author: Beasley, Judge. Johnson, Judge,

text:
    A91A1958.
    RAMEY v. THE STATE.
    (417 SE2d 699)
   Beasley, Judge.

This appeal is from the denial of appellant’s motion for new trial after he was convicted of one count of simple battery, OCGA § 16-5-23 (a) (2), and one count of battery, OCGA § 16-5-23.1 (a), based on an incident which took place while he was on duty as a uniformed city police officer. The simple battery count charged that he “did ... intentionally cause physical harm to Lee Green by striking him. . . .” The battery count charged that he “did . . . intentionally cause visible bodily injury to Lee Green by burning him. ...”

The victim, who was described at trial as being “slow,” “mentally unstable,” and “a little delusioned,” often sat outside the police station in McCaysville bragging about his purported exploits in the CIA, the FBI, and the Delta Force.

On the night of September 5, 1990, he and a friend, Lee Hensley, joined the appellant and several other men who had gathered at the Toccoa River Park in McCaysville. The men began discussing their military training, which led to a discussion of the victim’s being out of shape and overweight. According to Hensley, the appellant, who was on duty and in uniform at the time, made the victim get down on the ground and do pushups and situps for several minutes, following which the victim ended up in the river. Hensley testified that after the victim climbed out of the river, the men tied his hands behind his back with his shirt, and the appellant began beating him with a flashlight on the back, groin, and head, “telling him to take the pain, that he was a man, he was going to have to take pain.” Hensley stated that he left the scene for approximately 30 minutes at this point. When he returned, the victim was lying face down on the ground, with his hands handcuffed behind him. Appellant was standing on his back. Hensley testified that he thereafter witnessed the appellant burn the victim’s nipples with a lighted cigarette.

He also stated that while visiting the victim’s house several days later, he “noticed that [the victim’s] underwear that he wore that night . . . had blood all over it.” He described the victim’s physical condition at this time: “[H]is chest and his back had blue places where he had took several blows with the flashlight, and his nipples on his chest were really bad. They was puffy and had pus in them, they was infected real bad. He was sick, he’d throw up two or three times a day, and he was really messed up.”

At trial, the appellant admitted hitting the victim with a flashlight and burning him with a cigarette but asserted that he had done so at the express invitation and direction of the victim, who wished to demonstrate his ability to take pain. A GBI investigator testified that during a pre-trial interview the appellant had told him: “I have never really done anything like this before, and I don’t know what happened that night. I guess I just sort of blew up, because of all his bragging.”

1. Appellant’s motion to strike the State’s brief statement of facts for failure to comply with Rule 15 is denied. The statement substantially complies with those portions of the rule cited by appellant, in light of the issues on appeal. Moreover, failure to comply would not result in a striking of the statement but would leave appellee with the consequences warned of in Rule 15 (b) (1). Or, if the problem is a failure to give specific citations or references to the record or transcript, the errant party may be required to file a corrected brief.

2. “On appeal a reviewing court may consider all the evidence in the case [cit.], and must view the evidence in the light most favorable to the verdict. [Cit.]” Grier v. State, 198 Ga. App. 840, 842 (2) (403 SE2d 857) (1991). The evidence introduced at trial was amply sufficient to enable a rational trier of fact to find the appellant guilty of battery and simple battery beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accord Danzis v. State, 198 Ga. App. 136 (4) (400 SE2d 671) (1990).

3. The appellant contends that the trial court erroneously prevented him from using the victim’s consent as a defense to the charges by refusing to give two of his requested jury instructions, one defining battery as “the unlawful touching or striking of the person of another . . . , which is not legally consented to by the other,” and the other defining the offense as an “[i]ntentional touching without excuse or justification.”

Defendant was charged with intentionally causing visible bodily injury to Green by burning him, which would be a violation of OCGA § 16-5-23.1. It provides: “A person commits the offense of battery when he intentionally causes substantial physical harm or visible bodily harm to another.” He was also charged with intentionally causing physical harm to Green. This would be a violation of OCGA § 16-5-23 (a) (2).

. He was not charged with any violation of that section’s subsection (a) (1), which prohibits a person from “[i]ntentionally mak[ing] physical contact of an insulting or provoking nature with the person of another.” Although consent or lack thereof would be relevant in a case involving this subsection, Ramey was not so charged. The court correctly ruled on the evidence and gave a complete and correct charge on the elements of both offenses, reciting the words of the pertinent portions of both statutes. It is the act and intent and results of the defendant’s act which constitute the crimes as charged; the attitude of the victim is not called into issue by these elements.

4. After initially ruling that the appellant would not be permitted to question the Mayor of McCaysville regarding certain prior statements the victim had made, the trial court reversed the ruling and allowed defense counsel to recall the witness to “ask [her] anything that goes directly to a prior inconsistent statement by [victim].” Counsel asked the court to give the jury certain unspecified “curative instructions” explaining why she had not previously been allowed to question the witness on this subject and that the court had made an erroneous ruling. The trial court disagreed that a curative instruction was necessary and suggested that counsel simply recall the witness when the court asked if she had any other witnesses.

The appellant enumerates this ruling as error, arguing that “it appeared to reflect an opinion by the judge as to matters proved or the guilt of the accused, in derogation of OCGA § 17-8-57.” Being unable to agree that any such opinion was expressed by the court, we find this enumeration of error to be without merit. Accord Fletcher v. State, 197 Ga. App. 112, 114 (3) (397 SE2d 605) (1990).

Judgment affirmed.

Carley, P. J., concurs. Johnson, J., concurs specially.

Johnson, Judge,

concurring specially.

I concur in Divisions 1, 2, and 4, and in the ruling in Division 3, but I believe further discussion is appropriate in that division.

The bulk of appellant’s brief is directed to his contention that he was entitled to a charge on consent under the circumstances of this case.

The majority makes clear that the reason consent is not an issue in this case is because the appellant was charged under OCGA §§ 16-5-23 (a) (2) and 16-5-23.1 rather than under OCGA § 16-5:23 (a) (1), and I agree. However, the appellant has cited language from Georgia cases which on its face appears to support his position that to constitute a battery a bodily contact must be nonconsensual as well as harmful or offensive. I believe it is helpful to point out the distinctions which other courts have drawn between sexual batteries and severely injurious batteries involving the breach of public peace in order to make it clear that appellant’s analysis cannot survive close scrutiny.

The appellant contends that the trial court erroneously prevented him from. using the victim’s consent as a defense to the charges by refusing to give two of his requested jury instructions, one defining battery as “the unlawful touching or striking of the person of another . . . , which is not legally consented to by the other,” and the other defining the offense as an “[i]ntentional touching without excuse or justification.”

The offense of simple battery is defined by OCGA § 16-5-23 (a), as follows: “A person commits the offense of simple battery when he either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) intentionally causes physical harm to another.” (The simple battery count against the appellant was predicated on subsection (2), and of course the evidence established without dispute that he had intentionally caused physical harm to the victim.) The offense of battery is defined by OCGA § 16-5-23.1, which provides, in pertinent part, as follows: “(a) A person commits the offense of battery when he intentionally causes substantial physical harm or visible bodily injury to another, (b) As used in this Code section, the term ‘visible bodily harm’ means bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts.”

Neither of these statutes by its terms makes the victim’s lack of consent an element of the offense. Compare, e.g., OCGA § 16-5-40 (kidnapping); OCGA § 16-6-1 (rape); OCGA § 16-7-21 (criminal trespass); OCGA § 16-7-60 (arson). However, the appellant has cited several cases which contain language supporting the proposition that a consensual touching does not constitute a battery. For example, in Gates v. State, 110 Ga. App. 303 (1) (138 SE2d 473) (1964), this court approved an instruction that “battery is the unlawful imposition of the hands or arms of one person upon another against the will of the person alleged to have been assaulted. . . .” (Emphasis supplied.) The defendant in Gates was convicted of battery based on evidence that he had deliberately touched a woman on the buttocks in a public store. Although the battery statute in existence at that time defined the offense as “the unlawful beating of another,” Code of 1933, § 26-1408, the conviction was affirmed based on the Supreme Court’s holding in Goodrum v. State, 60 Ga. 509 (1878), that “the intentional touching of a woman by a man without excuse or justification constitute^] a battery” under this definition. Gates, supra, 110 Ga. App. at 304. Also, “[i]n Brown v. State, 57 Ga. App. 864, 867 (197 SE 82) (1938), this court quoted with approval the language of 4 AmJur 125, Assault & Battery, § 2, as follows: ‘(A battery is the) “Unlawful touching or striking of the person of another by the aggressor himself or by any substance put in motion by him, done with the intent of bringing about a harmful or offensive contact or apprehension thereof which is not legally consented to by the other and not otherwise privileged.” ’ ” (Emphasis supplied.) Harris v. State, 106 Ga. App. 172, 179 (126 SE2d 693) (1962) (holding that a poisoning could be considered a battery under the former Code section).

Similar statements to the effect that consent is a defense in a prosecution for assault may be found in decisions from other states; however, “most of these statements are drawn from cases involving sexual assaults of one kind or another, and in the few cases which have involved an actual battery, without sexual overtones, the courts have usually taken the view that since the offense in question involved a breach of the public peace as well as an invasion of the victim’s physical security, the victim’s consent would not be recognized as a defense, at least where the battery is a severe one.” Annot., Assault & Battery — Consent as Defense, 58 ALR3d 662, 664. See, e.g., Wright v. Starr, 179 P 877 (Nev. 1919) (involving a beating); Com monwealth v. Farrell, 78 NE2d 697 (Mass. 1948) (involving a sadistic burning with a cigarette); State v. Fransua, 510 P2d 106 (N.M. App. 1973) (involving a shooting). See also Taylor v. State, 133 A2d 414 (Md. 1957), citing 4 AmJur, Assault & Battery, §§ 83, 89; 6 CJS, Assault & Battery, § 90; Wharton, Criminal Law, 12th ed., Vol. 1, § 835; Russell on Crime, 10th ed., Vol. 1, p. 760.

Decided March 17, 1992

Reconsideration denied April 1, 1992.

Mikele S. Carter, for appellant.

Roger Queen, District Attorney, J. Roger Thompson, Assistant District Attorney, for appellee.

The issue of whether consent may be considered a defense to a charge of “simple battery” under OCGA § 16-5-23 (a) or to a charge of “battery” under OCGA § 16-5-23.1 appears to be one of first impression. Certainly, the consent of the victim, or lack thereof, would be a relevant consideration in a prosecution for making physical contact “of an insulting or provoking nature,” under OCGA § 16-5-23 (a) (1). However, as previously indicated, the appellant was not charged under that subsection. It is also possible to envision circumstances in which the presence or absence of consent might be relevant in a prosecution for battery under OCGA § 16-5-23 (a) (2) or § 16-5-23.1. It could be argued, for example, that an injurious physical contact committed in connection with a sport such as boxing would constitute a battery but for the element of consent. However, the physical contact in the present case obviously did not occur within the context of an officially sanctioned sporting event; and the suggestion that consent could be considered a defense to the type of prolonged, sadistic and gratuitous violence at issue here must, in the final analysis, be viewed as completely ludicrous. The trial court did not err in refusing to give the appellant’s requested charges on this issue.

       The Code says "harm."


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A91A1961.
    BISHOP CONTRACTING COMPANY, INC. v. NORTH GEORGIA EQUIPMENT COMPANY, INC.
    (417 SE2d 400)
   Johnson, Judge.

Bishop Contracting Company (Bishop) appeals a jury verdict in favor of North Georgia Equipment Company, Inc. (North Georgia), and the entry of a directed verdict on its counterclaim.

North Georgia was the heating, ventilation and air conditioning systems (HVAC) subcontractor on several construction projects for Bishop, a general contractor. North Georgia brought this action to recover sums allegedly due on the projects. The first project, an office building for the Douglas County Water and Sewer Authority, was controlled by an AIA contract, with a contract price of $109,500. The second project was the remodelling of a Denny’s restaurant which was not controlled by a written contract. A third project, also undertaken without a written contract, involved installation of equipment at the Night Falls Restaurant. Bishop raised different defenses to the claims on each of the three projects.

On the Douglas County Project, Bishop claims that the AIA contract contains a pay-when-paid clause which would excuse payment in full in light of an $8,800 penalty which was assessed against Bishop for failing to complete construction on schedule. Bishop testified that he intended to prorate this penalty among the general and subcontractors on the job.

Despite a $21,555 bid on the Denny’s Restaurant project, Bishop paid North Georgia $15,650. Bishop contends that the theory of quantum meruit excused payment of the remainder of the bid price.

Finally, Bishop contends that no monies were due on the Night Falls project because Bishop was not a party to the contract. North Georgia negotiated the Night Falls job with the son of Neil Bishop, president of Bishop and Bishop’s project manager, D. K. Wood, who it presumed were acting as agents of Bishop at the time the work was contracted.

Bishop filed a counterclaim asserting a slander of title claim arising out of lien filed by North Georgia for work done on a piece of property owned by a partnership of which Neil Bishop, individually, was a general partner and which is unrelated to any of the projects previously described.

The jury entered a verdict in favor of North Georgia in the principal amount of $16,895, together with a separate award of prejudgment interest in the amount of $3,380. Bishop appeals.

1. Bishop asserts three separate enumerations of error concerning prejudgment interest: 1) that the trial court erred in denying its motion for a directed verdict on that issue, 2) that the trial court erred in charging the jury on the matter of prejudgment interest, and 3) that the trial court erred in entering a judgment including prejudgment interest. All three enumerations are without merit.

Testimony was given by Haskell Perry, President of North Georgia Equipment Company, that interest was routinely assessed against accounts which were over 30 days past due. Eight of plaintiff’s exhibits (nos. 11, 12, 13 and 26 through 30) which were admitted into evidence without objection provide expressly that accounts more than 30 days past due will bear interest at the rate of 1.5 percent per month or 18 percent per annum. Finally, § 5.4 of the AIA contract which controlled the Douglas County job and which was also admitted into evidence without objection, provides expressly that unpaid progress or final payments to subcontractors will bear interest at the prevailing legal rate

The Georgia Supreme Court has held that OCGA § 13-6-13 authorizes a separate award of prejudgment interest even in cases in which contract damages are unliquidated. Braner v. Southern Trust Ins. Co., 255 Ga. 117, 119 (335 SE2d 547) (1985). See International Indem. Co. v. Terrell, 178 Ga. App. 570, 571 (344 SE2d 239) (1986); Stratton Indus. v. Northwest Ga. Bank, 191 Ga. App. 683 (382 SE2d 721) (1989). Therefore the trial court did not err in denying defendant’s motion for a directed verdict on the issue of prejudgment interest. The court’s charge on prejudgment interest as given was an accurate and complete statement of the law. Entry of judgment based on the findings of the jury as to the amount of interest calculated from the exhibits in evidence was proper, that evidence having been sufficient to support the verdict. It is well established that this court will not pass on the weight, but the sufficiency of the evidence. “If there is ‘any evidence’ to support the verdict we cannot disturb it.” Gay v. City of Rome, 157 Ga. App. 368, 370 (277 SE2d 741) (1981); Hallford v. Banks, 236 Ga. 472 (224 SE2d 35) (1976); Bone Constr. Co. v. Lewis, 148 Ga. App. 61 (250 SE2d 851) (1978).

2. The trial court properly refused to admit into evidence an unauthenticated handwritten bid allegedly taken over the telephone by a secretary no longer employed by Bishop. To be admissible as a business record, a showing must have been made that the document was “made in the regular course of . . . business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.” OCGA § 24-3-14 (b). As this court has previously held regarding such memoranda of telephone conversations: “While records of account made in the regular course of business, or shopkeeper’s books of account, and certain other records are admissible under Code Ann. § 38-711 (OCGA § 24-3-14 (b)) the statute does not go to the extent of rendering admissible self-serving memorandums of this kind. [Cit.]” Maryfield Plantation v. Harris Gin Co., 116 Ga. App. 744, 747 (159 SE2d 125) (1967).

3. No exception was made to the court’s refusal to charge the jury on Bishop’s Request to Charge No. 10 concerning money had and received. Therefore the issue was not preserved for consideration on appeal. OCGA § 5-5-24 (a).

4. Enumerations of error numbers 6 through 9 concern the trial court’s refusal to permit consideration of Bishop’s counterclaim for slander of title. A materialman’s lien was filed by North Georgia for labor and materials furnished on a piece of real property located on Davis Circle owned by E. Neil Bishop and James C. Williams, d/b/a Cherokee-Cobb Investors. The lien was filed on June 30, 1989. Evidence was presented indicating that the amounts due were paid on August 7, 1989 and the lien released on October 25, 1989. The property was not at any time owned by Bishop Contracting Co., Inc. Neil Bishop testified that any rights to damages incurred as a result of the presence of the lien had been assigned to Bishop by a written instrument. Since the instrument was not available to the court and no explanation for its absence was offered, any testimony concerning such an assignment was properly excluded. OCGA § 24-5-4 (a).

Decided March 16, 1992

Reconsideration denied April 1, 1992

Dorothy H. Bishop, for appellant.

Rogers, Magruder, Sumner & Brinson, Joe M. Seigler, Jr., James P. Orr, for appellee.

Bishop, not being the owner of the property, lacked standing to assert a claim for damages. OCGA § 51-9-11. Therefore, the trial court correctly directed a verdict on the issue of slander of title. The enumerations of error concerning the court’s refusal to charge the jury on slander of title or on the issue of damages for that cause of action need not be addressed.

5. The final enumeration of error, that failure to charge the jury that it could infer that the testimony of an absent witness would have been prejudicial to the party “who might most easily have produced him,” is not supported by any testimony in the record and is not a complete and accurate statement of the law. The trial court did not err in refusing to give this charge.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


author: Cooper, Judge.

text:
    A91A2033.
    AARON v. THE STATE.
    (418 SE2d 66)
   Cooper, Judge.

Appellant was indicted for possession of cocaine with intent to distribute and convicted by a jury of the lesser offense of possession of cocaine. On appeal, appellant enumerates as error the trial court’s admission of hearsay and the court’s denial of his motion to suppress.

The evidence adduced at trial reveals that a concerned citizen approached two police officers who were investigating an abandoned vehicle and told the officers that there was a man selling drugs at an intersection approximately one block away. The concerned citizen gave the officers a description of the man selling drugs, including a description of the clothes the man was wearing. The officers went in separate cars to the intersection identified by the concerned citizen, and upon arriving at the intersection, one of the officers observed a man who matched the physical description of the man described by the concerned citizen standing at the spot the concerned citizen described. That man was subsequently identified as appellant. The officer also observed a man leaving the intersection and a man approaching the intersection who was known by the officer to have been the subject of previous drug arrests. When appellant was unable to produce any identification, one of the officers conducted a “pat down” search during which the officer discovered a bulge around appellant’s belt line. Since appellant was not wearing a belt, the officer asked appellant several times to let him see what was inside his pants. Appellant initially refused but eventually complied by unfastening his pants at which time a bag of suspected crack cocaine fell down appellant’s pant leg and onto his shoe. As the officer went to pick up the bag of suspected cocaine, an altercation ensued between appellant and the officer. The officer was able to subdue appellant, and the bag of suspected cocaine was retrieved and positively identified at trial as being crack cocaine.

1. Appellant first contends that the trial court erred in admitting the hearsay statement made by the concerned citizen to the officers. “While this statement certainly constituted hearsay and would not have been admissible as evidence that the appellant was in fact dealing in drugs, it was nevertheless relevant and admissible to establish the events leading to the discovery of the cocaine and to the appellant’s subsequent arrest. ‘Testimony of the arresting officer with reference to the legal investigation and circumstances surrounding the arrest is authorized as original evidence under OCGA § 24-3-2. . . .’ [Cit.]” Ward v. State, 193 Ga. App. 137 (2) (387 SE2d 150) (1989). The only purpose of the statement was to explain the conduct of the officer in proceeding to the intersection and approaching appellant. We find no error in the admission of the statements of the concerned citizen.

2. Appellant also contends that his motion to suppress should have been granted because the officer exceeded the scope of a “pat down” search. A hearing was held on appellant’s motion to suppress, and a written order was entered by the judge denying appellant’s motion. At trial, prior to the first witness being called, appellant made a standing objection to the admission of the contraband for the reasons previously entertained by the court in ruling on appellant’s motion to suppress. We do not have a transcript of the hearing on appellant’s motion to suppress, and “ ‘(w)e must assume, absent the availability to us of whatever material the trial court considered while hearing the (evidence on the motion), that the court properly exercised its judgment and discretion in (denying) the motion to (suppress).’ [Cits.]” Myrick v. State, 168 Ga. App. 223 (2) (308 SE2d 563) (1983). See also Fudge v. State, 184 Ga. App. 590 (1) (362 SE2d 147) (1987).

Decided January 15, 1992

Reconsideration denied April 1, 1992

Peter D. Johnson, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, J. Wade Padgett, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A91A2091.
    GILBERT v. VAN ORD et al.
    (417 SE2d 390)
   Cooper, Judge.

We granted this interlocutory appeal to review the trial court’s denial of summary judgment to appellant.

Appellees’ son was struck and killed by an automobile driven by Sharon Holmes (“Holmes”) as he was exiting a school bus. Appellees sued appellant, whom they alleged was holding himself out as an insurance agent, and charged that he had issued a forged automobile liability insurance card to Holmes with the cooperation of Holmes and her husband. Appellees further alleged that due to the issuance by appellant of the forged insurance card, Holmes’ vehicle was tagged and licensed to operate in this state; that Holmes has no liability insurance coverage; and that appellant’s actions have denied them the right to recover the insurance required by the laws of this state. Appellees sought to recover for the wrongful death of their son against appellant on several legal theories, and the trial court denied appellant’s motion for summary judgment, finding that a jury issue existed as to whether appellant was a “guarantor of the financial responsibility” of Holmes and her husband because of appellant’s alleged issuance of a forged insurance card. On appeal, appellant urges that the trial court’s denial of his summary judgment motion was in error.

“ ‘To prevail on a motion for summary judgment. . . , a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. (Cits.)’ [Cit.]” Reese v. Southern R. Co., 199 Ga. App. 320 (3) (404 SE2d 643) (1991). We agree with appellant that there is no legal theory fairly drawn from the pleadings and the evidence presented by appellees that would support a recovery for wrongful death by appellees against appellant. Appellees first assert that appellant should be declared an “insurer” under OCGA § 33-1-2 (4), and as an unauthorized insurer, his answer should be stricken under OCGA § 33-5-57. Appellant was allegedly acting falsely as an individual insurance agent, not as an entity issuing contracts of insurance to insureds, and in any event, no insurance contract was ever consummated. Appellant cannot be considered an “insurer” under the statute, and we reject appellees’ argument.

Appellees next contend that appellant is liable to them because he negligently failed to procure insurance and because they are third-party beneficiaries of the insurance that was required by state law. Since appellees were not the proposed insured, they cannot maintain an action for negligent failure to procure insurance. Compare Fort & Turner Enterprises v. Scrocca, 195 Ga. App. 554 (1) (394 SE2d 364) (1990). Further, a third-party beneficiary theory cannot support a recovery because no contract of insurance ever existed. See OCGA § 9-2-20 (b). Even if such contract had existed, it has long been the rule in this state that one who is injured and is not in privity of contract with the insurer under a liability policy cannot maintain a direct action against the insurer to reach the proceeds of the policy. Insured Lloyds v. Bobo, 116 Ga. App. 89, 90-91 (156 SE2d 518) (1967).

Appellees also assert that appellant is liable under the theory of negligent entrustment in that he entrusted the forged insurance card and car to Holmes. “Under the theory of negligent entrustment, liability of an owner of a vehicle is predicated upon the negligent act of the owner in lending his vehicle to another person with actual knowledge of the latter’s incompetence or habitual recklessness. [Cit.]” Clarke v. Cox, 197 Ga. App. 83 (1) (397 SE2d 598) (1990). The facts and the identities of the parties in the instant case do not support recovery by appellees against appellant under the theory of negligent entrustment.

Appellees next argue that they can recover against appellant on the basis of fraud, since appellant forged an insurance card which allowed Holmes to operate the vehicle on public roads. Appellees contend that appellant, Holmes and Holmes’ husband made a false representation to the public at large that Holmes was in compliance with the law, which was then in turn relied on by the public, including appellees and their son. “To prove [fraud], all of the following elements must be shown: (1) that the defendant made the representations; (2) that at the time he made them he knew they were false; (3) that he made them with the purpose of deceiving plaintiff; (4) that plaintiff relied on those representations; and (5) that the loss and damage are the proximate result of their having been made. [Cit.]” Thompson v. Huckabee Auto Co., 190 Ga. App. 540 (2) (379 SE2d 411) (1989). As to the required element of reliance, appellees advance the argument that as members of the general public, they were entitied to presume that Holmes was not violating the law. It is undisputed that appellant did not know and never had any connection with appellees. Appellees’ claim that appellant’s actions were a fraud upon the public and that, as members of the public, appellees relied on that fraud, cannot be the basis for a civil recovery by appellees against appellant for fraud. Appellees, as members of the general public, cannot show individual reliance on appellant’s conduct. See Stevens v. Thomas, 257 Ga. 645 (2) (361 SE2d 800) (1987). Whereas we are sympathetic to appellees’ circumstances, we find no issue exists as to the third and fourth elements of fraud as listed above. The evidence shows that appellant did not make the alleged false representations with the intent of deceiving appellees and that appellees did not rely on any representations of appellant. “ ‘As the evidence reflects a complete absence of at least [these] elements], we need go no further.’ [Cit.]” Walker v. Hurd, 195 Ga. App. 855 (1) (395 SE2d 925) (1990). A theory of fraud will not support the sought after recovery of appellees against appellant. Compare Clark v. Kelly, 217 Ga. 449 (122 SE2d 731) (1961) (fraud claim supported recovery by proposed insured against insurance agent). Appellees also argue that appellant, Holmes and Holmes’ husband were all participating in a joint venture and therefore the acts attributed to any one of them can be attributed to the others. Appellees cite no legal or factual support for this theory and state, in this civil action, that the basis for liability under this theory rests in criminal acts. We find no merit to appellees’ joint venture theory. We therefore conclude that the trial court erred in denying appellant’s motion for summary judgment.

Decided March 12, 1992

Reconsideration denied April 1, 1992

Lane & Gossett, Roger B. Lane, for appellant.

Richard Phillips, 0. Dale Jenkins, for appellees.

Judgment reversed.

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


author: Sognier, Chief Judge. Beasley, Judge, Andrews, Judge,

text:
    A91A2148.
    JORDAN et al. v. CITY OF ROME et al.
    (417 SE2d 730)
   Sognier, Chief Judge.

Patricia Jordan and her husband, Cary Jordan, brought a negligence suit against the City of Rome, its chief of police, Joe Cleveland, and a police department radio dispatch officer, John Hellreigel, seeking damages incurred as a result of defendants’ failure to dispatch a police vehicle to the Jordans’ home in response to an emergency call. The Jordans also alleged that defendants’ negligent failure to respond was the result of improper training of radio dispatch officers. The trial court granted the defendants’ motion for summary judgment on the basis that defendants did not breach any “special duty” owed to Patricia Jordan. The Jordans appeal.

In its order on summary judgment, the trial court expressly noted that no question or defense of governmental immunity was raised by appellees. This holding is not challenged by appellees in this court. Although it is not affirmatively reflected in the record, it appears that appellee City has waived appellees’ immunity from liability for damages by the purchase of liability insurance that covered the City and its employees for acts of negligence committed in the scope of their duties. See OCGA §§ 36-33-1 (a), 36-33-3; Adams v. Perdue, 199 Ga. App. 476, 478 (405 SE2d 305) (1991) (municipality can waive governmental immunity to extent of liability insurance coverage). Thus, immunity is not an element in this appeal. Since the issue of the liability of a municipality and its officers for the actions of its police department was resolved in earlier opinions on the basis of the grant of governmental immunity, e.g., Pounds v. Central of Ga. R., 142 Ga. 415 (83 SE 96) (1914), in the absence of such immunity we address the issue for the first time in Georgia.

Construing the evidence most strongly in favor of appellants as respondents on motion for summary judgment, see generally Ingram v. JIK Realty Co., 199 Ga. App. 335, 336 (1) (404 SE2d 802) (1991), the record reveals that early in the morning of December 22, 1987, appellant Patricia Jordan (hereinafter Jordan) was at home with her children while appellant Cary Jordan was away. Hoyt Marks appeared at the door to the home and asked to speak with Dana Jordan Marks, his estranged wife and Cary Jordan’s sister. Jordan deposed that she could tell from Marks’ voice that he was drunk, and she did not allow him inside. Telling him to wait, she telephoned Dana, who instructed Jordan to let Marks inside, then call her back. Dana also to.ld Jordan that she (Dana) would call the police, although there is a conflict in their deposition testimony whether Dana stated she would make the call before or after she talked to Marks. Jordan deposed that she did not ask Dana to call the police, did not know why Dana said she would call the police, and did not ask why Dana thought the police should be called. Instead, Jordan returned to the door and let Marks inside. Jordan stated she was not afraid of Marks at the time and had never been bothered by him. After Marks finished the phone call to Dana, he refused to leave the house. Marks turned on Jordan with a knife and sexually assaulted her. Jordan deposed that she did not fight Marks, that she warned Marks the police were coming, and that she “just knew [the police] were going to come and get him” during the assault. In a call from Dana that Marks allowed her to answer during the assault, Jordan was able to respond negatively in response to Dana’s question whether the police had arrived and was reassured by Dana that she would “call [the police] back” even though Jordan was unable to alert Dana to what was happening. After further assaulting Jordan, Marks left approximately an hour and a half after his arrival. It is uncontroverted that on the night in issue, no police officer ever went to appellants’ home.

Dana deposed that she knew that Marks’ presence at appellants’ home meant that Marks had “escaped” from Northwest Regional Hospital where he was undergoing a program for alcohol abuse. She did not know if Marks was voluntarily involved in the program, but thought it was part of his probation as a habitual violator. She did not tell Jordan what she knew about Marks but deposed that after she spoke to Marks on the phone, she had her mother (and Jordan’s mother-in-law) telephone the City of Rome police department. In Dana’s presence, her mother told appellee Hellreigel, the person who answered the phone, that Marks was at appellants’ home, that he was an escapee from Northwest Regional, and that there were “warrants on him ... for probation revocation.” Dana then took the phone and recognized Hellreigel’s voice because she had previously met him. Dana deposed that she identified herself and repeated the information her mother had given. She telephoned the City of Rome police department two more times, repeating the same information to Hellreigel, and both times in response to her inquiry Hellreigel told her that a car was en route to appellants’ home.

In support of their motion for summary judgment, appellees adduced a transcript of the only call reflected on the master tape recording of the relevant duty shift regarding appellants’ address. The unidentified caller asked for a car to be sent to appellants’ address to have Marks removed from the caller’s son’s house and twice stated that Marks was “harassing” the caller’s daughter-in-law. The caller also stated that there were warrants out for Marks’ arrest, but did not state that Marks had escaped from Northwest Regional Hospital. The caller asked to speak to a particular officer and was placed on hold by Hellreigel, with the final comment on the tape transcript being Hellreigel’s order to the requested officer to talk to the caller on another phone line. In his affidavit Hellreigel averred that after transferring the call to the other phone line, he became busy handling calls stemming out of a shooting in Rome and took no further action on the matter, assuming that the requested officer had handled the caller’s problems.

1. The trial court based its ruling in favor of appellees on a line of foreign authorities, exemplified by Kircher v. City of Jamestown, 543 NE2d 443 (N.Y. 1989), which holds that although a municipality owes a “general duty” to protect the public at large, a breach of that duty does not impose liability for damages suffered by particular citizens except where there exists a special relationship between the police and that individual, whereby the police assumed a “special duty” to provide police protection to that particular individual. See 18 Mc-Quillin, The Law of Municipal Corporations, § 53.04 (b), (c) and (e) (3d ed.). To determine whether a special duty existed, the courts look especially at whether there was “direct contact” between the police and the crime victim and an affirmative undertaking by the municipality to act on the victim’s behalf on which the victim justifiably relied to his or her detriment. See Cuffy v. City of New York, 505 NE2d 937, 940 (N.Y. 1987). A review of learned treatises and the cases cited by appellees reveals that the general duty/special duty analysis “developed to some extent from a commendable willingness of the courts to expand liability, in days when immunity was general, to egregious cases of failure to protect informers and other witnesses to whom protection had been promised . ...” 5 Harper, James & Gray, The Law of Torts, § 29.6A, pp. 641-642 (2d ed.). See Cuffy, supra at 939-940; see also cases cited in Annot., 38 ALR4th 1194 (1985). While a majority of jurisdictions has allowed plaintiffs to pierce a governmental entity’s immunity defense by applying the special duty analysis, a growing minority of jurisdictions has rejected or abandoned the general duty/special duty analysis where sovereign immunity has been abrogated or waived. E.g., Ryan v. State of Arizona, 656 P2d 597 (Ariz. 1982), superseded by statute as stated in Bird v. State, 821 P2d 287 (Ariz. App. 1991); Leake v. Cain, 720 P2d 152 (Colo. 1986). The primary reason for this change is that where sovereign immunity does not apply, use of the special duty analysis creates a shield behind which governmental entities can avoid liability for negligent acts, thereby imposing a type of immunity unique to governmental defendants. See McQuillin, supra at § 53.04 (b), pp. 166-167; Harper, James & Gray, supra at 640.

Given the constitutional and statutory language in Georgia waiving governmental immunity to the extent of applicable liability insurance coverage, we find that the principle behind the general duty/ special duty analysis as set forth in the foreign jurisdictions cited by the trial court and appellees is not applicable in Georgia and affords no basis for the trial court’s grant of summary judgment in favor of appellees.

2. Where sovereign immunity is waived or inapplicable, it is well established that suits against governmental entities are governed by the same general principles of tort law that apply to private entities. See, e.g., City Council of Augusta v. Mackey, 113 Ga. 64, 69 (38 SE 339) (1901) (city liable for negligent act “in the same manner and to the same extent that a private person would be.”) It would seem that the general principle of tort law applicable here is the long established rule that private entities owe no duty to members of the general public to control the behavior of third parties or protect those endangered by the criminal conduct of third parties. Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693) (1982). When applied to private entities that exist to provide private medical treatment or fine dining or vacation accommodations, the rationale behind the rule is apparent. However, when the very existence of the entity in issue is predicated upon the exercise of police powers, such as the protection of individuals from the criminal acts of third parties, the rationale behind the rule falters.

A municipality assumes the protection of persons within its boundaries as an inherent power of government which is granted by the people to its municipal agents. See DeBerry v. City of LaGrange, 62 Ga. App. 74, 77-78 (8 SE2d 146) (1940). The charter that created the City of Rome as a legal entity explicitly places upon the City, its chief of police, and its police officers the duty “to preserve the peace, protect life and property, [and] prevent as far as possible the violations of the ordinances of [the City] and the laws of [Georgia].” Ga. L. 1918, pp. 813, 869, §§ 97, 98. Unlike the treatment center in Bradley Center or the Chinese restaurant in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the City of Rome exists in part to protect its citizens from the criminal acts of third parties. Because of this basic distinction between municipal police departments and private parties, we do not find the rule set forth in Bradley Center, supra, applicable to appellees in the case sub judice.

We hold that no question exists that the City owes the persons within its municipal boundaries a duty to exercise ordinary care to protect them against the intentional and often unpredictable criminal acts of third parties. We further hold, however, that the undertaking of this affirmative duty does not render the City or any municipal corporation an insurer of the safety of every person within its boundaries or subject it to “wholesale liability in negligence to all crime victims on generalized charges of insufficiency of care in law enforcement.” Harper, James & Gray, supra at 640-641. Rather, we hold that where a foreseeable risk of harm develops that is not caused by or created by the municipality, its duty to exercise ordinary care to protect an individual within its boundaries from the intentional and unpredictable criminal acts of third parties arises only when it reasonably knew or should have known that its acts or omissions exposed an individual to the risk.

Our holding is consistent with Georgia law that “[n]egligence consists of exposing another to whom one owes a duty ... to a foreseeable unreasonable probability of harm. Reasonable foresight does not require of a [party] that he anticipate exactly what will happen and exercise perfect judgment to prevent injury. ‘Not what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness.’ [Cit.] ‘Negligence is predicated on faulty or defective foresight rather than on hindsight which reveals a mistake.’ [Cits.]” Ellington v. Tolar Constr., 237 Ga. 235, 238 (227 SE2d 336) (1976). “A party is required only to foresee and guard against that which can be reasonably anticipated to happen, not against that which is only remotely and slightly possible.-[Cit.]” Savannah Bank &c. Co. v. Weiner, 193 Ga. App. 616, 617 (1) (388 SE2d 725) (1989). We note that our holding is consistent with statutory law in which the Legislature, while allowing the general public to bring negligence suits against municipalities for defects in the public roads of the municipality’s streets, has relieved the municipality from any and all liability for those defects except, inter alia, where the municipality negligently created the defect or where it has “actual notice” of the defect. See OCGA § 32-4-93 (a); Andrews v. City of Macon, 191 Ga. App. 745, 746-747 (2) (382 SE2d 739) (1989).

Although the question whether a duty exists is for the court, First Fed. &c. Bank of Brunswick v. Fretthold, 195 Ga. App. 482, 485-486 (394 SE2d 128) (1990), questions of negligence, diligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them except in plain and indisputable cases. Storer Communications v. Burns, 195 Ga. App. 230 (393 SE2d 92) (1990). “The Summary Judgment Act does not authorize the trial court to sit as both judge and jury, weighing the evidence and deciding issues that are traditionally for the jury. The sole function of the court on a motion for summary judgment is, rather, to determine whether there exists a genuine issue of material fact.” (Citations and punctuation omitted.) Collins v. Newman Machine Co., 190 Ga. App. 879, 884 (380 SE2d 314) (1989). In determining whether appellees knew or should have known that Jordan was in need of protection and thus breached their duty to exercise ordinary care to provide that protection, the evidence in the record presents clear and unavoidable fact disputes on the questions whether the City and the chief of police, through Hellreigel, received notice; whether, if notice was received, it was sufficient to alert them that a situation existed requiring them to fulfill their duty to exercise ordinary care to protect Jordan; and whether, assuming notice was received, they then reacted appropriately (e.g., whether it was appropriate to wait for some confirmation from Jordan before dispatching a police car, whether the response was within the capabilities of the City’s resources, etc.).

Appellees also argue that even if there was a duty to exercise ordinary care to protect Jordan, summary judgment was nevertheless properly granted in their favor because it was Marks’ intervening criminal act, not their failure to exercise ordinary care that was the proximate cause of appellants’ injuries. We do not agree with appellees that as a matter of law, appellees could not reasonably have anticipated that the probable and natural consequence of a breach of their duty to exercise ordinary care to protect an individual against the intentional acts of a third party would be a criminal assault on the individual by the third party. See Bradley Center, supra at 202-203. Rather, in the circumstances of this case we hold that the question of reasonable foreseeability, like the question of breach of duty, is for a jury’s determination rather than summary adjudication by the court. Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 878 (392 SE2d 535) (1990).

3. Based on its ruling that appellees breached no special duty to appellants, the trial court also granted summary judgment to appellees on the other allegation in appellants’ complaint that the injuries they incurred when appellees failed to respond to the emergency call were the result of appellees’ negligent and improper training of the police department’s radio dispatch officers. Although the basis for that ruling was erroneous, see Divisions 1 and 2, supra, it is well established that a judgment that is right for any reason will be upheld. See generally Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991). We find that the entry of summary judgment on this part of appellants’ complaint was proper on another basis.

In support of their motion for summary judgment, appellees submitted the affidavit of appellee Hellreigel, in which he set forth that he was trained by a seasoned dispatcher on the methods of gathering information over the phone, dispatching vehicles, and other matters required to perform his job. Appellees also presented the affidavit of the senior radio dispatcher who was working with Hellreigel who detailed his training and methods followed by the radio dispatch officers on watch during the incident in question. Appellants adduced no evidence to rebut these affiants’ statements about the training they received or otherwise create a genuine issue of fact whether the training that the radio dispatch officers received was not sufficient to enable them to perform their jobs. “Once the moving party for summary judgment has carried its burden of making out a prima facie case, the burden shifts and the opposite party must come forward with rebuttal evidence or suffer judgment against him. [Cits.]” Bright v. Knecht, 182 Ga. App. 820, 821 (357 SE2d 159) (1987). Thus, although the record presents a question of fact whether Hellreigel failed to perform his duties properly in handling the calls allegedly made by Dana Jordan Marks and Jordan’s mother-in-law, there is no dispute in the evidence regarding the overall training of radio dispatch officers employed by the City. Therefore, appellees were entitled to the grant of partial summary judgment on this allegation. OCGA § 9-11-56 (c).

Judgment affirmed in part and reversed in part.

McMurray, P. J., Carley, P. J., and Cooper, J., concur. Beasley, J., concurs specially. Birdsong, P. J., Pope, Andrews and Johnson, JJ., dissent.

Beasley, Judge,

concurring specially.

1. I concur in the first two divisions but not in all that is written in them. Sovereign immunity is a defense rather than an inroad on one of the elements of a tort. Since it is not invoked here, the first question is whether the defendants owed a legal duty to plaintiffs.

The 1983 Constitution of Georgia provides the foundation for such a duty in its second paragraph: “Protection to person and property is the paramount duty of government and shall be impartial and complete.” Art. I, Sec. I, Par. II. Whether a duty to Patricia Jordan arose from the circumstances conveyed to the police, considering all reasonable inferences to be drawn therefrom, is a jury question. Storer Communications v. Burns, 195 Ga. App. 230 (393 SE2d 92) (1990).

One of the reasonable inferences which could be drawn is that one of the two callers would or did notify appellant that the police were on the way, which would support a finding that the dispatch officer should have known that his assurances would be relied on. There is direct testimony that they were relied on by Patricia Jordan in her actions and inactions with respect to the assailant.

A reasonable inference could also be drawn that harm to plaintiff was reasonably foreseeable, given the information conveyed to the dispatcher, if a police officer was not sent as advised. Ellington v. Tolar Constr., 237 Ga. 235, 238 (227 SE2d 336) (1976); Savannah Bank &c. Co. v. Weiner, 193 Ga. App. 616, 617 (1) (388 SE2d 725) (1989); Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 878 (392 SE2d 535) (1990).

If a duty was owed and breached, then the issues of proximate cause and injury would have to be reached. As to them, the evidence is in dispute.

2. I fully concur in Division 3.

Andrews, Judge,

dissenting.

I respectfully dissent. The defendants violated no duty for which they could be held liable in tort, therefore, the trial court correctly granted summary judgment.

The majority refers to a line of cases from other jurisdictions discussing what has been labeled the “public duty doctrine” dealing with governmental liability for torts in the absence of immunity (see Annot. 38 ALR4th 1194 (1985)), and concludes the trial court incorrectly applied this analysis to limit the scope of the defendants’ duty by creating, in effect, a limited immunity similar to sovereign immunity to which the defendants were not entitled. It is unnecessary to decide whether the “public duty doctrine,” or any other limitation on governmental tort liability may apply in the absence of sovereign immunity in this case. From an analytical perspective, the threshold issue is whether the defendants had any duty under traditional tort principles to protect Jordan from Marks’ attack. The traditional tort duty issue necessarily precedes any discussion of governmental immunity or other limits on tort liability under any theory, since a defendant must first be potentially liable for the breach of a legal duty to conform to a standard of conduct before there is any need to invoke a form of immunity from the breach. See Galati v. Town of Longboat Key, 562 S2d 780, 781 (Fla. App. 2 Dist. 1990); Williams v. State, 664 P2d 137, 139 (Cal. 1983) (immunity issues do not arise until it is determined that a governmental entity owes a duty of care to the plaintiff). I disagree with the majority’s conclusion that by requiring a special relationship between the plaintiff and the defendants in order to trigger a legal duty, this granted the defendants a type of immunity applied only to governmental entities to give them more favorable treatment than private entities would receive under traditional tort analysis. To the contrary, to establish the threshold tort element of duty based solely on a general duty to the public has the effect of expanding the defendants’ duty beyond that applicable under traditional tort law. Under the present allegations of police nonfeasance, traditional tort principles apply to establish that the defendants breached no duty for which they could be held liable.

“To state a cause of action for negligence in Georgia, the following elements are essential: (1) [a] legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.” Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982) (punctuation and citation omitted). “Generally, a person does not have a duty to control the conduct of another person, who is a potential tortfeasor, so as to prevent that person from harming a third person, unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.” Associated Health Systems v. Jones, 185 Ga. App. 798, 801 (366 SE2d 147) (1988) (punctuation and citations omitted); Bradley Center, supra at 201; Restatement, Law of Torts 2d, § 315. Similarly, “a person is under no duty to rescue another from a situation of peril which the former has not caused.” Alexander v. Harnick, 142 Ga. App. 816, 817 (237 SE2d 221) (1977). Even where one having no initial duty undertakes to come to another’s aid the actor must exercise due care in performing, and is liable only if the failure to exercise due care increases the risk of harm, or harm is suffered because of the other’s reliance on the undertaking. Restatement, Law of Torts 2d, § 323; see Lau’s Corp. v. Haskins, 261 Ga. 491, 495, n. 2 (405 SE2d 474) (1991).

I know of no reason these general tort principles should not apply to police officers. “A person does not, by becoming a police officer, insulate himself from any of the basic duties which everyone owes to other people, but neither does he assume any greater obligation to others individually. The only additional duty undertaken by accepting employment as a police officer is the duty owed to the public at large.” Warren v. District of Columbia, 444 A2d 1, 8 (D. C. App. 1981); Lehto v. City of Oxnard, 217 Cal. Rptr. 450, 455 (Cal. App. 2d Dist. 1985). Only where a special relationship exists between the parties, such as that between an officer and the prisoner in his custody, may social policy justify imposing a legal duty to assist or rescue another in danger. Thomas v. Williams, 105 Ga. App. 321, 326 (124 SE2d 409) (1962). Thus, in the context of a tort claim that the city’s police negligently failed to furnish police protection to Jordan, the application of a duty limited in scope by the type of relationship between the claimant and the city police is a traditional tort law concept applicable to both government and private entities. Application of a generalized duty of the defendants to protect persons within the city’s boundaries, found by the majority to be inherent in the power of government, expands the defendants’ duty and potential liability beyond that imposed under traditional tort analysis. “[W]hen negligence began to take form as a separate basis of tort liability, the courts developed the idea of duty, as a matter of some specific relation between the plaintiff and the defendant, without which there could be no liability.” (Emphasis supplied.) Prosser & Keeton On Torts, § 53, pp. 356, 357 (5th ed. 1984). The trial court granted summary judgment in favor of the defendants on the basis that they violated no duty since no special relationship was demonstrated with Jordan. Although making reference to the public duty line of cases, the trial court’s order was consistent with the application of traditional tort principles in an equal manner to the defendants. This is not a form of limited governmental immunity. When the government’s responsibility for alleged negligence is limited by the scope of its duty, the “immunity” which results is not premised on the sovereign immunity maxim “the king can do no wrong,” but on the tort principle that the king is not liable for the wrong done.

The tort claim made here for failure of the city police to protect Jordan from the criminal acts of another must be based, not on the general duty of the government to provide police- protection to the public, but upon a special relationship that exists between the claimant and the governmental entity. In determining whether such a special relationship exists under these circumstances, the test applied in Cuffy v. City of New York, 505 NE2d 937, 940 (N.Y. 1987) provides a rational approach: “(1) an assumption by the municipality, through promises or actions of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking.” Id. at 940. Assuming without deciding that there was some form of direct contact between the police and Jordan, and that the city’s officers assumed an affirmative duty to act on her behalf by promising to send a car, there is an absence of evidence in support of the remaining elements necessary to find a special relationship. Jordan let Marks in because she perceived no danger at the time even though her sister-in-law stated that she would call the police. In the subsequent phone call, police told Jordan’s sister-in-law that a car would be sent. In a later telephone call to Jordan while Marks was still present, Jordan was unable to inform her sister-in-law of the attack, and answered in response to a question that the police had not arrived. Under these facts, I find no evidence that the harm resulted from any reliance Jordan placed on the statement police made to her sister-in-law that a car would be sent. There is no evidence that she forwent the possibility of help from other sources, or that she otherwise relaxed her own defenses. Based on the sparse information imparted to the police by phone, there is no basis to find that the police had knowledge that the failure to send a car could lead to the harm incurred. There is no evidence that the police inaction made the situation worse or increased the danger to Jordan.

Decided March 20, 1992

Reconsideration denied April 2, 1992

Robins, Kaplan, Miller & Ciresi, Daniel A. Ragland, William H. Stanhope, for appellants.

Brinson, Askew & Berry, Robert M. Brinson, J. Anderson Davis, Robert N. Farrar, for appellees.

Under the majority’s analysis, the jury may well conclude that the police inaction did not proximately cause the harm. However, the threshold issue of duty is a question of law for the court. First Fed. &c. Bank of Brunswick v. Fretthold, 195 Ga. App. 482, 485-486 (394 SE2d 128) (1990). There being no basis upon which to find a special relationship under the facts, the trial court correctly concluded under traditional tort analysis that the defendants violated no duty, and properly granted summary judgment.

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

        Kircher, supra, the case cited by the trial court, typifies the application of the special duty analysis. In that case, witnesses observed the plaintiff being forced into a car. The witnesses followed the car but, coming upon a police officer, stopped to inform him of the suspected crime. The officer, although given the tag number of the car, failed to report the incident. The plaintiff was driven to a distant location, beaten and raped, then locked in the car’s trunk, from which she was rescued 12 hours later. The Kircher court held that the plaintiff could not pierce the governmental defendants’ immunity because, under the special duty analysis, “by virtue of her unfortunate circumstances, [she] could not communicate with the police and thus obviously could not rely on their assurances of assistance.” Id. at 446.

       See also Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (Chinese restaurant not liable for robbery of patrons in parking lot); Adler’s Package Shop v. Parker, 190 Ga. App. 68 (378 SE2d 323) (1989) (liquor store not liable for criminal assault on shopper leaving store); Washington Road Properties v. Stark, 178 Ga. App. 180 (342 SE2d 327) (1986) (hotel not liable for rape and robbery of patrons).

       The public duty doctrine, and its special duty exception, has been accepted in the majority of jurisdictions which have considered it. See Sawicki v. Village of Ottawa Hills, 525 NE2d 468, 477 (Ohio 1988); Leake v. Cain, 720 P2d 152, 158 (Colo. 1986). The doctrine has been applied where an individual sues a governmental entity for breach of a duty owed to the general public such as the duty to protect the public from criminal acts. Generally, in the absence of a “special relationship” between the plaintiff and the governmental entity, the doctrine provides that there is no breach of duty upon which tort liability can be based. The special duty exception provides that a duty upon which tort liability may be established is recognized only if the duty of due care breached was a special duty, one owed to the plaintiff because of a special relationship established with that individual, rather than a duty owed to the public in general.


author: Andrews, Judge.

text:
    A91A2197.
    WIER v. SKYLINE MESSENGER SERVICE et al.
    (417 SE2d 693)
   Andrews, Judge.

We granted the application to appeal of employee Wier to consider whether OCGA § 34-9-82 applies to “medical only” claims when voluntary payment of medical bills has been made by the employer/ insurer and whether prescribed exercises constitute “remedial treatment” under that statute, if it applies, so as to extend the time for filing a claim.

The ALJ found exercise was prescribed treatment and that the employee was not bound by the two-year statute of limitation in OCGA § 34-9-104, dealing with a change of condition, where employer/insurer furnished medical treatment was initially given. The Board, affirmed by the superior court, while adopting the factual conelusions of the ALJ and agreeing that OCGA § 34-9-104 was inapposite, concluded that additional medical treatment on a medical only claim was controlled by OCGA § 34-9-82 and the claim, which was not filed until 1990, was barred. The Board, citing Poissonnier v. Better Business Bureau &c., 180 Ga. App. 588 (349 SE2d 813) (1986) and Hartford Accident &c. Co. v. Snyder, 126 Ga. App. 31 (189 SE2d 919) (1972), did not consider the continuing exercise to be “remedial treatment” and held that “payments of medical expenses made without an agreement or previous award do not toll the running of the statutory period within which a claim must be filed.”

Wier, a courier for Skyline, was injured on June 30, 1988, when she jumped from a loading dock. She landed on her right leg, injuring her knee. She was treated in an emergency room and was referred to Dr. Von Haam, an orthopedic specialist. The injury was immediately reported to Skyline pursuant to OCGA § 34-9-80. She lost no time from work as a result of the injury and no claim for income benefits was made.

On July 5, 1988, she saw Dr. Von Haam who diagnosed a partial tear of the medial collateral ligament right knee with possible associated tear of the medial meniscus. Dr. Von Haam recorded in his consultation notes the following: “TREATMENT: Isometric quad exercises.” She saw him again on July 26 and he noted improvement, directing her to “continue on the isometric quad program with a target weight of about 20 pounds.” While she was to return in six weeks, she did not keep that appointment. The employer/insurer paid for these visits.

Wier, as found, by the ALJ and Board, aggressively pursued her exercise program. In November 1989, her knee gave way on her at home and she again went to see Dr. Von Haam on December 1, 1989. At that time, he recommended an aggressive supervised physical therapy program. This continuing treatment is contested by the employer/insurer, based on its being obtained more than one year after the injury or last remedial treatment.

Wier argues alternatively that there is no statute of limitation on a medical only claim where the employer has voluntarily acknowledged that the injury is a compensable claim and has provided initial treatment, or that, under OCGA § 34-9-82, her exercise program constituted “remedial treatment” under that statute.

1. OCGA § 34-9-200 (a) states that “[t]he employer shall furnish the employee entitled to benefits under this chapter such medical, . . . care and other treatment, items, and services which are prescribed by a licensed physician, . . . , which in the judgment of the State Board of Workers’ Compensation shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.”

OCGA § 34-9-82 (a) provides that “[t]he right to compensation shall be barred unless a claim therefor is filed within one year after injury, except that if payment of weekly benefits has been made or remedial treatment has been furnished by the employer on account of the injury the claim may be filed within one year after the date of the last remedial treatment furnished by the employer or within two years after the date of the last payment of weekly benefits.” (Emphasis supplied.)

Here, there was no doctor’s visit by Wier from July 26, 1988, until December 1, 1989. While she continued the exercises prescribed by the doctor, there was no medical oversight of the exercise program and she failed to keep her six-week checkup appointment as directed by Dr. Von Haam during the July 26 visit. Under these circumstances, the Board’s conclusion that this was not “remedial treatment” within OCGA § 34-9-82 so as to extend the time for filing a claim is supported by evidence and must be affirmed pursuant to the “any evidence” standard. Maddox v. Elbert County Chamber of Commerce, 191 Ga. App. 478, 481 (1 a) (382 SE2d 150) (1989).

2. Wier’s contention that OCGA § 34-9-82 does not apply to medical only claims is premised upon General Ins. Co. v. Bradley, 152 Ga. App. 600 (263 SE2d 446) (1979). That case, however, deals with whether the two-year statute of limitation regarding change in condition, OCGA § 34-9-104, applies to medical payments sought more than two years after notice of final payment of a prior award filed with the board.

That case held that “[OCGA § 34-9-200] contains its own provision for changing or amending a prior award for medical treatment, and there is no requirement that a change in condition be shown nor that the application be brought within any period of limitation.” Id. at 601. Further, this court reaffirmed its “conclusion that [OCGA § 34-9-200], authorizing not only awards of medical benefits of unlimited duration, but also revisions thereof extending into the indefinite future by administrative action of the board, is independent of the requirements and limitations of [OCGA § 34-9-104].”

While Wier is correct that medical treatment of a compensable injury in a medical only claim is not subject to the change of condition statute, it does not follow that treatment obtained more than one year after the previous treatment is compensable when no board action ruling the injury covered has occurred. “[M]edical treatment which is deemed, for statute of limitation purposes, to be remedial treatment furnished by the employer must be commenced within the original period of limitation, i.e., within one year of the job-related injury or of previous employer-furnished treatment.” Poissonnier, supra at 589. Such treatment, in order to extend that limitation period, must be remedial and not diagnostic. American Intl. Adjusting v. Davis, 202 Ga. App. 276 (1 b) (414 SE2d 292) (1991).

Decided March 16, 1992

Reconsideration denied April 1, 1992

John F. Sweet, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Robert C. Semler, Marci R. Weston, for appellees.

Under the wording of OCGA § 34-9-104 (a), payment of income benefits by an employer without a formal award will establish the status of the employee “by award or otherwise” so as to allow the employee to file for a change in condition within two years of the last payment of income benefits without formal board intervention. Clarke v. Samson Mfg. Co., 177 Ga. App. 149, 150 (1) (338 SE2d 738) (1985). This rationale does not apply to medical only payments. See St. Paul Fire &c. Ins. Co. v. Norman, 173 Ga. App. 198, 201 (1) (325 SE2d 810) (1984).

Under OCGA § 34-9-82, voluntary payment of income benefits will toll the running of the one-year statute as will treatment of an injury within one-year time periods. “The statute on its face does not distinguish between payments of weekly benefits made voluntarily and those made otherwise; all that is required to trigger the two-year limitation is that the payment, whether voluntarily made or not, was tendered as a weekly benefit on account of the injury. We must presume the legislature was aware of the above precedent when it chose to expand the scope of the statute of limitation now found in OCGA § 34-9-82 (a).” Harper v. L & M Granite Co., 197 Ga. App. 157, 161 (2 b) (397 SE2d 739) (1990). Likewise, had the legislature intended for the voluntary payment of medical only benefits to have forever negated the need for filing a claim, it could have so provided. Not having done so, if a worker wishes to preserve his lifetime right to treatment for a work injury for which no treatment is needed within a one-year period, a claim must be filed.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.

       While conduct of an employer/insurer may be such as to work an estoppel to assertion of the statute of limitation, Brown Transport Corp. v. James, 243 Ga. 701 (257 SE2d 242) (1979), Wier acknowledges that no such misleading or deceptive conduct is involved in this situation.


text:
    A91A2199.
    A91A2200.
    MOULTRIE INSURANCE AGENCY, INC. v. GOODBAR et al. MOULTRIE INSURANCE AGENCY, INC. v. WEITZEL et al.
    (417 SE2d 658)
   Cooper, Judge.

In August 1987, appellees, six individuals, formed a partnership and entered into a joint venture agreement for the purpose of purchasing and developing a parcel of real property located in Colquitt County, Georgia. The joint venture executed a construction loan agreement borrowing the sum of $1,150,000 to be used for the construction of a Traveler’s Choice Inn on the property. Subsequently, appellees subcontracted with David Goodbar Interests, Inc. (“Good-bar Interests”) for the construction of the motel. Goodbar Interests is a corporation owned by J. David Goodbar and S. Victoria Goodbar, two of the members of the partnership. While the motel was under construction, appellant provided builder’s risk insurance coverage to Goodbar Interests, for which Goodbar Interests paid all of the premiums. The construction was completed in mid-January 1988, and appellant issued permanent insurance coverage on the property. The permanent insurance coverage was applied for by Goodbar Interests d/b/a Goodbar Industries, and the named insured under the policy was Goodbar Interests, d/b/a Traveler’s Choice Inn JV103. Goodbar Interests never paid the premiums on the permanent insurance policy and subsequently filed for bankruptcy. Appellant cancelled the insurance and filed an action against appellees for non-payment of the insurance premiums in the amount of $6,466. Appellees J. David Good-bar and S. Victoria Goodbar did not answer the complaint, but the remaining appellees answered denying any liability for the insurance premiums. The case proceeded to a bench trial, and the court entered an order in favor of appellees, finding that none of the appellees individually contracted for the insurance. Appellees then filed a motion for attorney fees and expenses of litigation pursuant to OCGA § 9-15-14, and the trial court granted the motion, awarding appellees $3,202.83 in attorney fees.

In Case No. A91A2199, appellant appeals from the trial court order finding that appellees were not liable for the insurance premiums. In Case No. A91A2200, appellant appeals from the trial court’s award of attorney fees. Appellant did not file a brief and enumeration of error in Case No. A91A2199; however, a brief and enumeration of error were filed in Case No. A91A2200 along with a request that the same brief and enumeration of error be used in both cases.

Case No. A91A2199

1. Appellant contends that the trial court erred in finding that appellees did not contract for the permanent insurance policy and therefore were not responsible for payment of the insurance premiums. “ ‘ “When a trial court sits as both judge and jury, the court’s findings of fact are binding on appeal, and, unless wholly unsupported or clearly erroneous, will not afford a basis for reversal. (Cits.) On appeal, this court must not substitute its judgment for that exercised by the trial court when there is some support for the trial court’s conclusion. Our duty is not to weigh evidence de novo, but to merely determine if there is any evidence which supports the judgment below. (Cit.) Even in the face of conflicting evidence, the trial court’s judgment will be upheld as long as there is ‘any evidence’ to uphold the lower court’s determination. (Cit.)” [Cit.]’ [Cit.]” Price v. Age, Ltd., 194 Ga. App. 141, 144 (390 SE2d 242) (1990).

The insurance policy in question was applied for by Goodbar Interests d/b/a Goodbar Industries, Inc., not David Goodbar individually. Even though David Goodbar individually may have had the authority to bind appellees to a contract, Goodbar Interests, a separate corporation, had no authority to bind the partnership. It is also apparent that appellees’ names do not appear on either the application for insurance, the insurance policy, or the notice of cancellation of the policy. The record also reflects that appellant knew appellees were not liable because it did not try to collect from appellees. All of this evidence supports the trial judge’s conclusion that no contract for insurance was entered into between appellant and appellees. Inasmuch as there is ample evidence to support the trial judge’s decision, we find no basis for reversal.

2. Appellant also argues that the failure of appellees J. David Goodbar and S. Victoria Goodbar to answer the complaint constituted an admission by all appellees of paragraph 4 of the complaint, which alleged that “[appellees] contracted with [appellant] for insurance. . . .” “ ‘(S)ince this ground was never made an issue before the trial court, no question is presented for appellate review.’ [Cit.]” Liner v. North, 194 Ga. App. 175, 179 (2) (390 SE2d 263) (1990).

3. Appellee has requested that we assess a penalty for frivolous appeal pursuant to OCGA § 5-6-6. Although we find no merit in the appeal, we cannot conclude that it was filed for the purpose of delay. Accordingly, the motion is denied. •

Case No. A91A2200

4. Since appellant filed an appeal from the underlying judgment, a direct appeal from the award of attorney fees is allowed without regard to the discretionary appeal procedures of OCGA § 5-6-35 (a) (10). Rolleston v. Huie, 198 Ga. App. 49 (4) (400 SE2d 349) (1990). However, appellant’s sole enumeration of error is that the trial court erred in finding that appellees were not liable for the insurance. As diocussed in Division 1, we find no error with the trial court’s ruling. Although appellant argues in its brief that the award of attorney fees was erroneous, such argument is beyond the scope of the existing enumeration of error. “ ‘ “An enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration.” (Cit.)’ ” Sentry Ins. v. Majeed, 194 Ga. App. 276 (1) (390 SE2d 269) (1990). Therefore, this issue is not properly before this court for review.

Decided February 19, 1992

Reconsideration denied April 1, 1992

Fallin & McIntosh, Billy G. Fallin, for appellant.

Crews, Salter & Gisler, Charles M. Gisler, for appellees.

Judgments affirmed.

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


text:
    A91A2226.
    HAMILTON v. DELOITTE, HASKINS & SELLS et al.
    (417 SE2d 713)
   Cooper, Judge.

Appellant appeals the trial court’s grant of summary judgment to appellees.

Between July 15, 1987, and August 20, 1987, appellant purchased 45,000 shares of stock in Ocilla Industries, Inc. (“Ocilla”) for $249,875. The purchases were made by appellant after he had studied the company and reviewed its Form 10-Q and Form 10-K reports to the Securities & Exchange Commission (“SEC”) and annual reports to shareholders, and after consultation with his own accountant and stockbroker. Ocilla’s 1987 10-K report, filed in September, reported a $6.9 million loss and detailed several improprieties in the management of the company and impending litigation against the company. Following Ocilla’s disclosures, the price of its stock plummeted; however, appellant purchased 60,000 additional shares for $163,219, in an effort to break even if the price of the stock increased. Appellant sustained a total loss in excess of $400,000 and brought this action against appellees Deloitte, Haskins & Sells and Deloitte Touche f/k/a Deloitte, Haskins & Sells (hereinafter collectively referred to as “DHS”), Ocilla’s former auditors, and Elijah Waldron, Ocilla’s former president, for fraud, negligence and violations of the Georgia Racketeer Influenced & Corrupt Organizations Act (Georgia RICO). Appellant alleged in his complaint that DHS misrepresented Ocilla’s financial condition in financial statements and reports filed with the SEC, and he claims that he relied on these financial statements and reports when he began purchasing, and as he continued purchasing, Ocilla stock. DHS and Waldron’s motions to dismiss the complaint pursuant to OCGA § 9-11-12 (b) (6) were treated as motions for summary judgment upon the parties’ stipulation to the court’s consideration of certain SEC filings by Ocilla. Included among those documents was Ocilla’s July 8, 1987 Form 8-K report, filed with the SEC one week prior to appellant’s first purchase, which contained the following statement: “The Registrant has appointed its general counsel, Smith, Gambrell & Russell of Atlanta, Georgia, to conduct a special investigation of certain financial irregularities which occurred with respect to the fiscal year ended February 28, 1987 and prior years and to report its findings to a committee of the Board of Directors. In this connection, it should be noted that the Registrant’s financial statements previously issued for each of the two fiscal years ended February 28, 1986 and for each of the three quarters ended November 29, 1986 may require revision and should not, therefore, be relied upon pending the completion of the special investigation.”

Granting summary judgment, the trial court held that although appellant had no actual knowledge of the information contained in the Form 8-K report, the filing of the Form 8-K with the SEC on or about July 8, 1987, provided constructive notice to the entire investing public of the information contained therein and that it was immaterial whether appellant had actual knowledge of the information. The trial court stated further that because appellant “made his first and subsequent purchases of Ocilla stock after he was charged with such constructive notice, as a matter of law [he] cannot demonstrate reasonable or justifiable reliance on his part on any misrepresentations or nondisclosures contained in Ocilla’s financial statements and reports filed with the SEC prior to the filing of Ocilla’s July 8, 1987 Form 8-K report.” This appeal followed.

Appellant enumerates as error the trial court’s determination that the filing of the Form 8-K report with the SEC constituted constructive notice to the public of its contents and that appellant could not justifiably rely on statements and reports prepared by DHS once those statements had been publicly disavowed in the Form 8-K report. Appellant contends that the doctrine of constructive notice should not have been applied in the context of this case. We disagree. At the time the Form 8-K report was filed with the SEC, appellant had not purchased any Ocilla stock and was only a potential investor; therefore, neither Ocilla nor DHS had any reason to report to appellant personally regarding Ocilla stock. The SEC serves, in part, as a conduit through which information is made available to potential investors. See Gearhart Indus. v. Smith Intl., 741 F2d 707, 713 (1984); Feldman v. Simkins Indus., 679 F2d 1299, 1306 (1982). By filing the Form 8-K report, Ocilla satisfied its duty to disclose the substantial net loss for the 1987 fiscal year. See 4 Fed.Sec.L.Rep. par. 31,003, at 21,994. Appellant cannot claim to have been defrauded in view of the Form 8-K filing. See Gert v. Elgin Nat. Indus., 773 F2d 154, 157-159 (1985). Moreover, the record reveals that Ocilla announced the filing with a press release and that the filing became the subject of extensive media coverage. See In re Convergent Technologies &c., 721 FSupp. 1133, 1139 (1988) (securities action could not be maintained due to extensive publicity of company’s financial problems). Appellant suggests no better way of providing notice to persons similarly situated; therefore, we conclude that the Form 8-K report was a sufficient warning to potential investors in Ocilla stock that Ocilla’s previous filings with the SEC were not to be relied upon. The trial court did not err in granting summary judgment to appellees.

Decided March 19, 1992

Reconsideration denied April 1, 1992

Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., William S. Stone, for appellant.

Weisz & Port, Robert C. Port, for appellees.

Elijah Waldron, pro se.

Judgment affirmed.

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


author: Sognier, Chief Judge.

text:
    A92A0311.
    DIAMONDS & DENIMS, INC. v. FIRST OF GEORGIA INSURANCE COMPANY.
    (417 SE2d 440)
   Sognier, Chief Judge.

Diamonds & Denims,- Inc. d/b/a Botanical Silks brought suit against its insurance carrier, First of Georgia Insurance Company, seeking damages for the insurer’s failure to pay a fire loss claim. The trial court granted the insurer’s motion for summary judgment made on the ground that Diamonds & Denims’s failure to provide requested financial information barred it from bringing suit under the policy. Diamonds & Denims appeals.

Appellant was engaged in the business of supplying silk plants and flowers and related items to commercial clients from its Augusta base. Gary Sharma and Sarita Sharma, husband and wife, are principal shareholder and president, respectively, of appellant. Gary Sharma testified by deposition that he previously operated a similar business in Texas under two other corporations, but those corporations sold their inventory to appellant when the Sharmas moved to Georgia. Appellant’s business consisted of a small retail outlet operated by sales representative Deborah Collier and the larger commercial operation run by Oni Ortiz from an Augusta warehouse. Both Gary and Sarita Sharma and their employees testified by deposition that all business records were kept at the warehouse except for some relating to the retail sales operations.

On November 3, 1988, appellee issued a commercial property and liability insurance policy to appellant. The warehouse in which appellant’s inventory and records were housed was destroyed by fire on December 18, 1988. Appellant presented a sworn proof of loss on February 28, 1989, asserting a loss of $971,628.50 based on an attached inventory list prepared after the fire and claiming the policy limits of $650,000. Appellee then sent certified letters to Sarita Sharma and appellant’s counsel requesting that she and any employees with relevant knowledge of the claim submit to depositions and produce all books and records proving the loss. In response, the Sharmas, Deborah Collier, and Oni Ortiz appeared for depositions in the spring of 1989. The witnesses produced no documents, explaining during their testimony that all books and records relating to appellant’s inventory, sales, expenses, and loss were destroyed in the fire. During their depositions, the Sharmas did testify that appellant had a bank account and federal tax identification number that were still available and offered to provide that information. Gary Sharma also testified that he maintained customer and supplier records from the former Texas corporations, but stated he had not understood the document request directed to appellant to include the records of the other corporations. In response to queries from appellee’s counsel, he declined to produce income tax returns for the other corporations absent a formal document production request. After the depositions, appellant provided no additional documents to appellee, and appellee apparently made no further document production requests upon appellant or its representatives. On May 31, 1989, appellant’s counsel made a formal demand upon appellee for payment of the claim. Appellee responded on August 2 with a general demand for production of books and records that would allow appellee to verify appellant’s claim, but did not list any specific documents or records it wished to obtain. Appellant then filed this action.

The policy appellee issued provided in pertinent part that in the event of a property loss, appellant must “[p]ermit [appellee] to inspect the property and records proving the loss or damage,” and, upon request, submit to questioning under oath “about any matter relating to this insurance or your claim, including your books and records.” The policy also provided that appellant could not “bring a legal action against [appellee]” unless it fully complied with all terms of the coverage section of the policy. Appellee contended in its motion for summary judgment that under this latter policy provision, appellant’s failure to produce the necessary books and records precluded it from bringing this action.

An insurer is entitled to require its insured to abide by the policy terms, Falagian v. Leader Nat. Ins. Co., 167 Ga. App. 800, 801 (307 SE2d 698) (1983), and the insured is required to cooperate with the insurer in investigation and resolution of the claim. St. Paul Fire &c. Ins. Co. v. Gordon, 116 Ga. App. 658, 660 (158 SE2d 278) (1967). A total failure to comply with policy provisions made a prerequisite to suit under the policy may constitute a breach precluding recovery from the insurer as a matter of law. See Bowers v. Safeco Ins. Co., 187 Ga. App. 229, 230-231 (2) (369 SE2d 547) (1988); Nichols v. Pearl Assur. Co., 71 Ga. App. 378 (1) (31 SE2d 127) (1944). If, however, the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury. St. Paul v. Gordon, supra; Nichols, supra at 378 (2). Moreover, the insurer’s failure to act with diligence and good faith in securing the necessary information also will preclude the grant of summary judgment to the insurer on the issue of the insured’s compliance with policy prerequisites. Saft America, Inc. v. Ins. Co. of N. A., 155 Ga. App. 500 (271 SE2d 641) (1980); St. Paul v. Gordon, supra.

In the case at bar, appellant notified appellee that its books and records were destroyed in the fire, and appellee has presented no competent evidence to the contrary. We recognize that in such circumstances the insured is nonetheless obligated to cooperate with the insurer to obtain or reconstruct the information needed from other available sources. See Halcome v. Cincinnati Ins. Co., 254 Ga. 742 (334 SE2d 155) (1985); Bowers, supra at 230-231 (2). However, we do not agree with the trial court’s conclusion that appellant completely failed to meet this duty so as to compel judgment for appellee as a matter of law. The record is devoid of any evidence that appellee provided appellant with detailed lists of the specific documents it sought other than to reiterate in general language the policy requirement for production of “books and records.” Although appellant’s officers did volunteer during their depositions to provide some documentation, there is no evidence in the record to show that appellee either followed up these generalized statements' with specific requests, sought releases from appellant in order to obtain records from other sources, or otherwise pursued the matter further. See Wages v. Atlanta Metro Taxicab, 193 Ga. App. 601 (388 SE2d 733) (1989) (insurer not entitled to summary judgment because it failed clearly to invoke its claimed right to certain information); Saft America, supra (summary judgment reversed where insurer failed to designate the time and place for insured’s oral examination). Compare Bowers, supra at 229-231 (1, 2) (summary judgment for insurer appropriate because insurer gave explicit instructions to insured as to how to obtain substitute records but insured refused to comply). Moreover, since many of the documents appellee contends appellant should have produced belonged not to appellant but to other corporations controlled by Gary Sharma, appellant’s officers were within their rights in declining to produce those documents absent proper document production requests. Accord Pennsylvania Millers Mut. Ins. Co. v. Baker, 180 Ga. App. 504, 505 (2) (349 SE2d 527) (1986) (insured not obligated to require spouse to submit to examination by insurer).

Decided March 20, 1992

Reconsideration denied April 1, 1992

Glass, McCullough, Sherrill & Harrold, R. Phillip Shinall III, E. Paul Sabiston, for appellant.

Drew, Eckl & Farnham, Clayton H. Farnham, for appellee.

We do not agree with appellee’s contention that Halcome, supra at 744, controls, for in that case the insurer made a showing on the record that it suspected fraud before the insureds filed suit, whereas here the only evidence in the record concerning appellee’s suspicions that appellant’s claim was inflated — an analysis prepared by an industry expert at appellee’s request — was submitted to appellee after appellant filed suit. Moreover, the records at issue in Halcome were within the insureds’ possession and control, and they offered no excuse for refusing to produce the requested records.

For these reasons, we hold that questions of fact remain concerning appellant’s compliance with the policy prerequisites and appellee’s diligence in obtaining the needed information. See Hines v. State Farm Fire &c. Co., 815 F2d 648 (11th Cir. 1987). Accordingly, we reverse the grant of summary judgment to appellee.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.