author: Beasley, Presiding Judge. Smith, Judge,

text:
    A93A2200.
    THURMAN et al. v. PRUITT CORPORATION.
    (442 SE2d 849)
   Beasley, Presiding Judge.

The executor of the estate of Dentis Thurman, and Mrs. Dentis Thurman individually, brought suit against the Pruitt Corporation doing business as Fort Oglethorpe Nursing Home, alleging professional malpractice resulting in the death of the decedent, and a violation of OCGA § 31-8-126 (a). Plaintiffs appeal from the dismissal of their complaint for failure to file a legally sufficient affidavit under OCGA § 9-11-9.1 (a) to support their claim of professional malpractice. We reverse.

Plaintiffs’ decedent died on February 1, 1991, and the complaint was filed on February 1, 1993, a Monday. Although it referenced an attached expert’s affidavit, it was not filed until two days later. The affidavit had been executed and notarized on February 1. In its initial responsive pleading, defendant asserted as a ground for dismissal plaintiffs’ failure to file a contemporaneous affidavit. On March 5, defendant moved to dismiss the complaint on the same ground, also asserting insufficiency of the filed affidavit under OCGA § 9-11-9.1 in that it both fails to show that affiant is “an expert competent to testify” and that it fails to state a sufficient factual basis for a specific negligent act or omission.

In opposition to the motion to dismiss, plaintiffs’ attorney attached her affidavit explaining that the expert’s affidavit had been prepared prior to filing the lawsuit but was filed late by mistake. The trial court permitted it under § 9-11-9.1 (e). Accord St. Joseph’s Hosp. v. Nease, 259 Ga. 153 (1), fn. 3 (377 SE2d 847) (1989) (decided prior to the enactment of subsection (e)).

On March 12, plaintiffs moved to amend their complaint under OCGA § 9-11-9.1 (b) and submitted for filing a second affidavit prepared by the same affiant on March 11. The trial court rejected plaintiffs’ proffer of the second affidavit based on Edwards v. Vanstrom, 206 Ga. App. 21, 22 (1) (424 SE2d 326) (1992), in which we held that a second affidavit which had not been prepared and in plaintiffs’ possession prior to the date the first affidavit was filed failed to satisfy the requirements of OCGA § 9-11-9.1. The court herein considered only the contents of the first affidavit, found it legally insufficient and dismissed the complaint. Appellees did not cross-appeal from the court’s ruling that the affidavit was timely per extension under OCGA § 9-11-9.1 (b), so that issue is not subject to review.

1. Plaintiffs enumerate error only with respect to the trial court’s ruling that the affiant is incompetent as an expert, which rendered the first affidavit insufficient under OCGA § 9-11-9.1 (a). The court’s rejection of the second affidavit under Edwards, supra, is not enumerated as error, so that ruling stands.

The cause of action for professional malpractice was predicated on allegations that defendant “failed to exercise a reasonable degree of care, diligence and skill ordinarily employed by nursing homes under similar situations and like surrounding circumstances [which] caused and contributed to [decedent’s] injuries.” The specific negligent acts alleged, as described in the affidavit, are failure to care for decedent’s feet and legs after his hip was broken, causing gangrene; weight loss due to inadequate feeding; insufficient changing of old linen; lack of support hose; subjection to cold showers and long periods of sitting in a chair, all of which constituted below-standard nursing care. It was alleged in the complaint that as a result of defendant’s failure to provide adequate care, decedent developed gangrene, which ultimately caused his death. The theory is that of respondeat superior arising from acts and omissions requiring the exercise of professional skill and judgment by professional members of defendant’s staff. See generally Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 65 (3) (424 SE2d 632) (1992).

Affiant is a licensed, registered nurse with specialized training in enterostomal therapy and is employed by Visiting Nurse Services, Inc. as an employee health nurse. According to her affidavit, her graduate course qualified her as a specialist in wound treatment. She averred: “As a practicing registered nurse, I am familiar with the standards of care applicable to nurses and support staff with regard to nursing care of residents in skilled nursing facilities or nursing homes.” The question is whether this qualifies her as “competent to render an opinion about the standard of care of other members of the medical profession,” which she may do so “long as [her] opinion concerns a common area of expertise.” Tye v. Wilson, 208 Ga. App. 253, 254 (430 SE2d 129) (1993). Her opinion concerned the standard of care administered to the decedent by defendant nursing home through its nursing staff. Considering the nature of the challenged acts and omissions, the affiant is prima facie qualified according to her training and experience to give her opinion as an expert.

This is not among those cases in which the affiant is not competent to testify, absent a showing of overlapping expertise, because she is a member of a school of medical practice other than that to which the defendant belongs. See Hewett v. Kalish, 210 Ga. App. 584 (436 SE2d 710) (1993), cert. granted (Case No. S94G0201, January 21, 1994), and cases cited therein.

2. For the same reason, the trial court also erred in dismissing the distinct claim of liability under OCGA § 31-8-126 (a). It provides a cause of action for damages against a long-term care facility for failure to provide certain rights guaranteed under OCGA § 31-8-100 et seq., known as the “Bill of Rights for Residents of Long-Term Care Facilities.”

“In the context of a nursing home, over and above the contractual obligation the nursing home assumed to take care of its residents, the State has imposed a statutory obligation for it to exercise ‘reasonable care and skill.’ OCGA § 31-8-108. . . . The general standard of care required of a nursing home is that degree of care, skill, and diligence usually exhibited by such homes generally in the community. ... In order to recover, [plaintiffs] had to show that [defendant] failed to do something which a reasonable person, guided by the above considerations which ordinarily regulated the conduct of affairs of a nursing home, would have done, or ought to have done, and failed to perform such responsibility.” Assoc. Health Systems v. Jones, 185 Ga. App. 798, 801 (1) (366 SE2d 147) (1988). This claim also remains viable.

Judgment reversed.

Pope, C. J., McMurray, P. J., Cooper and Blackburn, JJ., concur. Birdsong, P. J., Andrews, Johnson and Smith, JJ., dissent.

Smith, Judge,

dissenting.

I respectfully dissent.

1.1 would find that the affidavit provided by Thurman was insufficient because it failed to provide “the factual basis” for Thurman’s claim, as required by OCGA § 9-11-9.1. The affiant nurse acknowledges that she reviewed no medical records, but instead relied upon “my understanding gained from information given to Attorney Deborah Green by Mr. Thurman’s family.” “The affiant may review the medical records, take the relevant facts therein to be true, and restate those facts in the affidavit to provide the basis for the expert opinion.” (Emphasis supplied.) Ulbrich v. Batts, 206 Ga. App. 74, 75 (424 SE2d 288) (1992). An expert also may state his opinion based upon facts alleged in the complaint, concluding that such facts, if true, would constitute professional malpractice. Id. The complaint here, however, alleges no facts upon which the affiant could have based an opinion; it simply states that defendant failed to meet the required standard of care and refers to the affidavit. Double hearsay which appears nowhere in the record, provided by family members through the medium of the plaintiffs’ attorney, is insufficient to provide a factual basis for an affidavit under OCGA § 9-11-9.1.

2. The Bill of Rights for Residents of Long-Term Care Facilities, OCGA § 31-8-100 et seq., does not negate the professional malpractice affidavit requirements of OCGA § 9-11-9.1. It is intended to provide a cause of action for negligence or breach of duty on the part of long-term care facilities not rising to the level of professional malpractice. Assoc. Health Systems v. Jones, 185 Ga. App. 798 (366 SE2d 147) (1988), cited by the majority, involves not medical malpractice but negligent failure to restrain an aggressive resident. In contrast, Thurman relies upon allegations of professional malpractice, for which she must provide an affidavit conforming to the statute.

Decided March 16, 1994

Reconsideration denied April 1, 1994

Deborah L. Green, for appellants.

Joe B. Sartain, Jr., Ray L. Crowell, for appellee.

For these reasons, I would affirm the trial court’s dismissal of the complaint.

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

       A statute of limitation defense was also asserted, but was later withdrawn.

       Enterostomy is defined in Taber’s Cyclopedic Medical Dictionary (15th ed. 1985) as a “surgical formation of a permanent opening into the intestine through the abdominal wall.”


source: Caselaw Access Project

author: Birdsong, Presiding Judge. Beasley, Presiding Judge,

license: Public Domain

text:
    A93A2206.
    A93A2497.
    HOOTEN v. THE STATE. BEARD v. THE STATE.
    (442 SE2d 836)
   Birdsong, Presiding Judge.

Although they are unrelated factually, we have consolidated these appeals because each is based upon the reservation of issues for appeal under our decision in Mims v. State, 201 Ga. App. 277, 279 (410 SE2d 824): James L. Hooten appeals his conviction for DUI after entering a conditional guilty plea in Fulton County Traffic Court/City Court of Atlanta, and Jerry Wayne Beard appeals his conviction of DUI following his conditional plea of nolo contendere. The records show the trial courts approved Hooten’s and Beard’s conditional pleas. Held:

1. In Mims we sought to establish procedures for what until then had been the informal practice of allowing criminal defendants to plead guilty while reserving the opportunity to raise on appeal rulings by the trial court which ordinarily would be waived by the plea. See Mims, supra at 278. Otherwise, a plea of guilty generally waives all defenses or objections, known or unknown, other than an appellate issue of whether the plea was voluntarily made and accepted, and in strictly limited circumstances, appellants “may go behind the plea to show some supervening illegality of overwhelming proportions.” Addison v. State, 239 Ga. 622, 624 (238 SE2d 411). This exception concerns errors that go “ ‘to the very power of the state to bring the defendant into court to answer the charge brought against him.’ ” Id. “As recognized in Blackledge v. Perry, 417 U. S. 21, 30 (94 SC 2098, 40 LE2d 628), an unconditional guilty plea does not preclude appeal of a claim of error grounded upon the ‘right not to be haled into court at all,’ that is, jurisdictional and generally double jeopardy-type errors. Moreover, Blackledge, supra, re-affirms that other claims of error, including claims of ‘ “antecedent constitutional violations” or of a “deprivation of constitutional rights that occurred prior to the entry of the guilty plea” ’ will not be appealable following acceptance of the unconditional guilty plea. Thus, it appears that while a claim of constitutional double jeopardy or lack of jurisdiction (and perhaps a claim of violation of Georgia’s procedural double jeopardy provisions) generally would survive an unconditional plea of guilty, Addison, supra, other non-jurisdictional defects in pretrial proceedings, whether or not of constitutional magnitude, could not be asserted on appeal. Blackledge, supra; Harris v. Hopper, 236 Ga. 389, 391 (224 SE2d 1); compare Fuller v. State, 182 Ga. App. 614 (356 SE2d 554).” Springsteen v. State, 206 Ga. App. 150, 154 (424 SE2d 832) (dissent).

Now, after over two years’ experience under the Mims procedures, we have concluded that Mims did not achieve the result intended. Instead, these procedures have caused the diversion of judicial resources to consideration of such extraneous issues as whether the trial court tacitly approved the reservation of issues for appeal (see Springsteen, supra), or approved reservation of issues by absence of indication of disapproval (see Ballew v. State, 206 Ga. App. 631 (426 SE2d 254)), rather than “expressly approves the reservation of the issue and accepts the guilty plea with that condition.” Mims, supra at 279.

Further, in Parker v. State, 211 Ga. App. 187, 191 (438 SE2d 664), we were again diverted to whether the trial court exercised its discretion properly under Mims, and because of ambiguity in the record, we remanded for a plea hearing at which the trial court could “clearly” do so. See also Granger v. State, 205 Ga. App. 483 (423 SE2d 20), in which we considered whether the State had consented to the conditional plea because the State contended on appeal that it had not done so. It was not our intention in Mims to create new types of appellate issues, and, of course, none of these issues would have arisen without the conditional appeals procedures.

Additionally, Mims has led to further expansion of conditional pleas to conditional pleas of nolo contendere (see Harmon v. State, 206 Ga. App. 333 (425 SE2d 343)), and conditional guilty pleas in which First Offender Act status was granted. See Springsteen, supra. Because of the significant other benefits received by entering a nolo contendere plea or receiving first offender status, we do not believe it appropriate to confer the additional benefit of a conditional plea. Although not a guilty plea, a nolo contendere plea is the equivalent of a guilty plea except that it cannot work civil disqualifications; it is an assertion by the defendant that he does not wish to contest the truth of the charges against him. Fortson v. Hopper, 242 Ga. 81, 82-83 (247 SE2d 875). See also OCGA § 17-7-95. If a defendant does not wish to contest the charges against him in the trial court and enters a nolo contendere plea, we discern no valid reason for allowing that defendant to adopt a different posture on appeal so that he can then contest the charges against him. In first offender status cases, we perceive no benefit in allowing a plea which entitles an accused to a probationary period that could lead to expunging the record of his conviction while at the same time permitting him to engage in a tactic which allows him to contest this plea. A guilty plea has an important relationship to rehabilitation that should not be so easily dismissed.

Perhaps more significantly, however, conditional guilty pleas inherently demand that we disregard other important rules of appellate practice such as assuring the issue was raised and preserved properly in the trial court; not acquiesced in, waived, or induced; and, in particular, whether the error resulted in prejudice to the party claiming error. Instead, errors preserved by conditional pleas are considered in the abstract and without regard for the context in which the error was or would have been asserted if there had been a trial. Thus, in Harmon, supra, an appeal from a conditional nolo contendere plea, this court considered the trial court’s pretrial ruling on a requested charge even though evidence was yet to be presented, the trial court did not grant the requested charge and, ultimately, no charge was ever given because of the plea. In the same manner, in Ballew, supra at 632-633, we vacated Ballew’s convictions based upon his guilty pleas to driving under the influence of alcohol, possessing alcohol by consumption by a minor, running a red light, and manufacturing a false government identification document, and remanded the case to the trial court to consider conflicts in the evidence on whether Ballew requested an independent blood test. We did not address, however, whether the error asserted affected Ballew’s convictions of the other offenses.

More significantly, conditional guilty pleas vitiate the harmless error rule; because no trial took place, there is no way to determine whether the error asserted resulted in prejudice to the appellant. Thus, there have been reversals in some cases even though the appellants have failed to show that they were harmed. Our Supreme Court explained the basis for the harmless error rule in criminal cases in this manner: “ ‘When a plaintiff in error brings a case here, he must show error which has hurt him. This court is not an expounder of theoretical law, but it administers practical law, and corrects only such errors as have practically wronged the complaining party.’ ” Hall v. State, 202 Ga. 619, 620 (44 SE2d 234). Conditional pleas, however, inevitably result in consideration of errors which have not practically wronged the appellant. Because there is no way to test for harm when errors preserved by conditional pleas are reviewed, we have, in effect, presumed prejudicial, reversible error when a full trial record might show only harmless error. Moreover, none of the purported errors asserted in these appeals has, in fact, harmed any of these appellants because they all entered pleas admitting or not contesting their guilt. While it might be argued that the effect of the trial courts’ rulings in these cases caused the defendants to plead guilty, there are means available to challenge erroneous rulings of the trial court without using a conditional plea and none of the appeals reviewed so far has sought to set aside the guilty pleas on the grounds such pleas were involuntarily entered.

Further, conditional guilty pleas encourage a “sporting” view of criminal law that we refuse to allow in other situations. Appellants are not usually allowed to gamble on favorable results by refusing to challenge perceived erroneous rulings by the trial court with the expectation that they can achieve a more favorable result on appeal. See Nelson v. Miller, 169 Ga. App. 403, 405 (312 SE2d 867). Nor do we allow appellants to submit to rulings or acquiesce in holdings and then complain of the same rulings on appeal. See Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536). If appellants want to plead guilty they should do so, but they should not be allowed to plead guilty and still contest their guilt. Our current practice of permitting conditional pleas, however, unwisely allows them to do both, which perhaps explains why at least one appellant has entered two conditional guilty pleas. See Claffey v. State, 211 Ga. App. 335 (439 SE2d 516); Claffey v. State, 209 Ga. App. 455 (433 SE2d 441).

Further, allowing conditional pleas deprives trial courts of the opportunity to correct their own rulings since many conditional pleas follow the denial of some specie of motions in limine. As the trial court can modify a ruling on a motion in limine at trial (Agnor’s Georgia Evidence (2d ed.), Motion in Limine, § 8-1.1, citing Frink v. State, 177 Ga. App. 604 (340 SE2d 631), the Mims procedures allow appellants to circumvent this step in the process.

Moreover, the Mims procedures, by eliminating the authority of this court to determine which interlocutory rulings will be considered, also undermine the interlocutory appeals procedures authorized by our legislature for seeking appellate review of a trial court’s interlocutory rulings. See OCGA § 5-6-34 (b). Further elimination of the Mims procedures will not deprive an accused who genuinely feels aggrieved by a trial court’s ruling of the opportunity to seek appellate review as long as the trial court deems appellate review necessary. Thus, today we merely restore this court to its appropriate role in these cases, and, in fact, most conditional pleas follow denials of motions in limine or motions to suppress, which could be appealed under OCGA § 5-6-34 (b). In addition, eliminating the conditional pleas will end appeals by those who could have filed direct appeals under OCGA § 5-6-34 (a) challenging the denials of their motions for discharge and acquittal under OCGA § 17-7-170, but instead were allowed to assert that issue after their guilty pleas. See Ballew v. State, 211 Ga. App. 672 (440 SE2d 76); Goodwin v. State, 202 Ga. App. 655 (415 SE2d 472); Wells v. State, 201 Ga. App. 398 (411 SE2d 125).

Finally, although guilty pleas are recognized as a significant step toward rehabilitation, and as a factor that itself can be, and frequently is, considered in sentencing (Sparks v. State, 176 Ga. App. 8 (335 SE2d 298); Thompson v. State, 154 Ga. App. 704, 708-709 (269 SE2d 474)), the practice of conditional pleas allows appellants to defer, perhaps indefinitely, admitting personal responsibility for their criminal acts as they would by a genuine plea of guilty. “Rather than acknowledging criminal culpability and standing ready to accept lawful and adequate punishment, such an offender seeks to cloak himself in any protective sentencing mantel which a guilty plea affords without relinquishing any entitlement to the legal weapons at his disposal in his unabated quest to overturn the very conviction to which he has entered his plea of purported contrition.” Springsteen, supra at 155.

Although we are aware that our Supreme Court has also considered errors preserved by conditional guilty pleas (see, e.g., Ashley v. State, 261 Ga. 488 (405 SE2d 657)), we have found no decisions by the Supreme Court in which the issue of conditional guilty pleas was raised for consideration and decided. Therefore, these cases are not binding precedent on the question we now decide. Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents. Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (114 SE2d 529).

We are not unmindful of the considerations raised in the dissent, and, of course, those were the factors which led to adoption of these procedures in the first instance. After two years under these procedures, however, the results did not match these aims, and more recent appeals provide no cause for continuing something that has not worked. Moreover, these goals provide no valid reasons for abandoning time-tested rules of appellate procedure and, in particular, rules without which it is impossible to determine whether harmful, reversible error of a constitutional magnitude has been committed. Nor do these goals provide a sufficient cause to disregard the interlocutory appeals procedures which are and will continue to be available.

Further, it must not be forgotten that these appellants have all freely and voluntarily admitted their guilt to the crimes of which they were convicted. Therefore, no valid reason exists for allowing them to search for some means to escape the effect of their pleas. At some point criminal defendants, like all citizens, must learn to live with the consequences of their decisions. Allowing them to receive the benefits of a guilty plea while at the same time seeking to deny their guilt does not achieve that end.

Accordingly, the conditional plea procedures established in Mims v. State, supra, are disapproved and will no longer be allowed by this court. Mims v. State, supra, on this issue and all decisions by this court based upon Mims authorizing conditional pleas will not be followed.

Consequently, in aid of our jurisdiction (Ga. Const. 1983, Art. VI, Sec. I, Par. IV), 30 days after the date this opinion is published in the official advance sheets, pleas in which the accused attempts to condition upon the preservation of the rights to raise non-jurisdictional errors by the trial court will not be considered by this court, and all the usual rules of appellate practice, including the waiver of errors by guilty pleas, will be applied.

Because the trial courts permitted the conditional pleas in these appeals under the Mims procedures, however, we will address the errors asserted.

Case No. A93A2206

2. Hooten appeals the denial of his motion to suppress evidence from his arrest during a traffic roadblock. He contends his stop and search and seizure violated his rights under the United States and Georgia Constitutions because the roadblock did not comply with the standards established in Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (110 SC 2481, 110 LE2d 412) and State v. Golden, 171 Ga. App. 27 (318 SE2d 693).

Appellate review of Hooten’s contentions requires consideration of the evidence reviewed by the trial court and Hooten’s appellate brief contains citations to a purported transcript, but no transcript has been forwarded as part of the record on appeal. Hooten’s notice of appeal provided that nothing should be omitted from the evidence on appeal, but it did not state that a transcript of the evidence had been filed for inclusion in the record. The clerk below has certified that no transcript was filed.

Factual assertion contained in appellate briefs which are not supported by evidence in the record cannot be considered in the appellate process {Hudson v. State, 185 Ga. App. 508 (364 SE2d 635)), and briefs cannot be used in lieu of the record or transcript to add evidence to the record. Williams v. State, 193 Ga. App. 677, 678 (388 SE2d 893). Consequently, this appeal is subject to the well-established rule that the burden is on the appellant to show error by the record, and when a portion of the evidence bearing on the issue raised is not brought up so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result. Ross v. State, 195 Ga. App. 624, 626 (394 SE2d 418). Moreover, examination of Hooten’s arguments shows that even if the transcript contained the alleged testimony, an affirmance would result since the facts allegedly testified to by the police officers do not support Hooten’s contentions. According to Hooten’s allegations, the officer testified the roadblock was set up at the instance of supervisory personnel, all roadblocks are set up in the same way by the State Patrol in accordance with procedures taught in trooper school, and all vehicles were stopped to check for drivers’ licenses and proofs of insurance. These procedures are sufficient to establish a valid routine roadblock within the meaning of Davis v. State, 194 Ga. App. 482, 483 (391 SE2d 124); Evans v. State, 190 Ga. App. 856 (380 SE2d 332); Sapp v. State, 188 Ga. App. 700, 701 (374 SE2d 114); and Golden, supra. Hooten’s contention that there must be advance notice of the roadblock is without merit. As even under Hooten’s version of the trooper’s testimony showed that this was a valid roadblock and not a pretext for stopping his vehicle, the enumeration of error is without merit. Mims, supra at 280. Accordingly, Hooten’s conviction must be affirmed.

Case No. A93A2497

3. Jerry Wayne Beard appeals his convictions based upon his pleas of nolo contendere to driving under the influence (OCGA § 40-6-391) and driving left of center (OCGA § 40-6-40).

Beard contends an anonymous telephone tip is a legally insufficient basis upon which to stop his vehicle. See Moreland v. State, 204 Ga. App. 218, 220 (418 SE2d 788); Johnson v. State, 197 Ga. App. 538, 539-540 (398 SE2d 826). The deputy sheriff who stopped Beard, however, testified that there was an anonymous telephone tip that someone was driving in an erratic manner a vehicle that matched Beard’s and with the same Georgia license tag number, but he did not stop Beard because of that tip. Instead, the deputy testified he stopped Beard solely because he followed Beard’s car for about three-quarters of a mile and saw him cross the centerline twice without signaling. Based upon this uncontradicted and uncontested testimony, the trial court found that the stop was authorized. As a general rule, the trial court’s decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. Santone v. State, 187 Ga. App. 789, 790 (371 SE2d 428). As the trial court’s findings of fact are supported by evidence of record, this enumeration of error is also without merit. Mims, supra at 280. Accordingly, Beard’s conviction is affirmed.

Judgments affirmed.

Pope, C. J., McMurray, P. J., Cooper, An drews, Johnson and Smith, JJ., concur. Beasley, P. J., and Blackburn, J., concur in part and dissent in part.

Beasley, Presiding Judge,

concurring in part and dissenting in part.

I concur fully in all but the first division of the majority opinion. I would not overrule the decisions which have established and refined the practice of permitting a defendant to acknowledge guilt, receive a sentence, and with the agreement of the State and discretionary approval of the trial court, reserve a particular issue or issues for appellate review. So long as this expeditious procedure is clearly followed in the trial court, as we urged in Springsteen v. State, 206 Ga. App. 150, 151 (424 SE2d 832) (1992), the parties, the witnesses, and the court should not be put to the expenditure of time and other resources just to preserve an issue which even the trial court considers worthy of our review.

There is an adequate safeguard against abuse in the requirement that the trial court approve the use of this procedure. It avoids the myriad potential missteps of a trial but still gets to the heart of what might be reversible error of constitutional magnitude.

Claffey v. State, 209 Ga. App. 455 (433 SE2d 441) (1993), and Claffey v. State, 211 Ga. App. 335 (439 SE2d 516) (1993), cited in the majority opinion, illustrate the efficacy of the procedure. Ms. Claffey pleaded guilty to separate drug charges in these cases, and the court permitted her to reserve the right to appeal constitutional issues which related to the searches and seizures of contraband. She appealed, we affirmed the court’s denials of the motions to suppress the evidence, and her convictions thereby became final.

The alternatives to this procedure would have been more time-consuming and required two considerations of each of the cases, both on the trial level and possibly before this court on appeal. If interlocutory appeal had been granted, affirmance of the trial court rulings would have required the trial court to pick up where it had left off and proceed either with a trial or a guilty plea. A hiatus of at least many months would have intervened. Defendant would have achieved a delay in his or her decision to plead guilty and in the court’s imposition of sentence. If the decision is to go to trial, witnesses’ memories will be dimmer and their availability may be in greater jeopardy. Legal issues arising in the trial, such as jury selection, admissibility of evidence, and jury instructions, may give additional bases for appeal. This would be the second appeal in the case. If, on the other hand, the defendant pleads guilty after an unsuccessful interlocutory appeal, he or she can still appeal questions such as the voluntariness of the plea and the legality of the sentence. Again, there would be two appeals.

Decided March 15, 1994

Reconsideration denied April 1, 1994.

Donald C. Turner, for Hooten.

Louise T. Hornsby, Solicitor, for State.

Banks & Stubbs, Rafe Banks III, for Beard.

D. Terry Stringer, Solicitor, James A. Ward, Assistant Solicitor, for State.

Another alternative is to proceed with the trial, after a motion to suppress is denied, and wait to challenge the denial until the direct appeal. But that requires the preparation and presentation of a trial when even the defendant agrees that he or she is guilty of the offense. This exercise, involving many people and much administration especially if a jury were involved, would be necessary just to preserve the one issue which defendant wishes to challenge. Of course, along this path, more issues may be created which would not materialize at all if Mims were followed.

The conditional pleas do not allow defendants to plead guilty and still contest their guilt. They are permitted only to contest some procedural aspect of the case which would affect the validity of a conviction based on a jury or bench trial. The pleas of guilty and sentences thereon, which are secured at a substantially earlier time than if the interlocutory route were the only one, are final immediately if the limited Mims appeal is unsuccessful.

The courts must find processes to achieve the “speedy, efficient, and inexpensive resolution of . . . prosecutions” if we are to abide by the spirit of the mandate in the 1983 Georgia Constitution, Art. VI, Sec. IX, Par. I. We have such a process here, and it precedes Mims v. State, 201 Ga. App. 277 (410 SE2d 824) (1991). See Daniel v. State, 199 Ga. App. 180 (404 SE2d 466) (1991). It is similar to paring down the issues in a civil case, which is one of the objectives of our Appellate Settlement Conference procedure set out in Rule 52. I cannot concur in the decision to abandon it.

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


author: Cooper, Judge. Beasley, Presiding Judge,

text:
    A93A2209.
    MORRIS v. THE STATE.
    (442 SE2d 792)
   Cooper, Judge.

Appellant was convicted by a jury of felony obstruction of an officer and possession of diazepam, a Schedule IV controlled substance, in violation of the Georgia Controlled Substances Act. He appeals from the judgment of conviction and sentence entered on the jury verdict.

The evidence viewed in the light most favorable to the verdict reveals that early one morning, appellant approached the victim at a gasoline service station and asked for a ride. The victim drove appellant to a motel, where appellant forcibly tried to take the keys to the victim’s car. When a police officer arrived and saw appellant hitting the victim, appellant ran away but was subsequently caught by the officer. Appellant violently resisted the officer’s attempt to arrest him, but the officer was eventually able to subdue him. During a search incident to the arrest, the officer found a blue powdery substance in a plastic bag in appellant’s pocket. The substance subsequently tested positive as diazepam, which is more commonly known as Valium. Appellant testified that he did not have a prescription for Valium but had the Valium for a neck problem. Appellant’s mother, with whom appellant lived, testified that she had a prescription for Valium and appellant occasionally used the Valium.

1. Appellant contends that the trial court erred in admitting the State’s similar transaction evidence. Prior to the admission of the evidence, the court conducted a hearing during which a police officer testified that in March 1980, he stopped a car driven by appellant in response to a theft of services call. During a search, he found a green leafy substance in appellant’s jacket pocket and a white powdery substance between the driver’s seat and the passenger’s seat. Tests revealed that the green leafy substance was marijuana and the powder was an amphetamine, a Schedule II controlled substance. Appellant subsequently pled guilty to the charges of possession of marijuana and amphetamines. The State introduced appellant’s guilty plea as part of the similar transaction evidence. Appellant argues that the prior offense was too remote in time to show course of conduct or bent of mind and that there was insufficient similarity between the two offenses.

“ ‘The general rule in this state is that evidence of other criminal acts by a defendant is inadmissible unless the defendant chooses to put his character in issue. [Cit.] However, in some circumstances, evidence of independent crimes may be admitted for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct. Before such evidence may be admitted, the state must show that the defendant was the perpetrator of the independent crime, and that there is sufficient similarity or connection between the independent crime and the offense charged, so that proof of the former tends to prove the latter. [Cit.]’ ” Brunson v. State, 207 Ga. App. 523, 524-525 (428 SE2d 428) (1993). Although both offenses involve controlled substances, they do not involve the same and in the prior case the facts show that appellant was only in constructive possession of the Schedule II substance. There is no requirement that the prior offense be identical to the one being prosecuted. Dobbs v. State, 204 Ga. App. 83 (3) (418 SE2d 443) (1992). However, the evidence must be relevant for some purpose other than to show the probability that appellant committed the crime for which he is on trial because he is a person of criminal character. Maggard v. State, 259 Ga. 291 (2) (380 SE2d 259) (1989). We cannot conclude that the facts surrounding the prior offense were so similar to the offense for which appellant was on trial that proof of the former tends to prove the latter. Accordingly, it was error to admit the evidence. However, in light of the overwhelming evidence of appellant’s guilt, including his admission that he had in his possession Valium which had been prescribed for his mother, it is highly probable that the error did not contribute to the verdict. See Bailey v. State, 207 Ga. App. 283, 284 (427 SE2d 612) (1993).

2. Appellant also argues that the trial court failed to limit the purpose for which the similar transaction evidence could be considered. The trial court charged the jury as follows: “This defendant is on trial for the particular offense charged in this bill of indictment that you will have out with you for your consideration, and on no other charge or charges. He is not on trial on account of any other alleged offense or offenses. Any evidence in this case with reference to any other alleged offense or offenses, if any, is admitted for the purpose of your consideration, solely and only under the provision of law that where knowledge, common design, modus operandi, motive, intent, good or bad faith, bent of mind, plan, scheme, and course of conduct, identity, or other matters dependent upon a person’s state of mind are involved as material elements in the offense for which he is on trial. Evidence of the defendant’s conduct, with reference to similar transactions about the same time, is admitted solely for the jury to consider only as it might tend to illustrate the defendant’s state of mind on the subject involved, if you think it does so illustrate it, and for that purpose alone. You are not to consider it for any other purpose.” (Indention omitted.) Contrary to appellant’s argument, we find that the trial court’s charge was an appropriate limiting instruction. See, e.g., Barnes v. State, 191 Ga. App. 424 (2) (382 SE2d 164) (1989). Accordingly, we find no error.

3. Appellant contends that the trial court erred in charging the jury that only a person to whom, or for whose use, a controlled substance has been prescribed, sold or dispensed, may lawfully possess the same. OCGA § 16-13-21 (28) defines “ultimate user” as “a person who lawfully possesses a controlled substance for his own use, for the use of a member of his household, or for administering to an animal. . . .” (Emphasis supplied.) The charge as given was not a correct statement of the law. However, in light of the overwhelming evidence against appellant, we find no harmful error.

Judgment affirmed.

Smith, J., concurs. Beasley, P. J., concurs specially.

Beasley, Presiding Judge,

concurring specially.

I concur in the affirmance of the conviction because the evidence was overwhelming, so that the type of errors committed was harmless. Gilbert v. State, 208 Ga. App. 258, 263 (3) (430 SE2d 391) (1993).

I agree that the 1980 transaction should not have been admitted; it was not sufficiently similar and it was too remote to serve any of the legitimate purposes for which it might have been offered. Bacon v. State, 209 Ga. 261 (71 SE2d 615) (1952). It did not meet all three of the affirmative showings which the State is required to show. Williams v. State, 261 Ga. 640, 641 (2) (b) (409 SE2d 649) (1991).

However, I do not agree that the court’s instruction on this evidence was not erroneous. It was error to give it at all, because it related to evidence which should have been excluded. Even if it had applied to admissible evidence, it was not properly limited. The court gave a whole string of purposes for which such evidence may be admitted, but did not confine these to any particular issue or issues which were present in this case. For example, the court listed “identity”; that was not an issue.

Williams established that in order for evidence of an independent offense or act to be admissible, the State must affirmatively show that it is offered “for some appropriate purpose.” It requires the trial court to make a determination that this showing has been satisfactorily made.

The purpose for the evidence must be the resolution of some issue in the case, articulated by the State. Otherwise it would be immaterial. The curb imposed at the threshold (a showing by the State and a determination by the court) does no good if the jury is not properly apprised of the limitation. Giving the jury a whole list of the purposes for which such evidence is permitted, such as those identified in Williams, footnote 2, can have the very effect which is sought to be avoided. That is, the jury would have a hard time to distinguish between using the evidence for the whole wide-ranging litany of purposes described and using it generally. There is a substantial danger that it will simply be led to consider the defendant’s general character. See Evans v. State, 209 Ga. App. 606, 607 (434 SE2d 148) (1993) (Beasley, J., dissenting).

Decided March 7, 1994

Reconsideration denied April 1, 1994.

James J. Dalton II, Fleming & Risher, Richard D. Hobbs, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

The problem is exacerbated in this case by the inconsistency of the court’s instruction. First it charged that the evidence was admitted for a wide range of purposes. Then it concluded that it was admitted solely to illustrate defendant’s “state of mind on the subject involved,” i.e., criminal possession of diazepam. This confusion would make more likely a forbidden consideration by the jury of the defendant’s character. If the evidence of other transactions is to be admitted to prove the crime for which a defendant is on trial, it must be clearly and explicitly limited to an issue or issues in the particular case; otherwise we inch towards trial by dossier.


text:
    A93A2275.
    HADSOCK v. J. H. HARVEY COMPANY, INC.
    (442 SE2d 892)
   Beasley, Presiding Judge.

Hadsock’s son, Richie Bethea, was murdered by another employee, Wright, during an armed robbery while making a night deposit at a local bank for their employer, Harvey. Hadsock filed a tort action against Harvey and against the bank, which is not a party to this appeal. Harvey was granted summary judgment on the ground that OCGA § 34-9-11, the exclusivity provision of the Workers’ Compensation Act, provided immunity because Bethea’s death arose out of and in the course of his employment.

Viewing the evidence in favor of the non-movant plaintiff, Candler Gen. Hosp. v. Purvis, 123 Ga. App. 334, 335 (181 SE2d 77) (1971), the record shows that at the time of his death Richie Bethea was a student and part-time employee of Harvey, working as a “stock man” at Harvey’s store in Valdosta. The store manager asked him to assist in closing the office “a couple of nights a week,” which involved closing down cash registers and preparing the bank deposit. On Wednesdays, Fridays, and Saturdays, Harvey employed a security guard who took the deposit to the bank with one of the managers. On most Thursdays, for a period of two years, Bethea and Madson, a “bag boy,” took the deposit to the bank because there was only one manager in the store. There was evidence that Harvey’s policy required that a manager make the deposit and that the manager and assistant manager knew this.

Harvey’s policy directed store managers to vary the time and the route taken to the bank “for safety reasons,” but Bethea and Madson were not so instructed. They left at the same time each Thursday and did not vary their route. The store manager acknowledged that anyone working in the store could learn when the deposit was being made “if they put their mind to it.” The assistant manager reported his suspicions of employee Wright to the store manager, but no action was taken. On Thursday, July 9, 1992, Wright and an accomplice followed Bethea and Madson to the bank, robbed Bethea of the money as he approached the night deposit drawer, and shot him to death.

The undisputed facts show that the employee’s death arose out of and in the course of employment. OCGA § 34-9-1 (4). There is remedy, but it is limited to that which is provided through the legislature by the Workers’ Compensation Act. OCGA § 34-9-11 (a); Labette v: Lister, 192 Ga. App. 464 (1) (385 SE2d 118) (1989). The issue is whether the injury or death was job-related. When the issue is presented to establish a bar in a tort action, “the normal procedure is for the jury to find facts and then to apply to those facts the law as given by the trial court in its instructions.” Utz v. Powell, 160 Ga. App. 888, 889 (288 SE2d 601) (1982). However, as pointed out in Utz, the issue may be appropriate for resolution by summary judgment.

“ ‘The words “in the course of the employment” relate to the time, place, and circumstances under which the [incident] takes place, and an [incident] arises in the course of the employment when it occurs within the period of employment at a place where the employee may reasonably be in the performance of his duties and while he is fulfilling those duties or engaged in doing something incidental thereto.’ New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682, 688 (118 SE 786) [(1923)].” Gen. Fire &c. Co. v. Bellflower, 123 Ga. App. 864 (182 SE2d 678) (1971).

There is no question that Bethea’s activity was in pursuit of the employer’s business. Depositing the employer’s receipts for the day was not a personal favor for the supervisor or a personal errand of the employee or any other category of activity which would remove it from the scope of the employment for which he was getting paid.

There is also no question that the two employees were assigned to the task by their supervisor. The fact that it was contrary to company policy for the supervisor to make such an assignment does not take it outside the scope of employment. The employees were in no position to challenge it or even to know of the policy. They were engaged in an activity in the interest of the employer, not in a gratuitous act which is outside the range and scope of the job responsibilities assigned. This is not a case where the employee disregarded instructions or took upon himself an unauthorized activity, but rather a case where the employee followed the instructions given to him to complete a task which was part of the employer’s business operations.

The Workers’ Compensation Act is to be liberally construed in determining whether an injury is compensable under it. Graves v. Builders Steel Supply, 186 Ga. App. 736, 737 (368 SE2d 188) (1988), citing the Supreme Court case of Samuel v. Baitcher, 247 Ga. 71, 73 (274 SE2d 327) (1981). It must be viewed in this manner both when an employee has made a claim and is seeking coverage under it and when an employer has sought its protection as a defense to a tort action. One of the purposes of the Act is surely the humanitarian one of providing relief to injured employees, but another purpose is to protect employers against excessive recoveries of damages. Slaten v. Travelers Ins. Co., 197 Ga. 1, 3 (28 SE2d 280) (1943); Samuel v. Baitcher, supra. We are to interpret the Act, if its language will permit, so as not to deny its benefits to either employee or employer. Slaten, supra. If the damages in this case or in death cases generally are inadequate, it is the legislature which must effectuate a change, not the court by way of excluding such cases from workers’ compensation coverage.

In this case, there was a causal connection between the employment and the injury. See Borden Foods Co. v. Dorsey, 112 Ga. App. 838 (3) (146 SE2d 532) (1965). There was no personal deviation which broke the link with employment. See Chandler v. Gen. Accident Fire &c. Corp., 101 Ga. App. 597 (114 SE2d 438) (1960). The employee was killed while in the performance of a task which was of benefit to the employer. Edwards v. State of Ga., 173 Ga. App. 87, 88 (325 SE2d 437) (1984) and citations therein.

The employer’s negligence vel non, or even gross negligence, is not in issue. As Justice Duckworth clearly stated in Slaten, supra at 2: “the single and only requirement [for the no-fault workers’ compensation coverage is] that the injury resulted from an accident arising out of and in the course of the employment.” The existence of that condition precludes the appellant’s tort action, and we cannot narrow the coverage of workers’ compensation in order to preserve this tort action.

Judgment affirmed.

Pope, C. J., Birdsong, P. J., Andrews, John son and Blackburn, JJ., concur. McMurray, P. J., Cooper and Smith, JJ., dissent.

Smith, Judge,

dissenting.

I respectfully dissent. “It is well settled that when an injury arises out of and in the course of employment, the employee’s sole remedy is against the employer, pursuant to OCGA § 34-9-11.” Labelle v. Lister, 192 Ga. App. 464 (1) (385 SE2d 118) (1989). Whether an employee’s injury arose out of and in the course of employment is usually a question of fact. Edwards v. State of Ga., 173 Ga. App. 87, 88 (325 SE2d 437) (1984). “The terms ‘arising out of and ‘in the course of are not synonymous. An injury arises ‘in the course of employment’ when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto.” (Citations and punctuation omitted.) Murphy v. ARA Svcs., 164 Ga. App. 859, 861 (298 SE2d 528) (1982). Another guide to determining the scope of employment is whether the employee “was performing acts within the class of service for which he was employed.” Redwing Carriers v. Knight, 143 Ga. App. 668, 669 (1) (239 SE2d 686) (1977). Here, in contrast, testimony on the record indicates that carrying a deposit to the bank was a managerial duty and should not have been performed by a “stock man” and “bag boy.”

Moreover, “ ‘ [i]t is entirely true that the employer may define the limits of the employee’s sphere of employment by prohibitions, rules, and regulations, and if the employee violates these he is outside the scope of his employment, and any injury sustained outside the scope of the employment is not compensable.’ ” Parker v. Travelers Ins. Co., 142 Ga. App. 711, 713 (4) (236 SE2d 915) (1977). In Parker, a mechanic was authorized by his employer to perform work on his and co-employees’ cars in “lull or slack periods” during which he was required to remain on the employer’s premises. In contrast, Harvey’s regional management had published specific guidelines, and the local store manager and assistant manager acknowledged that they understood the guidelines provided that a manager rather than an hourly employee perform the task in question.

The fact that a local manager directed Bethea to make the night deposit does not in itself demand summary judgment for Harvey as a matter of law. American Mut. Liability Ins. Co. v. Lemming, 187 Ga. 378 (200 SE 141) (1938). “[M]ere direction by an employer to an employee to do something not connected with the employer’s business and the employee’s job in it will not suffice [to support a finding that the employee is within the scope of his employment]. [Cit.]” Graves v. Builders Steel Supply, 186 Ga. App. 736, 742 (368 SE2d 188) (1988) (Beasley, J., dissenting).

This court’s decisions in Edwards, supra, and Graves v. Builders Steel Supply, supra, do not require a different result. Ordinarily, this court reviews an award and findings of fact by the State Board of Workers’ Compensation, and will not disturb that award if it is supported by any evidence. Edwards, supra at 88. In both Edwards and Graves there was evidence to support the conclusion that the work was within the scope of employment.

In Edwards, the claimant was injured in a fast-food restaurant while obtaining a carry-out lunch for her supervisor so that he could continue to work. Edward’s written job description contained a provision including “ ‘other duties as assigned by supervisors and managers,’ ” 173 Ga. App. at 88, and she testified that getting her supervisor’s lunch fell within that general provision in her written job description and was one of her regular duties. Id. In Graves, this court noted that it liberally construes the Workers’ Compensation Act to effectuate its humanitarian purposes. 186 Ga. App. at 737. A machine operator who was injured on a fellow employee’s machine, on which he was not authorized to work, was held to be engaged in work so similar to his own that the activity was “an incident of claimant’s regular work.” Id. In neither Graves nor Edwards was there testimony that the conduct in question was explicitly placed outside the scope of the worker’s employment by written company policy.

On summary judgment in a tort action, the standard applied is different from that used in reviewing a decision of the Board of Workers’ Compensation. “The party moving for summary judgment has the burden of establishing the non-existence of any genuine issue of fact, and all doubts must be resolved in favor of the non-moving party.” Northside Bldg. Supply Co. v. Foures, 201 Ga. App. 259 (411 SE2d 87) (1991).

Construed most strongly against the movant, the record contains evidence that Harvey knew the night deposit involved a risk of armed robbery to the person performing the task. Consequently, Harvey directed that managers make bank deposits and provided explicit written directions as to the manner in which this task should be performed. The record supports the inference that a manager was present and available to make the deposit on the night of Bethea’s death but failed to perform his assigned duties. Instead, two unauthorized employees were diverted from their regular duties to make the deposit in the manager’s stead, contrary to written company policy and without being instructed in the proper manner of performing that duty. There is some evidence that management chose this course of action only when a security guard was not available to carry the night deposit.

These facts present an apparent conflict between the employer’s rules and the command of an intermediate supervisor in contravention of those rules, creating an issue of fact as to whether Bethea’s death arose out of and in the course of his employment. Bethea’s knowledge of regional management’s policy and the authority of local management to countermand that policy remain in dispute. A finder of fact could conclude that making the night deposit was outside the scope of Bethea’s duties and not an incident of his regular work, and that he was performing acts outside the class of service for which he was employed. For these reasons, summary judgment is inappropriate here, and I would reverse the trial court’s grant of summary judgment to Harvey.

Decided March 18, 1994

Reconsideration denied April 1, 1994

J. Converse Bright, for appellant.

Young, Clyatt, Turner, Thagard & Hoffman, Robert M. Clyatt, Daniel C. Hoffman, Hodges, Erwin, Hedrick & Kraselsky, Kenneth B. Hodges, Jr., for appellee.

I am authorized to state that Presiding Judge McMurray and Judge Cooper join in this dissent.

       The writer of this opinion dissented in Edwards v. State of Ga., 173 Ga. App. 87, 91 (325 SE2d 437) (1984), because the secretary/typist’s going out to get her supervisor’s lunch constituted a personal favor and not the performance of a job duty.

       This distinction caused the writer of this opinion to dissent in Graves v. Builders Steel Supply, 186 Ga. App. 736, 739 (368 SE2d 188),(1988).


author: Smith, Judge. Beasley, Presiding

text:
    A93A2297.
    REID v. THE STATE.
    (442 SE2d 852)
   Smith, Judge.

Charles Reginald Reid was convicted by a jury of possession of cocaine with intent to distribute. OCGA § 16-13-30 (b). His motion for new trial was denied. On appeal, he contends that the evidence was insufficient to support his conviction. We agree and reverse.

The evidence presented at trial showed that Investigator Keith Corley of the Monroe County Sheriffs Department was told by a reliable confidential informant that a young black male from Atlanta, who was a passenger in a car, was selling crack cocaine. The informant described the car, identified the driver, described the passenger’s clothing, and told Corley where the car was headed. Corley immediately located the car and followed it into the apartment complex the informant had named as its destination, pulling in behind it as the car was parked. He then had the two occupants exit the car and searched them, finding no drugs. The passenger was identified as Reid, and the driver as Jerry Buckner. Although the dissent only makes bare mention of it in a footnote, the evidence was in conflict as to whether Buckner, as well as Reid, exited the car on the passenger side. Reid testified that the driver’s side door had jammed and that Buckner had to cross over and exit on the passenger side. Corley testified to the contrary, that he did not recall that the driver’s door had jammed and that he remembered that Buckner got out on the driver’s side. Corley then searched the car with Reid’s consent and found a plastic ziplock bag containing what appeared to him to be crack cocaine.. He found the bag on the floorboard on the passenger side of the car between the place where the bench seat was bolted to the car’s frame and the passenger door, approximately six inches from the door. Chain of custody was established by the State, and a forensic chemist from the State Crime Laboratory who had analyzed the bag’s contents testified the bag contained 1.7 grams of crack cocaine. The State then rested.

Reid testified in his own behalf, denying possession or knowledge of the drugs in the car. He testified that he lived in Atlanta and arrived in Monroe County that morning. He and a friend walked to a local park, where they met Buckner. Buckner gave him a ride to a fast-food restaurant and bought him lunch, and it was Buckner’s idea to drive then to the apartment complex “to see a girl.” He testified that Corley asked him if he could search the car “like it was my car. So I said go right ahead.” He testified he told Corley the bag with cocaine was not his and asked Corley to fingerprint the bag to show he had not touched it, but it was not fingerprinted in his presence. Corley testified he asked the crime lab to fingerprint the bag, but the lab informed him that is no longer done in drug cases. The forensic chemist confirmed this testimony.

In prosecuting Reid, the State relied on circumstantial evidence to show constructive rather than actual possession, since no evidence showed Reid in actual possession of any drugs. This is, of course, permissible, but “ ‘[a] finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.’ [Cit.]” Whipple v. State, 207 Ga. App. 131, 132 (1) (427 SE2d 101) (1993). Nothing more was shown here. The informant did not testify. Notwithstanding Reid’s failure to object, Corley’s testimony regarding the substance of the information he received from the informant was inadmissible hearsay without probative value, and it will not be considered in reviewing the issue of the sufficiency of the evidence. Wood v. State, 204 Ga. App. 467, 468-469 (1) (419 SE2d 534) (1992). Unlike Whipple, no presumption of possession arose here, because it is undisputed that Reid did not own or control the car.

Here, as in Whipple, supra, “[w]e recognize that the factfinder is usually in the best position to determine questions of reasonableness when evidence of guilt is circumstantial. [Cits.]” Id. Nevertheless, since no presumption of possession arose here, we find no evidentiary basis upon which the jury could have concluded beyond a reasonable doubt that Reid was in knowing possession of the cocaine. See Llaguno v. State, 197 Ga. App. 789, 791 (1) (399 SE2d 564) (1990). The evidence showed only that a certain amount of crack cocaine was found on the floorboard between the seat and the door on the passenger side of the car near where Reid had been sitting and that Reid denied he had seen Buckner with any drugs that day. Of course, contrary to the dissent’s assertion, the fact that Reid never saw Buckner with drugs does not exclude the hypothesis that the drugs belonged to Buckner; it is inconsistent only with a theory that relies upon Reid having seen Buckner with drugs, and it therefore excludes only such a theory. Moreover, a defendant does “not have the obligation to offer a theory consistent with innocence. Rather, the [S]tate had the burden of proving guilt. In a case such as this one, involving wholly circumstantial evidence, the law demands that ‘the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.’ [Cit.]” Howard v. State, 148 Ga. App. 598, 600 (5) (251 SE2d 829) (1979). The circumstantial evidence presented here was insufficient to exclude every other reasonable hypothesis save that of Reid’s guilt, and his conviction must be reversed. See Whipple, supra; Byers v. State, 204 Ga. App. 552, 556 (4) (420 SE2d 23) (1992).

Judgment reverséd.

Pope, C. J., Birdsong, P. J., Cooper and Blackburn, JJ., concur. McMurray, P. J., Beasley, P. J., Andrews and Johnson, JJ., dissent.

Beasley, Presiding

Judge, dissenting.

I respectfully dissent. The only hypothesis the defendant offered, other than his constructive possession of the cocaine, was that the driver/owner of the car was the sole owner of the cocaine. This hypothesis is excluded by defendant’s own testimony, that he had not seen the driver/owner with any cocaine that day. Yet it was within view. See OCGA § 24-4-6. The officer, considering all the circumstances within his knowledge, including the information from the informant and his interview of the driver whom he knew by name, did not charge him or seize the car. The officer was experienced in such cases, having made about 200 narcotics cases, and was specially trained in the conduct of the narcotics trade.

There was circumstantial evidence which, together with reasonable inferences derived therefrom and a lack-of-credibility rejection of defendant’s trial testimony denying knowledge and ownership of the cocaine, that defendant was in constructive possession. “ ‘A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.’ ” Allen v. State, 191 Ga. App. 623, 624 (2) (382 SE2d 690) (1989). As in Allen, wherein the passenger’s conviction was affirmed, passenger Reid “had access to the contraband and thus the power to exercise control over it” even if the driver was also implicated. Id. at 625.

Here the cocaine was even more easily accessible by Reid than it was to the passenger convicted in Shropshire v. State, 201 Ga. App. 421 (411 SE2d 339) (1991). There it was found behind the passenger’s seat, on top of the carpet and under the floormat. In this case, Reid did not even have to turn around to get it; he just had to put his hand down.

Appellant contends that his case is similar to that of the passenger in Tharpe v. State, 166 Ga. App. 456 (1) (304 SE2d 468) (1983). To the contrary, in Tharpe the drugs were concealed in a gym bag which the driver had brought from his apartment, which gym bag was on the floor in front of the rear seat where another passenger was riding. There was no evidence that Tharpe even knew the bag was in the car. The proximity in this case is immediate, access was close, and the cocaine was in a typical drug container through which it could be seen easily.

Intent to exercise control over it may be inferred from the circumstances. Allen, supra at 625. In Chitwood v. State, 166 Ga. App. 62 (1) (303 SE2d 307) (1983), the passenger’s conviction was affirmed even though the marijuana was found on the floor in the middle of the floorboard on the driver’s side. The driver, Chitwood’s wife, testified that it was hers. The court applied the law, that the question of Chitwood’s intent became a question for the jury where it could be inferred from the circumstances. The circumstances permitted an inference of intent, even though, as the court pointed out, the marijuana was closer to the driver than to the passenger.

Here the ziplock plastic bag of cocaine was not only closer to the defendant passenger and within the view of the officer when he looked down, but it was not within reach of the driver. The jury could see the bag, filled with 28 rocks of crack cocaine valued at about $300 and weighing 1.7 grams, and get a good idea of how it must have looked on the floor of the car. The bag was between the front bolt-down place of the bench seat and the passenger door, about six inches from that door. Thus it was inferentially between defendant’s feet and the door, from which only the defendant exited. No other evidence of cocaine involvement, such as paraphernalia, was found in the car.

Even without the evidence that the officer was looking for defendant because of reliable information that he was from Atlanta, was selling cocaine, had a ziplock bag of it, and was in the car of a named driver (see OCGA § 24-3-1; Teague v. State, 252 Ga. 534 (1) (314 SE2d 910) (1984)), whom the officer knew, the evidence is sufficient.

In Harris v. State, 236 Ga. 242, 244 (1) (223 SE2d 643) (1976), the rule applicable here was quoted: “ ‘Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused, is primarily a'question for determination by the jury. This of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors. After having heard the witnesses and having observed them testify, they are more capable of judging of the reasonableness of a hypothesis produced by the evidence, or the lack of evidence, and the defendant’s statement, than is a court of law.’ ” It is only where there appears a hypothesis pointing to innocence, “and which tested by all human experience is a reasonable one,” that the court may declare it so as a matter of law. Id. at 245. We cannot do so here, and I am even more persuaded to this view by the fact that the trial judge, who was acquainted with more evidence than appears to us in words on a written page alone, reviewed the evidence and denied a new trial on this same ground. On a motion for new trial, the court sits as a thirteenth juror, and the discretion to grant a new trial should be invoked only where the evidence preponderates heavily against the verdict. Ricketts v. Williams, 242 Ga. 303, 304 (248 SE2d 673) (1978).

The evidence was sufficient for a rational trier of fact to have found Reid guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Whether the driver was also in constructive possession, so that it was joint instead of sole, is irrelevant to defendant’s guilt. By electing not to charge the driver, the State did not take on, as a matter of law, the burden of proving sole constructive possession in defendant.

I am authorized to state that Presiding Judge McMurray, Judge Andrews, and Judge Johnson join in this dissent.

Decided March 16, 1994

Reconsideration denied April 1, 1994.

Henry C. Johnson, Jr., for appellant.

Tommy K. Floyd, District Attorney, Charles E. Rooks, James L. Wright III, Assistant District Attorneys, for appellee.

       The dissent relies on Allen v. State, 191 Ga. App. 623, 624 (2) (382 SE2d 690) (1989); Shropshire v. State, 201 Ga. App. 421 (411 SE2d 339) (1991); and Chitwood v. State, 166 Ga. App. 62 (1) (303 SE2d 307) (1983), to show that passengers in automobiles were found to be in possession of drugs in circumstances where the contraband was less accessible to them. However, in those cases the drivers were charged as well, and the passengers were found to be in joint possession of the drugs, along with the drivers. That is not the case here, where the driver was not charged. Here, the State had the burden of showing that Reid was in sole constructive possession of the drugs.

       Although defendant testified that the driver exited on the passenger side, we must take the evidence in the light most favorable to the verdict. See generally Avans v. State, 207 Ga. App. 329 (1) (427 SE2d 826) (1993).


author: Birdsong, Presiding Judge. Andrews, Judge, Blackburn, Judge,

text:
    A93A2393.
    MATT et al. v. DAYS INNS OF AMERICA, INC.
    (443 SE2d 290)
   Birdsong, Presiding Judge.

Richard and Kellee Matt appeal the grant of summary judgment to Days Inns of America, Inc. The Matts sued Days Inns for damages sustained after Richard Matt was shot in a robbery attempt at the Atlanta Airport Days Inn. The Matts contended that Days Inns’ negligence was the proximate cause of Richard Matt’s injuries because it failed to provide adequate security and failed to take reasonable precautions to protect him from reasonably foreseeable criminal acts of third persons.

Subsequently, Days Inns moved for summary judgment contending that it was not liable as Richard Matt’s injuries were caused by the unforeseeable criminal conduct of a third person. More specifically, Days Inns asserted that although there had been crimes against property in this parking lot and two robberies by force sometime earlier, there had been no substantially similar armed robbery on its premises which would give notice of the possible occurrence of the kind of event that caused Richard Matt’s injuries. Ultimately, the trial court granted Days Inns’ motion for summary judgment because it found Days Inns had established that there was no genuine issue of material fact on the issue of foreseeability.

The Matts contend that the trial court erred because they introduced evidence that there were 82 crimes committed at the hotel in the three years preceding the attack on Richard Matt. The records show that one robbery occurred in a guest room and 81 other crimes were committed in this Days Inn’s parking lot, including one purse snatching one year prior and a robbery by force without the use of a weapon some three years earlier.

In addition, the Matts introduced evidence showing that there are three other airport hotels within a one-quarter mile radius of the Days Inn, and that at one hotel there were 184 parking lot crimes, including five armed robberies, one strong-arm robbery, two rapes, ten assaults, and one kidnapping; another of the hotels had 257 parking lot crimes, including four armed robberies, one strong-arm robbery, one rape, and 26 assaults; and at the other hotel, three total parking lot crimes including two assaults and one kidnapping. The evidence showed that Days Inns’ procedures required that it monitor criminal activity within the area of each Days Inn and adapt its crime prevention plan accordingly.

After their marriage in another state the day before, the Matts drove to Atlanta and, upon their travel agent’s recommendation, checked into the Days Inn with plans to take a honeymoon flight to Mexico very early the next morning. The evidence showed that the Matts had never spent the night in an Atlanta hotel before.

The evidence presented showed the shooting occurred in the early morning hours in the first row of cars parked very near the front door of the Inn and that a security guard was seated in a vehicle some 40-50 feet from the place of the shooting. The security guard saw the crime taking place and notified the front desk to call the police because a robbery was in progress.

Testimony from the security guard and Richard Matt showed that the robbery attempt happened very quickly. While Richard Matt opened the trunk of his car to remove some luggage, another car came up behind him. When someone in the car demanded Matt’s wallet and Matt did not comply immediately, he was shot. The car then sped away.

The Matts contend that Days Inns failed to exercise its responsibility to protect them on its premises, and that under Days Inns’ security procedures, the guard should not have been seated in the car, but should have been patrolling the premises. Further, an expert witness for the Matts, a former chief of security for Days Inns, testified that under the facts known to Days Inns prior to the shooting, a crime such as the one which resulted in the injury to Richard Matt was foreseeable. The trial court found, however, that for criminal activity to be foreseeable, there must have been previous substantially similar criminal acts, and that the “test of ‘substantial similarity’ is stringent and is met only where the injured party can demonstrate that the prior criminal acts took place in a like manner and under similar conditions as the criminal act in issue.” The trial court found that the previous criminal activity at the Days Inn was not substantially similar under this test and, consequently, granted summary judgment. The Matts appeal under OCGA § 9-11-56 (h). Held:

Under our law, Days Inns has an obligation as an innkeeper to exercise ordinary care to keep its premises safe for its guests. OCGA § 51-3-1; Davis v. Garden Svcs., 155 Ga. App. 34 (270 SE2d 228). Days Inns, however, relies upon Savannah College of Art &c. v. Roe, 261 Ga. 764 (409 SE2d 848) and Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474), for the propositions that before a landowner may be liable for a third party’s criminal act there must have been at least one prior substantially similar incident, and further the fact that a security guard is present does not increase the standard of care.

Although an innkeeper is not an insurer of the safety of the guests, it is bound to exercise ordinary care to protect its guests from unreasonable risks of which the innkeeper has superior knowledge, and if an innkeeper has reason to anticipate criminal acts, it has the duty to exercise ordinary care to guard against injury caused by dangerous characters. Lau’s Corp., supra at 492. “[O]rdinary diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances.” OCGA § 51-1-2. “Exactly what constitutes ‘ordinary care’ varies with the circumstances and the magnitude of the danger to be guarded against. Since it is impossible to prescribe definite rules in advance for every combination of circumstances which may arise, the details of the standard must be filled in each particular case. But, to be negligent, the conduct must be unreasonable in light of the recognizable risk of harm.” (Citations and punctuation omitted.) Lau’s Corp., supra at 493. The Matts, however, may not rely upon Richard Matt’s injuries as evidence that Days Inns failed to take reasonable steps to protect him, but must present facts from which a jury could conclude that Days Inns failed to take reasonable measures to protect him against injury. Lau’s Corp., supra at 494.

Additionally, the Matts produced evidence from Days Inn’s security guard that he did not feel safe patrolling the premises and prior to Matt’s shooting had requested permission to carry a weapon, wear a bullet-proof vest, and carry a portable telephone and had also requested that a gate controlling access to the parking lot be installed. Further, there is evidence that a Days Inns security audit conducted some years prior to the Matt shooting had recommended increased security patrols in the parking lot.

Knowledge that the premises subjected its guests to an unreasonable risk of criminal attack is a prerequisite to recovery under OCGA § 51-3-1 and such knowledge may be demonstrated by evidence of the occurrence of prior substantially similar incidents. Savannah College of Art, supra at 765. Moreover, under Lau’s Corp., supra at 493, evidence of criminal activity in the area in which the hotel is located may be considered on this issue.

Therefore, the question is whether the prior robberies by force in the Days Inn parking lot are substantially similar to the armed robbery in which Richard Matt was shot. In this sense, substantially similar does not mean identical, and it is not a question whether a weapon was used, but whether the prior crimes should have put an ordinarily prudent person on notice that the hotel’s quests were facing increased risks. “All that is required is that the prior [incident] be sufficient to attract the [hotel’s] attention to the dangerous condition which resulted in the litigated [incident].” Pembrook Mgmt. v. Cos saboon, 157 Ga. App. 675, 677 (278 SE2d 100).

Judge Andrews’ dissent proposes adoption of a too narrow definition of “prior substantially similar incidents.” Savannah College of Art, supra at 765. Under the dissent’s definition of the term, not only must the prior incident be the same crime, but the means of inflicting injury must be identical. That is not our law. As may be seen from our Supreme Court’s citations to earlier decisions of this court, Savannah College of Art did not announce a new or more restrictive standard in these cases. See Nalle v. Quality Inn, 183 Ga. App. 119, 120 (358 SE2d 281); Washington Rd. Properties v. Stark, 178 Ga. App. 180, 181 (342 SE2d 327); McCoy v. Gay, 165 Ga. App. 590, 591 (302 SE2d 130); McClendon v. Citizens &c. Nat. Bank, 155 Ga. App. 755, 756 (272 SE2d 592). Savannah College of Art, supra at 765. Thus, the test is whether the prior criminal activity was sufficiently substantially similar to demonstrate the landowner’s knowledge that conditions on his property subjected his invitees to unreasonable risk of criminal attack so that the landowner had reasonable grounds to apprehend that the present criminal act was foreseeable. The test proposed by the dissent, however, is in application a “free bite” analysis that is not supported by Savannah College of Art or any other precedent in this state.

Consequently, it cannot merely be stated that because none of the prior offenses at the Days Inn was an armed robbery with a firearm that none of the events were substantially similar. To reach that result would require the conclusion that a hotel somehow would safeguard its guests differently to protect them from robberies by force and violence than from armed robberies, or protect them differently from armed robbers with firearms than those with knives, or protect guests differently from assaults than from armed robberies. We do not find that the Supreme Court intended such a result in Savannah College of Art. Indeed, in Savannah College of Art the prior offenses were not crimes of violence against the persons of any of the dormitory residents, but offenses against property or public morals which would not put the college on notice that it was reasonable to expect a sexual attack on a dormitory resident.

In this appeal, however, the record of criminal activity in the parking lots of nearby hotels, including serious crimes against persons, when coupled with the record of criminal activity in its own parking lot (a crime about once every two weeks) was sufficient to create a genuine issue of material fact on whether Days Inns was put on notice that criminal conduct against its guests was foreseeable.

Moreover, although a landowner does not become an insurer of safety by taking some security precautions on behalf of invitees and undertaking some measures to protect patrons does not heighten the standard of care or ordinarily constitute evidence that further measures might be required (Lau’s Corp., supra 494-495), neither does providing security insulate the landowner from liability when the security measures proved to be inadequate. See Wilks v. Piggly Wiggly Southern, 207 Ga. App. 842, 844 (429 SE2d 322). Consequently, we find genuine issues present on whether Days Inns’ security measures were adequate or whether they were performed in a negligent manner.

The dissent by Judge Blackburn addresses the issue of whether Days Inn was negligent and it concludes that Days Inn cannot be liable in this case because it could not have prevented this crime. Issues of negligence, however, are for the jury, except in plain and palpable cases in which reasonable minds cannot differ. Lau’s Corp., supra at 493. This is not such a case. Moreover, this dissent takes an unreasonably restrictive view of the measures an innkeeper might use to protect guests in its parking lot. First, a jury might find that an innkeeper is not limited to actions that might prevent guests from being injured once a crime is in progress. Thus, it is possible a jury might find that the visible presence of a security guard in the parking lot (as Days Inns’ own security procedures required) could have prevented this robbery. Further, a jury also might find negligence in that the unarmed security guard remained safely in his vehicle while allowing Richard Matt to face alone the dangers of the parking lot that prompted the security guard to request increased protection for his personal safety. Moreover, a jury might also find that Days Inn was negligent in not maintaining an armed security force, given the dangers in this hotel parking lot, and a jury might also conclude that Days Inn was negligent in not installing a security gate that could have prevented this drive-through robbery attempt. Both of these measures were recommended to Days Inn management by its security guard prior to Richard Matt’s shooting, but were then rejected.

Further, pretermitting whether our law allows knowledge of high crime areas to be charged to the public in general, it is hard to conclude that such knowledge could be attributed to a visitor from another state. Moreover, we reject the conclusion that this court is authorized to decide whether Days Inn could do no more to protect its guests, including Richard Matt.

Accordingly, as we find the Matts carried their burden as respondents to Days Inns’ motion for summary judgment under the standards announced in Lau’s Corp. v. Haskins, the trial court erred by granting summary judgment to Days Inns of America.

Judgment reversed.

Pope, C. J., McMurray, P. J., Beasley, P. J., Cooper and Smith, JJ., concur. Andrews, Johnson and Blackburn, JJ., dissent.

Andrews, Judge,

dissenting.

The trial judge correctly granted summary judgment in favor of Days Inns.

The gravamen of Matt’s suit for damages is not that someone attempted to rob him in the Days Inn parking lot but that during the attempt he was shot. Under Savannah College of Art &c. v. Roe, 261 Ga. 764, 765 (409 SE2d 848) (1991), liability for damages resulting from the shooting depends on whether Days Inn knew or should have known that conditions on its premises subjected Matt to an unreasonable risk of being shot. The requisite knowledge “may be demonstrated by evidence of the occurrence of prior substantially similar incidents.” Id. at 765. Accordingly, in the absence of any evidence in this case that Days Inn otherwise knew about the present incident, in order to prove that Days Inn had the requisite knowledge, the evidence must show the occurrence of prior substantially similar incidents on the premises. Id.; Woods v. Kim, 207 Ga. App. 910 (429 SE2d 262) (1993).

The record in this case shows that, prior to the present shooting, there had been two previous unarmed robberies and some unspecified crimes against property on the Days Inn premises. Conceding that there were no prior shootings or even armed robberies on the premises, the majority, nevertheless, concludes that the present attempted armed robbery and shooting was “substantially similar” to the prior unarmed robberies. Instead of focusing on the obvious dissimilarities between the prior unarmed robberies and the present shooting, the majority analyzes Savannah College of Art’s “substantially similar” requirement by focusing instead on “whether the prior crimes should have put an ordinarily prudent person on notice that the hotel’s guests were facing increased risks,” majority, p. 794, and by relying on a pre-Savannah College of Art case for the proposition that “ ‘[a]ll that is required is that the prior (incident) be sufficient to attract the (hotel’s) attention to the dangerous condition which resulted in the litigated (incident).’ ” Majority, p. 794. The majority concludes that “the record of criminal activity in the parking lots of nearby hotels, including serious crimes against persons, when coupled with the record of criminal activity in its own parking lot (a crime about once every two weeks) was sufficient to create a genuine issue of material fact on whether Days Inns was put on notice that criminal conduct against its guests was foreseeable.” Majority, p. 795.

The “substantially similar” test set forth in Savannah College of Art involves a straightforward, direct comparison of any prior crimes on the premises to the present criminal incident. In establishing a clearly stated (if not always easily applied) limit to liability, Savannah College of Art attempts to lend at least some degree of predictability to the duty of a premises owner to protect invitees from the intervening criminal acts of third persons. The majority has expanded the limits of potential liability under the Savannah College of Art test by finding “substantial similarity,” not by a direct comparison of the prior crimes on the premises to the present incident, but by a sort of totality of the circumstances test stated in terms of whether the prior unarmed robberies and other crimes at the Days Inn, located in a “high crime” area where armed robberies had occurred at other businesses, were sufficient to show that Days Inn knew or should have known of an unreasonable risk that Matt might be shot in an attempted armed robbery.

The focus should be on a direct comparison of any previous criminal acts on the premises to the present criminal incident. Savannah College of Art makes absolutely clear that a premises owner’s knowledge that his business is located in a “high crime” area, where crimes have been committed at other locations, does not establish a duty to protect invitees from similar crimes which might be committed on the owner’s premises. The fact that numerous crimes similar to the present criminal attack may have been committed at other locations in the area is irrelevant if there is no evidence of prior substantially similar crimes on the Days Inn premises. Savannah College of Art, supra at 765-766, n. 2. Under Savannah College of Art, if the prior crimes on the Days Inn premises were not “substantially similar” to the present criminal incident, Days Inn is presumed not to have the requisite knowledge and there would be no corresponding duty to protect Matt from the attack and no liability for his injuries. Directly compared, the two unarmed robberies and other crimes against property, which previously occurred on the Days Inn premises, were not “substantially similar” to the present shooting.

This test should be strictly applied as a necessary limit to a premises owner’s duty to protect invitees from the intervening criminal acts of third persons. Unless this duty is strictly defined and limited, business owners will be burdened with the uncertain duty of preventing criminal activity against their patrons, which government and law enforcement have been unable to prevent. A proprietor is not the insurer of his invitees’ safety and, despite the dangerous area in which his business may be located, it is not the proprietor’s duty to provide to invitees what amounts to police protection from violent crime in the area.

As to the claim that security was inadequate, knowledge of a dangerous condition giving rise to the present shooting “would be necessary, in order to show the existence of even an initial duty on the part of [Days Inn] to provide preventive security measures.” Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 877 (392 SE2d 535) (1990). Since there were no prior “substantially similar” attacks on the premises, there was no such knowledge and no duty to provide security adequate to protect against this kind of attack. Woods, supra at 911. Additionally, “[t]here was no evidence that any security efforts undertaken by [Days Inn] were otherwise below a reasonable standard of care, made the situation worse by increasing the danger, misled [Matt] into the belief that the danger had been removed, or deprived [Matt] of the possibility of help from other sources.” Id. at 911; Lau’s Corp. v. Haskins, 261 Ga. 491, 494-495 (405 SE2d 474) (1991).

Accordingly, Days Inns was entitled to summary judgment in its favor.

I am authorized to state that Judge Johnson joins in this dissent.

Blackburn, Judge,

dissenting.

In the present case, the robbery attempt and shooting happened very quickly. The perpetrator pulled up to the victim in the hotel parking lot and shot the victim without getting out of the car. The security guard was seated in a vehicle some 40-50 feet from the location of the incident. It was an unfortunate incident, but it was “not of such a nature as to reasonably allow the proprietor to intercede, warn its invitees, or otherwise act to prevent injury to [the victim].” Taylor v. Atlanta Center, Ltd., 208 Ga. App. 463, 466 (430 SE2d 841) (1993). The concept of foreseeability necessarily requires that Days Inn have such knowledge that it could reasonably anticipate that the subject crime would likely occur, and given that, the anticipated crime must be of such a nature that they could have reasonably prevented same. Liability must be based on fault, and there could be no fault absent the presence of both of these elements. To say otherwise is to make the proprietor the insurer of the injured party, which the law does not allow. Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991). Therefore, I support the trial court’s grant of Days Inns’ motion for summary judgment.

The evidence presented tended to show that the Atlanta Airport Days Inn is located in a high crime area with which knowledge plaintiff would be charged as a member of the general public. Days Inn had no greater ability or duty to anticipate specific intentional criminal acts by unknown persons than did the plaintiff. The presence of a security guard in the parking lot within 40 feet of the crime scene who did not have time to intercede clearly shows that Days Inn was prevented from protecting the plaintiff by the speed and nature of the attack, which it could not have reasonably anticipated. If the security guard, as provided, was not adequate, then at what density must the proprietor staff the premises? Absent a one-on-one ratio of security guard to invitee, how could Days Inn have prevented this incident? Presidents, with scores of armed secret service agents, have been assassinated by determined assailants. Surely we cannot require a heightened security for each guest at a hotel. This requirement would be unreasonable as a matter of law, would make the cost of providing hotel services prohibitive, and would result in a total abandonment of large geographic areas by businesses of every description.

Decided March 18, 1994

Reconsideration denied April 1, 1994

Bauer & Deitch, Craig T. Jones, for appellants.

Hicks, Casey & Young, William T. Casey, Jr., for appellee.