text:
    A98A0081.
    JONES v. THE STATE.
    (502 SE2d 345)
   Smith, Judge.

Sherri K. Jones was indicted by a Baldwin County grand jury for the offense of cruelty to children, OCGA § 16-5-70 (b). She was convicted by a jury of the lesser included offense of simple battery. Jones filed multiple motions for new trial and for modification or reduction of her sentence. The trial court granted Jones’s motion to modify her sentence but denied her motion for new trial in a lengthy, thorough, and complete order addressing the issues raised by Jones below and reiterated on appeal. We agree with the trial court’s reasoning and affirm.

1. Jones’s contention that the evidence is insufficient to sustain her conviction is without merit. The victims’ videotaped statements and statements to other witnesses, admitted pursuant to OCGA § 24-3-16, were sufficient to support her conviction for simple battery under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Kapua v. State, 228 Ga. App. 193, 194-195 (491 SE2d 387) (1997) (child’s videotaped statements and statements to others sufficient to support conviction for child molestation and cruelty to children). See also Bryant v. State, 226 Ga. App. 135, 136 (1) (486 SE2d 374) (1997) (testimony of victim sufficient to sustain conviction for simple battery). In addition, the children’s grandmother videotaped their injuries, and this tape was shown to the jury.

2. Jones also enumerates as error the trial court’s refusal to allow her to testify that “one of the kids made a complaint about Brandon,” a neighbor’s child. Jones now contends that this testimony should have been admitted under the Child Hearsay Rule, OCGA § 24-3-16. But this statute is applicable only to “any act of sexual contact or physical abuse” witnessed by or directed to the child, and Jones never made a proffer to the trial court to show that the excluded testimony concerned such conduct. We therefore do not reach this issue. To challenge the exclusion of evidence on appeal, the appellant must make a proffer of that evidence and demonstrate its materiality to the trial court. “It is not sufficient in an appellate brief to call attention to error. The error, if any, must have been committed at trial and the ruling must have been made, not on a question only, but in light of the facts about which the witness would have testified.” (Citations and punctuation omitted.) Hurston v. State, 194 Ga. App. 226, 227 (390 SE2d 119) (1990). We also note that Jones successfully moved to exclude other statements from one of the children that Brandon may have injured him.

3. In Jones’s final enumeration of error, she contends the trial court erred in allowing an expert witness to testify to the ultimate issue in this case. The witness, however, did not testify that in her opinion the children had been abused or that they had been abused by Jones. Rather, the questions and answers were phrased in terms of whether the results of the witness’s professional observations and testing of the children were “consistent with a child who has been . . . abused.” This conclusion is within the bounds of permissible expert testimony. See generally Allison v. State, 256 Ga. 851, 853 (5), (6) (353 SE2d 805) (1987); Hilliard v. State, 226 Ga. App. 478-481 (1) (487 SE2d 81) (1997); Remine v. State, 203 Ga. App. 30, 31 (2) (416 SE2d 326) (1992).

Moreover, Jones failed to object to this testimony at trial. “In this state it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which the appealing party might have. The reason for this rule is clear. If the appellant has an objection, there is an obligation to call the matter to the court’s attention so the trial judge will have an opportunity to remedy the situation.” (Citations and punctuation omitted.) Banks v. State, 201 Ga. App. 266, 269 (2) (410 SE2d 818) (1991). See also Kapua v. State, supra at 196 (2). While Jones also complains that the prosecutor improperly argued to the jury the ultimate conclusion in the case, “the contemporaneous objection rule cannot be avoided by characterizing trial occurrences as examples of prosecutorial misconduct. Prosecutorial conduct not objected to at trial will not warrant reversal on appeal.” (Citations and punctuation omitted.) Id.

Decided May 8, 1998.

Lettie E. Lane, for appellant.

Fredric D. Bright, District Attorney, Wilson B. Mitcham, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A98A0640.
    INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS LOCAL #471 et al. v. CHATHAM COUNTY.
    (502 SE2d 341)
   Beasley, Judge.

The 1990 Chatham County personnel handbook provides that county employees who perform* to certain standards will receive specified salary increases. The board of commissioners did not approve funding for increases in 1993, 1995, and 1996, although it did so in other years. Employees sought, by suit, increases which would have been paid in those years and a writ requiring the county to pay future increases.

Both the county and the employees moved for summary judgment. The court, citing Buskirk v. State of Ga., held that the county commissioners had the discretion each year whether to fund the increases. It awarded summary judgment to the county and denied the same to the challengers.

The employees argue the handbook constitutes a contract; the county contends it is a civil service system. We will assume without deciding that the county, which by resolution adopted the handbook as an ordinance, was bound to follow its provisions relative to merit increases.

The parties also dispute whether the handbook conditions merit increases on the approval of funding by county commissioners each year. We will similarly assume the handbook does not condition increases on funding approval.

With these assumptions in favor of the employees, the factual posture of the case is analogous to that in Buskirk, in which state employees sought damages for the General Assembly’s refusal to fund salary increases referenced in a rule of the State Personnel Board. Like the county employees here, plaintiffs in Buskirk argued that the rule, “coupled with the state’s longstanding practice of paying annual . . . wage increases, gave them a contractual right to be paid such increases. [Cit.]”

Buskirk assumed arguendo that the rule required the state to give the salary increases but still affirmed summary judgment against the employees. The court explained that “unless the General Assembly authorized the expenditure of salary increases for a given fiscal year, the state was not required to give them. Why? Because the General Assembly cannot pledge the good faith and credit of the state into the future. As this Court has said: ‘No one legislature can tie the hands of its successors with reference to a subject upon which they have an equal power to legislate.’ The mere fact that the state gave salary increases to its . . . employees for 25 consecutive years does not mean it was bound to do so in the future.”

The issue is whether this principle applies to the salary funding decisions of Chatham County commissioners. The Georgia Constitution establishes: “The governing authority of each county is authorized to fix the salary, compensation, and expenses of those employed by such governing authority. . . .” The General Assembly has authorized a board of county commissioners to serve as the governing authority for Chatham County.

OCGA § 36-30-3 (a) provides that “[o]ne council may not, by an ordinance, bind itself or its successors so as to prevent free legislation in matters of municipal government.” Applying this statute to county commissioners, Wilson v. Southerland upheld the decision of the Gordon County Commission to slash the district attorney’s budget so as to preclude his employing an assistant district attorney. The district attorney argued that because the county had agreed in previous years to fund the position, the obligation to compensate the assistant continued. The Supreme Court of Georgia disagreed, giving as reason: “The appropriating process is a legislative function and the law prohibits a local governing authority from binding itself or its successors so as to prevent free legislation.”

Decided May 8, 1998.

Lee, Black, Scheer & Hart, Steven E. Scheer, Christopher L. Rouse, Edenfield & Cox, Gerald M. Edenfield, for appellants.

Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., Emily E. Garrard, for appellee.

Even though contrary to historical arrangements, the Supreme Court has upheld county commission decisions to cut a sheriff’s budget so he would have to lay off one of his five deputies, to slash a sheriff’s budget by 47 percent, and to terminate county employees based on budgetary concerns.

The Chatham County board of commissioners was free each year to fund or not to fund salary increases for the employees. Any contrary language in the handbook could not legally bind the board to approve or fund increases in the future.

Judgments affirmed.

Pope, P. J., and Ruffin, J., concur.

       267 Ga. 769 (482 SE2d 286), cert. denied, _ U. S. _ (118 SC 160, 139 LE2d 105) (1997).

       Compare Fulton-DeKalb Hosp. Auth. v. Metzger, 203 Ga. App. 595, 596 (2) (417 SE2d 163) (1992) (handbook “can be considered a contract with respect to the employment benefits provided therein”) with Jones v. Chatham County, 223 Ga. App. 455, 459 (5) (477 SE2d 889) (1996) (handbook is not considered a contract with respect to termination procedures).

       See Wayne County v. Herrin, 210 Ga. App. 747, 751 (1), 755 (7) (437 SE2d 793) (1993) (adoption of civil service system and accompanying manual does not create an oral contract; nevertheless, county is bound to follow manual).

       Supra.

       267 Ga. at 770.

       (Citations and punctuation omitted.) Id. at 770-771 (1).

       Ga. Const, of 1983, Art. IX, Sec. II, Par. I (f).

       Ga. L. 1984, p. 5050, § 1; see Ga. L. 1987, p. 5523, § 25.

       See Smith v. Ouzts, 214 Ga. 144, 146 (1) (103 SE2d 567) (1958) (“any contract which controls or restricts the discretion vested in a public officer or public body is contrary to public policy and void”).

       258 Ga. 479 (371 SE2d 382) (1988).

       Id. at 480 (1); see Madden v. Bellew, 260 Ga. 530, 531 (1) (397 SE2d 687) (1990) (OCGA § 36-30-3 (a) applies to legislative decisions of county commission boards).

        Bd. of Commrs. of Randolph County v. Wilson, 260 Ga. 482 (396 SE2d 903) (1990).

        Chaffin v. Calhoun, 262 Ga. 202 (415 SE2d 906) (1992).

        Smith v. Bd. of Commrs. &c. of Hall County, 244 Ga. 133, 142 (4) (259 SE2d 74) (1979).

       See generally OCGA § 36-81-3.


text:
    A98A0711.
    SANIFILL OF GEORGIA, INC. et al. v. ROBERTS.
    (502 SE2d 343)
   Beasley, Judge.

Roberts sued Sanifill, Inc., and its subsidiary, Sanifill of Georgia, Inc. (Sanifill) for the alleged negligence of Sanifill’s employee Parks in operating a sanitation truck so that Roberts’ car collided with it and inflicted serious injuries.

As soon as defendants’ attorneys made an appearance, plaintiff’s counsel notified them he wanted to take Parks’ deposition. The defense lawyers informed plaintiff’s attorney that Parks no longer worked for Sanifill and that two. separate investigators hired by defendants had been unable to locate him. Plaintiff retained a private investigator. Within 24 hours, the investigator learned, by contacting defendants’ corporate office, that Parks was in Dallas, Texas, working for another sanitation company. Without notifying defendants, plaintiff paid to have Parks flown to Atlanta, where various members of his family reside. Counsel took him to the accident site, interviewed him, and obtained his recorded statement. Later, plaintiff informed defendants that Parks had been located and requested his deposition.

The day before Parks’ deposition was taken, defendants moved for a protective order prohibiting the use of any prior statements of Parks and testimony obtained by use of such statements, as a result of plaintiff’s attorney’s ex parte contact with him. The trial court denied the motion after the deposition. We granted defendants’ application for interlocutory appeal.

The question presented is whether a plaintiff who has filed suit against a corporate defendant may conduct ex parte communications with a former employee of the defendant where the plaintiff is seeking to establish liability by imputing to the defendant the acts or omissions of the former employee. Resolution of this question depends on an interpretation of Standard 47 of Rule 4-102 of the Rules and Regulations of the State Bar of Georgia.

Standard 47 provides: “During the course of his representation of a client, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior written consent of the lawyer representing such other party or is authorized by law to do so.” Directory Rule (DR) 7-104 (A).(l) of the Georgia Code of Professional Responsibility is analogous, as is Rule 4.2 of the American Bar Association Model Rules of Professional Conduct (RPC 4.2).

This rule is designed to protect a represented party’s right to effective representation of counsel by preventing adverse counsel from taking advantage of such party through undisclosed contact. The rule also promotes ethical behavior on the part of attorneys. In those cases where the parties are individuals, the rule has been easily enforced. When the named party is a corporation, the courts have struggled with the question of whether a corporate officer or employee, though not named as a defendant, should be considered a party.

In State Bar of Georgia Formal Advisory Opinion 87-6 (1989), the Supreme Court of Georgia, adopting the consensus view of other jurisdictions, concluded that when a corporation is an opposing party in pending litigation, Standard 47 applies to an employee whose acts or omissions may be imputed to the corporation in relation to the subject matter of the case, as well as to an officer or director or other employee with authority to bind the corporation. The opinion does not address whether a former corporate employee may be considered a party.

Some courts have answered that question affirmatively in reliance on the official ABA Comment to RPC 4.2 issued in 1983. The official Comment states in pertinent part: “In the case of an organization, this rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a (1) managerial responsibility on behalf of the organization and (2) with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability (3) or whose statement may constitute an admission on the part of the organization. . . .” Courts adopting the view that former employees may be “parties” have logically concluded that the term “any other person” is broad enough to include former corporate employees. Policy considerations also support inclusion of former employees whose acts or omissions may result in vicarious liability, because their conduct remains imputable even though their employment may have terminated.

Decided May 8, 1998

Moore, Ingram, Johnson & Steele, William R. Johnson, Michael W. Kitchens, for appellants.

Peterson & Harris, Jim N. Peterson, Jr., for appellee.

Nonetheless, by its plain language, the rule only applies to a party “represented by a lawyer.” Regardless of policy considerations, a former employee who is not represented by a lawyer simply does not fall within the wording of the rule. In March 1991, the American Bar Association Committee on Ethics and Professional Responsibility issued Formal Opinion 91-359 recognizing this. The Committee concluded that while “persuasive policy arguments can be and have been made for extending the ambit of [RPC] 4.2 to cover some former corporate employees, the fact remains that the text of the Rule does not do so and the comment gives no basis for concluding such coverage was intended.” Accordingly, the opinion states that “a lawyer representing a client in a matter adverse to a corporate party that is represented by another lawyer may, without violating Model Rule 4.2, communicate about the subject of the representation with an unrepresented former employee of the corporate party without the consent of the corporation’s lawyer.” This interpretation has been adopted by a majority of the courts which have considered the issue.

Consistent with the ABA’s 1991 opinion, Supreme Court of Georgia Formal Advisory Opinion 94-3, interpreting Standard 47, concluded: “A lawyer may properly contact and interview former employees of an organization that is represented by counsel to obtain non-privileged information relevant to litigation against the organization provided that: (1) the lawyer makes full disclosure as to the identity of his/her client; and (2) the former employee consents.” The record shows that these conditions were satisfied. No violation of Standard 47 appears.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       DR 7-104 (A) (1) provides: “During the course of his representation of a client a lawyer shall not: Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter -unless he has prior consent of the lawyer representing such other party or is authorized by law to do so.”

       Rule 4.2 provides: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”

        Amarin Plastics v. Maryland Cup Corp., 116 FRD 36, 39 (2) (D. Mass. 1987).

        Curley v. Cumberland Farms, 134 FRD 77, 87 (3) (D. N. J. 1991).

        Chancellor v. Boeing Co., 678 FSupp. 250, 251 (D. Kan. 1988).

       Id.

        Rentclub v. TransAmerica Rental Fin. Corp., 811 FSupp. 651, 657 (6) (M. D. Fla. 1992), and cases cited therein.

        Erickson v. Winthrop Laboratories, 592 A2d 33, 34 (N. J. Sup. Ct. 1991).

        Rentclub, supra, and cases cited therein.

       See Pub. Svc. &c. Co. v. AEGIS, 745 FSupp. 1037, 1042 (3) (D. N. J. 1990).

       E.g., Brown v. St. Joseph County, 148 FRD 246, 253 (5) (N. D. Ind. 1993), citing In re Domestic Air Transport Antitrust Litigation, 141 FRD 556, 561 (2) (N. D. Ga. 1992).


author: McMurray, Presiding Judge.

text:
    A96A2440.
    JEFFERSON INSURANCE COMPANY OF NEW YORK v. DUNN.
    (498 SE2d 373)
    Decided April 24, 1998
    Reconsideration denied May 11, 1998.

      Hawkins & Parnell, H. Lane Young II, Kimberly H. Ridley, Thomas G. Tidwell, Williams & Henry, Edward C. Henderson, Jr., for appellant.

      Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, David D. Cookson, Nickerson & Tuszynski, Thomas H. Nickerson, David E. Tuszynski, for appellee.
   McMurray, Presiding Judge.

In Jefferson Ins. Co. of New York v. Dunn, 224 Ga. App. 732 (482 SE2d 383), we affirmed the trial court’s judgment entered on a jury verdict. However, the Supreme Court of Georgia granted certiorari and, in Jefferson Ins. Co. of New York v. Dunn, 269 Ga. 213 (496 SE2d 696), reversed this Court’s affirmance. Accordingly, our prior judgment is vacated and the judgment of the Supreme Court of Georgia is made the judgment of this Court and the judgment of the trial court is reversed.

Judgment reversed.

Johnson and Ruffin, JJ., concur.


author: Judge Harold R. Banke.

text:
    A98A0627.
    McGRAW et al. v. SMITH.
    (502 SE2d 347)
   Judge Harold R. Banke.

The underlying case centers on the terms of the will of Jeff Smith which left the bulk of his estate of about 137 acres, including timber, to one child, Clarence Smith, and also named him executor. To his many other children, the will left primarily only $4,000 each. Clarence Smith’s sister, Margaret Rankowitz, and other siblings, filed a caveat to the will. The caveators contended that Jeff Smith intended for his property to be equally divided among his children, that the signature on the will had been obtained by fraud or was not authentic, and that the purported will was the result of incompetence, fraud, mistake of fact, or undue influence. After the probate court admitted the will as proven in solemn form, the caveators appealed to the superior court. A jury determined that the document at issue was the last will and testament of Jeff Smith. The dismissal of the caveators’ motion for new trial was affirmed in Rankowitz v. Smith, 266 Ga. 805 (471 SE2d 853) (1996).

Sylvater Smith McGraw, Jimmy Smith, and Margaret Rankowitz, three of the original caveators, then filed the underlying action seeking the imposition of a constructive trust, an accounting, and injunctive relief. In an isolated count, Jimmy Smith separately alleged that Clarence Smith assaulted him with a shotgun. Their complaint was premised on a claim that Jeff Smith had always expressed an intention to leave his children equal shares of his estate. After determining that the lawsuit was essentially contesting the distribution of the land that Jeff Smith made by his will, the trial court found that the action was barred by res judicata. They contest the judgment summarily awarded to Smith. Held:

1. The appellants contend that the trial court erred in holding that res judicata and/or estoppel by judgment barred the claims seeking a constructive trust and other equitable relief. We disagree. The doctrine of collateral estoppel precludes readjudication of issues that were previously decided or which had to be decided in order for the previous judgment to have been rendered. Bradley v. Ga. Institute of Technology, 228 Ga. App. 216, 218 (1) (a) (491 SE2d 453) (1997).

Here, we find the principle of collateral estoppel is applicable to these facts. See id. The caveat contended that Jeff Smith’s will did not effectuate his oft-stated intent to his children that his estate be divided into equal shares. Similarly, in the underlying case, the appellants relied upon Jeff Smith’s purported statements that he planned to divide his estate into equal shares as the rationale for imposing a constructive trust and for requiring an accounting and injunctive relief. Without question, this issue was already resolved when the jury determined that this two-page document was, in fact, Jeff Smith’s last will and testament. In it, he bequeathed and devised all the timber receipts, as well as all of the land, solely to Clarence Smith. All of the instant claims, except for the illegal assault count, derive from the mistaken belief that Jeff Smith’s spoken intent, even if proven, can transcend the plain language of a will previously upheld as valid.

The judgment of the superior court in the earlier case, once entered into evidence, was conclusive as to the authenticity of the will. See Boozer v. Higdon, 252 Ga. 276, 278 (1) (313 SE2d 100) (1984). Accordingly, we find that the claim for a constructive trust and the related claims were barred as a matter of fact by the explicit terms of the will and were also barred as a matter of law. See id.; Miller v. Steelmaster Material Handling Corp., 223 Ga. App. 532, 535 (3) (478 SE2d 601) (1996) (estoppel by judgment prevents relitigation in a subsequent suit, a matter which was actually adjudicated in a former case).

Decided May 11, 1998.

Lorenzo C. Merritt, for appellants.

Malcolm F. Bryant, Jr., Judson C. Bivins, for appellee.

2. Appellants contend that the trial court erred in awarding summary judgment. Relying on an affidavit from an attorney, they claim that the underlying action is wholly different from the one in probate court and presents questions which could not have been raised in the probate proceeding. Even if this action had not been procedurally foreclosed, it is well established that an expert witness may not state a legal conclusion as to the ultimate issue. Nichols v. State, 177 Ga. App. 689, 693 (2) (340 SE2d 654) (1986). See Travelers Ins. Co. v. Thornton, 119 Ga. 455, 456 (1) (46 SE 678) (1904).

As to the assault count, Smith failed to offer evidence or argument to establish his entitlement to summary judgment as a matter of law. See Worley v. Chuck Clancy Ford &c., 206 Ga. App. 296, 297 (425 SE2d 376) (1992). Inasmuch as this factual issue remains disputed, summary judgment only as to the assault claim must be reversed.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Ruffin, J., concur.

       The Supreme Court transferred this case to this Court on finding that the issues involving equity were ancillary to the main legal issues.


author: Ruffin, Judge. Beasley, Judge,

text:
    A98A0669.
    HOPKINS v. KMART CORPORATION.
    (502 SE2d 476)
   Ruffin, Judge.

While shopping at a Kmart store, Jennifer Hopkins slipped and fell in a puddle of tea, injuring her knee and ankle. Hopkins sued Kmart claiming it was negligent in failing to use reasonable care in maintaining its premises. The trial court granted Kmart summary judgment, and Hopkins appealed. We affirm.

“ ‘It is well established that on appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. (Cit.) This requires a de novo review of the evidence.’ [Cit.]” Dumas v. Tripps of North Carolina, 229 Ga. App. 814 (495 SE2d 129) (1997).

Viewed in a light most favorable to Hopkins, the nonmoving party, the evidence shows that on Easter Sunday, April 16, 1995, Hopkins and her friend, Mary Knowles, went to Kmart to shop and spend' timé together. The two had selected some merchandise and were on their way to a check-out lane when Hopkins decided to purchase some cigarettes. The cigarettes were located on the other side of the check-out lanes. Hopkins planned to walk through a closed lane in order to reach the cigarettes. At the beginning of each checkout lane, where customers waited in line to purchase their chosen items, was a merchandise display holding candy, magazines and other items. Several feet away from these displays were other merchandise bins. The displays and bins created a small aisle extending across the check-out lanes. Hopkins was walking between a checkout lane merchandise display and a merchandise bin when she slipped and fell in a pool of liquid. According to Knowles, the pool was larger than a dinner plate, and there were also pieces of glass on the floor in and around the spill. Hopkins said that glass was partially hidden from view underneath the merchandise display. Hopkins stated that she did not see the substance on the floor before she fell and she had no knowledge of how long the spill had been on the floor.

Immediately after Hopkins’ fall, a Kmart cashier working in a nearby check-out lane looked over at Hopkins. Hopkins said that this cashier probably could not have seen the substance on the floor from her vantage point behind a cash register. According to the store manager who cleaned up the spill and glass immediately after Hopkins’ fall, there was an iced tea drink display in the vicinity of the incident and that the liquid was iced tea. The manager said he was responsible for checking the areas in front of the check-out lanes every 30 minutes and he had checked the area where Hopkins fell within 30 minutes of her fall. Kmart provided training to its employees regarding safety rules and maintaining a clean and neat work area, according to the manager. The manager and another employee working April 16, 1995, said that it was very busy that day.

“[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant established negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.” Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997).

1. Kmart argues that Hopkins failed to exercise ordinary care for her own safety because she did not look at the floor as she was walking. Kmart asserts that if Hopkins had been looking at the floor, she would have seen pieces of glass from the broken bottle and avoided the area. However, there was no evidence that anyone saw the glass or the liquid prior to Hopkins’ fall, and Hopkins testified that a large portion of the bottle was partially hidden underneath the merchandise display. There is no evidence, other than the fact Hopkins was not looking at the floor between the merchandise displays, to show that she failed to exercise ordinary care for her own safety.

The Supreme Court of Georgia has disapproved “appellate decisions which hold as a matter of law that an invitee’s failure to see before falling the hazard which caused the invitee to fall constitutes a failure to exercise ordinary care. . .. Demanding as a matter of law that an invitee visually inspect each footfall requires an invitee to look continuously at the floor for defects, a task an invitee is not required to perform ([cit.]), since the invitee is entitled to assume that the owner/occupier has exercised reasonable care to make the premises safe for the invitee and continues to exercise such care while the invitee remains on the premises.” Robinson, supra at 743.

Given the totality of the circumstances surrounding Hopkins’ fall, we conclude that “the evidence does not plainly, palpably, and indisputably lead to the conclusion that the invitee’s placement of her foot on a site she had not previously inspected visually is an act which is a ‘ “want of such prudence as the ordinarily careful person would use in a like situation.” ’ [Cit.]” Robinson, supra at 743. Accordingly, we find that summary judgment was not appropriate as a matter of law on the grounds that Hopkins failed to exercise ordinary care for her safety.

2. The remaining question is whether Hopkins properly established that Kmart had actual or constructive knowledge of the hazard. Robinson, supra. In the instant case, there is no evidence that Kmart had actual knowledge of the liquid and broken glass, so liability must be based on the store’s constructive knowledge. Id.

“Constructive knowledge can be established with evidence that either [Kmart] failed to exercise reasonable care in inspecting the premises or an employee was in the immediate vicinity of the hazardous condition and could easily have noticed and corrected it. [Cit.]” Hornbuckle Wholesale Florist &c. v. Castellaw, 223 Ga. App. 198, 199 (477 SE2d 348) (1996). Regarding the first prong of proving constructive knowledge, “ ‘[i]n seeking summary judgment, the defendant has the initial burden of showing that this theory of recovery is not viable by demonstrating that it exercised reasonable care in inspecting the premises. (Cit.) This burden may be carried by evidence of compliance with reasonable inspection procedures. (Cit.)’ [Cits.]” Anderson v. Service Merchandise Co., 230 Ga. App. 551, 553 (496 SE2d 743) (1998).

Here, Kmart has met this burden. The manager stated in his affidavit that he checked the check-out lane areas every 30 minutes on the busy Easter Sunday and that he checked the area where Hopkins fell 30 minutes before her fall. There was also evidence that Kmart trained its employees on safety procedures and advised cashiers to keep their lanes neat and clean.

“Once a defendant demonstrates a lack of actionable constructive knowledge by compliance with reasonable inspection procedures, the burden shifts back to the plaintiff to show how long the foreign substance had been allowed to remain on the floor. [Cit.] . . . The plaintiff must show that the substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant. [Cit.]” (Punctuation omitted.) Daniel v. John Q. Carter Enterprises, 218 Ga. App. 223, 225 (460 SE2d 838) (1995). “ ‘The length of time which must exist to show that the defendant had an opportunity to discover the defect will vary with the circumstances of each case(, i.e.,) the nature of the business, size of the store, the number of customers, the nature of the dangerous condition and the store’s location.’ ” Kroger Co. v. Brooks, 231 Ga. App. 650, 655 (500 SE2d 391) (1998).

Here, Hopkins admitted that she had no knowledge of the length of time the hazard was in existence. However, it is clear that the hazard was not present 30 minutes before the fall when the store manager inspected the area and found no hazard. Thus, there was some evidence of the length of time the hazard had existed. But, “in the absence of evidence [that] a reasonable inspection would have discovered the foreign substance, no inference can arise that defendant’s failure to discover the [defect] was the result of its failure to inspect.” (Citation and punctuation omitted.) Brooks, supra. Given the volume of customers Kmart had on the day of the incident and its compliance with reasonable inspection procedures, Hopkins has established no inference that the failure to discover the iced tea and broken bottle was a result of Kmart’s failure to inspect. See id. Accordingly, Hopkins failed to show that Kmart failed to exercise reasonable care in inspecting the premises. Hornbuckle Wholesale, supra.

Turning to the second prong of constructive knowledge, we find that Hopkins has failed to put forward any evidence that an employee was in the immediate area and could easily have seen and removed the hazard. Hornbuckle Wholesale, supra. While the evidence in this case shows that a cashier was at a nearby register and noticed Hopkins fall, Hopkins admitted that the cashier probably could not have seen the hazard from where the cashier was standing. Accordingly, Hopkins has conceded that while a Kmart employee was in the immediate vicinity, she could not have easily seen and removed the hazard.

However, Hopkins asserts that “although an employee may not have seen the hazard, an employee must have heard the smash which resulted in the hazard being created.” (Emphasis in original.) This argument amounts to pure speculation, as there is no evidence supporting it. Hopkins has not produced evidence showing that the cashier or any other employee was in the immediate vicinity when the bottle broke. Nor has Hopkins shown that the breaking of the bottle created a loud noise that Kmart employees should have heard over the other sounds in the store. In fact, there is no evidence of how the bottle broke, such as whether it dropped from a height or was kicked against the merchandise bin while the bottle lay on the floor. Therefore, Hopkins has failed to show that Kmart had constructive knowledge of the hazard.

Accordingly, as Hopkins has failed to prove Kmart had actual or constructive knowledge of the spill, the trial court properly granted Kmart summary judgment. See Robinson, supra at 748-749.

Judgment affirmed.

Pope, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the holding that defendant Kmart was entitled to summary judgment, but not in all that is written to that end.

1. The first issue is whether there is evidence that Kmart had actual or constructive knowledge of the liquid and broken glass on the floor. This should be the first inquiry because, as repeated in Robinson v. Kroger Co., 268 Ga. 735, 736 (1) (493 SE2d 403) (1997), plaintiff is charging defendant with breach of the statutory duty of owners and occupiers of land “to keep the premises safe (OCGA § 51-3-1), and the fundamental basis for an owner or operator’s liability [is] that party’s superior knowledge of the hazard encountered by the plaintiff.” Since, as the majority concluded in Division 2, Kmart has established by undisputed evidence that Hopkins cannot show that the inspection procedure a short time before her fall was deficient in failing to discover (and remove) the hazard because she could not say it was there before the recent inspection, no further analysis is necessary. No issue of fact remains as to whether there was a reasonable inspection procedure timewise. And no issue of fact is raised by conflicting evidence which, on one side, tends to show the hazard was on the floor before the inspection and, on the other side, tends to show the hazard was created thereafter. The only evidence is that of Kmart, which creates a reasonable inference that the hazard was created after the inspection. As a result, a jury could not find that Kmart had constructive knowledge of the hazard. Summary judgment is compelled on that basis alone. There is no need for attention to whether plaintiff Hopkins knew or should have known of the danger and avoided it. I do not join in Division 1.

Decided May 11, 1998.

Anthony G. Knowles, for appellant.

Chamhless, Higdon & Carson, Marc T Treadwell, John J. Makowski, for appellee.

2. In Division 2 the majority opinion states, as relevant, the principle that “ ‘in the absence of evidence [that] a reasonable inspection would have discovered the foreign substance, no inference can arise that defendant’s failure to discover the defect was the result of its failure to inspect.’ ” This does not apply in this case because, considering the nature of the hazard, it being a larger-than-dinner-plate size pool of iced tea and broken glass, a jury could find that a reasonably alert inspection would have discovered it. More to the point is that there was a reasonable inspection timewise, as a matter of law, and no evidence the substances were then present for the inspector to see.

3. Finally, the majority opinion concludes in Division 2 that “Hopkins has failed to prove Kmart had actual or constructive knowledge of the spill.” In order to avert summary judgment, Hopkins as plaintiff was not obligated to prove her case. She was only saddled with the necessity to produce some evidence, so as to create an issue of fact, that Kmart had constructive knowledge of the hazard. Deloach v. Food Lion, 228 Ga. App. 393, 395 (491 SE2d 845) (1997).


author: Birdsong, Presiding Judge.

text:
    A98A0781.
    DOLLAR et al. v. OLMSTEAD.
    (502 SE2d 472)
   Birdsong, Presiding Judge.

Jim and Muriel Dollar, individually and as co-trustees of the Dollar Concrete Construction Company Profit Sharing Plan, appeal the grant of summary judgment to Tommy C. Olmstead, Commissioner of the Georgia Department of Human Resources and the denial of summary judgment to plaintiffs.

The record shows that on December 28, 1989, the Office of Child Support Recovery, a division of the Georgia Department of Human Resources, entered into an Administrative Consent Income Deduction Order (“Deduction Order”) with Dwight Collins, an employee of Dollar. Collins acknowledged in the Deduction Order that he owed $4,808 in unpaid child support.

The Deduction Order required that: “[Collins’] employer . . . providing or administering income due [Collins] as wages, salary, bonus, commission, compensation as an independent contractor, workers compensation, unemployment compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest royalties, trust or any other payments, shall deduct from all monies due . . . [t]he amount of $50.00 . . . each MONTH, to be deducted each pay period in approximate equal amounts, until the amount of unpaid support is paid in full.”

After it was served with the Deduction Order and a Notice to Payor, Dollar withheld funds from Collins’ pay and paid it to the Child Support Recovery Unit. The Notice to Payor provided as follows: “This Notice to Payor and the attached documents are binding on you until further notice from the Office of Child Support Enforcement or the court or until you no longer provide income to the obligor.”

In 1991, Dollar decided to terminate a Profit Sharing Plan and Trust it had established for its employees. At the time the trust was terminated, Collins’ share of the trust was $891.96, and he no longer worked for Dollar. Muriel Dollar wrote to Carol McLeod, an employee of the Child Support Recovery Unit of the Georgia Department of Human Resources, and asked whether she should send Collins’ share of the trust money to Collins or the Child Support Recovery Unit. According to Muriel Dollar, Carol McLeod instructed her, after consulting with her legal department, to mail the $891.96 to the Child Support Recovery Unit.

After learning that the $891.96 had been paid to the Child Support Recovery Unit, Collins filed a suit against Jim and Muriel Dollar in their individual capacities and as co-trustees of the trust fund in the United States District Court for the Northern District of Georgia. The district court granted Collins’ summary judgment motion, finding that ERISA’s anti-alienation provision precluded the Dollars from paying Collins’ trust money to a third party. A judgment requiring the Dollars to pay Collins $891.96, plus pre-judgment and post-judgment interest, was entered on November 27, 1992. The Dollars paid the judgment and requested that the Department of Human Resources reimburse them for this payment. This request was denied on December 23, 1992.

On August 10, 1994, Jim Dollar and Muriel Dollar, individually and as co-trustees of the Dollar Concrete Construction Company Profit Sharing Plan, filed suit against James Ledbetter, Commissioner of the Georgia Department of Human Resources. In this lawsuit, the Dollars assert causes of action for (1) deprivation of property without due process of law in violation of Art. I, Sec. I, Par. I of the Constitution of the State of Georgia; (2) denial of protection to property in violation of Art. I, Sec. I, Par. II of the Constitution of the State of Georgia; (3) conversion; (4) negligent application of statute; (5) unjust enrichment; and (6) violation of 42 USC § 1983. Plaintiffs also requested that the court impose a constructive trust on the $891.96 paid to the Child Support Recovery Unit and order that it be paid to the Dollars. In an order dated July 27, 1995, the trial court noted that Tommy C. Olmstead was the successor in office to James Ledbetter and substituted Olmstead as the party defendant. On July 23, 1997, the trial court summarily granted the defendant’s motion for summary judgment on all claims and denied the plaintiffs’ motion for summary judgment on all counts. Plaintiffs appeal the grant of summary judgment to defendant on their constitutional tort claims, § 1983 claim, negligent application of statute claim and unjust enrichment claim. Plaintiffs also appeal the denial of their motion for summary judgment on all counts. Held:

1. In their second enumeration of error, plaintiffs contend that the trial court erred in granting summary judgment to the defendant on their § 1983 claim. “Will v. Michigan Dept. of State Police, 491 U. S. 58 (109 SC 2304, 105 LE2d 45) (1989) holds that § 1983 claims cannot be asserted against a state agency or state officials acting in their official capacity.” Professional Practices Comm. v. Brewer, 219 Ga. App. 730, 731 (466 SE2d 651). Summary judgment was properly granted on plaintiffs’ § 1983 claim.

2. In their third enumeration of error, plaintiffs claim that the trial court improperly granted summary judgment to the defendant on their equity claim for unjust enrichment or money had and received. “The common law doctrine of sovereign immunity, adopted by this state in 1784, protected governments at all levels from unconsented to legal actions.” (Footnote omitted.) Gilbert v. Richardson, 264 Ga. 744, 745 (1) (452 SE2d 476). A 1991 amendment to the Georgia Constitution reiterates that “sovereign immunity extends to the state and all of its departments and agencies.” Ga. Const, of 1991, Art. I, Sec. II, Par. IX (e). However, it also provides that “[t]he sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Id. The General Assembly has enacted no statute waiving sovereign immunity for equity claims against the state. Since Olmstead has been sued in his official capacity as the Commissioner of the Georgia Department of Human Resources, it is construed as a suit against the state and he is entitled to sovereign immunity for the plaintiffs’ claim for equitable relief. Price v. Dept. of Transp., 257 Ga. 535, 537 (361 SE2d 146); Roberts v. Barwick, 187 Ga. 691, 695 (1 SE2d 713).

3. The remaining tort claims against the defendant are also barred by the doctrine of sovereign immunity. The 1991 amendment to the State Constitution provides that the General Assembly, through a State Tort Claims Act, can determine when officers and employees of the state or its departments may be subject to suit. “Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. Except as provided in this subparagraph, officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions.” (Emphasis supplied.) Ga. Const, of 1991, Art. I, Sec. II, Par. IX (d).

The Tort Claims Act provides “[t]his article constitutes the exclusive remedy for any tort committed by a state officer or employee. A state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor.” (Emphasis supplied.) OCGA § 50-21-25 (a). It further provides that “[a] person bringing an action against the state under the provisions of this article must name as a party defendant only the state government entity for which the state officer or employee was acting and shall not name the state officer or employee individually. In the event that the state officer or employee is individually named for an act or omission for which the state is liable under this article, the state government entity for which the state officer or employee was acting must be substituted as the party defendant.” (Emphasis supplied.) OCGA § 50-21-25 (b).

The Tort Claims Act’s definition of “state officer or employee” includes an “officer or employee of the state.” OCGA § 50-21-22 (7). The definition of “state” includes “the State of Georgia and any of its offices, agencies, authorities, [and] departments. . . .” OCGA § 50-21-22 (5). As the Commissioner of the Georgia Department of Human Resources, Olmstead is a state officer or employee entitled to immunity under the Tort Claims Act. OCGA § 50-21-26 (a). As a result, the plaintiffs improperly named him as the only defendant.

Since this Court treats a suit against the head of a state entity in his official capacity as a suit against the state itself, it is appropriate for this Court to consider whether the plaintiffs’ remaining claims fall within the Tort Claims Act’s waiver of sovereign immunity. Mosier v. State Bd. of Pardons & Paroles, 213 Ga. App. 545, 547 (445 SE2d 535). “The Georgia Tort Claims Act (the Act) excludes from its waiver of sovereign and official immunity losses resulting from the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused. The Act contains a definition of discretionary function or duty: a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternative courses of action based upon a consideration of social, political, or economic factors.” (Citations and punctuation omitted.) Bontwell v. Dept. of Corrections, 226 Ga. App. 524, 527 (486 SE2d 917). Providing the alleged opinion to plaintiffs that Collins’ trust money should be paid to the Child Support Recovery Unit, instead of Collins, was a discretionary function. Likewise, the ■ decision not to return the $891.96 to plaintiffs was a discretionary function. The trial court properly granted summary judgment to the defendant on the plaintiffs’ tort claims.

Decided May 11, 1998.

Gandy, Rice & Sundberg, Leon S. Gandy, Jr., for appellants.

Thurbert E. Baker, Attorney General, William C. Joy, Dennis R. Dunn, Senior Assistant Attorneys General, Kevin M. O’Connor, Assistant Attorney General, for appellee.

4. Plaintiffs’ final enumeration of error, regarding the denial of their motion for summary judgment on all counts, is without merit for the same reasons that we affirm the trial court’s grant of summary judgment.

Judgment affirmed.

Johnson and Smith, JJ, concur.


text:
    A98A0829.
    FIELD v. MASSEY.
    (502 SE2d 349)
   Birdsong, Presiding Judge.

David Field appeals a jury’s award of $150,000 to Rita Massey on her claim that the defendant fraudulently represented to her that they were married.

The evidence shows that David Field, M.D. and Rita Massey, R.N. met in the early 1980s while working together at R. T. Jones Hospital in Canton, Georgia. At the time, Field was married to his second wife. In 1983, Field began leaving romantic notes on Massey’s car and tried to initiate a relationship with her. Massey did not immediately respond to these advances, and it was approximately one year before she agreed to a romantic relationship with him. The parties began having sexual relations in late 1984 while Field was still married to his second wife. In 1985, Field separated from his second wife and rented his own home.

Massey testified that on June 8, 1986, Field gave her an engagement ring, told her that his divorce to his second wife was final and that they could now be married. Although Massey was “in and out” of Field’s rented home before June 5, 1986, they were not yet living together. At some point after June 8, 1986, the parties began living together. Field did sign a settlement agreement with his second wife on June 5, 1986. However, the divorce was not finalized until August 8, 1986.

On June 28,1986, Field purchased undeveloped property located at 511 Olivia Lane, Ball Ground, Georgia, on which to build a home. The purchase price for the property was $20,000, and title to the property was placed in Field’s name only. However, in order to purchase the property, it was necessary for him to borrow $6,000 from Massey’s brother. At the time Field purchased the property, he was paying child support and alimony to his first wife which totaled $2,272.54 per month. He was also required to pay $1,300 per month in alimony to his second wife. Field admitted that his financial situation was strained.

According to Massey, Field asked her in September 1986 to make the first payment on the $6,000 loan from her brother which was due on September 12 or 15, 1986. She told him that she would not make the payment if her name was not on the title to the property, unless they were husband and wife. According to Massey, Field told her that they were indeed married and that they had been living the commitment of husband and wife since he gave her the ring on June 8,1986. After this conversation, Massey testified that she made all of the payments on the $6,000 loan. Field does not dispute that Massey made these payments. In October 1986, Field obtained a construction loan, secured by the property, to build a home on the property. In February 1987, Massey and Field moved into the home and lived there together until February 1994.

During her relationship with Field, Massey paid approximately $6,000-$7,000 for windows, electrical work and hardwood floors for a 1991 addition to the home. She also paid to have the house painted inside and out. Field placed equity lines on the house and refinanced it twice during the time that he lived with Massey. It is undisputed that Massey did not receive any cash from the equity line or refinanced loans. During the eight years the parties resided together, Field acquired an interest in two medical buildings, two clinics, a bank, land and an investment company. By December 22, 1988, Field’s net worth increased to $260,000, and by April 22, 1996, it had increased to $555,500.

According to Massey, Field gave her a wedding band for Christmas in 1990 and insisted that she wear it on her left ring finger with the engagement ring. Massey testified that whenever she raised the topic of a marriage ceremony throughout the relationship, Field would respond that they were already married and did not need a piece of paper to prove it.

Field moved out of the home located at 511 Olivia Lane on February 15, 1994, after Massey refused to move out at his request in January 1994. Massey filed a divorce action against Field in Cherokee Superior Court on February 19, 1994. Massey dismissed that lawsuit without prejudice in June 1994 after Field denied in his answer that a marriage ever existed between them. On June 30, 1994, Field obtained an order requiring Massey to vacate the house before July 13, 1994, because title to the property was in his name. On October 15, 1994, Field married another woman.

On July 6, 1994, Massey filed this lawsuit against Field for fraud. On December 15,1995, Massey amended her complaint to add a count alleging a common law marriage to Field and seeking a divorce. The trial court bifurcated the trial, and the jury was requested to determine in the first phase whether the parties were married through common law. After the jury determined that the parties were not married, the parties presented additional evidence to support Massey’s fraud claim. The jury returned a verdict in favor of Massey totaling $150,000. Held:

1. In his first enumeration of error, Field claims he was entitled to a directed verdict on Massey’s fraud claim after the jury determined that no common law contract of marriage existed in the first phase of the trial. Relying upon Thorpe v. Collins, 245 Ga. 77, 79 (263 SE2d 115), Field asserts that Massey “cannot recover in tort where she may not in contract.” Field misinterprets Thorpe. In Thorpe, the Supreme Court of Georgia held that “[bjreach of promise to marry is a common law contract action which, although not codified, is apparently recognized in Georgia.” Id. at 78 (1). However, “[a] promise to marry ... is invalid if the promisee knows or should know that the promisor is already married, as the courts will not enforce a contract contravening the public policy of this state favoring stability in marriage. [Cit.] Therefore, a promise contingent on the divorce or death of a known spouse is not enforceable in the courts of this state.” Id. After acknowledging the existence of this cause of action, the Supreme Court found that the plaintiff in Thorpe could not recover for either breach of contract or fraud because the plaintiff knew that the defendant was already married to someone else at the time he made the promises. Id.

Here, a breach of contract to marry claim by Massey would not be barred because the evidence shows that she believed that Field was already divorced when he gave her the engagement ring on June 8, 1986. See Leonard v. Owen, 125 Ga. App. 5, 6 (186 SE2d 506). Likewise, Field was free to marry in September 1986, when Massey claims he told her that they were already married as an inducement for her to make the payments on the $6,000 loan for the purchase of the property.

Georgia recognizes a cause of action for fraud based upon misrepresentations about marital status. See Perthus v. Paul, 81 Ga. App. 133, 136 (58 SE2d 190); Morgan v. Morgan, 193 Ga. App. 302, 304 (388 SE2d 2). The trial court did not err in denying Field’s motion for directed verdict.

2. In his second enumeration of error, Field claims that Massey’s fraud claim must legally fail because she presented no evidence of “a subsequent contract to pool their individual income and assets independent of the parties’ original agreement to live together.” In support of this enumeration, Field relies upon a line of cases which hold that a contract based upon illegal or immoral consideration, such as cohabitation, cannot be enforced. See OCGA § 13-8-1; Rehak v. Mathis, 239 Ga. 541, 543 (238 SE2d 81); Wellmaker v. Roberts, 213 Ga. 740, 742 (101 SE2d 712); Long v. Marino, 212 Ga. App. 113, 114 (441 SE2d 475); Samples v. Monroe, 183 Ga. App. 187 (358 SE2d 273); Liles v. Still, 176 Ga. App. 65, 66 (335 SE2d 168). Field also relies upon the rebuttable presumption that “[w]here cohabitation between parties was illicit in its inception, the illicit relation will be presumed to have continued throughout the period of cohabitation, in the absence of proof to the contrary.” Lawrence v. Lawrence, 86 Ga. App. 8, 9 (70 SE2d 549). According to Field, the jury’s finding of no common law marriage affirmatively establishes that the illicit relation continued and therefore bars Massey from recovering in contract or tort.

We reject Field’s novel attempt to avoid liability for his repeated misrepresentations to the plaintiff that they were in fact married. Field’s theory hinges on the principle that “[one] may not in tort gain access to the courts where [one] may not in contract.” Thorpe, 245 Ga. at 79. However, since we have already held that a claim for breach of contract to marry by Massey would not be barred, this principle does not apply and the foundation of Field’s theory of no liability crumbles. Additionally, none of the authorities relied upon by Field holds that cohabitation bars a fraud claim based upon one of the cohabitating parties misrepresenting to the other that they are presently married. Compare Samples, 183 Ga. App. at 188 (fraud cannot be based upon promise to use savings for mutual benefit in future). Adopting Field’s theory would overrule, in effect, existing law which allows fraud claims based upon misrepresentations about marital status. See Perthus, 81 Ga. App. at 136; Morgan, 193 Ga. App. at 304. This we decline to do.

3. In his third enumeration of error, Field claims that Massey failed to prove she reasonably relied upon Field’s misrepresentations about their marital status. ‘While a party must exercise reasonable diligence to protect himself against the fraud of another, he is not bound to exhaust all means at his command to ascertain the truth before relying upon the representations.” Johnson v. Sherrer, 197 Ga. 392, 395 (29 SE2d 581). We find that the jury, as the trier of fact, was authorized by the evidence to find that Massey exercised the diligence required. Common law marriage was recognized in Georgia during Field and Massey’s entire relationship. See OCGA § 19-3-1.1. This Court will not disturb a verdict if there is any evidence to support the verdict. Horton v. Kitchens, 259 Ga. 446 (383 SE2d 871).

Decided May 11, 1998.

Ford & Harrison, Patricia G. Griffith, Jeffrey D. Mokotoff, for appellant.

Dudley W. Garrett, Jr., for appellee.

Judgment affirmed.

Johnson and Smith, JJ, concur.


author: Pope, Presiding Judge.

text:
    A98A0031.
    WORTHY et al. v. KENDALL et al.
    (501 SE2d 515)
   Pope, Presiding Judge.

Betty and Fred Worthy sued Matthews and Johnny Kendall for personal injury and loss of consortium resulting from an automobile accident. A jury found for the Kendalls, and the Worthys appeal. In their sole enumeration of error, supported by a brief excerpt from the transcript, they claim that the court’s errors allowed persons insured by the Kendalls’ insurance carrier to remain on the jury.

In qualifying the jury, the court asked whether any member of the venire was an employee, policyholder, or agent of “State Farm Insurance Company,” or related to an employee, policyholder, or agent. The record shows that several prospective jurors responded affirmatively, although it does not show whether those persons were dismissed for cause. Before the attorneys began individual voir dire, defense counsel requested a bench conference. He asked that the court direct the Worthys’ attorney to refrain from mentioning State Farm again, as the jury had already been qualified on that issue. The Worthys’ attorney responded that “Mr. William McDaniel [a venireman] back there has State Farm [automobile] insurance, and he’s sitting on the jury. . . . This is the information that was gathered. Vickie Hayes has got State Farm.” The court responded that those prospective jurors did not respond affirmatively to the question, and that the court would “have to assume they understood it.” Counsel for the Worthys continued, “Well, Judge, I can’t do anything but bring it to your attention, sir. And I know there’s two people sitting on the jury that have State Farm insurance.” The trial judge again stated that he knew of no reason the venire would not have understood or heard the question and said he would assume they did understand. The Worthys’ attorney responded, “Okay,” and the bench conference ended. The Worthys have provided this Court with no additional transcript of the voir dire or trial proceedings.

1. The Worthys claim that once their attorney informed the court that he believed prospective jurors McDaniel and Hayes had not answered correctly the insurance qualifying question, the court was required to either ask the jury that question again or allow the Worthys’ attorney to reiterate the question. We disagree.

Generally, the scope of voir dire is left to the trial court’s discretion. Corley v. Harris, 171 Ga. App. 688 (1) (320 SE2d 833) (1984). As Corley held, after a court has qualified the venire regarding insurance, the court may properly “refuse[ ] appellant’s counsel’s request to ask the same question of each individual prospective juror, because of the danger of prejudicially impressing upon the jurors the fact that the defendant had liability insurance.” Id. Accord Weatherbee v. Hutcheson, 114 Ga. App. 761, 766-767 (4) (152 SE2d 715) (1966).

The Worthys contend that this additional questioning was demanded because their attorney raised the claim that two members of the venire had not responded correctly. But as the transcript reflects, the trial judge had no reason — other than the attorney’s statement — to believe McDaniel or Hayes did not answer truthfully. Plaintiffs’ counsel gave him no evidence showing that McDaniel, Hayes, or any other member of the venire had failed to give a correct response. Neither did counsel provide the court any factual basis for his belief. See Jennings v. Autry, 94 Ga. App. 344, 346 (8) (94 SE2d 629) (1956) (attorney presented no evidence showing why he suspected venireman was disqualified to serve). McDaniel and Hayes were later dismissed via peremptory strikes, and nowhere in the record is there evidence that they gave incorrect responses. A trial judge should make every effort to ensure jurors are qualified to serve. But under the circumstances of this case, given that no facts were provided to show the need for further inquiry, the court did not err by assuming that its question was sufficient to purge the panel of those connected with State Farm. Accord Page v. Janko, 200 Ga. App. 547, 548 (1) (409 SE2d 48) (1991) (“A challenge to the poll or a motion to disqualify jurors must be supported by evidence if the presumption of their qualification and impartiality is to be rebutted.” (Citation and punctuation omitted.)). Therefore, the court did not abuse its discretion when it refused further questioning on this issue.

Decided April 2, 1998

Reconsideration denied May 12, 1998

Richard T. Bridges, for appellants.

Alan W. Connell, for appellees.

2. The Worthys further contend that they are entitled to a new trial because several of the jurors who decided the case were, in fact, State Farm policyholders. In the lower court, the Worthys sought to prove this allegation in their motion for new trial by presenting the affidavits of five members of the jury. Each juror averred that he or she was, at the time of the trial, “insured under an automobile policy issued by State Farm Mutual Automobile Insurance Company.” None, however, explained their failure to respond affirmatively to the court’s voir dire question on this issue.

We find no grounds for reversal. Although “counsel are entitled to have truthful answers given to questions propounded to jurors[,] . . . [nevertheless, a rule restricting an attack on the integrity of the jury is mandated in OCGA § 9-10-9. It permits affidavits of jurors to sustain but not to impeach their verdict. . . . While allegations that a juror gave untruthful answers to questions propounded on voir dire furnish a valid basis for reversal, such averments must be supported by evidence of probative value.” (Citations and punctuation omitted.) Fidelity Nat. Bank v. Jeffrey M. Kneller, P. C., 194 Ga. App. 55, 59 (1) (390 SE2d 55) (1989). Here, “[t]he only evidence as to the alleged disqualification of [the] juror[s] was [the] affidavit[s] of the juror[s themselves], and it is well settled that a juror will not be heard to impeach his verdict by showing his own incompetency or disqualification.” (Citation and punctuation omitted.) Moore v. Keller, 153 Ga. App. 651 (266 SE2d 325) (1980). See also Swift v. S. S. Kresge Co., 159 Ga. App. 571, 572 (1) (284 SE2d 74) (1981); Pinkston v. Hagin, 157 Ga. App. 2 (1) (276 SE2d 67) (1981).

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

       This is the second time this case has appeared before the court. In Worthy v. Kendall, 222 Ga. App. 324 (474 SE2d 627) (1996) we reversed a jury verdict in favor of the plaintiffs.


author: Johnson, Judge.

text:
    A98A0119.
    TUTTLE v. THE STATE.
    (502 SE2d 355)
   Johnson, Judge.

After a jury trial, Charles Tuttle was found guilty of driving under the influence of alcohol to the extent that it was less safe to drive and driving the wrong way on a one-way street. See OCGA §§ 40-6-391 (a) (1); 40-6-47. He appeals from the conviction entered on the DUI charge.

1. Tuttle challenges the sufficiency of the evidence to support his DUI conviction.

On appeal, we view the evidence in a light most favorable to support the verdict, and an appellant no longer enjoys the presumption of innocence; moreover, this Court determines the sufficiency of and does not weigh the evidence or determine witness credibility. Tanner v. State, 225 Ga. App. 702, 703 (484 SE2d 766) (1997). So viewed, the evidence shows a police officer observed Tuttle at 3:40 a.m. traveling in the wrong direction on a one-way street. The officer ordered Tuttle to stop. When the officer approached Tuttle’s car, he detected a heavy odor of alcohol. He also noticed that Tuttle’s eyes were glassy and glazed over, and his speech was slurred. The officer asked Tuttle if he had been drinking, to which Tuttle replied that he had one beer several hours earlier. At the officer’s request, Tuttle stepped out of the car. According to the officer, Tuttle appeared to have difficulty walking. He walked with an uneven gait and “stumbled over his own feet.”

Tuttle was given several field sobriety tests. He failed all six parts of the horizontal gaze nystagmus (“HGN”) test. When asked to perform the walk and turn test, Tuttle stepped off the line twice and did not turn properly. While performing the one-leg stand test, Tuttle raised his arms for balance, contrary to the officer’s instructions. The officer, who was a four-year veteran of the police department’s special DUI task force and had made approximately 700 DUI arrests in his career, concluded from his observations and Tuttle’s performance on the field tests that Tuttle was too impaired to drive. The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Tuttle was guilty of being a less safe driver due to the influence of alcohol. See Kovacs v. State, 227 Ga. App. 870, 872 (1) (490 SE2d 539) (1997).

2. Tuttle contends the trial court erred in quashing his subpoena for production of documents served upon the arresting officer. Before trial, Tuttle requested the officer to produce: (a) any and all videotapes made of Tuttle before, during, and after his arrest, and any and all documents the officer produced as a result of the stop and arrest; (b) any and all training materials the officer used while receiving training in DUI detection and testing; (c) any and all books he read relating to DUI detection and testing; and (d) copies of the reports of the five incidents written up immediately before and the five incidents immediately after Tuttle’s arrest. The state moved to quash the subpoena claiming it sought irrelevant information and was overly broad, unreasonable and oppressive. Tuttle responded that the information sought was relevant to his defense. The trial court granted the state’s motion.

“The defense must make a prima facie showing that the requested materials are relevant to his defense and that he has a right to the materials, and the trial court may properly quash an unreasonable and oppressive subpoena.” (Citations and punctuation omitted.) Wingfield v. State, 229 Ga. App. 75, 83 (5) (493 SE2d 235) (1997); see OCGA § 24-10-22 (b) (1). Furthermore, the defendant must show that there is a reasonable probability that, had the requested materials been provided to him, the outcome of the trial would have been different. Id.

(a) Videotapes and arrest documents. As Tuttle concedes on appeal, the question of whether the officer should have been required to produce a videotape of the arrest is moot because no videotape was made. Because Tuttle makes no argument in his appellate brief regarding other documents the officer might have made related to the stop and arrest, any issue related to non-production of those records is deemed abandoned. See generally Boatright v. State, 192 Ga. App. 112, 119 (10) (385 SE2d 298) (1989).

(b) DUI training materials. Tuttle states that the requested training materials would have allowed him to impeach the officer’s credibility and reduce the weight of his testimony regarding the accuracy of the field tests. However, the officer testified that he did not have any DUI field test training materials in his possession. Thus, he had nothing to produce in this regard.

(c) All books and materials the officer read regarding DUI detection and testing. Tuttle claims this information was relevant to the officer’s credibility and the weight to be given his testimony. We do not agree that materials the officer read on the issue of DUI detection were relevant to Tuttle’s guilt or innocence. Even assuming arguendo these materials were relevant, Tuttle presents no grounds for reversal. At trial, Tuttle cross-examined the officer as to the proper procedures for conducting the field tests and whether those procedures were followed. Tuttle has not shown how his not having materials the officer read concerning DUI field testing harmed his defense. See Frost v. State, 200 Ga. App. 267, 271 (4) (407 SE2d 765) (1991) (harm as well as error must be shown for reversal based on trial court quashing subpoena). Tuttle has not met his burden of showing there was a reasonable probability that had the materials been produced, the outcome of the trial would have been different. See Wingfield, supra.

(d) Copies of officer’s reports of incidents before and after Tuttle’s arrest. Tuttle maintains these reports are relevant to the officer’s credibility. An officer’s reports of other arrests have no relevance to the guilt or innocence of the defendant, and the trial court is absolutely correct to deny the defendant access to them. Taylor v. State, 172 Ga. App. 827 (1) (324 SE2d 788) (1984) (defendant not entitled to production of arresting officer’s reports of other DUI suspects for credibility purposes). The trial court did not abuse its discretion in quashing the subpoena. See Wingfield, supra; see generally Plante v. State, 203 Ga. App. 33, 34 (1) (416 SE2d 316) (1992).

3. Tuttle argues the trial court erred in denying his motion to exclude the HGN test results because the officer who administered the test: had no formal training in administering field sobriety tests; administered the HGN test while Tuttle was sitting instead of standing, in contravention of law enforcement guidelines; could only estimate the angle of onset of nystagmus; and admitted that the test was only 77 percent accurate.

Contrary to Tuttle’s contention, the record shows that the officer, who had been a police officer for seven years and a member of the department’s DUI task force for four years, received sufficient training in administering field sobriety tests. He attended an eight-hour course on sobriety testing and received personal training and updates from a senior DUI officer who was a certified drug recognition instructor. The arresting officer had administered the battery of field tests used in this case to approximately 400 people. The officer also received training in the administration of the HGN test from three other officers. The officer testified in great detail how each test was administered, what clues he looked for, and how Tuttle responded. Formal education is not required even for a witness to qualify as an expert in DUI detection. See Livingston v. State, 221 Ga. App. 630, 631 (1) (472 SE2d 163) (1996). A combination of experience and study may suffice. Id. The officer’s training in this case was sufficient. See generally Hawkins v. State, 223 Ga. App. 34, 39 (1) (476 SE2d 803) (1996).

The fact that the officer could only estimate the angle of onset and admitted the test was not 100 percent accurate does not make the test result inadmissible. No scientific procedure is infallible, and a trial court is not required to exclude scientific evidence simply because there is a possibility of error. See Caldwell v. State, 260 Ga. 278, 287 (1) (c) (393 SE2d 436) (1990). “An accused may always introduce evidence of the possibility of error. . . . Such evidence would relate to the weight rather than the admissibility [of the evidence].’ ” Hawkins, supra at 38 (1).

As the party raising the objection, Tuttle had the burden of showing error in the administration of the HGN test. See Hawkins, supra at 38 (1). Although Tuttle argues that the officer violated law enforcement guidelines by permitting Tuttle to remain seated during the HGN test, he has not indicated where in the record we can find such guidelines. Moreover, even though the officer administered one HGN test while Tuttle sat in the car, he also performed a second test while Tuttle was standing. Thus, Tuttle has not shown error in the manner in which the test was administered.

Decided May 12, 1998.

Hamil, Dickinson & Dubuc, Brian M. Dubuc, for appellant.

June D. Green, Solicitor, Wanda L. Dallas, Assistant Solicitor, for appellee.

Even assuming the HGN test was not administered properly, reversal would not be required. The HGN test results simply showed a symptom of impairment. The state did not rely solely on the HGN test results, but also upon Tuttle’s performance on other field sobriety tests and his appearance, odor and behavior at the time of the stop. Considering the other evidence of Tuttle’s impairment, admission of the HGN test results was harmless. See Manley v. State, 206 Ga. App. 281, 282 (424 SE2d 818) (1992); Foster v. State, 204 Ga. App. 632 (420 SE2d 78) (1992).

Judgment affirmed.

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


text:
    A98A0721.
    GERDES v. RUSSELL ROWE COMMUNICATIONS, INC. et al.
    (502 SE2d 352)
   Birdsong, Presiding Judge.

Kenneth Gerdes appeals the grant of summary judgment to defendants Russell Rowe Communications, Inc., Herman Russell, M. B. Seretean and Don Heald, on Gerdes’ claims for breach of contract, promissory estoppel and quantum meruit.

The record shows that in 1982, Gerdes was hired to work as the station manager of a new television station in Macon, Georgia, WGXA-TV, Channel 24. WGXA-TV was owned by Russell Rowe Communications, Inc. (“Russell Rowe”). At all relevant times, Herman Russell, Bud Seretean and Don Heald served on Russell Rowe’s board of directors. Don Heald also served as the president of Russell Rowe.

On or about November 30, 1987, Gerdes entered into a written agreement for contingent compensation with Russell Rowe Communications, Inc. In this agreement, Russell Rowe agreed to pay Gerdes two percent of the net sale proceeds for any sale of WGXA “upon the condition that Gerdes remains in the employment of Russell Rowe for a continuous period commencing on the date hereof and continuing through the date of any sale by Russell Rowe.” The agreement specifically described the consideration for the agreement as including “Gerdes’ employment and continued employment by Russell Rowe. . . .” (Emphasis supplied.) The agreement expressly provided that “[n]o amendment, waiver, or alteration of this Agreement shall be claimed unless said waiver, amendment, or alteration is in writing and referring [sic] specifically to this Agreement.”

The record shows that Gerdes later attempted to negotiate a better bargain on several occasions. Minutes from an October 20, 1988 board meeting state, “Mr. Gerdes then requested additional compensation, subject to the contingent compensation granted him in an Agreement, dated as of November 30,1987, by and between the Company and Mr. Gerdes. No action was taken on his request.” His contingent compensation agreement was discussed by the board again on January 24, 1989, with no apparent action taken. In a November 2, 1990 board meeting, “Ken Gerdes . . . asked that he be given an equity interest in the Company. Mr. Russell stated that his request would be considered.” The minutes from the executive session of the board on this same date, not attended by Gerdes, state “[t]here was general discussion regarding Mr. Gerdes’ compensation arrangement. Following the discussion, the Board decided to delay action on Mr. Gerdes’ request until his tenth anniversary with the Company.” There is no dispute that the 1987 agreement was never amended in writing. Gerdes contends that a subsequent oral agreement was made in 1992, after his tenth anniversary with the station. Under this alleged agreement, Gerdes would receive, at the time of the sale of the station, either $435,000 or four percent of the sales price of the station without a compound interest deduction.

In his interrogatory responses, Gerdes also claims that he was “instructed to assist and provide information to the prospective purchasers of WGXA-TV Channel 24. He was promised that he would receive additional compensation for the same because it was outside the scope of his normal duties as general manager of the station. The extra work plaintiff performed consisted of, but by no means was limited to, the preparation and review of documents to expedite the sale of the station, assisting with due diligence to effectuate the same, he obtained Fox football to increase the sales price of the station, he intervened and requested that the prospective purchasers pay for certain services that saved defendants substantial sums of money.” Gay McMichael, an accountant for the station, testified in his deposition that Heald told him that Gerdes “would be taken care of” if he cooperated in the sale process. Heald admitted in his deposition that he told Gerdes “there might be some additional reward for him” if he cooperated and assisted with the sale of the station. According to Heald, Gerdes did not cooperate in the sale. Nonetheless, Gerdes was given three weeks severance pay totaling $3,005 after the station sold. Held:

1. In his first enumeration of error, Gerdes claims that the trial court erred when it granted defendants’ motion for summary judgment on his breach of the alleged oral contract claim for either $435,000 or four percent of the sale price of the station. Contractual requirements that all modifications be made in writing are valid and enforceable. Clark v. Gen. Motors Acceptance Corp., 185 Ga. App. 130, 134 (363 SE2d 813). Although “[wjaiver of a written modification requirement in a contract may be established through the course of conduct between the parties,” Gerdes has failed to prove that such occurred here. (Citations and punctuation omitted.) American Car Rentals v. Walden Leasing, 220 Ga. App. 314, 316 (469 SE2d 431). Instead, the record shows that Gerdes accepted the $94,832 due to him under the original, written 1987 agreement and released all of his claims under the 1987 agreement. Additionally, the 1987 agreement contained a waiver clause protecting the parties from any failure to insist on the performance of any term or condition, such as written modifications. Id. The trial court did not err in granting summary judgment to the defendants on Gerdes’ breach of contract claim.

2. In his second enumeration of error, Gerdes claims the trial court should not have granted summary judgment to the defendants on his promissory estoppel claim for $435,000 or four percent of the sales price of the station. Under the doctrine of promissory estoppel, “[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” OCGA § 13-3-44 (a). “Promissory estoppel cannot be applied unless the promisee reasonably relied on the promise.” Fidelity & Deposit Co. of Maryland v. West Point Constr. Co., 178 Ga. App. 578, 580 (344 SE2d 268).

We hold that, as a matter of law, Gerdes could not reasonably rely upon the alleged oral promises of $435,000 or four percent of the sales price. The 1987 agreement specifically provided that it could be altered only in writing, and Gerdes does not dispute that this was never done. “[TJhis clear and unambiguous provision served to place appellant on due notice that he could not thereafter reasonably rely upon any words or other course of dealing to his inducement, other than a modification agreement actually reduced to writing. . . .” Hendricks v. Enterprise Financial Corp., 199 Ga. App. 577, 580 (405 SE2d 566). Likewise, “in view of this provision [defendants] could not reasonably expect that [their] particular conduct, even when such conduct is viewed in the light most favorable to appellant, would induce the asserted action or forbearance on the part of appellant.” Id. The trial court properly granted summary judgment to the defendants on Gerdes’ promissory estoppel claim.

3. Gerdes’ third enumeration of error alleges that the trial court erred in granting summary judgment to the defendants on his quantum meruit claims. We affirm the trial court’s ruling with regard to the reasonable value of Gerdes’ continued employment. “[TJhere cannot be an express and implied contract for the same thing existing at the same time between the same parties.” Fonda Corp. v. Southern Sprinkler Co., 144 Ga. App. 287, 292 (3) (241 SE2d 256). A plaintiff “is estopped to recover on quantum meruit where there exists an express agreement.” Willis v. Kemp, 130 Ga. App. 758, 760 (204 SE2d 486). Since Gerdes’ continued employment was part of the consideration for the 1987 agreement, he cannot also recover the value of his continued employment through a quantum meruit claim.

Decided May 12, 1998.

Fricks, Dell & Lee, Robert A. Fricks, Jack V. Dell, Jr., for appellant.

Gerdes also claims, however, that he is entitled to the reasonable value of services he performed which were allegedly outside the scope of the written agreement, namely assisting with the sale of the station, procuring Fox football for the station and saving the station money for an audit ordered by the prospective purchaser. The reasonable value of “extra work performed in addition to what the contract contemplated” can be recovered in quantum meruit. See Lord Jeff Knitting Co. v. Lacy, 195 Ga. App. 287, 288 (393 SE2d 55). We find that Gerdes was not already obligated under the 1987 agreement to perform these alleged activities. Defendants claim that since these activities were within the scope of Gerdes’ employment as station manager, he has already been compensated through his salary and cannot recover through quantum meruit. Whether or not a particular employee is acting within the scope of his employment is usually a jury question. Consolidated Freightways Corp. &c. v. Williams, 139 Ga. App. 302, 306 (228 SE2d 230). Gerdes’ interrogatory responses create a material issue of fact as to whether these activities were within the scope of his employment. We view the evidence in the light most favorable to the non-moving party, and we must reverse the trial court’s grant of summary judgment on the plaintiff’s quantum meruit claim for the reasonable value of his services in assisting with the sale of the station, procuring Fox football for the station and saving the station money for an audit ordered by the prospective purchaser. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

The judgment granting defendants’ motion for summary judgment is affirmed, except for the portion granting summary judgment to the defendants on plaintiff’s quantum meruit claim. This case is remanded with the direction that the trial court proceed with this suit in a manner not inconsistent with this opinion.

Judgment affirmed in part, reversed in part and case remanded with direction.

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

Jones, Cork & Miller, Carr G. Dodson, William T Prescott, for appellees.


author: Smith, Judge.

text:
    A98A0039.
    A98A0040.
    ALEXANDER v. SPORTSLIFE, INC. et al. DIENG v. SPORTSLIFE, INC. et al.
    (502 SE2d 280)
   Smith, Judge.

These companion cases arose from a fight between two players in a “pickup” basketball game at an athletic facility owned and operated by defendant Sportslife, Inc. and its subsidiary corporations Sports-life Town Center, Inc. and Sportslife Town Center II, Inc. (“Sports-life”). Isham W. Alexander III, one of the parties to the altercation, brought an action against Youssouph Boyenge Dieng for battery and against Sportslife in tort and breach of contract, alleging that Sports-life was negligent and breached his membership contract by failing to protect him from an “unreasonable risk of harm.” Sportslife answered and filed a cross-claim against Dieng; Dieng answered and filed a counterclaim against Alexander and a cross-claim against Sportslife. The trial court granted Sportslife’s motion for summary judgment against both Alexander and Dieng, and they appeal. Because the proximate cause of each man’s injuries was not any negligence or breach of contract by Sportslife but his own voluntary and active participation in a fight, we affirm.

1. Alexander complains that Sportslife, and hence by implication the trial court, relied upon an unreported decision of this Court in its motion for summary judgment. Sportslife attached to its motion a copy of the unpublished opinion in Nelson v. Harris, 217 Ga. App. XXXI (1995), affirming the grant of summary judgment in favor of Sportslife on the claim of another individual who was struck in the face during a pickup basketball game at a Sportslife facility. While it is understandable that Sportslife would seek to rely upon a recent decision in its favor with virtually identical facts, the rules of this Court clearly provide that “[a]n unreported opinion is neither a physical nor binding precedent but establishes the law of the case as provided by OCGA § 9-11-60 (h).” Court of Appeals Rule 33 (b).

Reliance upon an unreported decision is not, however, as Alexander contends, grounds for reversal of the trial court’s decision. The cases cited by Alexander note that reliance on such opinions is “misplaced,” Dept. of Transp. v. Metts, 208 Ga. App. 401 (1) (430 SE2d 622) (1993), but none requires or even suggests that reversal is appropriate on this basis alone. Nothing in the trial court’s order indicates that it relied exclusively upon the unreported case as the basis for its ruling; it simply granted summary judgment “[a]fter considering the pleadings, affidavits, depositions and arguments of counsel.” While Sportslife relied upon the unpublished opinion, it also cited extensively from the published cases contained in that opinion. A summary judgment will be affirmed if it is right for any reason. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991).

2. Both Alexander and Dieng executed releases in favor of Sportslife. Alexander contends the release is impermissibly vague because it does not clearly identify the Sportslife entity or entities released and does not specify which of the multiple Sportslife locations is governed by the release. But we need not reach these issues because the undisputed evidence clearly shows that no conduct of a Sportslife employee proximately caused either party’s injuries.

Alexander and Dieng each contends that the other initiated the fight by excessive fouling during play. Alexander acknowledged that he threw the first punch at Dieng because he felt that Dieng had intentionally fouled him. He also claimed that Dieng had his fists clenched and he “thought he was going to come at” him. Dieng likewise acknowledged that he approached Alexander on the sidelines and kicked him in the head two to five minutes after the game was over, although he also testified he thought Alexander was reaching into his gym bag for a weapon to attack him again. A Sportslife employee was present but was not serving as a referee; he was shooting baskets on another court.

“Before any negligence, even if proven, can be actionable, that negligence must be the proximate cause of the injuries sued upon. Assumption of the risk is a complete defense and arises when, even if defendant is negligent, plaintiff himself is negligent in such a way that his own negligence is the sole proximate cause. Although issues of negligence, lack of care in avoiding the negligence of others, lack of care for one’s own safety, and assumption of the risk are ordinarily not susceptible to summary adjudication, where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion the issue of assumption of risk may be determined on summary judgment.” (Citations and punctuation omitted.) Sapp v. Effingham County Bd. of Ed., 200 Ga. App. 695, 696 (1) (409 SE2d 89) (1991). In Sapp, we held that a school was not liable for an attack on a student in the school parking lot when the injured student accosted another student to continue an earlier altercation.

“[A]n intervening criminal act of a third party, without which the injury would not have occurred, will be treated as the proximate cause of the injury thus breaking the causal connection between the defendants’ negligence and the injury unless the criminal act was a reasonably foreseeable consequence of the defendants’ conduct.” (Citations and punctuation omitted.) Rawls v. Bulloch County School Dist., 223 Ga. App. 234, 236 (477 SE2d 383) (1996). Here, not one but two intervening criminal acts occurred: Alexander’s attack on Dieng by striking him in the face with his fist, and Dieng’s attack on Alexander by kicking him in the head. See also Driver v. Leicht, 215 Ga. App. 694, 695 (452 SE2d 165) (1994) (plaintiff guest injured in quarrel over pool game; even if hosts negligent, not liable to guest who “is an initiator of or active participant in the sequence of events resulting in his injury”).

Moreover, while both parties to the altercation presented evidence that the basketball game was “out. of hand” and fouls were committed, each also insists that he was attacked without warning. Dieng testified that he had “no idea” that Alexander was going to punch him. Alexander testified, and Dieng agreed, that Dieng’s attack on him occurred on the sidelines sometime after the basketball game was over and other players had separated the combatants. Alexander also asserted that Dieng “snuck up behind” him to kick him. If the attacks were unexpected, without warning, or furtive, then the actual participants in the brawl cannot reasonably assert that a Sportslife employee in the general vicinity should have expected or had warning of the attacks.

Assuming without deciding that Alexander and Dieng showed some negligence in Sportslife’s supervision and monitoring of the basketball game, the conduct on the part of Sportslife’s employee merely gave rise to the occasion which made the injuries possible. Other unforeseeable circumstances, including the intervening attacks by Alexander on Dieng and in turn by Dieng on Alexander, preponderated in causing the injury. Sportslife’s conduct was, at best, a remote cause of the injuries sustained. Wright v. Ashe, 220 Ga. App. 91, 95 (469 SE2d 268) (1996). Consequently, the trial court correctly granted summary judgment on the negligence claims of Alexander and Dieng.

Alexander’s breach of contract claim is likewise without merit. He contends that his membership contract with Sportslife created an implied duty to protect him from “an unreasonable risk of harm.” “Damages are given as compensation for the injury sustained as a result of the breach of a contract.” OCGA § 13-6-1. See generally Rogers v. Norvell, 174 Ga. App. 453, 458-459 (3) (330 SE2d 392) (1985) (physical precedent but subsequently approved as to Division 2; see, e.g., Whitehead v. Cuffie, 185 Ga. App. 351, 352 (2) (364 SE2d 87) (1987)). The evidence demonstrates that Alexander’s alleged damages were not the result of any breach of duty on the part of Sportslife, whether alleged as tort or breach of contract, and summary judgment in favor of Sportslife was warranted as to this claim.

Decided May 1, 1998

Reconsideration denied May 13, 1998.

Neal H. Howard, for Alexander.

H. Michael Harvey, for Dieng.

Tittsworth, Grabbe & Spillers, Charles L. Spillers, for Sportslife, Inc.

Judgment affirmed.

Birdsong, P. J, and Johnson, J., concur.

       Georgia law recognizes that private duties may be created by a contractual relation and give rise to an action in tort. See Carey v. Bradford, 226 Ga. App. 360, 361, n. 1 (486 SE2d 623) (1997).