Gillis’ left leg for use in this particular bypass graft, making the initial incision with a “number ten blade.” This was done in the presence of and under the supervision of Dr. Shaker, while Dr. Shaker performed the incision of the chest. Plaintiffs further relied on the undisputed fact that plaintiff Lonnie G. Gillis never expressly consented to defendant Livingston, as a physician’s assistant, wielding a scalpel. Plaintiff Lonnie G. Gillis further deposed he “would not have consented to surgery by a physicians assistant had [he] known that one would be operating on [his] leg.”

Plaintiffs also moved for partial summary judgment as to a claim of negligence per se, based on the alleged breach of OCGA § 43-34-106, directing that “[a]ny physician, clinic, or hospital using a physician’s assistant shall post a notice to that effect in a prominent place.” In support of this motion, plaintiff Lonnie G. Gillis deposed in an affidavit that there were “no notices posted in the Medical Center of Central Georgia that [he] saw notifying [him] of the use of physicians assistants.” But in contrast, Mary Cassidy Freeman, a Registered Nurse and Vice President of the Surgery Center at defendant MCCG, testified that there is a notice, a “fairly small sign that just says that we use physician’s assistants ... in this facility . . .” posted at the entrance to the emergency center, although she did not know how long such notice had been there. Defendant Livingston testified he always wears his license or name tag that specifies his title as a physician’s assistant on his laboratory coat (but not in the operating room) and introduces himself as a physician’s assistant.

Defendant MCCG moved for summary judgment as to all claims against it, supporting its motion with the affidavit of Andrew Watry, Executive Director of the Composite State Board of Medical Examiners for the State of Georgia (“the Board”), who deposed that pursuant to the Basic Job Description and the Rules and Regulations of the Composite State Board, defendant Livingston “would be authorized by the State Composite Board to harvest the saphenous vein in a patient undergoing coronary bypass surgery as long as Dr. Shaker was present in the operating room while [the physician’s assistant] was harvesting the vein,” assuming that harvesting the saphenous vein falls within the normal scope of practice of Dr. Shaker. As Executive Director of the Board, Andrew Watry is familiar with the fact that physician’s assistants commonly assist surgeons in performing surgery, including actually performing a surgical procedure under the supervision of the attending physician, and this practice is authorized and accepted by the Composite State Board.

The trial court granted partial summary judgment in favor of defendants CSA, Dr. Shaker, and Livingston while denying plaintiffs’ motions for partial summary judgment. In Case No. A99A0302, plaintiffs appeal from that grant of partial summary judgment. The trial court also granted a complete summary judgment in favor of defendant MCCG, and in Case No. A99A0619, plaintiffs appeal from that order.

1. The term “Physician’s assistant” means a skilled person qualified by academic and practical training to provide patients services “not necessarily within the physical presence but under the personal direction or supervision of the applying physician.” OCGA § 43-34-102 (5). Plaintiffs first enumerate the grant of partial summary judgments as to the claim of battery because neither plaintiff would have consented to surgery performed by a physician’s assistant. In my view, this enumeration depends in part upon the lawfulness of Dr. Shaker’s delegation and in part upon the scope of the consent form signed by plaintiff Lonnie G. Gillis.

(a)
The relation of physician and patient is a consensual one, and a physician who undertakes to treat another without express or implied consent of the patient is guilty of at least a technical battery. [Cit.] Generally, it is settled law that an unauthorized surgical operation by a physician upon the body of [the] patient is a wrongful and unlawful act for which the surgeon will be held liable in damages. [Cits.]

(Emphasis supplied.) Mims v. Boland, 110 Ga. App. 477, 481 (1) (a) (138 SE2d 902). Conversely, “no tort can be committed against a person consenting thereto if that consent is free, is not obtained by fraud, and is the action of a sound mind.” OCGA § 51-11-2.

The public policy of Georgia is to encourage the more effective utilization of the skills of physicians by enabling them to delegate health care tasks to qualified assistants where such delegation is consistent with the patient’s health and welfare. OCGA § 43-34-101 (b). Under OCGA § 43-34-105, a physician’s assistant may perform the tasks detailed in the job description as approved by the State Board, but nothing in this Code section shall make unlawful the performance of a medical task by the physician’s assistant not specified in the general job description when it is performed under the direct supervision and in the presence of the responsible physician. Thus, under the plain reading of the Physician’s Assistant Act as applied to the facts of this case, a certified and otherwise qualified physician’s assistant is authorized to harvest the saphenous vein, when such medical task is performed under the direct supervision and in the presence of the responsible physician.

(b) After the enactment of the Georgia Medical Consent Law, OCGA § 31-9-1 et seq., the “informed consent doctrine” was not a viable principle of law in Georgia because the General Assembly required disclosure of only the general terms of treatment. McMullen v. Vaughan, 138 Ga. App. 718, 721 (3) (227 SE2d 440). Accord Butler v. Brown, 162 Ga. App. 376, 377 (290 SE2d 293). In the case sub judice, the consent form signed by plaintiff Lonnie G. Gillis tracks the notice requirements of OCGA § 31-9-6.1 (a) (1) through (6), and so is presumed valid by operation of OCGA § 31-9-6.1 (b) (2). In my view, this general consent to undergo the described coronary artery bypass grafting as performed by Dr. Shaker “and any other physicians or other medical personnel who may be involved in the course of [his] treatment. . .” is unambiguous and gave implied permission, to the extent allowed under Georgia law, for the use of a physician’s assistant listed in the letterhead of the consent form to harvest the saphenous vein, as conducted in this instance during the coronary artery bypass graft in the presence of and at the direction of the responsible physician. Consequently, I conclude the trial court correctly granted summary judgment to defendants CSA, Dr. Shaker, Livingston, and MCCG as to any claim for battery based on an allegedly nonconsensual use of the physician’s assistant, defendant Livingston. Compare Harris v. Tatum, 216 Ga. App. 607, 609 (1) (b) (455 SE2d 124) (ambiguity in consent form construed against defendant physicians).

2. Next, plaintiffs contend the trial court erred in granting defendants’ motions for summary judgment regarding the claim of negligence per se, based upon the alleged failure to post the notice required by OCGA § 43-34-106 that physician’s assistants were employed during surgeries performed at defendant MCCG.

The evidence of Nurse Freeman that a notice was in fact posted in the emergency room of MCCG is an affirmative statement of fact, whereas the affidavit of plaintiff Lonnie G. Gillis is only the passive statement that he did not see any notice.

Decided July 14, 1999

Reconsideration denied July 29, 1999

Sutton & Associates, Berrien L. Sutton, Ronald W. Hallman, Keith H. Solomon, for appellants.

Martin, Snow, Grant & Napier, John C. Edwards, Blair K Cleveland, Sell & Melton, Mitchel R House, Jr., Jeffrey B. Hanson, for appellees.

Circumstantial evidence which does not demand a finding for a plaintiff constitutes a mere inconclusive inference and is thus insufficient to defeat a defendant’s motion for summary judgment on that question. Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 781 (257 SE2d 186). Upon the evidentiary posture of the case sub judice, it is my view that the trial court correctly granted defendants’ motions for summary judgment as to this claim of negligence per se, because plaintiffs’ circumstantial evidence of the absence of notice is not inconsistent with defendants’ direct evidence establishing the same. Therefore, in Case No. A99A0619,1 concur only in this Court’s judgment of affirmance.

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

       Gillis’ wife also asserted a claim for loss of consortium which is not at issue here.

       Gillis also contends that the trial court erred in denying his motion for summary judgment on this claim.

       Gillis also asserts that the trial court erred in denying his motion for summary judgment on the negligence per se claim.

       In his brief, Gillis asserts that “[i]t is undisputed that no notices were posted.” However, the testimony Gillis points to in support of this assertion merely shows that other people, like Gillis, had not seen the notice at the hospital.


source: Caselaw Access Project

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

license: Public Domain

text:
    A99A0337.
    FIELDER et al. v. RICE CONSTRUCTION COMPANY, INC. et al.
    (522 SE2d 13)
   Eldridge, Judge.

In December 1991, Napoleon and Belinda Fielder, plaintiffs-appellants (“Fielder”), moved into a home located at 119 Knotts Landing, Macon, Bibb County. On January 10, 1992, Fielder closed on the purchase of 119 Knotts Landing from the defendants, developer-builder Ronnie W. Rice, individually and d/b/a Ronnie Rice Construction Company, and his corporation, Rice Construction Company, Inc.

Fielder owned the lot and septic system. Sometime in 1992, ground water began to cause problems with the septic field percolation. From the time of purchase until Fielder was evicted from the property, the soil composition would not allow sufficient percolation for the septic tank and the percolation field to properly percolate. This caused raw sewage to constantly seep to the surface area around the property.

Fielder contacted Rice and Rice Construction Company, Inc. about the problem of percolation. Rice tried to solve the problem by installing a French drain to improve the ground water situation. The French drain interfered with the proper operation of the septic system because it drew in both ground water and sewage percolating in the soil, which resulted in the discharge of sewage from the French drain outlet.

In February 1993, Fielder contacted the Macon-Bibb County Health Department, defendant-appellee (“Health Department”), and the Health Department oversaw and participated in several unsuccessful attempts to fix the septic system, including digging an open ditch to allow for ground water runoff. A wet spot was discovered at the end of the bleeder lines, which created problems at the distribution box and inside the house. The Health Department recommended that a pit be installed at the end of the bleeder lines, and Rice installed it. Subsequently, Rice made further alterations to the septic system without the knowledge, approval, or permit from the Health Department. After the expiration of the Builder’s Warranties, the Health Department began to issue Fielder citations for violating the health code.

As a consequence of Fielder’s failure to take any action to remedy the system despite repeated directives to do so, the Health Department took action against Fielder. Finally, just before Christmas, the Health Department caused Fielder to be evicted from the premises.

The Health Department had as one of its functions the inspection and testing of soil and terrain in an area of new development to determine the suitability of such land for septic fields both as to percolation in the soil, as well as ground water that would prevent percolation. The genesis of Fielder’s septic problems was the failure of the Health Department to properly carry out this function.

On or about August 22, 1986, Robert A. Liek, a registered land surveyor, examined various lots in the South Fork subdivision. After such examination, Jim Taylor, a supervisor for the Health Department, gave an unsatisfactory grade to the lots tested, which included 119 Knotts Landing. Taylor instructed Rice, the developer, to improve the percolation to a satisfactory level through necessary but costly measures, in time and money, in order to receive Health Department approval.

Rice strongly disagreed with Taylor and filed a complaint against him with the Health Department, causing his removal from Rice’s developments, including South Fork. Then the Health Department assigned a new engineer to re-test the soil percolation, and he provided an acceptable test sample. This allowed the Health Department to approve Rice’s plans for septic use and allowed Rice to build 119 Knotts Landing with a septic tank system without having to install the costly improvements.

On April 17, 1998, as a consequence of the problems, Fielder sued the defendants in a renewal action. The Health Department was sued for negligence and nuisance in creating, continuing, and maintaining such nuisance conditions. The Health Department answered and moved for summary judgment. After conducting a hearing, the trial court entered summary judgment for the Health Department, and Fielder appealed.

1. Fielder contends that the trial court erred in granting summary judgment to the Health Department on his nuisance claim. We agree.

Where a county causes, creates, or maintains a nuisance which amounts to an inverse condemnation, the county is liable in damages that would be recoverable in an action for inverse condemnation. DeKalb County v. Orwig, 261 Ga. 137, 138 (1) (402 SE2d 513) (1991); Fulton County v. Wheaton, 252 Ga. 49, 50 (1) (310 SE2d 910) (1984), overruled on other grounds, DeKalb County v. Orwig, supra; City of Columbus v. Myszka, 246 Ga. 571, 572 (1) (272 SE2d 302) (1980), overruled on other grounds, DeKalb County v. Orwig, supra; Duffield v. DeKalb County, 242 Ga. 432, 433 (1) (249 SE2d 235) (1978). The reason sovereign immunity is not applicable when a nuisance amounts to a taking of property of one of its citizens for public purposes is that inverse condemnation is a form of eminent domain. Ga. Const, of 1983, Art. I, Sec. Ill, Par. I; Miree v. United States, 242 Ga. 126, 134 (2) (249 SE2d 573) (1978); Woodside v. Fulton County, 223 Ga. 316, 319-321 (1) (155 SE2d 404) (1967).

However, liability of a [county] cannot arise solely from its approval of construction projects which increase surface water runoff. Rather, it is the county’s failure to maintain properly the [property], resulting in a nuisance, which creates its liability. Cf. City of Columbus v. Myszka, [supra at 572].

(Emphasis in original.) Fulton County v. Wheaton, supra at 50 (1); see also Hibbs v. City of Riverdale, 267 Ga. 337, 338 (478 SE2d 121) (1996).

In this case, the Health Department not only approved the lot for septic tank use but set aside requirements of its own office that would have prevented the problem. Thus, prior to the approval the Health Department knew of the probable potential problem but yielded to pressure to allow substandard septic tank conditions to be approved nonetheless. Then, when Fielder put the Health Department on actual notice that the approved septic field was failing, the Health Department failed and refused to require Rice to take the appropriate steps necessary to abate the nuisance, but instead, ordered and permitted inadequate corrective measures that maintained the unabated nuisance. The Health Department exercised its control by removing Fielder from the premises when Rice could no longer be compelled under the warranty to correct the nuisance. Such facts raise a jury question whether such acts and omissions constituted maintaining a nuisance by the Health Department.

The Health Department contends that its conduct, while negligent, does not come within the meaning of a nuisance, because it does not own or control the Fielder property. While ownership of property generally may give rise to a nuisance when property is used to cause harm to others, such ownership is not an essential element of the cause of action for nuisance.

The common law and the Restatement of Torts restrict the action for private nuisance to invasions of interest in the use and enjoyment of land, including interest in the use and enjoyment of easements and profits, but where there is an invasion of these interests the plaintiff may recover ... for harm arising from acts which affect the land itself.

Cox v. DeJarnette, 104 Ga. App. 664, 675 (2) (123 SE2d 16) (1961). When a governmental entity causes, continues, or maintains a nuisance, property that can be harmed by a nuisance “means the rights of the owner in relation to land or a thing; the right of a person to possess, use, enjoy and dispose of it, and the corresponding right to exclude others from the use. [Cit.]” (Punctuation and emphasis omitted.) Duffield v. DeKalb County, supra at 433-434. “ ‘There is general agreement that [nuisance] is incapable of any exact or comprehensive definition.’ [Cit.]” Cox v. DeJarnette, supra at 674 (2). “A nuisance is anything that causes hurt, inconvenience, or damage to another.” OCGA § 41-1-1; State of Ga. v. Ball Investment Co., 191 Ga. 382, 389 (2) (12 SE2d 574) (1940).

Occasionally, the defendant may act from a malicious desire to so harm for its own sake, but more often the situation involving a private nuisance is one where the invasion is intentional merely in the sense that the defendant has created or continued the interference with full knowledge that the harm to the plaintiff’s interests are occurring or are substantially certain to follow. ... If the interference is unreasonable, it is tortious and subjects him to liability. . . . Private property cannot be physically harmed or its value impaired in this way, however socially desirable the conduct, without payment being made for the harm done, if the interference that is the consequence of the activity is substantial and considered to be unreasonable.

Prosser & Keeton on the Law of Torts (5th ed.), § 87, pp. 624-625; see also McLendon & Cox v. Roberts, 197 Ga. App. 478 (398 SE2d 579) (1990); City of Macon v. Cannon, 89 Ga. App. 484, 492 (3) (79 SE2d 816) (1954). Ownership of land by the tortfeasor is not an element, but control is; the essential element of nuisance is control over the cause of the harm. See Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 424 (2) (249 SE2d 224) (1978); Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 838 (165 SE2d 141) (1968); Thomoson v. Sammon, 174 Ga. 751, 757 (164 SE 45) (1932); Brimberry v. Savannah, Fla. &c. R. Co., 78 Ga. 641, 644-646 (3 SE 274) (1887). The tortfeasor must be either the cause or a concurrent cause of the creation, continuance, or maintenance of the nuisance. C & S Trust Co. v. Phillips Petroleum Co., 192 Ga. App. 499, 500 (3) (385 SE2d 426) (1989); see also Brimberry v. Savannah, Fla. &c. R. Co., supra at 644-645.

“A nuisance at law or a nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings.” [Cits.] “By far the larger class of nuisances is that which may be termed nuisances in fact or nuisances per accidens, and consists of those acts, occupations, or structures which are not nuisances per se but may become nuisances by reason of the circumstances or the location and surroundings.” [Cit.]

Simpson v. DuPont Powder Co., 143 Ga. 465, 466 (85 SE 344) (1915).

The Health Department had control over whether or not the lot was approved for septic tank use and had such control that it could have required significant improvements in the soil and terrain that would have resolved the ground water problem for the septic field prior to approval of a septic system. A nuisance does not arise solely from approval of construction projects which increase surface water runoff. However, such negligent approval is a factor in maintaining such nuisance, because the Health Department chose to act by approving the construction project, which gave rise to a nuisance resulting from the ground water and the failure of the septic field to percolate. The Health Department acted concurrently with Rice in creating the nuisance. See Hibbs v. City of Riverdale, supra at 338; Fulton County v. Wheaton, supra at 50; City of Columbus v. Myszka, supra at 572. Further, the Health Department had the power to compel Rice to abate the nuisance but allowed the nuisance to continue with inadequate abatement measures and, thus, participated in the maintenance of the nuisance on Fielder’s land. Fulton County v. Wheaton, supra at 50; City of Columbus v. Myszka, supra at 572. Thus, creation, power, and control over the cause of the nuisance that interfered with Fielder’s right to use, enjoy, and dispose of the property without abatement cause the Health Department to be potentially liable. See Duffield v. DeKalb County, supra at 433-434; see also Hammond v. City of Warner Robins, 224 Ga. App. 684 (482 SE2d 422) (1997); City of Warner Robins v. Holt, 220 Ga. App. 794 (470 SE2d 238) (1996). Thus, the Health Department is subject to an action for nuisance, and a jury question exists, so that the trial court erred in granting summary judgment.

2. Fielder contends that the trial court erred in granting the Health Department summary judgment on his negligence theory. We do not agree.

The Health Department was created by local constitutional amendment. Ga. L. 1953, Nov.-Dee. Sess., p. 256; Ga. L. 1986, p. 4682. The Health Department monitors health issues not only for Bibb County, but also as an agent for the State Department of Human Resources. OCGA §§ 31-3-4 (a) (3), (4), (6), (7); 31-3-5; 31-3-15. As such, it acts as a state agency. See generally James v. Richmond County Health Dept., 168 Ga. App. 416 (309 SE2d 411) (1983). Therefore, Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution as amended gives the Health Department sovereign immunity when it acts as agent for the Department of Human Resources as a state agency by delegation of powers and duties or by contract. The apparent intent of the 1991 constitutional amendment and the Tort Claims Act was to redraw and redefine the terms of the state’s waiver of sovereign immunity. OCGA § 50-21-22 (5), (6); Miller v. Ga. Ports Auth., 266 Ga. 586, 587-588 (470 SE2d 426) (1996); Curtis v. Bd. of Regents, 262 Ga. 226, 227-228 (416 SE2d 510) (1992); Miree v. United States, supra at 134; Jackson v. Ga. Lottery Corp., 228 Ga. App. 239, 240-241 (1) (491 SE2d 408) (1997).

“It is the general rule that a county, when exercising governmental functions and acting as an agency of the state, is not liable, in the absence of statute imposing liability, for its failure to perform a duty or for its negligent performance of the duty, not even when the duty is imposed by statute; and there is no distinction in the application of this rule between the neglect to perform an act which ought to have been performed, and the performance of the duty in a negligent manner.” [Cit.]

Miree v. United States, supra at 134 (1) (a); accord James v. Rich mond County Health Dept., supra at 416.

However, when the Health Department acts solely as a county agency, then it is governed by the same sovereign immunity as the county, and a waiver by specific legislative act is necessary in order for it to be subject to a suit in tort. OCGA § 50-21-22 (5); Woodard v. Laurens County, 265 Ga. 404, 405 (1) (456 SE2d 581) (1995); Gilbert v. Richardson, 264 Ga. 744, 746 (1) (452 SE2d 476) (1994). There was no statutory waiver of sovereign immunity as to the Health Department, so that it is not subject to suit in tort except for inverse condemnation for nuisance. Therefore, summary judgment as to negligence was proper. See OCGA § 50-21-22 (5); Duffield v. DeKalb County, supra at 433.

3. Fielder asserts that summary judgment was erroneously granted to the Health Department where its officials acted in bad faith or with malice. We do not agree.

Division 2 determined that sovereign immunity applied to the Health Department. Sovereign immunity, unless waived by statute, applies also to county officials and employees acting in their official capacity. Woodard v. Laurens County, supra at 405; Gilbert v. Richardson, supra at 746, n. 4. Depending on whether there has been a specific legislative waiver of sovereign immunity as to the county, officials and employees under the facts and circumstances of the case may have official immunity or may be liable for negligent performance of ministerial functions and malicious or bad faith performance of discretionary acts. See Merrow v. Hawkins, 266 Ga. 390 (467 SE2d 336) (1996); Gilbert v. Richardson, supra at 750-753; Nelson v. Spalding County, 249 Ga. 334 (290 SE2d 915) (1982). However, such analysis is academic, because, in this case, no individual officials or employees of the Health Department were named parties to this action. See Gilbert v. Richardson, supra; Nelson v. Spalding County, supra at 336. Therefore, this enumeration of error lacks merit.

Judgment reversed.

Pope, P. J., and Barnes, J., concur. Blackburn, P. J., concurs specially. Johnson, C. J., Smith and Ellington, JJ., dissent.

Blackburn, Presiding Judge,

concurring specially.

While I agree with the outcome set forth in the majority’s opinion, I write separately to point out several elements of its analysis with which I cannot agree.

The majority concludes that: “Thus, prior to the approval the Health Department knew of the probable potential problem, but yielded to pressure to allow substandard septic tank conditions to be approved nonetheless.” Whether the septic tank conditions were substandard, however, remains a question of fact for a jury’s consideration. The record does not authorize the majority’s conclusion.

The majority focuses sole blame for the continuation of the nuisance on the Health Department. It ignores the knowledge which Fielder had of the condition and his failure to correct and eliminate the septic tank problems. Assuming that Fielder was, in fact, barred from proceeding against Rice, a question which is not presently before us, he was still fully aware of the warranty period during which he could compel Rice to correct the septic tank problems on his property. He was on notice that the time in which to fix the problem was limited. Fielder was subject to Health Department regulations and was not entitled to wait for others to bring his property into compliance with such regulations. He had the option of correcting the problem and seeking legal redress thereafter.

This case shares a number of similarities with Gantt v. Bennett, 231 Ga. App. 238, 242-245 (499 SE2d 75) (1998). In Gantt, this Court affirmed a jury’s finding of fraud against the Forsyth County Health Department based on an inspector’s approval of a septic tank system without complying with county regulations and without completing an on-site inspection of the system before it was covered with dirt. Here, the facts, if a jury so finds, are even more egregious, as the Health Department had completed an initial inspection which belied the use of the subject septic system which was installed after a subsequent inspection. This raises a jury question as to the appropriateness of the system itself, and of the conduct of the Health Department in its inspection and regulation of the septic system installed on Fielder’s property. If the county’s nonfeasance in Gantt supported an action against a county health department, the possible misfeasance in this case should as well. The existence of a fact issue in this case precludes the grant of summary judgment to the Health Department on Fielder’s nuisance claim.

Smith, Judge,

dissenting.

I concur in Divisions 2 and 3 of the majority opinion. I must respectfully dissent from Division 1, because I do not agree that the Health Department created or maintained a nuisance. The Health Department may have been negligent in permitting Rice to build on unsuitable property, but in my view, its actions are more similar to the governmental act of approving a construction project that increases surface water. In Fulton County v. Wheaton, 252 Ga. 49, 50 (1) (310 SE2d 910) (1984), the Supreme Court held that the sole act of approving a construction project that leads to increased surface water runoff cannot impose liability for creating or maintaining a nuisance. It is true that when the governmental body itself negligently constructs or undertakes to maintain a sewer or drainage system that causes repeated flooding, a continuing, abatable nuisance is established for which the governmental body may be liable. Hibbs v. City of Riverdale, 267 Ga. 337, 338 (478 SE2d 121) (1996).

Decided July 15, 1999

Reconsideration denied July 29, 1999

Fricks, Dell & Lee, Robert A. Fricks, James E. Lee II, for appellants.

Sell & Melton, Jeffrey B. Hanson, for appellees.

Here, however, the Health Department did not own the drainage system. “In general, . . . the owner of the property from which the nuisance emanates is the proper defendant in an action for damages flowing from the creation or maintenance of a nuisance. See generally OCGA § 41-1-5.” McLendon & Cox v. Roberts, 197 Ga. App. 478 (398 SE2d 579) (1990). Moreover, the Health Department did not construct the septic tank or the house, did not have a duty to maintain it, and did not undertake to maintain it. It did offer advice and assistance, but as the majority acknowledges, Rice made alterations to the system without the knowledge, assistance, or approval of the Health Department. If, in fact, a nuisance was created, Fielder must look to Rice for redress.

I am authorized to state that Chief Judge Johnson and Judge Ellington join in this dissent.


author: Barnes, Judge.

text:
    A99A0424.
    HULBERT v. DOMINO’S PIZZA, INC.
    (521 SE2d 43)
   Barnes, Judge.

Alan Lee Hulbert appeals from the superior court’s order affirming the denial of his workers’ compensation claim. The State Board of Workers’ Compensation administrative law judge denied Hulbert’s claim because he concluded that Hulbert failed to prove by a preponderance of the evidence that the accident and injury arose out of or in the course of his employment, and this award was adopted by the appellate division of the State Board of Workers’ Compensation. As we find the burden of proof placed on Hulbert by the ALJ exceeded that established by law, and the evidence in support of Hulbert’s claim was sufficient to meet his burden of showing that his injury arose out of and in the course of his employment, we reverse.

Hulbert, a delivery man for Domino’s Pizza in Griffin, testified he was returning from a pizza delivery when he pulled over to the side of the road in response to a vehicle with a flashing blue light. He testified he recalled getting out of his vehicle and approaching someone he assumed to be a police officer, but a bright light shining in Hulbert’s face prevented him from seeing what the person looked like.

Hulbert asked what was wrong and the person responded, “Take this.” As Hulbert turned to return to his vehicle, he was doused with gasoline and set on fire. He put out the fire by rolling on the ground, and then he drove back to Domino’s. When he arrived, he said “pulled over” and “blue lights” to a co-worker and passed out after an ambulance arrived.

Hulbert regained consciousness in a hospital over two months later. He had received second and third degree burns to 50 percent of his body, most severely on the back of his legs. Despite a thorough investigation, the police never charged anyone for the incident.

When Hulbert sought workers’ compensation benefits, Domino’s controverted the claim on the ground that the injury did not arise out of Hulbert’s employment. Domino’s suggested four possible explanations for the injury: (1) the incident was an act of violence directed at Domino’s; (2) the incident was a random act of violence; (3) the incident was an act of revenge perpetrated against Hulbert; and (4) the injury was self-inflicted. The first two possibilities would be compen-sable, but the last two would not.

At the hearing, Domino’s produced evidence supporting its claim that the last two explanations precluded an award of benefits to Hul-bert. To show the incident could have been an attack of revenge against Hulbert personally, the company presented evidence that Hulbert pled guilty to sexual battery against the child of his wife’s brother five years earlier. He told police before the assault that he had been followed, and after the assault that his brother-in-law could be responsible, although the police concluded the evidence was insufficient to charge the brother-in-law.

Second, to show Hulbert may have injured himself, the company called the investigating police officer, who testified that he found Hulbert’s eyeglasses, cigarette lighter, and driver’s license at the scene, but no tire tracks or other evidence showing another vehicle was present when Hulbert was burned.

Both sides presented expert psychological testimony suggesting that Hulbert was or was not capable of self-immolation. Both sides also presented expert fire investigators who testified that Hulbert’s burn patterns did or did not indicate that he had set himself on fire. Further, the medical director of the hospital’s burn center, who treated Hulbert, testified that Hulbert’s burn pattern was not consistent with the usual pattern of self-inflicted burns. Finally, Domino’s argued that robbery clearly was not the motive for the assault because Hulbert remembered no demand for money and the police found more than $500 cash in the truck.

In support of his claim, Hulbert introduced evidence that Griffin was a high crime area, and that people in that area have thrown rocks at Domino’s employees. He also introduced evidence that Domino’s delivery persons have been the target of violent assaults in other areas of the country.

Hulbert asserted that he had suffered an “unexplained accident,” and was entitled to the presumption that the accident arose out of and in the course of his employment. The ALJ disagreed, holding that the “unexplained accident” presumption only applies when the employee has died. The ALJ then held that Hulbert failed to meet his burden of proving that the accident arose out of or in the course of his employment and denied compensation. Both the State Board of Workers’ Compensation appellate division and the superior court affirmed the ALJ on this theory.

1. As we find that Hulbert otherwise proved that his injuries arose out of and in the course of his employment, we need not consider the unexplained accident presumption to decide this appeal.

2. In workers’ compensation cases, the claimant has the burden of proving that he suffered an accidental injury which arose out of and in the course of his employment. Publishers Circulation Fulfillment v. Bailey, 215 Ga. App. 136, 137 (449 SE2d 645) (1994). We are satisfied that, in the conditions of his employment, Hulbert’s uncon-tradicted testimony that he was returning to Domino’s after having delivered a pizza when he was the victim of an unprovoked attack by an unidentified person for unknown reasons was sufficient to meet this burden. Nothing in our workers’ compensation law requires that, as part of this burden, an employee must disprove all possibilities that the injury did not arise out of and in the course of his employment. The theories which Domino’s argued as part of Hulbert’s burden to prove that his injuries arose out of his employment are really affirmative defenses and not part of a claimant’s initial burden.

Here, the parties stipulated that Hulbert’s injuries arose in the course of his employment: Hulbert was on duty returning from a pizza delivery. Therefore, the sole issue is whether the injury arose out of Hulbert’s employment. “ ‘The words “arising out of the employment” refer to the causal connection between the employment and the injury.’ ” (Citation omitted.) Helton v. Interstate Brands Corp., 155 Ga. App. 607, 608 (271 SE2d 739) (1980).

The causative danger must be incidental to the character of the employment, and not independent of the relation of master and servant. The accident must be one resulting from a risk reasonably incident to the employment. And a risk is incident to the employment when it belongs to, or is connected with, what a workman has to do in fulfilling his contract of service. . . . The injuries, however, need not arise from something peculiar to the employment but the injury is compensable if after the event it is apparent to the rational mind that there is a causal connection between the conditions under which the employment was performed and the resulting injury.

(Citations and punctuation omitted.) Employers Ins. Co. &c. v. Wright, 108 Ga. App. 380, 382 (133 SE2d 39) (1963).

Applying these principles in this case, pizza delivery persons are exposed to dangers through the nature of their employment and the routine conditions in which they work. They travel alone, at all hours, typically in marked vehicles, potentially carrying large sums of money, and come in contact with all types of unknown people. Hul-bert was fulfilling these duties at the time of his injury, and these conditions are peculiarly conducive to the type of incident in which Hulbert was injured. Therefore, we find the danger sufficiently connected with Hulbert’s duties to constitute a risk incidental to his employment. Maxwell v. Hosp. Auth. of Dade &c. Counties, 202 Ga. App. 92, 94-95 (413 SE2d 205) (1991).

Under these circumstances, we find the conditions of Hulbert’s employment did not merely provide the time and place for the assault, but increased the risk of attack, and subjected him to a danger peculiar to his employment. Therefore, this assault arose out of Hulbert’s employment within the purview of the Workers’ Compensation Act. City of Atlanta v. Madaris, 130 Ga. App. 783, 786 (3) (204 SE2d 439) (1974); McDonald v. State Hwy. Dept., 127 Ga. App. 171, 176 (2) (192 SE2d 919) (1972).

Hulbert having proved that his injury arose out of and in the scope of his employment, the burden shifted to Domino’s to prove that either Hulbert’s injuries were intentionally self-inflicted (OCGA § 34-9-17 (c); Home Indem. Co. v. White, 154 Ga. App. 225, 226 (1) (267 SE2d 846) (1980)), or they were caused by an attack for reasons personal to Hulbert. See OCGA § 34-9-17; Cornell-Young (Macon Pre-Stressed Concrete Co.) v. Minter, 168 Ga. App. 325, 327 (309 SE2d 159) (1983) (the employer has the burden of proof when raising an affirmative defense).

The burden of proof generally lies upon the party asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential. If a negation or negative affirmation is essential to a party’s case or defense, the proof of such negation or negative affirmation lies on the party so affirming it.

Decided July 15, 1999

Reconsideration denied July 29, 1999

Kilpatrick Stockton, Ted H. Clarkson, Mark B. Williamson, David M. Zacks, for appellant.

Donahue, Hoey, Rawls, Skedsvold & Richards, Kevin O. Sked-svold, Dana F. McBride, Traci D. Teer, for appellee.

Gardner, Willis, Sweat & Goldsmith, Robert D. Goldsmith, Nathan C. Levy, amici curiae.

OCGA § 24-4-1. Moreover, Domino’s was required to establish its affirmative defenses by a preponderance of the evidence. Borden Co. v. Dollar, 96 Ga. App. 489, 490-491 (100 SE2d 607) (1957). Mere speculation and conjecture in the form of possible inconsistent theories for possible causes of Hulbert’s injuries, as a matter of law, are not sufficient to carry this burden and cause the burden of persuasion to shift to Hulbert to rebut these allegations. Circumstantial evidence that equally supports two theories proves neither. Overstreet v. Metro. Life Ins. Co., 69 Ga. App. 459, 460 (26 SE2d 115) (1943). For instance, under Domino’s rationale, a mere bare allegation that a claimant was injured by an unidentified assailant for unknown reasons personal to the claimant would require the claimant to prove that he never did anything to make anyone mad at him at anytime before the attack. That is not our law.

Accordingly, we find the superior court erred by affirming the workers’ compensation award that required Hulbert to disprove the affirmative defenses alleged, but not proved, by Domino’s. Because Hulbert’s evidence was sufficient to prove that his injuries arose out of and in the course of his employment and the ALJ made no findings of fact to the contrary, the judgment of the superior court is reversed and the case is remanded to the superior court with direction to remand the case to the State Board of Workers’ Compensation for further proceedings consistent with this opinion.

Judgment reversed and remanded with direction. Blackburn, P. J., and Ellington, J., concur.


author: Ruffin, Judge.

text:
    A99A0490.
    CITY OF GRIFFIN v. JACKSON.
    (520 SE2d 510)
   Ruffin, Judge.

Laurenda Jackson sued the City of Griffin for injuries she allegedly sustained when her automobile collided with a police vehicle driven by Officer Kenneth English of the Griffin Police Department. The trial court struck the city’s answer as a discovery sanction for failing to produce certain photographs the city had taken of the scene of the collision. The city appeals, contending that there was no evidence of wilfulness and that the trial court erred in requiring it to pay for certain depositions taken in an attempt to locate the photographs. We affirm.

Shortly after the collision, Gail Burel Mullins, an investigator for the Griffin Police Department, took photographs of the collision scene. Mullins turned over two rolls of film to Lieutenant Michael Suhr at the scene. A second set of photographs was taken by Gallagher-Bassett, the company that administered the city’s insurance claims, of the vehicles at the wrecker lot, as well as pictures of the accident scene apparently taken after the vehicles had been removed.

In her initial discovery requests, served August 21, 1995, plaintiff specifically asked for production of any photographs of the scene or vehicles involved. The city responded on October 3, 1995, stating that there were no photographs, even though the accident report produced by the city clearly indicated that photographs had been taken by Mullins. Plaintiff served the city with a second request for production, specifically asking for production of the photographs taken by Mullins. The city responded on November 14, 1995, by stating that it “is in possession of certain photographs taken by its employees relative to this incident. Those photographs will be produced at a mutually convenient time and place. Defendant is not aware of the existence of any negatives of those photographs.”

Notwithstanding its admission that it was in possession of the photographs, the city did not produce the photographs as promised. On August 15, 1996, plaintiff filed a motion to compel production of the photographs and certain other documents. In a response filed on September 16,1996, the city reiterated its offer to produce the photographs taken by Mullins at a mutually convenient time and place and again stated that it did not possess any negatives. At a March 11, 1997 hearing on the motion, when asked by the trial court if he had the pictures, the city’s attorney stated that “I don’t have them with me, no. I’m going to have to go get them.” The court orally ordered production of the pictures.

Despite the trial court’s order, the city still did not produce the photographs. On May 16, 1997, 18 months after first stating that it would produce the Mullins photographs, the city filed a motion for protective order, claiming that it was unable to locate the photographs. It submitted affidavits from Chief of Police Armand Capeau and Corporal James Landham stating that they had performed a diligent search for the photographs but could not find them. The city also for the first time revealed the existence of the Gallagher-Bassett photographs, which it produced. The trial court denied the city’s motion for protective order and, in response to plaintiff’s motion for sanctions, allowed plaintiff to take several depositions, at the city’s expense, in an attempt to determine what happened to the Mullins photographs. In particular, the court ordered that plaintiff be allowed to depose Mullins, “the person she allegedly gave [the film] to, the person who actually developed the photos, and Officer Landham.”

In a hearing after plaintiff had deposed Mullins and Landham, the city’s attorney represented to the court that Mullins had given the rolls of film to Lieutenant Suhr, who took them to Jim & Joe’s photography shop to be developed. The attorney represented that “Lieutenant Suhr has no recollection of what happened to [the photos] after they went to Jim & Joe’s, no recollection at all.” However, when he was subsequently deposed, Suhr testified that he clearly remembered picking up the photographs from Jim & Joe’s, and that he gave them and the case file to Commander Marvin Barrow, the head of the patrol division. Suhr testified that he personally showed each of the pictures to Barrow and explained them to him. Barrow, who retired in May 1997, testified that the photographs were not in the case file Suhr gave him, and that he never saw any photographs. Barrow also claimed that he received the file from Suhr on the day of the accident, not a few days later as Suhr claimed.

In its order striking the city’s answer, the trial court found that the city had given no reasonable explanation for its failure to produce the photographs. In particular, the court noted that the city “repeatedly promised to produce the photographs, and assured the Court that the photographs were in the Defendant’s possession, when in fact they either were not, or had been destroyed, or lost.” The court found that the city’s refusal to produce the photographs was not in good faith, and that the city

unjustifiably expanded and delayed the discovery proceedings. Defendant not only failed to produce the photographs as initially requested, but also failed to provide the Court and counsel with the City’s best knowledge of the last whereabouts of the pictures.

1. In two enumerations, the city contends that the trial court erred in striking its answer because there was no evidence of wilfulness. We disagree.

We have previously held that the drastic sanction of striking a defendant’s pleadings for failure to comply with a discovery order may not be imposed unless

the failure is wilful, in bad faith or in conscious disregard of an order. However, a very broad discretion is granted judges in applying sanctions against disobedient parties in order to assure compliance with the orders of the courts. By OCGA § 9-11-37 (b) (2) (C) the courts are specifically granted the discretion to dismiss complaints or to render default judgments against disobedient parties. This applies to the disobeying of an order to produce. Historically it has been the policy of the Georgia appellate courts to refuse to interfere with a trial court’s exercise of its discretion in absence of abuse. This policy is applicable to a trial judge’s exercise of the broad discretionary powers authorized under the discovery provisions of the Civil Practice Act.

(Citation and punctuation omitted.) Joel v. Duet Holdings, 181 Ga. App. 705, 707 (353 SE2d 548) (1987). Furthermore,

[t]here is no requirement that the plaintiff display and the trial court find actual wilfulness. The sanction of dismissal for failure to comply with discovery provisions of the Civil Practice Act requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance. A conscious or intentional failure to act is in fact wilful. Where a motion for sanctions is brought under OCGA § 9-11-37 (b) (2) for a party’s failure to comply with an order compelling responses to discovery requests, the existence or nonexistence of wilfulness should be considered not only in the context of the time period prescribed in the order compelling answers, but in the context of the entire period beginning with service of interrogatories and ending with service of answers. Events transpiring during this entire time period are probative of whether appellant acted with conscious indifference to the consequences of failure to comply with the order compelling answers.

(Punctuation omitted.) Resource Network Intl. v. Ritz-Carlton Hotel Co., 232 Ga. App. 242 (1) (501 SE2d 573) (1998). “In determining whether a party has abused discovery, the trial court sits as trier of fact, and this Court will uphold a finding of wilful discovery abuse if there is any evidence to support it.” Santora v. American Combustion, 225 Ga. App. 771, 772 (1) (a) (485 SE2d 34) (1997).

In essence, the city contends that there can be no finding of wilfulness because there is no direct evidence that it maliciously destroyed the photographs in order to avoid producing them to plaintiff. As discussed below, although there is no “smoking gun” evidence showing how the photographs were destroyed or lost, we believe there was sufficient evidence to support an inference of wrongful conduct by the city. However, it is not necessary to show intentional destruction or hiding of the photographs to support the imposition of sanctions. What is necessary is a showing that the city acted “wilful [ly], in bad faith or in conscious disregard” of its discovery obligations. Joel, supra. Regardless of how the photographs came to be missing, the evidence was sufficient to show a consistent pattern of conduct by the city calculated to frustrate any attempt to locate the photographs and to mislead the court and the plaintiff as to the fate of the photographs. See Santora, supra (wilful attempt to conceal material document supported sanction of dismissal).

Although the city now claims that the Mullins photographs have been missing since before plaintiff made her first discovery request, the city admitted in its November 14, 1995 discovery responses that it was in possession of the photographs. This admission was not withdrawn in the city’s May 16, 1997 motion for protective order, which simply stated that the city was unable to locate the photographs at that time. Regardless of whether the earlier pleading constitutes a binding admission in judicio that the photographs were in the city’s possession as of November 14, 1995, see Ford v. Uniroyal Goodrich Tire Co., 231 Ga. App. 11, 14 (497 SE2d 596) (1998), it at least constitutes evidence of that fact. See Ay cock v. Calk, 228 Ga. App. 172, 173 (491 SE2d 383) (1997). Moreover, in both the November 14,1995 and September 16,1996 discovery responses, the city stated that, while it was in possession of the photographs, it did not have any negatives. The specificity of these responses suggests that they were based upon an actual search of the records and were not simply inaccurate. Furthermore, the city’s attorney suggested at the March 11, 1997 hearing that the photographs were still in the city’s possession, and that he merely had to “go get them.” At the hearing on the motion for sanctions, the attorney stated that, when he was preparing the discovery responses, he had been specifically told by his client that it had the photographs. Thus, there was clearly evidence that the city had the photographs at the time they were requested by plaintiff and ordered to be produced by the court, but that the photographs subsequently disappeared.

It is at least arguable that the mere disappearance of photographs within the control of a party, which have been the subject of litigation for more than a year and which the party has repeatedly promised and been ordered to produce, can support an inference of bad faith, particularly where the party offers no explanation as to how they disappeared. The trial court clearly found the city’s explanation that the photographs were simply lost to be unpersuasive. Indeed, the court specifically found that “no factual explanation has been offered” to explain the disappearance of the photographs and that the city’s refusal to produce the photographs “was not in good faith.”

Moreover, in addition to the simple disappearance of the photographs, there are several other factors which would support an inference of bad faith on the part of the city, with respect both to the disappearance of the photographs and to the city’s subsequent attempts to comply with its discovery obligations by locating and producing the photographs. In particular, the evidence regarding Lieutenant Suhr and the purported investigation performed by Chief Capeau and Corporal Landham casts doubt on the city’s good faith.

Evidence Regarding Lieutenant Suhr

As discussed above, on July 17,1997, the trial court ordered that plaintiff be allowed to depose certain individuals, including Mullins, Landham, and “the person [Mullins] allegedly gave [the film] to.” The court asked the city’s attorney to whom Mullins gave the photographs, and he responded, “I don’t know. But, we can certainly find out.” Notwithstanding this assurance, no one from the city contacted Mullins after this hearing to determine to whom she gave the film. On July 30, 1997, plaintiff served the city with a notice of deposition, requesting that the city produce Mullins and Landham for deposition and designate other individuals to testify as ordered by the trial court on July 17. However, the city did not produce Lieutenant Suhr at the scheduled deposition because plaintiff had not identified him by name in her notice of deposition, although it is apparent that the city knew by this time that Suhr was the individual to whom Mullins gave the film. Mullins testified at her deposition that she had advised Chief Capeau of that fact in May 1997, well before the July 17 hearing at which the city’s attorney stated that he did not know to whom Mullins had given the film.

In a hearing on September 18, 1997, plaintiff’s attorney asked the court to strike the city’s answer because, among other things, it did not produce Lieutenant Suhr for deposition as required by the court’s order. In response, the city’s attorney stated that he was willing to produce Lieutenant Suhr, but represented to the court and to plaintiff’s counsel that Suhr “took [the rolls of film] to Jim & Joe’s [photography shop] and provided them to Jim & Joe’s. He has no knowledge of what happened to them after that. . . . Lieutenant Suhr has no recollection of what happened to them after they went to Jim & Joe’s, no recollection at all.”

The trial court denied the motion to strike the city’s answer at that time, but ordered that Suhr be produced for deposition. At his deposition, Suhr flatly contradicted the representations made by the city’s attorney. Suhr testified that he had a positive recollection that he picked up the developed photographs from Jim & Joe’s photography shop, and that he gave them and the case file to Commander Barrow. He testified that he personally went over each photograph with Commander Barrow, and that he anticipated Barrow would discuss the file with the police chief and that the file would then be reviewed by the police review board.

Lieutenant Suhr’s testimony is clearly very important in showing the city’s possession of the photographs, particularly in light of Commander Barrow’s positive denial that he ever received or saw the photographs. The contradictions between Suhr’s and Barrow’s testimony are irreconcilable: if Suhr is telling the truth, then Commander Barrow apparently is not, which would strongly support an inference of bad faith on the part of the city By failing to initially produce Lieutenant Suhr for deposition, as clearly contemplated in the court’s order and in plaintiff’s notice of deposition, and then positively misrepresenting to the court and to plaintiff’s counsel that Suhr had no knowledge of what happened to the photographs after the film was delivered to Jim & Joe’s, it appears that the city was attempting to prevent plaintiff from discovering relevant and damaging information regarding the fate of the photographs. Indeed, it is difficult to conceive of a good faith explanation for counsel’s blatant misrepresentation to the court as to the nature of Suhr’s knowledge, and the city makes no attempt to provide such an explanation in its appellate brief. This incident suggests bad faith by the city regardless of whether counsel himself intended to mislead the court and the plaintiff or whether counsel was in fact misled by his client.

The Capeau/Landham Investigation

As discussed above, on May 16, 1997, the city filed affidavits from Chief of Police Armand Capeau and his administrative assistant, Corporal James Landham, in support of its motion for a protective order. In his affidavit, Chief Capeau stated that the whereabouts of the photographs had been unknown since before plaintiff’s first request for production. This statement flatly contradicts the city’s affirmative representation in its November 14, 1995 discovery responses that it was in possession of the photographs and also contradicts counsel’s statement to the court in August 1998 that, when preparing the discovery responses, he was told by the city that it had the photographs.

In his affidavit, Capeau also stated that he had assigned Corporal Landham the task of locating the missing photographs, instructing him to “use every means at his disposal to locate the photographs as quickly as possible.” In his affidavit, Landham stated that he had personally consulted with all police department employees who to his knowledge may have had possession, custody, or control of the photographs at any time. Landham also stated that he had directed searches of the offices of all such employees, as well as every location in the police department where photographs are normally located. However, in his subsequent deposition, it became apparent that Landham had conducted a very minimal search for the photographs over a period of a few days, while Chief Capeau was out of town, and that the chief did not provide him with any of the basic information necessary to perform an effective search. Indeed, Landham testified that he was not provided with the case file or any other documents relating to the case, and that he did not review any documents whatsoever during the course of his investigation. He was unable to look at the case file because it was locked in the chief’s office, to which he did not have access. Landham never interviewed Mullins because he did not know who took the photographs. He never interviewed Lieutenant Suhr or Commander Barrow and was unaware of their involvement with the photographs until so informed by plaintiff’s counsel at the deposition. He never saw a copy of Lieutenant Suhr’s report showing that Suhr ordered Mullins to take the photographs, or a copy of the accident report reflecting that Mullins had done so. Landham also did not check any of the department’s computer records relating to evidence and did not seek to determine whether there was a chain of custody form relating to the photographs. It appears that the sum total of Landham’s investigation consisted of (1) looking through the files in the chief’s secretary’s office; (2) asking the evidence custodian to check the evidence room; (3) asking representatives of Jim & Joe’s and another photography shop whether they had the photographs; and (4) asking Commander Herman Parker, the head of the investigative services division, whether he had the photographs.

Mullins testified that in May 1997 she told Chief Capeau that she had given the film to Lieutenant Suhr. However, Capeau never informed Landham of this fact and stated that he did .not recall any such conversation with Mullins. It seems clear that the affidavits provided by Chief Capeau and Corporal Landham did not accurately depict the nature of their “investigation” into the fate of the missing photographs. Indeed, a reasonable inference may be drawn that Chief Capeau had Corporal Landham perform a sham search for the photographs, without any intent to discover their true fate.

We believe that, taken together, all of the evidence would support an inference that the city destroyed or concealed the photographs after they were requested to be produced. However, even if the photographs were lost by accident, the evidence supports an inference that the city wilfully failed to comply with its discovery obligations by, among other things: (1) conducting a sham search for the photographs, while concealing from the investigator the identity of several individuals known by Chief Capeau to have had access to the photographs (i.e., Mullins, Suhr, and Barrow); (2) providing misleading affidavits that mischaracterized the nature of the city’s investigation and that failed to disclose relevant facts known to the city, in an attempt to obtain a protective order after the court had ordered production of the photographs; (3) affirmatively misrepresenting the knowledge of a key witness known to the city, in an apparent attempt to mislead the court and plaintiff about the necessity of deposing the witness; and (4) providing conflicting accounts as to when the city determined that the photographs were missing. These facts were sufficient to demonstrate that the city acted with “conscious indifference to the consequences of failure to comply with the order compelling [production].” Resource Network Intl., supra. Accordingly, the trial court did not abuse its discretion in striking the city’s pleadings.

Decided July 7, 1999

Reconsideration denied July 29, 1999

2. Without citing any authority, the city contends that the trial court erred in requiring it to pay plaintiffs attorney fees for taking depositions to determine the fate of the photographs. OCGA § 9-11-37 (b) (2) provides that, if a party fails to obey an order to provide discovery, the court “may make such orders in regard to the failure as are just. . . [and may] require the party failing to obey the order . . . to pay the reasonable expenses, including attorney fees, caused by the failure.” Where a defendant first states that it does not have material items sought in a request for production, and then states that it does have them and will produce them, and then states that it cannot find them but provides no explanation as to their fate, we think it is perfectly reasonable for the trial court to allow the plaintiff to take discovery to ascertain the fate of the items and to cast the costs of such discovery on the defendant.

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.

Jenkins & Nelson, Frank E. Jenkins III, Robert W. Lamb, for appellant.

Alan W. Connell, for appellee.

        Chapman v. Auto Owners Ins. Co., 220 Ga. App. 539 (469 SE2d 783) (1996), cited by the city, is inapposite in that it did not involve dismissal for discovery abuse.

       Because the only issue raised in the city’s enumerations is whether there was evidence of wilfulness, we do not consider whether a lesser sanction would have been more appropriate in this case.