text:
    A91A1438.
    M. K. DEVELOPERS, INC. v. McCALL et al.
    (414 SE2d 260)
   Carley, Presiding Judge.

Appellee-plaintiffs brought suit, alleging that their real property had been damaged by acts which had been performed by appellant-defendant in connection with the repair of sewer pipes. The case was tried before a jury and a verdict awarding appellees compensatory damages and OCGA § 13-6-11 attorney’s fees was returned. Appellant appeals from the judgment entered by the trial court on the jury’s verdict.

1. Appellant moved for a directed verdict as to liability, urging that there was no evidence that the acts which had resulted in the damage to appellees’ realty had been performed by appellant or its agents. The denial of this motion is enumerated as error.

In material part, appellees’ complaint had alleged that their real property had been damaged because “[appellant] placed a pipe within the banks of [appellees’] creek and covered said pipe with fill dirt.” In appellant’s original answer, this allegation that the work had been performed by it was admitted. “This admission was sufficient to support the verdict and judgment.” Buck Creek Indus. v. Green, 237 Ga. 699 (229 SE2d 454) (1976). Although appellant was subsequently permitted to amend its answer to deny this allegation and it urged at trial that the work had been performed by independent contractors, the rule that an admission by a party opponent is evidence upon which a verdict may be based “applies to admissions in pleadings which, after having been withdrawn or stricken by the pleader, are introduced in evidence by the opposite party. [Cits.]” Lucas v. Continental Cas. Co., 120 Ga. App. 457 (1) (170 SE2d 856) (1969). See also Joyner v. William J. Butler, Inc., 143 Ga. App. 219, 220 (3) (237 SE2d 685) (1977); Lawson v. Duke Oil Co., 155 Ga. App. 363, 364 (270 SE2d 898) (1980); Strozier v. Simmons U. S. A. Corp., 192 Ga. App. 601, 603 (385 SE2d 677) (1989). Accordingly, the trial court correctly denied appellant’s motion for a directed verdict as to liability.

2. Appellant also moved for a directed verdict on the ground that there was no evidence from which the jury could properly determine damages. The denial of this motion is enumerated as error.

Appellant urges that the correct measure of damages is the difference in the market value of appellees’ real property before and after the injury thereto. Assuming, without deciding, that the diminution in market value would be the applicable measure of damages in this case, the record demonstrates the existence of sufficient evidence to withstand appellant’s motion for a directed verdict. Although appellees’ expert appraiser did not expressly state his opinion as to the market value after the injury, he did state, without objection, his opinion as to the market value before the injury and the diminution thereof, in terms of percentage and dollar amount. See Atlantic Coast Line R. Co. v. Atkins Dairy Co., 41 Ga. App. 212, 213 (2) (152 SE 303) (1930). See also State Hwy. Bd. of Ga. v. Coleman, 78 Ga. App. 54, 57-58 (2, 3) (50 SE2d 262) (1948); Georgia Power Co. v. Faulk, 102 Ga. App. 141, 144-145 (3) (115 SE2d 733) (1960). Compare Miller v. Luckey, 132 Ga. 581, 583 (2) (64 SE 658) (1909); Elbert County v. Swift, 2 Ga. App. 47 (1) (58 SE 396) (1907). “In order to sustain the grant of a directed verdict based on a failure of proof of damages, ‘(t)here must be a complete absence of any competent evidence on this issue. (Cit.)’ [Cit.] ... It follows that the trial court did not err in overruling appellant’s motion for directed verdict on this issue. [Cit.]” Georgia Farm Bur. Mut. Ins. Co. v. Arnold, 175 Ga. App. 850, 852 (2) (334 SE2d 733) (1985). See also Smith v. Gen. Fin. Corp. of Ga., 143 Ga. App. 390, 391 (1) (238 SE2d 694) (1977).

Decided November 25, 1991

Reconsideration denied December 10, 1991

Moore & Rogers, John H. Moore, Eldon L. Basham, for appellant.

McLain & Merritt, Albert J. Decusati, for appellees.

3. Appellant also enumerates as error the denial of its motion for directed verdict as to attorney’s fees.

There is no evidence of appellant’s bad faith in the transaction out of which appellees’ claim arose. It is uncontroverted that appellant’s actions were undertaken in a good faith attempt to fulfill its responsibility for making repairs to the sewer pipes, that the plans therefor were approved by the county, and that the sewer pipes were not intentionally placed so as to cause damage to appellees’ property. See General Refractories Co. v. Rogers, 240 Ga. 228, 234 (2) (239 SE2d 795) (1977); Georgia R. & Banking Co. v. Gardner, 118 Ga. 723 (2) (45 SE 600) (1903); C. W. Matthews Contracting Co. v. Wells, 147 Ga. App. 457, 459 (2) (249 SE2d 281) (1978). Moreover, the record demonstrates the existence of a genuine controversy over appellant’s liability for the acts of workmen who might have been independent contractors rather than servants for whose acts appellant would be vicariously liable. This genuine controversy would preclude an award of attorney’s fees based on the grounds of stubborn litigiousness or causing unnecessary trouble and expense. See Carter v. Allstate Ins. Co., 197 Ga. App. 738, 743 (4) (399 SE2d 500) (1990). See generally Backus Cadillac-Pontiac v. Brown, 185 Ga. App. 746 (1) (365 SE2d 540) (1988).

Judgment affirmed in part and reversed in part.

Beasley, J., and Judge Arnold Shulman concur.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A91A0954.
    IMPRESS COMMUNICATIONS, INC. et al. v. STANLEY.
    (414 SE2d 238)
   Cooper, Judge.

We granted this discretionary appeal in a workers’ compensation case to consider whether claimant gave her employer timely notice of her injury pursuant to OCGA § 34-9-80. Before claimant was hired as a litho-stripper by the employer in 1987, she had a history of back problems and had been under the care of a chiropractor since 1984. The record reveals that prior to her employment in 1987, claimant suffered a painful hysterectomy and a motorcycle accident and had sustained an injury working on a farm in late 1988. Her job involved a great deal of physical exertion, including bending, squatting, stretching and stooping. She often complained openly of back pain while on the job. Claimant’s job also required the lifting and emptying of five-gallon buckets of water and waste chemicals from a film processing machine. This issue was greatly contested by the parties, as witnesses for the employer testified that a new film processor had been installed which did not require manual emptying. Claimant testified that while at work on January 13, 1989, she began experiencing intense pain in her lower back. She did not inform the employer of the onset of the pain but maintained that on the same day, the president of the company told her that he planned to fix the plumbing on the film processor to relieve her from having to manually empty waste fluids, to which claimant replied that it was a good thing because her back was about to give out. On January 20, 1989, claimant was treated by a chiropractor for the gradual onset of lower back pain, and she returned to the chiropractor on February 1, 1989, with pain in her hip and leg and was advised to stay off her feet. Claimant’s husband telephoned claimant’s supervisor and informed her that claimant needed bed rest and would not report to work for a couple of days. On February 3, 1989, when claimant’s trainee failed to come to work, the supervisor called claimant and requested that she come to work. Claimant reported to work in a back brace, which she maintained she showed to the president and her supervisor and discussed with them. Claimant found it painfully difficult to work, only worked one-half a usual workday, and February 3, 1989 was the last day claimant worked for her employer. On February 6, 1989, claimant was admitted to the hospital with an initial diagnosis of a ruptured disk, and later that month, she underwent a diskectomy for treatment of a slipped disk. During her hospitalization, claimant spoke with her supervisor and told the supervisor she had a slipped disk. Neither orally nor in writing did claimant contend she sustained a work related injury or that her condition was in any way related to her job. She did not associate the pain in her hip and leg with her lower back because her back was not painful at the time she stopped working. On her group insurance application she placed a question mark in the space which asked if the injury were work related, and on a physical therapy questionnaire she also placed a question mark on the space designated for place of injury. However, by letter to the claimant dated March 15, 1989, and a copy to the employer, claimant’s group insurer denied coverage of claimant’s medical expenses after concluding that her injury was work related. On claimant’s behalf, her chiropractor and her orthopedic surgeon wrote the insurer stating that they had no reason to conclude that the injury was work related. On May 1, 1989, the employer was informed by the group carrier that claimant was adopting the insurer’s position that her injury was work related. The employer denied that it had received timely notice of a work related injury in accordance with OCGA § 34-9-80 and refused claimant’s workers’ compensation claim.

The ALJ found that claimant’s work, over a two-year period, aggravated her pre-existing back condition until January 13, 1989, when the pain became unbearable; that, nevertheless, claimant continued to work with the pain; that her statement to the president on January 13, 1989 constituted legal notice to her employer pursuant to OCGA § 34-9-80 that her condition was work related; and that she sustained an accident arising out and in the course of her employment on February 3, 1989, when she could no longer work because of her work related back pain. The full board adopted these findings in its award to claimant, and the superior court affirmed the board.

1. In this appeal, the employer and its workers’ compensation carrier contend the board and the superior court erred in disregarding OCGA § 34-9-80, which requires that notice be given within 30 days after the occurrence of an accident. They argue that notice on January 13, 1989, of the February 3, 1989, injury was premature; that the March 15, 1989, letter to claimant from the group carrier was too late and did not comply with the statute as the letter was not proper notice from employee to employer; and that the first actual notice the employer received stating that claimant professed her injury was work related was on May 1, 1989, well after the 30 days required by the statute.

“ ‘The question as to adequacy of notice of the accident required by OCGA § 34-9-80 was laid to rest in Schwartz v. Greenbaum, 236 Ga. 476 (1) (224 SE2d 38) (1976), which renounced a prior Supreme Court decision to the contrary and held: A liberal construction must be given to effectuate the humane purposes for which the Workers’ Compensation Act was enacted. OCGA § 34-9-80 does not require that notice of an injury or accident must show that it arose out of and in the course of the employment. The required notice need not be given with a view to claiming compensation, and is sufficient if it puts the employer on notice of the injury so that it may make an investigation if it sees fit to do so.’ [Cit.] The notice need not be in a particular format, but the employee carries the burden of giving timely notice, which will indicate to the proper statutory recipient thereof that ‘ “there exists at least a possibility that the injury complained of may be job-related” ’ (cit.) so that the employer ‘ “ ‘may make an investigation if [it] sees fit to do so.’ ” ’ (Cits.)” Harper v. L & M Granite Co., 197 Ga. App. 157 (1) (397 SE2d 739) (1990). The employer maintains that it had no duty to make inquiries as to appellant’s injury because of her insistence that her condition was not work related.

“Upon appeal, the evidence will be construed most favorable to the party prevailing before the board, and every reasonable factual inference and presumption of validity of award should be indulged in by the reviewing court. [Cits.] Neither the superior court nor this court has any authority to substitute itself as a fact-finding body in lieu of the board; an appellate body is bound by the ‘any evidence’ standard of review, and is not authorized to substitute its judgment as to weight and credibility of witnesses. [Cits.]” Harper, supra at 159. We have previously recognized that a claimant may sustain a gradual injury caused by the deterioration of his or her back due to daily work activities and that the date of such an injury is the date the employee is required to cease work. See Carey v. Travelers Ins. Co., 133 Ga. App. 657 (2) (212 SE2d 13) (1975). Construing the evidence in the proper light, we do not find error in the decision of the board or superior court. The record demonstrates that claimant’s injury was sustained on February 3, 1989, the day she ceased work. The employer had specific knowledge of the toll claimant’s work was taking on her back before her injury occurred and became aware, shortly after claimant’s admission to the hospital, that she had suffered a slipped disk. We conclude that the employer had sufficient notice of the injury to warrant an investigation as soon as it became aware that claimant could no longer perform her work duties due to her injury. This notice occurred after the injury and within the statutory time period. Contrary to the employer’s contention, claimant’s January 13, 1989, statement was not premature notice of the February 3 injury but merely served to inform the employer that claimant’s back problem was work related. We also do not find that claimant’s statements that the injury was not work related preclude her recovery as there was evidence of at least a possibility that the injury was job related (see Gossage v. City of Dalton Fire Dept., 257 Ga. 430, 431 (360 SE2d 249) (1987); State of Ga. v. Mitchell, 177 Ga. App. 333 (1) (339 SE2d 384) (1985)), and it appears that the medical opinions were rendered without a full understanding of claimant’s work activities. In our view, the superior court’s order was amply supported by the evidence, and the court did not err in finding that the employer was notified of claimant’s injury within the time provided by OCGA § 34-9-80.

2. Employer also argues that the board and superior court erred in concluding that the March 15, 1989, letter provided notice of claimant’s injury and in ignoring the fact that the letter was admitted only for the purpose of explaining claimant’s conduct. Inasmuch as we have determined that there was adequate notice to employer of claimant’s injury independent of this letter, we will not consider this enumeration of error.

Decided October 9, 1991

Reconsideration denied December 11, 1991

Goodman, McGuffey, Aust & Lindsey, C. Wade McGuffey, Jr., Leslie Stewart, for appellants.

Peter M. Blackford, John E. Gilchrist, for appellee.

Judgment affirmed.

Birdsong, P, J., and Pope, J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A1129.
    ALKARIL CHEMICALS, INC. v. O’LENICK.
    (414 SE2d 257)
   Birdsong, Presiding Judge.

Alkaril Chemicals, Inc. (“Alkaril”) appeals from the judgment of the trial court, based upon a jury verdict, in favor of Anthony J. O’Lenick, Jr., on his claim that Alkaril breached a contract to pay a performance bonus. Alkaril denies that any such contract was agreed upon and asserts that the trial court erred by denying its motions for a directed verdict and for judgment n.o.v. on grounds related to the existence or the enforceability of the promise. Alkaril also asserts the trial court erred by denying its motions regarding the award of attorney fees and expenses of litigation. Held:

1. “In determining whether the trial court erred by denying appellants’ motion for a directed verdict and motion for judgment n.o.v., this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict (and judgment n.o.v.) is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” (Citations and punctuation omitted.) Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268).

The evidence considered most strongly to support the verdict shows that for several years O’Lenick and other Alkaril key management employees received a management incentive bonus from Alkaril in addition to their regular salaries. These bonuses were based on a percentage of pre-tax profits and were paid the year following the year in which the profits were earned after the company’s books were audited.

The bonuses were a year-to-year program which was subject to termination or modification by Alkaril. The usual procedure was that, after consultation with Alkaril’s owner in the last quarter of the year, O’Lenick would announce the bonus plan agreed upon for the next year. This was done by a memorandum from O’Lenick, as president of Alkaril, to each employee participating in the plan. The memorandum would announce the percentage of profits the recipients of the memorandum would receive and any other provisions of the plan. For example, the bonus plan for 1987 required that participants in the plan be employed by Alkaril at the end of the year to receive a bonus.

In 1987, GAF Chemicals Corporation (“GAF”) purchased all of Alkaril’s stock, and a GAF vice president became O’Lenick’s supervisor. According to O’Lenick’s testimony and the document in the record, in November of 1987, O’Lenick sent his supervisor at GAF a memo stating that in accordance with their earlier discussions, the 1987 bonus plan would continue in 1988 and the plan participants would receive the percentage of the profits stated in the memorandum. O’Lenick also testified that, when he received no objection from his supervisor, he issued memoranda in November of 1987 to the participating managers announcing the plan for 1988. The plan announced for 1988 in these memoranda, however, did not contain the 1987 requirement that participants be employed for the full year to collect their bonus.

In August of 1988, O’Lenick received a promotion within GAF which would require him to move to New Jersey, but in November he refused the promotion and voluntarily left the company. Thereafter, when GAF refused to pay the bonus, he sued to collect.

Based upon this evidence, it is clear the agreement O’Lenick seeks to enforce was reached in November of 1987, but the bonus would not be paid until, at the earliest, January of 1989. Accordingly, as this agreement was not to be performed within one year from its making, to be binding it must be in writing and signed by the party to be charged. OCGA § 13-5-30 (6).

Although O’Lenick argues the agreement should be enforced because it was partially performed (OCGA § 13-5-31 (3)), this argument is based upon his performance of his duties as president of Alkaril in such a manner that Alkaril earned the profits which would entitle him to the bonus. Such performance, however, is not sufficient part performance to remove an oral agreement from the requirements of OCGA § 13-5-30 (6) unless the part performance is “consistent with the presence of a contract and inconsistent with the lack of a contract.” Hudson v. Venture Indus., 243 Ga. 116, 118 (252 SE2d 606). In this instance the record does not reveal such evidence. Further, the record shows that O’Lenick was compensated for his performance as he received raises in his annual salary of $8,000 in March, 1988, another raise of $17,000 in August, 1988, and if he had remained employed with GAF, he would have participated in GAF’s bonus plan for executives of his level. Therefore, O’Lenick’s work did not constitute part performance within the meaning of OCGA § 13-5-31 (6).

Moreover, even if this November 1987 oral agreement were enforceable, O’Lenick’s testimony showed that if there were an agreement, it was to continue the 1987 bonus plan. Since the 1987 plan required that a participant be employed by Alkaril for the full calendar year, O’Lenick was not entitled to a bonus under the plan because he voluntarily ended his employment with Alkaril before the end of the year. See Foreman v. Eastern Foods, 195 Ga. App. 332, 334 (393 SE2d 695). Although O’Lenick argues that the 1987 plan’s requirement for employment for the full year was a one-time provision, this contention is not supported by his testimony or the memorandum he sent to his GAF supervisor. Moreover, nothing in the record shows that O’Lenick was authorized to deviate from the 1987 bonus plan. Therefore, even if the November 1987 oral agreement to continue the 1987 plan in 1988 were binding, O’Lenick still would not be entitled to recover. Foreman v. Eastern Foods, supra.

Decided November 21, 1991

Reconsideration denied December 11, 1991

Elarbee, Thompson & Trapnell, Joseph M. Freeman, for appellant.

Russell, Adamson & Stell, Robert W. Adamson, for appellee.

Further, while O’Lenick asserts that his memorandum to himself is a sufficient writing to comply with the requirements of OCGA § 13-5-30 (6), this argument is also without merit. He is not the party to be charged under the contract (see OCGA § 13-5-30) and, as stated above, his memorandum to himself deviated in a significant way from the oral agreement of November 1987. Moreover, he produced no evidence that he was authorized to modify the plan or issue the memoranda.

As the party claiming the existence of an agreement, O’Lenick had the burden of proving its existence and its terms. Jackson v. Easters, 190 Ga. App. 713, 714 (379 SE2d 610). Based upon the evidence presented at trial, he failed to carry his burden.

Accordingly, the trial court erred by denying Alkaril’s motion for judgment n.o.v. and the judgment for O’Lenick must be reversed.

2. In view of our disposition of O’Lenick’s contract claim, his award for attorney fees cannot stand. Baxley-Veneer &c. Co. v. Maddox, 261 Ga. 309, 311 (404 SE2d 554).

Judgment reversed with direction that the trial court enter judgment for appellant.

Pope and Cooper, JJ., concur.


author: Beasley, Judge.

text:
    A91A1282.
    McCRIMMON v. TANDY CORPORATION.
    (414 SE2d 15)
   Beasley, Judge.

McCrimmon sued Tandy Corporation alleging fraud, breach of implied warranties of merchantability and fitness for a particular purpose, breach of express warranty and breach of contract in the sale of certain computer hardware and software. In his amended complaint, McCrimmon sought actual and punitive damages, expenses of litiga-f tion and attorney fees. He appeals from the grant of partial summary judgment to Tandy with respect to the claims of fraud and breach of implied warranties and from a ruling that a limitation on damages included in a limited warranty was enforceable as a matter of law. His claims for breach of contract and breach of express warranty remain pending in the trial court, as does his claim for expenses of litigation under OCGA § 9-15-14. The case previously appeared before this court on interlocutory appeal from an order compelling discovery. Tandy Corp. v. McCrimmon, 183 Ga. App. 744 (360 SE2d 70) (1987).

McCrimmon purchased from Tandy a Tandy Model 4 TRS-80 computer, a DWP-210 printer and a word processing software program called Model 4 SuperScriptsit, at a purchase price of $3,493. He averred that prior to making the purchase, he was orally advised by Tandy’s agents that the equipment “would be well suited” to his particular needs, that he would have a period of 90 days in which to obtain a refund for any reason, and that a support staff would be made available if there were any problems in learning to operate the system.

The face of the sales receipt contained a handwritten notation, “30 day return, 90 day warranty.” On the reverse side is a printed statement captioned, “LIMITED WARRANTY AND SOFTWARE LICENSE,” which in pertinent part acknowledged that the seller “provides a Limited Warranty . . . included with the packaging and manuals pertaining to all of its computer Equipment and Software programs purchased,” and which incorporated by reference that limited warranty. It further informed the purchaser that the limited warranty “is available for inspection by the customer at the [seller’s place of business] prior to purchase upon request.”

McCrimmon took delivery of the equipment in April of 1984 and in the following few months experienced a series of problems with the system. He contends that Tandy was unresponsive to his subsequent requests for assistance. In July of 1984, McCrimmon attempted to rescind the sale but Tandy rejected his tender of the equipment and demand for a refund. This action followed.

1. Appellant contends, in enumerations of error one through six, that the court erred in awarding summary judgment to appellee with respect to his claim of fraud. The complaint alleged that appellant was induced to purchase the computer equipment in reliance on knowing misrepresentations by appellee to the effect that the equipment was suitable for his needs in a law office and that appellee would provide necessary service and support of the system, whereas the equipment proved to be defective and unsuitable for his needs and appellee failed to correct the alleged defects and deficiencies.

“The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. [Cit.] For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort.” Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989). “Where there is no evidence [of] scienter, that is, that the false statement was knowingly made with false design, there can be no recovery. An innocent misstatement may amount to negligence but it is not fraud. [Cits.]” Day v. Randolph, 159 Ga. App. 474, 475 (283 SE2d 687) (1981).

The allegations that appellee knowingly misrepresented the suitability of the equipment for appellant’s purposes, and that appellee knowingly concealed information that the system was defective, are wholly without evidence to support them. Appellee demonstrated that the equipment was commonly used for appellant’s purposes. Appellant’s own expert testified on deposition that the computer and printer sold to appellant were “very solid,” reliable pieces of equipment. Even if appellee’s representations concerning the reliability of the equipment proved to be untrue, there is no evidence that such representations were knowingly false. “If there is no actual knowledge of the defect on the part of the silent party there can be no concealment with the intent and for the purpose of deceiving the opposite party.” Ideal Pool Corp. v. Baker, 189 Ga. App. 739, 741 (1) (377 SE2d 511) (1989). Moreover, statements of opinion, general commendations and sales puffing cannot constitute the basis for a claim of fraud. U-Haul Co. v. Dillard Paper Co., 169 Ga. App. 280 (312 SE2d 618) (1983).

As to the allegations that appellee fraudulently misrepresented its intentions to service and support the system, appellee has shown that it responded to appellant’s requests for assistance regarding operational problems and, in each instance, attempted to correct the problem. Its final offer of assistance was extended in a letter in August of 1984: “[W]e have not been given sufficient opportunity to address and resolve your problem. We are willing to work with you to overcome any obstacles that might prevent you from getting the use out of your equipment that you desire.” Appellant’s response was the institution of suit.

On motion for summary judgment, appellee demonstrated the absence of evidence of fraud, thereby casting upon appellant the burden of presenting specific evidence giving rise to a genuine issue of triable fact. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Hodge Residential v. Bankers First Fed. &c. Assn., 199 Ga. App. 474 (2) (405 SE2d 302) (1991). The burden was not met, and appellee was entitled to judgment as a matter of law.

2. Appellant contends that the trial court erred in granting summary judgment to appellee with respect to the claims for breach of implied warranties of merchantability and fitness for a particular purpose.

The full text of the limited warranty was contained in the owner’s and software manuals supplied to appellant with the equipment. It warranted the hardware and the medium upon which the software is stored to be free of manufacturing defects for a period of 90 days. It further provided that “[sjoftware is licensed on an ‘AS IS’ basis, without warranty.” It made “no warranty as to the design, capability, capacity or suitability for use of the software.” The customer’s exclusive remedy in the event of a software manufacturing defect was to obtain repair or replacement within 30 days of the sale. The following disclaimer appears in bold, upper case print: “[appellee] MAKES NO WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.” The section captioned, “LIMITATION OF WARRANTY,” provided that “[appellee] SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO CUSTOMER . . . WITH RESPECT TO ANY LIABILITY, LOSS OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED DIRECTLY OR INDIRECTLY BY ‘EQUIPMENT’ OR ‘SOFTWARE’ SOLD . . . INCLUDING, BUT NOT LIMITED TO, ANY INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS OR CONSEQUENTIAL DAMAGES. . . . LIABILITY FOR DAMAGES INCURRED BY CUSTOMER OR OTHERS SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE PARTICULAR ‘EQUIPMENT’ OR ‘SOFTWARE’ INVOLVED.”

There is implied in a contract for the sale of goods a warranty that the goods are merchantable. OCGA § 11-2-314. A warranty that the goods are fit for a particular purpose is implied when the seller “has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods. . . .” OCGA § 11-2-315. Both statutorily implied warranties may be excluded or modified if the provisions of OCGA § 11-2-316 are satisfied. “[T]o exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous.” OCGA § 11-2-316 (2).

Decided November 20, 1991

Reconsideration denied December 11, 1991

Edward W. McCrimmon, pro se.

In his affidavit in opposition to summary judgment, appellant averred that he saw the sales receipt for the first time after he had taken delivery of the equipment, and thereupon questioned the salesman who advised him that the 30-day return policy did not apply, but that a “90-day return for refund agreement was in place.” He further stated that had he been made aware of the language of the sales receipt and limited warranty, he would not have purchased the computer equipment. The sales receipt was tendered to him at the time of purchase along with the equipment. It was his responsibility to read it. Appellant “may not avoid the terms of the written warranty by asserting reliance upon [his] understanding of the extent of the warranty based upon verbal communications by [appellee’s] personnel. A party may not so benefit from his failure to exercise common prudence and diligence.” A-Larms, Inc. v. Alarms Device Mfg. Co., 165 Ga. App. 382, 386 (2) (300 SE2d 311) (1983).

The trial court was authorized to conclude that the limited warranty satisfied the requirements of OCGA § 11-2-316 (2) and is enforceable as a matter of law.

3. The final contention is that the trial court erred in ruling that the limited warranty is enforceable with respect to the disclaimer of consequential damages.

OCGA § 11-2-316 (4) provides that remedies for breach of warranty can be limited in accordance with OCGA §§ 11-2-718 and 11-2-719. “Damages . . . may be liquidated in the agreement but only at an amount which is reasonable in light of the anticipated or actual harm caused by the breach; . . .” OCGA § 11-2-718 (1). “Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable.” OCGA § 11-2-719 (3).

A disclaimer of liability for consequential damages limited recovery to the amount paid by the customer for the equipment. The argument that it is unenforceable because not conspicuous fails. The statute does not require a conspicuous writing, analogous to that of OCGA § 11-2-316 (2). Webster v. Sensormatic Electronic Corp., 193 Ga. App. 654 (389 SE2d 15) (1989). As the trial court ruled, the limited warranty is enforceable.

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.

Doffermyre, Shields & Canfield, Everette Doffermyre, Jr., for appellee.


author: Judge Arnold Shulman. Beasley, Judge,

text:
    A91A1305.
    BOULDEN et al. v. FOWLER.
    (414 SE2d 263)
   Judge Arnold Shulman.

The appellants, Kathryn and David Boulden, brought suit against the appellee to recover for injuries they had allegedly sustained in a motor vehicle accident. They evidently obtained a jury verdict in the amount of $10,000, following which they filed a motion for new trial which was overruled by the trial court. They then filed a timely notice of appeal. The trial court granted a motion by the appellee to dismiss the appeal on the ground that there had been an unreasonable and inexcusable delay in filing the trial transcript, and the present appeal followed.

The Bouldens filed their notice of appeal from the denial of the motion for new trial on December 15, 1989. On that same date, Mr. Boulden sent a letter to the court reporter confirming a prior telephonic request for preparation of the trial transcript and noting he had been told by the reporter that, “due to a backlog, it would be February or March 1990 before the [transcript] could be prepared for inclusion in the record on appeal.” By return letter, the reporter advised the appellants that “in all likelihood it [would] probably be March of 1990 before [he could] get started on the transcript” and that he would not request payment from them until then. On April 10, 1990, the court reporter notified the appellants by mail that he was prepared to commence preparation of the transcript and requested payment from them of half the estimated $1,800 transcription cost. The appellants promptly sent him a check for $900. On May 28, 1990, the court reporter billed them for the remaining balance of $927, which they paid within a week. The transcript was filed on June 8, 1990, some six months after the filing of the notice of appeal. The appellee moved to dismiss the appeal on September 4, 1990. Following a hearing, the trial court granted the motion, concluding that there had been an unreasonable and inexcusable delay in the filing of the transcript as well as an unreasonable and inexcusable failure to obtain an extension of time for the, filing of the transcript, and that “[t]he delay in the filing of the transcript and the failure to obtain an extension of time for the filing of the transcript was (sic) caused by the [appellants].”

“[T]he trial court has discretion to dismiss an appeal for failure to timely file a transcript only if (1) the delay in filing was unreasonable; [and] (2) the failure to timely file was inexcusable in that it was caused by some act of the party responsible for filing the transcript.” (Emphasis supplied.) Baker v. Southern R. Co., 260 Ga. 115, 116 (390 SE2d 576) (1990). In Baker, as in the present case, the trial court “predicated its conclusion of the delay being unreasonable and inexcusable upon the failure of [the appellant] to seek an extension.” Id. Holding that “[t]he failure to apply for an extension does not automatically convert the delay into one which fits all of the conditions necessary to vest the trial court with the discretion to dismiss the appeal,” the Supreme Court remanded the case for a finding as to whether the delay in filing the transcript had been caused by the appellant. Id.

The record before us in the present case leaves no doubt as to whether the delay in filing the transcript was caused by the appellants but establishes beyond dispute that it was attributable to the “backlog” of the court reporter, rather than to any act or omission on the part of the appellants. We accordingly hold that the trial court abused its discretion in dismissing the appeal. Accord Collins v. State Farm &c. Ins. Co., 197 Ga. App. 309 (1) (398 SE2d 207) (1990). Compare Department of Human Resources v. Patillo, 196 Ga. App. 778, 779 (397 SE2d 47) (1990) (where there was a failure by the appellant to make any effort to discover when the transcript would be filed, “coupled with an assumption by the attorneys in the case that a transcript need not be filed until the case was docketed in [the appellate] court”; Hall v. Bussey, 200 Ga. App. 311 (408 SE2d 430) (1991) (where there was no explanation for the five-month delay in filing the transcript, and during that period the appellant was able to continue activity she had been enjoined from carrying out pursuant to a jury verdict).

Judgment reversed.

Carley, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur but wish to point out the significance of the second factor taken into account by the trial court, that is, the failure to obtain an extension. This second factor is an important component of a decision to dismiss the appeal. OCGA § 5-6-39 compliance is significant, although it is true that failure to get an extension is not, standing alone, a sufficient basis for dismissal.

The request for an extension plays an important part in the process because it allows the trial court to move the appeal process along or at least to determine at an early stage whether there is a good reason to allow the court reporter more than 30 days for the filing of the transcript, as required by OCGA § 5-6-42. Control of when the transcript is filed must remain in the court or the OCGA § 5-6-42 time limit will be rendered of little effect.

Decided November 26, 1991

Reconsideration denied December 11, 1991

L. David Wolfe & Associates, L. David Wolfe, Susan E. Teaster, for appellants.

Hatcher, Stubbs, Land, Hollis & Rothschild, Robert C. Martin, Jr., for appellee.

Here, the failure to get an extension was caused by appellant, whereas it appears that the delay in transcript filing was not caused by appellant, unless we can say that seeking an extension from the judge would have hurried the transcription along.


text:
    A91A1355.
    CITY OF ATLANTA et al. v. UNITED ELECTRIC COMPANY, INC.
    (414 SE2d 251)
   Birdsong, Presiding Judge.

The City of Atlanta and the Downtown Development Authority of the City of Atlanta (collectively “the City”) appeal from the grant of summary judgment to United Electric Company (“United”) on its claim against the city under OCGA §§ 13-10-1 and 36-82-101 et seq., to recover money owed by a contractor performing work on a project in Underground Atlanta. The city contends that OCGA §§ 13-10-1 and 36-82-101 et seq., do not apply to this case because Underground Atlanta is not a public works project, and because performance bonds were required and obtained for part of the project. Held-.

1. Although the city’s enumeration of error also asserted that its motion to dismiss was improperly denied, this assertion is not supported by argument, reference to the transcript, or citation of authority. Therefore, it is deemed abandoned. Court of Appeals Rule 15 (c) (2); Carco Supply Co. v. Dick Clem, Master Plumber, 194 Ga. App. 566 (391 SE2d 134).

2. The record reveals that the City of Atlanta and the Downtown Development Authority were participants in the Underground Atlanta redevelopment project and they entered into an agreement with Underground Festival, Inc., to construct and operate what is generally referred to as Underground Atlanta. Underground Festival, Inc., separately contracted for the construction of the exterior shell of Underground Atlanta and payment and performance bonds were required and provided by the contractor. This project is not involved in this appeal.

Under its agreement with the city, Underground Festival, Inc., was responsible for completion of the commercial facilities of Underground Atlanta. Using a tenant allowance provided by Underground Festival Project, Lady Phoenix, the tenant for the project in litigation, contracted with Ferguson, White & Chandler to construct the interior, a retail facility. United, a subcontractor of Ferguson, White & Chandler, provided materials and services for the project.

Although required to obtain payment and performance bonds from contractors by its agreement with the city, Underground Festival, Inc., however, did not require Ferguson, White & Chandler to provide payment and performance bonds. The record shows that Ferguson, White & Chandler did not pay United for services and materials provided on the project, and Ferguson, White & Chandler has declared bankruptcy.

The city’s contention that Underground Atlanta is not a public works project is not only without factual or legal support, but is contrary to the evidence and the law. The project was constructed under the Downtown Development Authority Act, OCGA § 36-42-1 et seq. (particularly OCGA §§ 36-42-2 and 36-42-3 (6)), and proper projects under the Downtown Development Authority Act are public works projects. Odom v. Union City Downtown Dev. Auth., 251 Ga. 248, 253-254 (305 SE2d 110). Underground Atlanta is a proper project under the Downtown Development Authority Act. Nations v. Downtown Dev. Auth. of Atlanta, 255 Ga. 324, 331-332 (338 SE2d 240).

Accordingly, the Underground Atlanta project falls within the definition of “project” in OCGA § 36-42-3 (6) and the totality of the agreements between the city and Underground Festival, Inc., clearly contemplates a public works project. Consequently, the city was required to obtain payment and performance bonds for the Underground Atlanta project. OCGA § 13-10-1 (b) (2) (A). To require such bonds for only one portion of the project is not sufficient to discharge the city’s obligation under this section. Contrary to the city’s arguments, the services and material provided by United were clearly contemplated as part of the construction of the commercial facilities portion of the agreement between the city and Underground Festival, Inc.

As the city failed to require payment and performance bonds in accordance with OCGA § 36-82-101, United has a direct right of action to recover for any resulting loss. OCGA § 36-82-102; Kelly Energy Systems v. Bd. of Commrs., 196 Ga. App. 519 (396 SE2d 498); Housing Auth. of Douglas v. Marbut Co., 127 Ga. App. 379 (193 SE2d 574). Accordingly, the trial court did not err by granting summary judgment to United.

Judgment affirmed.

Pope and Cooper, JJ., concur.

Decided November 19, 1991

Reconsideration denied December 11, 1991.

Bernard R. Thomas, Sr., Lisa E. Steinmetz, Michael V. Coleman, for appellants.

McReynolds & Welch, J. Michael Welch, Frederic S. Beloin, for appellee.


text:
    A91A1396.
    CONFETTI ATLANTA, LTD. et al. v. GRAY.
    (414 SE2d 265)
   Cooper, Judge.

A jury trial resulted in a verdict for appellee. Appellants appeal from the order denying their motion for judgment notwithstanding the verdict or in the alternative for new trial.

At approximately 12:30 a.m., appellee and a friend went to a nightclub operated by appellants. While inside the nightclub, appellee and his friend ran into two female friends of appellee. Jimmy Cooley (“Cooley”), then 16 years old, was also at the nightclub that night and during the evening, behaved in an annoying manner toward appellee’s group. When the nightclub closed, appellee and his group left the nightclub and proceeded to the parking lot. While appellee and his friends were in the parking lot, Cooley approached them driving a pickup truck. Cooley’s friend got out of the passenger side of the pickup truck and said something to appellee’s friend at which time a scuffle ensued between appellee’s friend and Cooley’s friend. Shortly thereafter, Cooley and appellee became involved in the altercation, and within minutes, Cooley walked away from the altercation, got into the pickup truck and ran over appellee with the truck. Appellee suffered severe injuries as a result of the incident and subsequently filed a lawsuit against Cooley and appellants. Appellee settled with Cooley’s insurance company, and the case proceeded to trial against appellants on theories of negligence and violation of the Georgia dram shop act by serving alcohol to a minor who was intoxicated. Appellants moved for directed verdict at the close of appellee’s case, and the trial court reserved ruling. Appellants renewed their motion at the close of the evidence and the trial court denied the motion. After the jury returned a verdict in favor of appellee, the trial court asked the foreperson upon which theory of liability the jury based their verdict. The foreperson stated that liability was based on negligence and made a notation to that effect on the verdict. Subsequently, appellants filed a motion for judgment notwithstanding the verdict or in the alternative for new trial, which was denied by the trial court.

1. Appellants contend in their first enumeration of error that the trial court should have granted their motions for directed verdict and judgment notwithstanding the verdict on appellee’s theory of negligence. Under Georgia law, a landowner is liable to invitees “for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. “‘[A] landowner is not an insurer of an invitee’s safety. [Cit.]’ The true ground of liability of the owner of property to an invitee who is injured thereon is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm. [Cits.]” Pound v. Augusta Nat., 158 Ga. App. 166, 167-168 (279 SE2d 342) (1981).

“ ‘(O)ne is not ordinarily charged with the duty of anticipating acts mala per se, but there are exceptions to this rule. . . .’ [Cit.] ‘ “It is the duty of a proprietor to protect an invitee from injury caused by the misconduct of employees, customers and third persons if there is any reasonable apprehension of danger from the conduct of said persons or if injury could be prevented by the proprietor through the exercise of ordinary care and diligence.” (Cit.) Ordinarily, even where the proprietor’s negligence is shown, he would be insulated from liability by the intervention of an illegal act which is the proximate cause of the injury. (Cit.) “However, the above rule has been held inapplicable if the defendant (original wrongdoer) had reasonable grounds for apprehending that such criminal act would be committed.” (Cit.)’ [Cit.]” McCoy v. Gay, 165 Ga. App. 590, 591 (302 SE2d 130) (1983). Appellee argues that appellants were negligent in not having a security guard outside the club while patrons exiting the club were in the parking lot; that Cooley’s act of running over appellee with a truck was not an isolated criminal act but was an escalation of the fight which occurred in the parking lot; and that the fight was a foreseeable risk against which appellants failed to protect appellee. Appellants contend that the intervening criminal act of Cooley was not foreseeable since no similar incidents had ever occurred on appellants’ property. However, appellee was not required to show that the exact criminal act had occurred on a prior occasion. “ ‘All that is required is that the prior accident be sufficient to attract the owner’s attention to the dangerous condition which resulted in the litigated accident. (Cit.)’ [Cit.]” (Emphasis in original.) McCoy v. Gay, supra at 592.

Appellants cite a number of cases in support of their argument that the actions of Cooley were not foreseeable. However, we find that those cases are distinguishable from the case sub judice. In McCoy, the plaintiff/victim was attacked and robbed by an unknown assailant in the parking lot of a cocktail lounge. He alleged that poor lighting in the parking lot and the absence of a security guard subjected him to an unreasonable risk of harm from a criminal assault. This court held that the attack was not foreseeable since there was no evidence of prior substantially similar incidents occurring on defendant’s property. In Grandma’s Biscuits v. Baisden, 192 Ga. App. 816 (386 SE2d 415) (1989), the plaintiff was shot by an unknown assailant while he was a patron at defendant’s restaurant. We reversed the denial of summary judgment to the defendant, finding that no “substantially similar” incidents had occurred. In a recent case, Savannah College of Art &c. v. Roe, 261 Ga. 764 (409 SE2d 848) (1991), the plaintiffs were sexually assaulted by an unknown assailant while living in a college dormitory. The Supreme Court held that the college was entitled to summary judgment because of the lack of evidence that prior substantially similar criminal attacks had previously occurred at the college.

Appellee did not receive his injuries as the result of an isolated criminal attack by an unknown assailant. He suffered his injuries as the result of an argument which turned into a violent fight. We find this to be a material distinction between the case sub judice and the cases cited by appellants. To focus on the instrumentality which caused appellee’s injuries rather than the circumstances which set into motion the chain of events leading to the attack on appellee would require us to treat Cooley’s attack on appellee as an isolated criminal attack rather than the extension of an uncontained, uninterrupted fight. That Cooley chose to run over appellee with a truck rather than utilizing another means of inflicting injury does not alter the result. There was evidence that prior fights had occurred both inside and outside appellants’ club, and it is certainly foreseeable that any fight which continues unchecked and without interruption could escalate into a more violent encounter as the emotions of the participants intensify. Thus, we find that the proper inquiry to determine whether appellants exercised ordinary care for appellee’s safety is whether there was evidence from which a jury could conclude that appellants had reasonable grounds for believing that a fight could occur in the parking lot after the nightclub closed. “The issues of a directed verdict or judgment n.o.v. are reviewed on the same basis. [Cit.]” Stone v. Cook, 190 Ga. App. 11, 12 (1) (378 SE2d 142) (1989). “ ‘A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict. [Cits.]’ [Cit.] ‘The standard of appellate review of the trial court’s denial of a motion for a directed verdict is the “any evidence” standard. [Cits.]’ [Cit.]” State Farm Fire &c. Co. v. Morgan, 185 Ga. App. 377 (1) (364 SE2d 62) (1987). The transcript reflects that the nightclub’s security guard was hired to provide security inside and outside the nightclub; that the guard was stationed outside the front door while the club was open; that when the nightclub closed, the guard was responsible for making sure that all persons were out of the nightclub and that the doors were locked, which necessitated that he be inside the nightclub; and that fights had previously occurred both inside and outside of the nightclub. We find that there was some evidence from which a jury could have concluded that the fight which resulted in appellee’s injuries was foreseeable and that the fight could have been avoided if appellants’ security guard had been stationed on the outside of the nightclub until all of the patrons of the club had left the parking lot. Accordingly, we find that the trial court did not err in denying appellants’ motions for directed verdict and judgment n.o.v.

2. Appellants contend in their second enumeration of error that there was no evidence that they were negligent, once they undertook to provide security on their premises. In light of our holding in Division 1, we find it unnecessary to address appellants’ second enumeration of error.

3. In their third enumeration of error, appellants contend that the trial court erred in charging the jury on appellee’s theory of concurrent acts of negligence and the chain reaction theory. “Where there is evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue. [Cit.]” Foskey v. Williams Bros. Trucking Co., 197 Ga. App. 715, 717 (3) (399 SE2d 484) (1990). There was some evidence that Cooley’s actions may have been grossly negligent due to his intoxicated state and that his action, combined with the actions of appellants, caused appellee’s injuries. Therefore, appellants’ third enumeration of error is without merit.

4. Appellants contend in their fourth enumeration of error that the trial court erred in charging the jury that a landowner was required to keep its premises safe and that such was a nondelegable duty. The trial court’s charge was a correct statement of the law (see Parking Co. of America v. Sucan, 195 Ga. App. 616 (1) (394 SE2d 411) (1990)), and we find no error with the giving of that charge.

5. Appellants also contend that the trial court’s charge on sudden emergency was not authorized by the evidence. We agree but find no basis for reversal. “ ‘A “charge touching on a theory not in issue under the evidence, unless prejudicial and harmful as revealed by the entire record, does not require or demand a reversal. [Cit.]” [Cit.]’ [Cit.]” Mullinax v. Doughtie, 196 Ga. App. 747, 750 (6) (396 SE2d 919) (1990). Upon review of the entire record, we find that it is unlikely that the court’s charge on sudden emergency misled the jury or affected the verdict. Therefore, a reversal is not required.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.

Decided November 26, 1991

Reconsideration denied December 11, 1991

Gorby, Reeves, Moraitakis & Whiteman, Michael J. Gorby, Stephanie L. Scheier, for appellants.

Cashin, Morton & Mullins, Raymond C. Mayer, Noel B. McDevitt, Jr., for appellee.


author: Pope, Judge.

text:
    A91A1435.
    SHOWA DENKO K.K. v. PANGLE et al.
    (414 SE2d 658)
   Pope, Judge.

Plaintiff Juanita Louise Pangle is a Georgia resident whose health was severely impaired in late 1989 when she contracted eosinophilia myalgia syndrome as a result of ingesting L-tryptophan, an amino acid used as a non-prescription food supplement. She and her husband filed a product liability suit in Catoosa County against the pharmacy from which she purchased the L-tryptophan; Nature’s Bounty, Inc., and the Hudson Corporation, the manufacturers which produced and marketed the tablets of L-tryptophan which she consumed; Showa Denko K.K. (“Showa Denko”), the Japanese company which allegedly produced the raw material used by the manufacturers of the tablets; and Showa Denko America, Inc. (“S.D.A.”), the New York subsidiary of Showa Denko which marketed and distributed the raw material to American pharmaceutical manufacturers. Showa Denko appeals the denial of its motion to dismiss on the ground that personal jurisdiction is lacking both under the Georgia Long-Arm Statute and pursuant to constitutional requirements of due process.

1. The Georgia Long-Arm Statute requires “that an out-of-state defendant must do certain acts within the State of Georgia before he can be subjected to personal jurisdiction.” Gust v. Flint, 257 Ga. 129, 130 (356 SE2d 513) (1987). Moreover, the cause of action must “arise from” one of the acts set forth in the statute. OCGA § 9-10-91. Plaintiffs allege Showa Denko is subject to jurisdiction pursuant to either subsection (1) or (3) of the statute which provides: “A court of this state may exercise personal jurisdiction over any non-resident ... as to a cause of action arising from any of the acts [or] omissions . . . enumerated in this Code section, in the same manner as if he were a resident of the state, if in person or through an agent, he: (1) Transacts any business within this state; . . . [or] (3) Commits a tortious injury in this state caused by an act or omission outside this state if the tort-feasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state . . . .” The record reflects that S.D.A. acts as Showa Denko’s agent for distributing and marketing L-tryptophan and other products in the United States. Thus, pursuant to the Georgia Long-Arm Statute, if S.D.A. is subject to jurisdiction because of an act it performed on behalf of Showa Denko, then it follows that Showa Denko would also be subject to jurisdiction. (We note that S.D.A. has filed no motion to dismiss.)

The first question is whether Showa Denko is subject to jurisdiction because the cause of action arises out of business it transacts in this state, as set forth in subsection (1) of the Long-Arm Statute. The record shows numerous visits to Georgia by Showa Denko employees to attend trade shows or otherwise to conduct business negotiations during the year before plaintiffs’ injuries. It cannot be said, however, that plaintiffs’ cause of action arises from any of these contacts with Georgia. Showa Denko operates a highly diversified business and manufactures and sells many different products. Most of the contacts Showa Denko made with Georgia relate to the marketing of its other products. Thus, Showa Denko is not subject to jurisdiction pursuant to subsection (1) of the Long-Arm Statute because of the unrelated business it transacts in the state.

Showa Denko did, however, contract with the University of Georgia to test feed-grade L-tryptophan on laying hens. The record contains no evidence concerning how feed-grade L-tryptophan differs, if at all, from the product produced for human consumption because Showa Denko objected to such interrogatories on the ground they were not related to the issue of jurisdiction. Even if feed-grade Ltryptophan is substantially similar to L-tryptophan produced for human consumption, however, plaintiffs’ cause of action does not arise out of the marketing or testing of feed-grade L-tryptophan for animals. Thus, the act of entering into the contract for animal feed research would not confer jurisdiction in this case because plaintiffs’ injuries did not arise out of this act.

The second question is whether Showa Denko is subject to jurisdiction because the cause of action arises out of any act described in subsection (3) of the Long-Arm Statute. The record contains no evidence that Showa Denko directly committed any act in Georgia related to L-tryptophan for human consumption. Its agent, S.D.A., however, sold L-tryptophan in bulk form to twenty-three customers in nine states for use in the manufacture of dietary supplements. Although none of the manufacturers is located in Georgia, S.D.A. sold to manufacturer customers in the neighboring states of Florida and South Carolina. The customers included nationally marketed brands such as Nature’s Bounty as well as General Nutrition Products, Inc., and Walgreen Laboratories, Inc., which operate retail stores throughout the country. S.D.A. sold approximately $4,000,000 worth of Ltryptophan in the United States during 1989. As a result, L-tryptophan produced by Showa Denko was placed in the stream of commerce in virtually all 50 states. In our opinion, this systematic and purposeful activity establishes that Showa Denko, through its agent S.D.A., “engages in [a] persistent course of conduct, or derives substantial revenue from goods used or consumed ... in this state.” OCGA § 9-10-91 (3). The sale of goods in another state, knowing that they will be resold in Georgia, is a purposeful activity sufficient to establish a “contact” with Georgia. See Shellenberger v. Tanner, 138 Ga. App. 399, 412 (227 SE2d 266) (1976) (in which this court held a foreign corporation had “causal responsibility” for the presence of an allegedly defective aircraft in this state because it sold the aircraft in another state to a Georgia corporation knowing it would be resold to a Georgia resident). Thus, pursuant to OCGA § 9-10-91 (3) jurisdiction may be exercised as to plaintiffs’ cause of action alleging a tortious injury in this state caused by Showa Denko’s alleged negligence in manufacturing the L-tryptophan outside the state.

2. The remaining question is whether such an exercise of jurisdiction is consistent with the requirements of due process. Due process requires that the non-resident defendant “have certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ Milliken v. Meyer, 311 U. S. 457, 463 [(61 SC 339, 85 LE 278) (1940)].” International Shoe Co. v. State of Wash., 326 U. S. 310, 316 (66 SC 154, 90 LE 95) (1945). According to International Shoe, the critical test is not the mere volume of activity in the forum state but “the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure.” Id. at 319. Thus, it is not unfair to require a corporation to respond to a suit in a state from which it derives the benefits and privileges of conducting business. Can it be said that Showa Denko conducts business in this state by introducing into the stream of commerce, particularly in two neighboring states, a product which it knows will be sold in Georgia?

Whether the introduction of a product into the stream of commerce establishes minimum contacts with a state in which the product is ultimately sold depends on the foreseeability that the product would be sold there. “[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen v. Woodson, 444 U. S. 286, 297 (100 SC 559, 62 LE2d 490) (1980). In World-Wide Volkswagen, the United States Supreme Court held that Oklahoma did not have personal jurisdiction over an automobile dealership and a regional automobile distributor, both located in New York, simply because it was foreseeable that the automobile sold to plaintiffs in New York could be transported to Oklahoma and involved in an accident there. The Court went on to state, however: “The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” Id. at 297-298. Unlike the facts in World-Wide Volkswagen, in which the plaintiff unilaterally used defendant’s product in the forum State, in the case now before us it is not happenstance that the product was ultimately consumed in Georgia. Instead, plaintiff’s purchase and use of defendant’s product in Georgia was a result of defendant’s deliberate and purposeful nationwide distribution of its product. When, as here, a foreign manufacturer sells its product to a United States distributor knowing that its product will be sold in every state, it should reasonably expect to be haled into court in Georgia for an injury caused in this state by that product. See Burton v. Subaru of America, 646 FSupp. 78 (N.D. Ga. 1986). “Where the alleged liability arises, as in this case, from the manufacture of products presumably sold in contemplation of use here, it should not matter that the purchase was made from an independent middleman or that someone other than the defendant shipped the product into this state.” Jet America v. Gates Learjet Corp., 145 Ga. App. 258, 260 (243 SE2d 584) (1978). To permit a foreign manufacturer to insulate itself from foreseeable liability by setting up a separate but wholly-owned subsidiary for conducting its business in the United States would deny the notion of fair play to the consumers of this state.

Showa Denko urges that jurisdiction is precluded in this case by the more recent Supreme Court opinion of Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U. S. 102 (107 SC 1026, 94 LE2d 92) (1987). Asahi involved a product liability claim filed in California against a Japanese manufacturer of a component part of an allegedly defective motorcycle tire. The part was sold by the Japanese manufacturer to the Taiwanese manufacturer of the tire tube in Taiwan. The tire tube manufacturer used the component part in its product which was sold throughout the world, including California. The issue in Asahi was whether mere awareness by a foreign manufacturer that the component parts it sold and delivered outside the United States would reach the forum State in the stream of commerce provided the necessary minimum contacts between the defendant and the forum State.

In Part II-A of the opinion, in which only four of the nine justices concurred, the Court held: “The ‘substantial connection,’ [cit.], between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State. [Cits.] The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.” Id. at 112. The opinion listed the following as examples of additional conduct which may indicate an intent to serve the market in the forum State: “designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State.” Id. The record in this case shows S.D.A.’s contract with Nature’s Bounty required S.D.A. to warrant that the product was produced in compliance with the laws of all states and the United States. Thus, Showa Denko, through its agent, agreed to produce the product so that it would be marketable in all states, including Georgia. Even if this is not a sufficient additional act to establish the necessary minimum contacts with Georgia pursuant to rationale set forth in Asahi, we still believe due process is satisfied in this case.

The majority of justices did not join the conclusion in the Asahi opinion that jurisdiction may be exercised by a state only when some conduct, in addition to placing a product in the stream of commerce, is directed specifically toward the forum State. In Justice Brennan’s special concurrence he noted that this requirement is inconsistent with the analysis of the World-Wide Volkswagen case. In Justice Brennan’s opinion, additional conduct directed at the forum State is unnecessary because “[t]he stream of commerce refers not to unpredictable currents or eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale. As long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise. Nor will the litigation present a burden for which there is no corresponding benefit. A defendant who has placed goods in the stream of commerce benefits economically from the retail sale of the final product in the forum State, and indirectly benefits from the State’s laws that regulate and facilitate commercial activity. These benefits accrue regardless of whether that participant directly conducts business in the forum State, or engages in additional conduct directed toward that State. Accordingly, most courts and commentators have found that jurisdiction premised on the placement of a product into the stream of commerce is consistent with the Due Process Clause, and have not required a showing of additional conduct.” Id. at 117 (Brennan, J., concurring specially).

Just as other courts have done, we conclude the “splintered view of minimum contacts in Asahi provides no clear guidance on this issue,” (Irving v. Owens-Coming Fiberglas Corp., 864 F2d 383, 386 (5th Cir. 1989)) and we chose to apply the stream of commerce analysis set forth by the United States Supreme Court in World-Wide Volkswagen to the facts at hand and find jurisdiction is appropriate in this case because Showa Denko should have reasonably anticipated being haled into court in Georgia. But see Bond v. Octagon Process, Inc., 745 FSupp. 710 (M.D. Ga. 1990). Moreover, unlike Asahi, this is not a case in which the defendant’s product was sold by one foreign manufacturer to another outside the United States; Showa Denko shipped its product into the United States through its subsidiary S.D.A. which acted as its agent for selling the product to manufacturers throughout the nation. Unlike Asahi, this case does not involve a claim for indemnification on a contract made and performed outside the United States; it is a claim made by the injured party directly against the manufacturer of the allegedly defective product. Thus, no foreign forum has any greater interest in the controversy. “[T]he burden on the defendant, while always a primary concern, will in an appropriate case be considered in light of other relevant factors, including the forum State’s interest in adjudicating the dispute, [cit.]; the plaintiffs’ interest in obtaining convenient and effective relief, [cit.], at least when that interest is not adequately protected by the plaintiff’s power to choose the forum, [cit.]; the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies, [cit.].” World-Wide Volkswagen, 444 U. S. at 292. Certainly, Georgia has an interest in providing an effective means of redress for citizens whose health and welfare have been injured by defective products which our commercial laws permit to be imported into the state. The burden upon the plaintiff to bring a separate action in New York or Japan on her claim against one of the alleged joint tortfeasors in this action would be great. Neither would such an arrangement be the most efficient resolution of the controversy. Even if plaintiff could bring an action against Showa Denko in New York, where it conducts business by importing its product to or through its subsidiary, it would be no less burdensome for a Japanese company to defend a separate action in New York than to defend this action in Georgia where all other issues and the alleged joint tortfeasors may be joined. Consequently, we affirm the trial court’s denial of Showa Denko’s motion to dismiss.

Decided November 27, 1991

Reconsideration denied December 11, 1991

Troutman, Sanders, Lockerman & Ashmore, N. Karen Deming, Richard W. Morrell, for appellant.

Mitchell, Coppedge, Wester, Bisson & Miller, Warren N. Coppedge, Jr., Joseph T. Leman, for appellees.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

       Although Showa Denko presented evidence that S.D.A. placed orders with Showa Denko by telephone or facsimile communication to Japan and that the product was shipped to S.D.A. “C.I.F.” (that is, with title passing to the buyer when the goods are delivered to the carrier, see Uniform Commercial Code § 2-320), we reject the argument that S.D.A. was merely a customer of Showa Denko and that Showa Denko had no interest in the ultimate destination or use of the product it shipped to its customer. The evidence as a whole shows undisputably that S.D.A. was far more than merely a customer. It was Showa Denko’s wholly owned subsidiary and acted as Showa Denko’s sole agent for marketing and distributing the product throughout the United States.

       We note that defendant pharmacy has filed a cross-claim against both Showa Denko and S.D.A.

       Several other jurisdictions in which Showa Denko has been named as a defendant in a case alleging injury after ingesting L-tryptophan have found Showa Denko to be subject to personal jurisdiction. See, e.g., Chalkey v. Showa Denko K, No. 90-Z-825 (D. Colo. Nov. 14, 1990) (order denying motion to dismiss); Walker v. General Nutrition Center, Inc., No. 90-118-BLG-RWA (D. Mont. Feb. 15, 1991) (recommendation of magistrate to deny motion to dismiss); DeMoss v. City Market, Inc., No. 90-C-461W (D. Utah March 21, 1990) (order denying motion to dismiss); Simmons v. Puritan’s Pride, Inc., No. 90-C-255 (District Court, Sedgwick County, Kansas Nov. 13, 1990) (order denying motion to dismiss).


author: Carley, Presiding Judge.

text:
    A91A1122, A91A1123.
    OLUKOYA v. AMERICAN ASSOCIATION OF CAB COMPANIES, INC.
    (414 SE2d 275)
   Carley, Presiding Judge.

Appellant-plaintiff operates a taxicab. The cab is jointly owned by appellant and appellee-defendant. As to the jointly owned cab, only appellee had sought and received a certificate of self-insurance from the Commissioner of Insurance (Commissioner) pursuant to OCGA § 40-9-101 (a) (2). After appellant was injured when the cab was struck by another vehicle, he sought no-fault benefits from appellee. Appellee denied the claim and appellant brought suit, seeking to recover the no-fault benefits, penalties, punitive damages and attorney’s fees. Appellee answered, denying the material allegations of appellant’s complaint. During discovery, the trial court granted appellee’s motion for a protective order, but certified its order for immediate review. Appellant applied for an interlocutory appeal from that order and Case No. A91A1122 results from the grant of his application. Subsequently, appellee moved for summary judgment. The trial court granted summary judgment in favor of appellee and, in Case No. A91A1123, appellant appeals directly from that order. The two appeals are hereby consolidated for appellate disposition in this single opinion and we will initially address the merits of appellant’s direct appeal from the grant of summary judgment in favor of appellee.

Case No. A91A1123

1. Appellee had acknowledged in the application for self-insurance submitted for the Commissioner’s approval that, in its capacity as a self-insurer, “the no-fault benefits [that it] provided ... to drivers .. . are identical with the minimum requirements of the [former] Motor Vehicle Reparations Act of Georgia, . . . and nothing [in the plan of self-insurance] shall be construed otherwise.” (Emphasis supplied.) Appellant was clearly a “driver” of the cab. However, the trial court apparently concluded that, insofar as appellant was also the co-owner of the cab, he necessarily occupied the status of a co-self-insurer and, as a matter of law, he could not occupy the status of an insured under appellee’s plan of self-insurance.

Nothing in OCGA § 40-9-101 (a) (2) prohibits only one of the joint owners of a vehicle from seeking to secure a certificate of self-insurance solely in his name or compels all of the joint owners collectively to seek to secure a certificate of self-insurance in all of their names. OCGA § 40-9-101 (a) (2) provides, in relevant part, only that “[a]ny person who operates one or more vehicles for hire which transport passengers and in whose name a certificate of title has been issued ... on one or more [of] such vehicles may qualify as a self-insurer by obtaining a certificate of self-insurance from the Commissioner. . . .” Likewise, nothing in OCGA § 40-9-101 (a) (2) prohibits the Commissioner from issuing a certificate of self-insurance to only one of the joint owners of a vehicle or compels the Commissioner to issue a certificate of self-insurance to all of the joint owners collectively. OCGA § 40-9-101 (a) (2) provides, in relevant part, only that the Commissioner “may, in his discretion, upon the application of such person, issue such a certificate [of self-insurance] when he is satisfied that such person has and will continue to have the ability to provide coverages, benefits, and claims-handling procedures substantially equivalent to those afforded by a policy of vehicle insurance in compliance with [former] Chapter 34 of Title 33.”

The record clearly demonstrates that, as between appellee and appellant, it was agreed that it would be appellee, and appellee alone, who would seek, pursuant to OCGA § 40-9-101 (a) (2), the status of self-insurer of the jointly owned cab. The record likewise clearly demonstrates that the Commissioner, in the exercise of his discretion, was satisfied that appellee, and appellee alone, would be qualified to serve as the self-insurer of the jointly owned cab. If appellee occupied the status of the self-insurer of the cab, it must necessarily have provided no-fault coverage to the “driver” of the cab. See former OCGA § 33-34-7 (a) (2). The parties themselves had recognized this by specifically providing that appellee, in its capacity as the self-insurer, would provide no-fault benefits to the “driver” of the self-insured cab and that “nothing” was to be construed to the contrary. To hold, as did the trial court, that appellee, in its capacity as the self-insurer, had no obligation to provide no-fault coverage to appellant, in his capacity as a “driver” of the self-insured cab, would be contrary to the parties’ express agreement, the Commissioner’s exercise of his discretion in the approval of that agreement and the mandatory provisions of former OCGA § 33-34-7 (a) (2).

It follows that the trial court erred insofar as it concluded that appellant must, as a matter of law, occupy only the status of “co-self-insurer” and that he has no viable no-fault claim in his capacity as the “driver” of the cab that only appellee had undertaken to self-insure.

2. Relying upon the following provision of its plan of self-insurance, as approved by the Commissioner, appellee urges that the grant of its motion for summary judgment was nevertheless correct: “Except in emergency cases, whenever drivers claim injury, they will be required to see company approved physicians and chiropractors.” Appellee urges that, insofar as appellant seeks no-fault benefits for non-emergency medical services which were rendered to him by other than “company approved physicians and chiropractors,” he has no viable claim and its motion for summary judgment was correctly granted.

All policies of motor vehicle liability insurance and all plans of self-insurance “must [have been issued] in accordance with the requirements of [former OCGA § 33-34-1 et seq.].” Former OCGA § 33-34-3 (a) (1). See also former OCGA § 33-34-2 (12) (defining “self-insurer”). Accordingly, under appellee’s plan of self-insurance, appellee would be required to pay “basic no-fault benefits without regard to fault for economic loss resulting from . . . [accidental bodily injury sustained by any . . . person while occupying the [taxicab] if the accident occurs within the United States of America, its territories or possessions, or Canada. . . Former OCGA § 33-34-7 (a) (2). Nothing in former OCGA § 33-34-1 et seq. otherwise authorized appellee to condition its statutory obligation to pay no-fault benefits upon the insured’s submission of claims for services that had been rendered only by certain designated health-care providers or to exclude no-fault coverage for services that had been rendered by non-designated health-care providers. Since such a limitation and exclusion would not “be in accordance with the requirements of [former OCGA § 33-34-1 et seq.],” it would not be enforceable against appellant. The mandate of former OCGA § 33-34-7 (a) (1) that appellee “shall pay . . . no-fault benefits” under certain specified conditions and limitations “ ‘is plain language. It means that every policy shall so undertake. There is no [other] limitation or qualification of this language anywhere in the statute, nothing at all to indicate that it does not mean what it says. . . . Clearly [the] provision [in appellee’s plan of self-insurance] places a limitation upon the requirement of the statute and conflicts with the plain terms of the statute. It is therefore illegal and of no effect.’ [Cit.]” Travelers Indem. Co. v. Williams, 119 Ga. App. 414, 417 (167 SE2d 174) (1969). An “exclusion cannot circumvent the clear mandate of the Act by withholding the protection required. . . . [Appellee] points out that the Georgia Insurance Commissioner has approved the [plan] of [self-]insurance containing the above exclusion. While this is entitled to consideration where the meaning of the statute is doubtful, there is no occasion to do so where the language of the statute is plain and unambiguous. [Cits.] The [mandate of the former Georgia Motor Vehicle Accident Reparations Act] ([former OCGA § 33-34-7 (a) (2)]) is plain and unambiguous in requiring all liability policies [and self-insurance plans] to undertake to pay the insured [‘no-fault benefits without regard to fault for economic loss resulting from [an] . . . [accidental bodily injury’ such as that which was sustained by appellant].” State Farm Mut. Auto. Ins. Co. v. Barnard, 115 Ga. App. 857, 858 (156 SE2d 148) (1967).

It follows that the trial court’s order cannot be affirmed based upon the unauthorized limitation and exclusion contained in appellee’s plan of self-insurance. Appellee’s plan of self-insurance itself specified that “the no-fault benefits provided ... to drivers . . . are identical with the minimum requirements of the [former] Motor Vehicle Reparations Act of Georgia . . . and nothing herein shall be construed otherwise.” To construe the exclusion of no-fault benefits for services provided to drivers by non-designated health care providers as a viable limitation would be to construe appellee’s plan of self-insurance as providing to drivers no-fault benefits which were not identical with the minimum requirements of former OCGA § 33-34-1 et seq.

Case No. A91A1122

3. Appellee’s motion for a protective order was directed at appellant’s attempt to discover evidence which would apparently be relevant only to the issue of possible certification of the instant suit as a class action. We find no error in the trial court’s grant of appellee’s motion for a protective order. Aetna Cas. &c. Co. v. Cantrell, 197 Ga. App. 672, 673 (2) (399 SE2d 237) (1990).

Judgment affirmed in Case No. A91A1122. Judgment reversed in Case No. A91A1123.

Beasley, J., and Judge Arnold Shulman concur.

Decided November 27, 1991

Reconsideration denied December 12, 1991

Darroch & Obenshain, Mark A. Barber, Daniel N. Meyer, for appellant.

Michael W. Broadbear, for appellee.


text:
    A91A1240.
    A91A1241.
    A91A1242.
    A91A1243.
    CECHMAN et al. v. TRAVIS et al. TRAVIS v. CECHMAN et al. HOSPITAL AUTHORITY OF GWINNETT COUNTY et al. v. CECHMAN et al. GWINNETT EMERGENCY CONSULTANTS, INC. v. CECHMAN et al.
    (414 SE2d 282)
   Carley, Presiding Judge.

The relevant facts in the instant appeals are as follows: After Ms. Mary Cechman discovered three red marks on the chest of her month-old daughter, she sought medical treatment for the child at the emergency room of Gwinnett Medical Center. There, the child was examined by Dr. Tracy Travis. Ms. Cechman feared that the child’s father had struck the child. When she was questioned by Dr. Travis, however, Ms. Cechman stated that the child had not been subjected to any trauma and she asked Dr. Travis whether the red marks might not possibly be bite marks that had been made by another of her young children. Dr. Travis ordered no X-rays, but merely prescribed a pain reliever for bruises. One month later, the child was killed by her abusive father.

After the child’s death, Ms. Cechman and the administratrix of the child’s estate brought the instant action, wherein they alleged various tort claims against Dr. Travis, Gwinnett Emergency Consultants, Inc. (GECI) and the Hospital Authority of Gwinnett County (Hospital). After discovery, Dr. Travis, GECI and the Hospital moved for summary judgment and the trial court granted the motions as to some, but not as to all, of the claims. The instant appeal and cross-appeals are taken from the trial court’s order on the motions for summary judgment.

Case No. A91A1240

1. One of the claims was premised upon OCGA § 19-7-5, which provides, in relevant part, that a licensed physician “having reasonable cause to believe that a child has been abused shall report or cause reports of that abuse to be made” and that such a physician “who knowingly and willfully fails to do so shall be guilty of a misdemeanor.” It was alleged that Dr. Travis had violated this criminal statute and that this violation had ultimately resulted in the death of the child. As to this claim premised upon an alleged violation of OCGA § 19-7-5, the trial court granted summary judgment and that ruling is enumerated as error.

“ ‘(T)he violation of a penal statute does not automatically give rise to a civil cause of action on the part of one who is injured thereby.’ [Cit.]” Oswald v. American Nat. Can Co., 194 Ga. App. 882, 883 (392 SE2d 26) (1990). “[Wjhile [OCGA § 19-7-5] establishes] the public policy of this state on [the] subject [of reporting suspected child abuse, it does not expressly create] a civil cause of action for damages in favor of the victim or anyone else.” Cox Broadcasting Corp. v. Cohn, 231 Ga. 60, 61-62 (I) (200 SE2d 127) (1973), rev’d on other grounds, 420 U. S. 469 (95 SC 1029, 43 LE2d 328) (1975). Other jurisdictions with statutory provisions that are comparable to OCGA § 19-7-5 have held that no private cause of action is impliedly created thereby. See Fischer v. Metcalf, 543 S2d 785, 790 (4) (Fla. App. 1989) (holding that, “[w]ithout question, the legislature intends that . . . protection be provided through increased supervision and regulation by [other agencies], rather than through implication of a private remedy”). Likewise, there would appear to be “nothing within [the] provisions of [OCGA § 19-7-5 which] purports to create a private cause of action in tort in favor of an alleged victim [of child abuse].” Rolleston v. Huie, 198 Ga. App. 49, 50 (2) (400 SE2d 349) (1990) (construing OCGA § 16-8-16). See also Sparks v. Thurmond, 171 Ga. App. 138, 142 (5) (319 SE2d 46) (1984) (construing OCGA § 35-3-38).

Moreover, even assuming that OCGA § 19-7-5 did create a private cause of action in tort, no viable claim would exist in the instant case. The statute requires that notice be given only by those physicians “having reasonable cause to believe that a child has been abused” and it penalizes only those physicians “who knowingly and willfully” fail to do so. (Emphasis supplied.) It does not require that notice be given by those physicians “who should have had reasonable cause” to suspect child abuse and it does not penalize those physicians “who fail to discover and report” suspected instances of child abuse. There is no allegation or evidence that Dr. Travis had reasonable cause to believe that the child was a victim of child abuse and that she knowingly and willfully failed to report that suspicion. The only contention is that if Dr. Travis had conducted the examination of the child differently, she would then have had the requisite reasonable cause to suspect child abuse and would then have been required to report her suspicion in that regard. OCGA § 19-7-5 clearly does not purport to establish the actual discovery of reportable suspected child abuse as a standard of medical conduct. Compare Central Anesthesia Assoc., P. C. v. Worthy, 173 Ga. App. 150 (325 SE2d 819) (1984) (holding that the provisions of OCGA § 43-26-9 regarding the administering of anesthesia are intended to establish the standard of medical conduct, a deviation from which constitutes negligence per se). OCGA § 19-7-5 merely mandates the reporting of suspected child abuse by a physician “having reasonable cause to believe that [the] child has been abused. . . .”

Under the undisputed evidence of record, no genuine issue of material fact remains as to the claim premised upon OCGA § 19-7-5 and the trial court correctly granted summary judgment as to that claim.

2. The trial court also granted summary judgment as to the claim for the death of the child which was predicated upon common law medical malpractice. This ruling is enumerated as error.

“ ‘Before negligence can be predicated upon a given act, some duty to the individual complaining must be sought and found, the observance of which duty would have averted or avoided the injury or damage. . . .’ [Cit.]” Porch v. Wright, 116 Ga. App. 138 (1) (156 SE2d 532) (1967). “ ‘No matter how innocent the plaintiff may be, he is not entitled to recover unless the defendant did something that [he] should not have done, or failed to do something that [he] should have done pursuant to the duty owed the plaintiff.’ [Cit.]” Veterans Organization of Fort Oglethorpe v. Potter, 111 Ga. App. 201, 205 (2) (141 SE2d 230) (1965). As a physician, Dr. Travis had a legal duty to “bring to the exercise of [her] profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill, [would] be a tort for which a recovery may be had.” OCGA § 51-1-27. Accordingly, Dr. Travis had a legal duty to afford the child non-negligent medical treatment and an injury to the child proximately resulting from a breach of that legal duty would be actionable.

Dr. Travis was called upon to exercise her professional skills because of the discovery of three red marks on the child’s chest. However, there is no contention that the child died as the result of any treatment that was afforded by Dr. Travis for that particular medical condition. The only contention is that Dr. Travis failed to discover and report that the ultimate non-medical source of the child’s medical condition was suspected child abuse, with the result that the child was not removed from her home and was subsequently killed by her abusive father. Thus, the immediate instrumentality of the child’s death was her own abusive father, not the particular medical condition which Dr. Travis had been called upon to treat. The contention is, therefore, that Dr. Travis owed not only a common law legal duty to afford non-negligent treatment of the child’s immediate medical condition, but also owed a common law legal duty to discover and report the non-medical source of the child’s medical condition so as to prevent her subsequent reinjury by her abusive father.

“Generally, a person does not have a duty to control the conduct of another person, who is a potential tortfeasor, so as to prevent that person from harming a third person ([cit.]), unless ‘(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.’ [Cit.]” Associated Health Systems v. Jones, 185 Ga. App. 798, 801 (1) (366 SE2d 147) (1988). There was obviously no “special relationship” between Dr. Travis and the child’s abusive father which imposed a duty upon the former to control the latter’s conduct. Compare Bradley Center v. Wessner, 161 Ga. App. 576 (287 SE2d 716) (1982), aff’d 250 Ga. 199 (296 SE2d 693) (1982). Accordingly, unless there was a “special relationship” between Dr. Travis and the child by which the latter acquired a right to be protected by the former from future harm at the hands of her abusive father, there would be no viable claim in the instant case.

The only relationship between Dr. Travis and the child was that of physician-patient. As a consequence of that relationship, the child had the right to non-negligent treatment of her medical condition and the state had the right to be notified if Dr. Travis had reasonable cause to believe that the underlying non-medical source of the child’s medical condition was child abuse. As noted, however, Dr. Travis, in her capacity as a physician, breached no legal duty, even to the state, by failing to discover and report a case of possible child abuse. Compare Central Anesthesia Assoc., P.C. v. Worthy, supra (holding that physicians have a legal duty to comply with the provisions of OCGA § 43-26-9 when administering anesthesia to their patients). “ ‘As a general rule, where the injury is not due to the fault of the person to be charged, the fact that a person sees another who is injured does not, of itself, impose on him any legal obligation to afford relief or assistance, but he may have a strong moral and humanitarian obligation to do so.’ [Cit.]” Handiboe v. McCarthy, 114 Ga. App. 541, 543 (4) (151 SE2d 905) (1966). OCGA § 19-7-5 may change this.common law rule to the extent of imposing upon the physician, who has reasonable cause to believe that a child has been abused, a legal duty to the state to report that suspicion. OCGA § 19-7-5 does not, however, change that common law rule by imposing upon the physician, who merely failed to discover and report suspected child abuse, a legal liability to the child for future acts of child abuse.

If anyone had a duty to protect the child from her abusive father, it was Ms. Cechman, who had at least the moral duty, as a parent, to do so. If she suspected that the child’s father was abusive, she could have reported it to the proper authorities or she could have voiced her suspicions to Dr. Travis. That there may have been a default in Ms. Cechman’s performance of her moral duty as a parent is not a basis for imposing a legal duty upon Dr. Travis to protect the child from her abusive father. The undisputed evidence of record shows that the death of the child was not the proximate result of the breach of any legal duty owed by Dr. Travis as the child’s physician. Accordingly, no genuine issue of material fact remains as to the claim for common law malpractice and the trial court correctly granted summary judgment as to that claim.

Case No. A91A1241

3. Although the trial court granted summary judgment as to the claims for the death of the child, it denied summary judgment as to claims for any other instances of child abuse which may have occurred after Dr. Travis’ examination of the child and before the child was killed. Dr. Travis cross-appeals from the denial of her motion for summary judgment as to these claims.

As previously held, Dr. Travis’ alleged failure to discover and report that the child was a suspected victim of child abuse affords no legal basis for the recovery of damages for future injuries that the child may have suffered at the hands of her abusive father. Insofar as Dr. Travis’ liability is concerned, there is no legal rationale for distinguishing between that particular subsequent act of child abuse which resulted in the death of the child and any other non-fatal act of subsequent child abuse. Dr. Travis owed the child no greater legal duty to protect her from future non-fatal acts of child abuse than she did to protect the child from that future act of child abuse which resulted in her death. Accordingly, the trial court erred in failing to grant summary judgment in favor of Dr. Travis as to any and all claims predicated upon the allegations of the complaint that the child had suffered “excruciating pain and suffering during [the] periods of child abuse . . . occurring subsequent to [the examination by Dr. Travis, including], but . . . not limited to, the final episode of child abuse. ...”

Case Nos. A91A1242 and A91A1243

4. GECI and the Hospital also cross-appeal from the denials of their motions for summary judgment as to claims premised upon nonfatal instances of child abuse occurring subsequent to Dr. Travis’ examination.

A recovery as against GECI and the Hospital on these claims would be based solely on the theory that they are vicariously liable for the alleged negligence of Dr. Travis in failing to discover and report that the child was a suspected victim of child abuse. As previously held, Dr. Travis was herself entitled to summary judgment as to these claims. Accordingly, the trial court erred in failing to grant summary judgment in favor of GECI and the Hospital. “Where the liability of a party is premised solely upon his vicarious liability for the tortious actions of an agent and judgment is entered for the agent, the party alleged to be vicariously liable is also entitled to judgment. (Cits.]” Kornegay v. Mundy, 190 Ga. App. 433, 435 (2) (379 SE2d 14) (1989).

Decided December 2, 1991

Reconsideration denied December 12, 1991

Chambers, Mabry, McClelland & Brooks, Walter B. McClelland, Eugene C. Bessent, Fletcher W. Griffin III, for Cechman.

Lokey & Bowden, Malcolm Smith, for Travis.

Long, Weinberg, Ansley & Wheeler, Glenn E. Kushel, Roger Mills, for Hospital Authority of Gwinnett County.

Sullivan, Hall, Booth & Smith, Alexander H. Booth, David V. Johnson, for Gwinnett Emergency Consultants.

Judgment affirmed in Case No. A91A1240. Judgments reversed in Case Nos. A91A1241, A91A1242, and A91A1243.

Beasley, J., and Judge Arnold Shulman concur.