text:
    A95A0782.
    DEE et al. v. SWEET et al.
    (460 SE2d 110)
   Ruffin, Judge.

Defendants William Dee and Arthur McMahon appeal from the jury’s verdict in favor of plaintiffs Robert Sweet and Ralph Wright, and the denial of their motion for judgment notwithstanding the verdict.

After the acrimonious termination of the parties’ business relationship, Sweet and Wright sued Dee and McMahon asserting various claims including violations of the Georgia Racketeer Influenced & Corrupt Organizations Act (“RICO”), fraud, libel, and tortious interference with commissions. According to the amended complaint, Dee and McMahon operated McMahon-Dee, Inc. (“MDI”), an executive search and strategic management business. Sweet and Wright alleged that when they joined MDI, they were purportedly given executive positions with the company and sold shares of its stock. Dee and McMahon owned MDI’s remaining outstanding shares. In a December 1991 shareholders meeting, Dee accused Sweet and Wright of poor job performance, announced their MDI shares were worth only $0,377 each, and threatened them with discharge. McMahon also later threatened them with discharge. A few days later, police officers arrived at MDI’s offices and informed Sweet and Wright that they were trespassing and gave them ten minutes to collect their belongings and leave. Dee also swore out warrants for Sweet and Wright’s arrest on charges of felony theft of computer equipment.

Sweet and Wright subsequently sued Dee, McMahon, and Allied Research Corporation (“ARC”), an independent corporation involved in strategic planning which Dee allegedly represented as a “division” of MDI. On the eve of trial, Sweet and Wright dismissed ARC and several of their causes of action against Dee and McMahon. At the close of the plaintiffs’ case, Dee and McMahon moved for a directed verdict on the claims for attorney fees, arguing without elaboration that the evidence was insufficient to permit the jury to award attorney fees. They also sought a directed verdict on the RICO claim on the ground that the evidence was insufficient to prove a pattern of organized criminal activity. The court denied the motions.

Dee and McMahon subsequently renewed and clarified their motion on attorney fees, arguing that the failure to allocate attorney fees to reflect the time expended in defense of a counterclaim and to distinguish between the claims dismissed prior to trial and those remaining was fatal. They did not challenge the sufficiency of the evidence offered to support the claim for attorney fees. The court denied the motion as to the attorney fees on the RICO claim, finding that allocation of the fees was not required.

The jury returned a special verdict awarding Wright $30,000 and Sweet $81,000 for fraud, Sweet $80,000 from McMahon for libel, and Wright $17,050 from Dee and McMahon for tortious interference with commissions. It also awarded both Sweet and Wright $1 in actual damages on the RICO claim and $258,360 as attorney fees, costs of investigation, and costs of litigation reasonably incurred. The jury listed the predicate acts underlying this claim as theft by deception and perjury.

Dee and McMahon unsuccessfully moved for judgment n.o.v. as to the jury’s award of attorney fees under the RICO claim, as well as the verdict in favor of Sweet and Wright for fraud, and in favor of Sweet for his libel claim against McMahon.

1. Dee and McMahon argue that the evidence was insufficient to support a recovery under the RICO statute, OCGA § 16-14-4, because no proof of their connection to organized crime was presented. Because it is not necessary to demonstrate a nexus with organized crime to prevail on a RICO claim, this enumeration is without merit. Larson v. Smith, 194 Ga. App. 698 (391 SE2d 686) (1990).

2. Dee and McMahon contend that the trial court erred in denying their motion for judgment n.o.v. as to Sweet and Wright’s claim for attorney fees under the RICO statute, OCGA § 16-14-6 (c). They contend that (a) the evidence was insufficient to support the award because Sweet and Wright failed to present proof allocating the amount of attorney fees incurred in pursuing the RICO claim; (b) even if allocation evidence was not required, the failure to introduce testimony that the fees were reasonable and billing statements or expenses from January 1, 1994, through the trial’s conclusion, made the award erroneous; and (c) the nominal award of $1 in damages was insufficient to support the award for attorney fees.

(a) Sweet and Wright were not required to introduce evidence of allocation. The Georgia RICO statute mandates that prevailing parties receive awards of “attorneys’ fees in the trial and appellate courts and costs of investigation and litigation reasonably incurred.” OCGA § 16-14-6 (c). The method for establishing those amounts, however, has not been affirmatively resolved.

Dee and McMahon rely on law interpreting other Georgia statutes allowing attorney fees. These cases require litigants to prove the actual amount of the fees incurred in prosecuting the successful claim. Augusta Tennis Club v. Leger, 186 Ga. App. 440 (5) (367 SE2d 263) (1988) (interpreting OCGA § 44-7-35 (c)); Cherokee Ins. Co. v. Lewis, 204 Ga. App. 152 (2) (418 SE2d 616) (1992) (interpreting OCGA § 33-7-11 (j)); Southern Cellular Telecom v. Banks, 209 Ga. App. 401 (433 SE2d 606) (1993) (fees awarded on fraud claim). These statutes authorize attorney fees upon proof of specific bad acts. Thus, in most cases, no problem of separating out the various causes of action would arise.

In contrast, like its federal counterpart, the Georgia RICO statute has an expansive reach. It applies to persons who engage in a “pattern of racketeering activity.” OCGA § 16-14-4 (a). It defines racketeering activities as committing, attempting to commit, or soliciting, coercing or intimidating another to violate over 30 listed laws. OCGA § 16-14-3 (9). At least two such violations must be proved to establish a “[p]attern of racketeering activity.” OCGA § 16-14-3 (8). The requisite predicate acts in a RICO claim may theoretically also stand alone as separate causes of action. As a practical matter, the various causes of action involved in a RICO case may be so inextricably intertwined that allocation of attorney fees between them is impossible or incomprehensible. Because Georgia’s RICO statute is “modeled upon and closely analogous to the federal RICO statute[,]” we have looked to the federal decisions for guidance in the absence of decisions from Georgia courts interpreting the statute. Martin v. State, 189 Ga. App. 483, 485 (2) (376 SE2d 888) (1988).

Under such federal decisions, when a common core of facts provides the basis for several claims, each derived from related legal theories, attorney fees on all the related claims are permitted. Lerman v. Joyce Intl., 10 F3d 106, 114 (3d Cir. 1993). When distinctly different claims are based upon separate facts and theories, however, no fee should be awarded for services on unsuccessful claims. Id. Accordingly, in light of the practical difficulties required in allocating attorney fees to specific claims in RICO cases, we will not require it unless the unsuccessful claims and those not receiving awards of attorney fees are “distinctly different claims for relief . . . based on different facts and legal theories.” Id. (quoting Hensley v. Eckerhart, 461 U. S. 424 (103 SC 1933, 76 LE2d 40) (1983)).

The predicate acts underlying the RICO claim at issue were theft by deception and perjury. They related to defendants’ actions with regard to the failure to pay commissions earned by the plaintiffs, questions of stock ownership, and false swearing on the arrest warrant. These actions are sufficiently within the ambit of operative facts alleged in the unsuccessful slander and intentional infliction of emotional distress claims and the successful claims of fraud, libel, and tortious interference with commissions, for which attorney fees were not awarded, to preclude the necessity of allocation.

(b) The record reveals that Dee and McMahon did not challenge the sufficiency of the evidence offered to support the claim for attorney fees in their motions for directed verdict. “OCGA § 9-11-50 (b) allows the device of a motion for judgment notwithstanding the verdict to be used when a motion for directed verdict does not end a trial and it proceeds to verdict. It is narrow, however, and does not permit reopening the case for new legal issues which are thought of retrospectively, with hindsight. It provides, however, a post-verdict opportunity for a ‘determination of the legal questions raised by the motion (for a directed verdict).’ If upon reflection the trial judge determines that the motion for directed verdict was valid, the judge is to set aside the verdict and the original judgment and enter a new judgment ‘in accordance with (the) motion for directed verdict.’ It is patent, then, that the j.n.o.v. must be based on grounds raised in the motion for directed verdict initially, for it is in effect only a new ruling on a renewed motion.” Famiglietti v. Brevard Med. Investors, 197 Ga. App. 164, 166 (2) (397 SE2d 720) (1990). In light of this rule, we need not review the evidence offered to establish the reasonableness of the attorney fee award or Sweet and Wright’s failure to introduce billing statements or expenses from January 1, 1994, through the trial’s conclusion on February 16, 1994.

(c) Dee and McMahon offer no applicable authority for the proposition that the $1 damages award was insufficient to support the award of attorney fees, and we find none. The RICO statute mandates such awards to “[a]ny person who is injured by reason of any violation of Code Section 16-14-4. . . .” OCGA § 16-14-6 (c). This requirement is not contingent upon the amount of damages awarded.

3. In their sixth enumeration of error, Dee and McMahon contend the trial court erred in denying their motion for judgment n.o.v. as to the jury’s award of damages on Sweet and Wright’s claim for fraud and deceit. The claim was based on Dee and McMahon’s failure to issue stock certificates in MDI even though it was uncontroverted that Sweet and Wright paid for the shares. Dee and McMahon do not contend there was insufficient evidence that they committed fraud, rather, they argue there was insufficient evidence to support an award of damages. We disagree.

“ ‘There are two measures of damages in fraud cases. In one case is the case where the person receives something of value but it is not of the value that it was represented to be, and in this case the party may elect to keep the thing of value and sue for the difference. Now this is not the case [here], because the plaintiff[s] in this case never received anything; therefore . . . [plaintiffs have] already made an election and . . . [their] election has been to recover the purchase price of the stock.’ ” (Emphasis omitted.) Rauch v. Shanahan, 125 Ga. App. 782, 784-785 (1) (189 SE2d 111) (1972). Although Dee and McMahon argue in their appellate brief that the purchase price of the stock was lower than the damages awarded, they cite no portion of the record or any authority supporting this contention. See Court of Appeals Rule 27 (c). Rather, the evidence referenced by Sweet and Wright showed that Sweet paid MDI $90,000 and that Wright paid MDI $30,500 for purported shares of MDI stock. The jury awarded Sweet $81,000 and Wright $30,000 on their fraud claims. Since the measure of recovery was the purchase price and their evidence supported the jury’s award, the trial court did not err in denying Dee and McMahon’s motion for judgment n.o.v.

4. In the last enumeration of error, McMahon contends the trial court erred in denying his motion for judgment n.o.v. as to the jury’s verdict against him on Sweet’s claim of libel. Specifically, McMahon argues that because Sweet did not introduce any evidence of any document written by him which could be construed as libelous, the trial court erred in denying the motion. But the record shows that Sweet’s libel claim was based on the allegation of conspiracy to libel. Under such claim, McMahon could be held liable for the libelous statements published by his alleged co-conspirator, Dee, in furtherance of a conspiracy to libel. See Jordan v. Hancock, 91 Ga. App. 467 (2) (86 SE2d 11) (1955).

“Civil conspiracy is an act which is by its very nature covert and clandestine, and usually not susceptible of proof by direct evidence. Concert of action, amounting to conspiracy, may be shown by circumstantial as well as direct evidence. It is not necessary to prove an express agreement or compact among the wrongdoers; their common design may be inferred from the nature of the acts done, the relation between them, their mutual interests in the matter, and other circumstances.” (Citations and punctuation omitted.) First Fed. Sav. Bank v. Hart, 185 Ga. App. 304, 305 (2) (363 SE2d 832) (1987).

In support of his claim for libel in this case, Sweet relied on a letter written on MDI stationery by Dee to a Fulton County police detective accusing him of theft. The letter indicates that prior to sending the letter, McMahon and Dee discussed how to address the various acts of alleged theft and eventually decided to seek advice from their attorney, upon whose advice the letter was sent. Considering these facts, the nature of the relationship between McMahon and Dee as business partners, their mutual interest in the matter, along with all the reasonable deductions therefrom, in a light most favorable to the verdict, we do not find that the only reasonable conclusion was that there was no conspiracy to libel. Lister v. Scriver, 216 Ga. App. 741 (1) (456 SE2d 83) (1995). Accordingly, the trial court did not err in denying McMahon’s motion for judgment n.o.v. as to this claim.

Decided July 14, 1995

McKenney & Froelich, William J. McKenney, David M. Kupsky, for appellants.

Kilpatrick & Cody, Matthew H. Patton, James F. Bogan III, for appellees.

Judgment affirmed.

Beasley, C. J., and Pope, P. J., concur in judgment only.

       For example, OCGA § 44-7-35 (c) applies to landlords who unlawfully withhold security deposits, and OCGA § 33-7-11 (j) reaches insurers who in bad faith refuse to pay an insured loss.


source: Caselaw Access Project

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

license: Public Domain

text:
    A95A0788.
    REYNOLDS CONSTRUCTION COMPANY et al. v. REYNOLDS.
    (459 SE2d 612)
   Blackburn, Judge.

Reynolds brought a claim for workers’ compensation benefits against his employer, Reynolds Construction Company, claiming that job-related mental worry and fatigue caused him to suffer a disabling stroke. The administrative law judge’s (ALJ) award of benefits to Reynolds was adopted and affirmed by the appellate division of the State Board of Workers’ Compensation, and the superior court entered an order affirming the appellate division. We granted the employer’s application for a discretionary appeal.

Reynolds, a 37-year-old man, worked for a construction business owned by his family. The symptoms of the stroke first became apparent one afternoon as he returned home from viewing a potential job site. Testimony received from Reynolds and his brother, who also worked for the family’s construction business, indicates that, for approximately three years prior to the stroke, Reynolds was subject to extreme fatigue and stress associated with running the business. Reynolds and his brother testified that this work-related fatigue and stress caused or contributed to Reynolds’ stroke. A review of the record reflects that the level of fatigue and stress Reynolds experienced as a result of his job was indeed extreme.

No medical expert testified at the hearing about Reynolds’ stroke; however, certain medical records were introduced including a letter from Reynolds’ treating physician. As to the cause of the stroke, the physician’s letter merely stated: “The stroke Mr. Reynolds suffered is not directly related to any work related injury, but is simply the result of arteriosclerosis.” The physician’s letter does not address the role stress or fatigue may have played in causing Reynolds’ stroke or aggravating his condition. See Griggs v. Lumbermen’s Mut. Cas. Co., 61 Ga. App. 448 (6 SE2d 180) (1939) aff’d 190 Ga. 277 (9 SE2d 84) (1940) (employer assumes risk that job requirement may aggravate employee’s pre-existing disease or condition). Reynolds, acting pro se, did not offer any expert medical evidence. The ALJ determined, using “natural inferences” and his own “human experience” as well as the testimony of Reynolds and his brother, that Reynolds’ stroke was a work-related injury.

On appeal, the employer asserts that, in determining the cause of an injury attributed to work-related fatigue or stress, a factfinder cannot rely on inferences drawn from his own experience or on the observations of credible lay witnesses if there is conflicting expert medical evidence as to the injury’s cause.

While we agree with the employer’s position that injuries allegedly caused by work-related fatigue and stress should be closely scrutinized, the issue of whether these injuries should be compensable is not before us. It has already been decided. Ga. Bureau of Investigation v. Worthington, 149 Ga. App. 628 (255 SE2d 99) (1979) (stroke-like injury precipitated by stress is compensable). Our role is simply to determine if any evidence supports the ALJ’s determination. If so, it is our duty to affirm. Guye v. Home Indem. Co., 241 Ga. 213, 215 (244 SE2d 864) (1978).

Georgia law recognizes three forms of competent evidence for establishing a causal connection between work activities and cardiovascular problems such as heart attack and stroke: (1) medical opinion, (2) lay observation and opinion and (3) the “natural inference through human experience.” Hiers and Potter, Ga. Workers’ Compensation — Law and Practice, § 6-2 citing Guye, supra, and Carter v. Kansas City Fire &c. Ins. Co., 138 Ga. App. 601 (226 SE2d 755) (1976). The position advanced by the employer would carve out an exception to the general rule with regard to stress- and fatigue-related injuries. It is our opinion that such an exception is not desirable nor is it permissible under Georgia law.

As Presiding Judge McMurray previously recognized: “Neither law nor medicine are exact sciences, and we have not reached that degree of certainty where a medical expert can state a definite and certain diagnosis that the claimant’s [injury that was allegedly stress-related] did not arise out of and in the course of his employment.” Zippy Mart v. Fender, 170 Ga. App. 617, 619 (317 SE2d 575) (1984) (injury precipitated by job-related stress was compensable). If we recognize that medical science cannot always provide a definite answer as to the role stress or fatigue may have caused in an injury, then we certainly cannot permit medical evidence alone to be considered conclusive on that issue in this matter.

The present case aptly demonstrates the dangers in allowing such weight to be attributed to medical evidence. The medical records in question offered only a cursory one-sentence pronouncement as to causation and did not clearly address Reynolds’ claim that his job-related stress and fatigue caused, contributed to or aggravated his injury. Using the employer’s reasoning, even though the medical evidence was scanty at best, the trier of fact would be required to accept the same and ignore the testimony of two credible lay witnesses as well as his own experience. This would also be the case where the trier of fact did not believe the expert’s testimony.

Longstanding Georgia law provides factfinders freedom to accept or reject evidence as they see fit, particularly expert opinion evidence. “ ‘[Expert] testimony is not conclusive or controlling and is submitted for whatever the [factfinder] considers it to be worth. The [factfinder] can consider such expert opinion testimony by reference to their own experience and may discard the opinion of experts entirely.’ [Cit.]” (Emphasis supplied.) Wilson v. Professional Ins. Corp., 151 Ga. App. 712, 713 (261 SE2d 450) (1979). The exception which the employer seeks to create interferes with the rights, duties and obligations of the trier of fact and would result in a judicial determination of the credibility of evidence. If that is to be the state of the law, then there is no reason to have a trier of fact, as they would be bound to accept as true that which they do not believe.

In light of the above, we hold that the ALJ’s “natural inference” did not disappear and the testimony of credible lay witnesses was not rendered meaningless simply because limited medical evidence was offered that supported a different conclusion as to an injury’s cause. The right of the trier of fact to assess the credibility of evidence should not be so limited or second-guessed, and this court is not free to substitute its judgment for that of the ALJ in this matter. Hughes v. Cobb County, 264 Ga. 128, 130 (441 SE2d 406) (1994).

Judgment affirmed.

Birdsong, P. J., Pope, P. J., Johnson and Ruffin, JJ., concur. Beasley, C. J., concurs specially. McMurray, P. J., concurs in judgment only. Andrews, J., dissents. Smith, J., not participating.

Beasley, Chief Judge,

concurring specially.

This case illustrates again the necessity to revamp the appellate procedure for workers’ compensation cases. Although the superior court heard the appeal from the appellate division within 60 days from the date the notice of appeal was filed, the court failed to file its order within 20 days of the date of the hearing, as required by OCGA § 34-9-105 (b). The record reflects that the judge signed the detailed order on the twentieth day after the hearing, but that the order was not filed with the clerk until the twenty-second day after the hearing. Because the superior court order was not timely entered pursuant to OCGA § 34-9-105 (b), the appellate division was affirmed by operation of law and the superior court order was a nullity. Buschel v. Kysor/Warren, 213 Ga. App. 91, 93 (444 SE2d 105) (1994). Thus, the preparation for the hearing, the hearing itself, the court’s consideration of the case taken under advisement, and the order are for nought.

Even though the application for appeal pursuant to OCGA § 5-6-35 purported to be from the superior court order, it was sufficient to invoke this Court’s jurisdiction. Lanier v. Jim Brown Dev. Corp., 199 Ga. App. 255 (404 SE2d 626) (1991); OCGA § 34-9-105 (d).

This brings about the anomaly of an application for discretionary review of a void order, which we granted so as to review the much earlier award of an administrative tribunal. The law, of course, does not provide for an application to this court, under OCGA § 5-6-35 or any other statute, for review of the award of the workers’ compensation board. Yet that is in effect what we have permitted, timing it from the date of the superior court order which is legally void.

This procedure puts the case into the same posture as one where appellant simply bypasses the superior court altogether and we ignore the procedural law. See Atlanta Family Restaurants v. Perry, 209 Ga. App. 581, 582-585 (434 SE2d 140) (1993) (Beasley, J., concurring specially). There is no sanction on parties or superior court for refusing or failing to abide by the appellate procedure provided by the legislature. It has simply been made optional, and an appellant who merely permits the time for appeal to the superior court to expire obtains a quicker review by this court.

When judicial resources are strained and the cost of litigation is substantial and delay itself harms — conditions which all exist now and bear no hope of subsiding — the provision for two appellate reviews of a contested workers’ compensation case is wasteful and unnecessary. Besides, as shown by this case and Atlanta Family Restaurants, supra, and many others, the procedure provided by law is not always adhered to. This ongoing problem deserves legislative scrutiny.

Andrews, Judge,

dissenting.

Reynolds claims that job-related mental stress and worry caused him to suffer a stroke. Reynolds was an officer of Reynolds Construction Company, a family-operated business. He testified before the ALJ that, as he left a construction bid meeting at work, he became sick with a severe headache, sweating, and cold chills in part of his head. He went home early but became even sicker and eventually went to the hospital that night. Medical evidence presented by the employer showed that he was finally diagnosed as having suffered a cerebrovascular accident involving an occlusion of the right vertebral artery, commonly called a stroke.

Reynolds, who proceeded pro se at the hearing before the ALJ, testified that, because of the company’s continuing financial problems, he had been working long hours and had been experiencing continuous job-related stress for about three years prior to the stroke. Reynolds did not claim that physical fatigue or exertion from working long hours caused or contributed to the stroke. Rather, he claimed that long hours of continuous mental stress and worry on the job caused or contributed to the stroke. Reynolds’ brother, also an officer of the company, also testified that Reynolds had been experiencing mental stress and pressure because of the company’s financial problems. He stated: “[W]e were all under duress, pressure, and strain and stress . . . [The claimant] had a lot of pressure on him. I can go get a fishing pole and leave mine alone, but he couldn’t do it.”

The only other evidence presented was the medical records of Reynolds’ physician. It was the physician’s opinion that Reynolds’ stroke was not job-related but was the result of his arteriosclerosis. Other medical evidence showed that the stroke was secondary to Reynolds’ existing diabetes, hypertension and hypertriglyceridemia.

In concluding that the stroke arose out of and in the course of Reynolds’ employment, the ALJ found that, “[f]rom the lay observations and opinions given by employer [sic] Reynolds and his brother and from the natural inferences and through human experience of this finder of fact, it is found that the employee’s stroke and the occlusion of the posterior inferior cerebellar artery was triggered by the extremely stressful conditions and long hours the employee was experiencing during the three year period prior to the stroke.”

The employer contends that the ALJ, as affirmed by the appellate division and the superior court, erred in using the “natural inference through human experience” as the basis for determining that the stroke was a compensable injury, where there was uncontradicted medical evidence showing that the stroke was not work-related. Although I agree that the ALJ and the appellate division erred by using the “natural inference through human experience” as the basis for finding that the stroke was a compensable injury, I do so for different reasons than those urged by the employer.

The employer’s contentions with respect to the application of the “natural inference” rule and OCGA § 34-9-1 (4) are misplaced.

First, the Supreme Court has determined that, where the “natural inference” utilized by the ALJ in this case is available, it is competent and credible evidence of causation in cases where there is no medical evidence of causation, and that, even where medical evidence as to causation is presented, the “natural inference” does not disappear. Guye v. Home Indem. Co., 241 Ga. 213, 215-217 (244 SE2d 864) (1978); Southwire Co. v. Cato, 250 Ga. 895, 897-898 (302 SE2d 91) (1983); LaVista Equip. Supply v. Elliott, 186 Ga. App. 585, 587 (367 SE2d 811) (1988).

Secondly, as to the employer’s argument that the evidence failed to satisfy the preponderance of the evidence requirement of OCGA § 34-9-1 (4), this argument is addressed to the trier of fact, not this Court, which is bound by the “any evidence” rule applicable to appellate review. Guye, supra at 215. Moreover, the preponderance of the evidence requirement of OCGA § 34-9-1 (4) applies to cases involving “heart disease, heart attack, the failure or occlusion of any of the coronary blood vessels, or thrombosis.” It does not apply when the injury at issue is a stroke involving a cerebrovascular occlusion. It may be argued that because the statutory list of medical conditions concludes with the general term “thrombosis,” the statute embraces conditions unrelated to the prior enumerated coronary problems and could be construed to include a thrombosis or occlusion of a cerebral vessel. However, I find no evidence that the Legislature intended this broad construction. “It is a well-recognized rule of construction that when a statute or document enumerates by name several particular things, and concludes with a general term of enlargement, this latter term is to be construed as being ejusdem generis with the things specifically named, unless, of course, there is something to show that a wider sense was intended.” (Citations and punctuation omitted.) Wester v. State, 205 Ga. App. 336 (422 SE2d 433) (1992). Because all of the preceding terms relate to coronary problems, I conclude that the term “thrombosis” in the statute refers to a coronary thrombosis.

Nevertheless, I conclude the ALJ and the appellate division erroneously based the award on the “natural inference through human experience” because the “natural inference” was not available in this case to supply competent evidence that Reynolds’ job-related mental stress and worry caused or contributed to his stroke.

I agree with the general statements in the majority opinion that the factfinder is entitled to rely on the “natural inference through human experience” to establish causation and that the factfinder may reject the opinions of medical experts. The Supreme Court has clearly held that, where the “natural inference” is available, it is competent evidence of causation sufficient to satisfy the “any evidence” rule and that the “natural inference” does not disappear when expert medical evidence as to causation is presented. Gaye, supra at 215.-217; Southwire Co., supra at 897-898. Nevertheless, the issue which the majority does not address is whether there are necessarily certain types of cases where the “natural inference” should not be considered competent evidence of causation and whether this is such a case. This Court and the Supreme Court have found the “natural inference” available in numerous cases involving simple medical causation issues where a cause and effect relationship between the work and the injury may be inferred based on common sense and human experience. However, it follows that the “natural inference” should not be available to the factfinder in cases where the issue of a causal relationship between the work and the injury involves more complicated medical questions beyond the ken of laypersons and which require expert medical testimony to establish causation. Placing limits on the availability of the “natural inference” in cases involving complex medical causation issues is the issue of first impression on which this case turns.

Reynolds had the burden of showing by competent evidence that his stroke arose out of and in the course of his employment. The disputed issue in this case is not whether the stroke occurred in the course of employment, but whether it arose out of employment. “The words ‘arising out of’ mean that there must be some causal connection between the conditions under which the employee worked and the injury which he received. The causative danger must be incidental to the character of the employment, and not independent of the relation of master and servant.” Thornton v. Hartford Accident &c. Co., 198 Ga. 786, 792 (32 SE2d 816) (1945). In other words, “it excludes an injury which can not fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the [employee] would have been equally exposed apart from the employment.” Fried v. United States Fidelity &c. Co., 192 Ga. 492, 495 (15 SE2d 704) (1941). The rule is also that an employer takes the employee as it finds him and assumes the risk that a requirement of the job may aggravate an existing disease or condition. Griggs v. Lumber men’s Mut. Cas. Co., 61 Ga. App. 448 (6 SE2d 180) (1939), aff’d, 190 Ga. 277 (9 SE2d 84) (1940). Here, the medical evidence showed that Reynolds suffered from existing conditions or diseases which increased the risk of a stroke. Accordingly, if a requirement of Reynolds’ job either directly caused or contributed to the stroke, or aggravated an existing condition or disease in such a manner as to cause or contribute to the stroke, then the stroke arose from the employment and would be compensable. On the other hand, if the stroke was solely the result of the natural progression of an existing disease or condition or some other factor unrelated to a condition of employment, then the stroke did not arise out of the employment and would not be compensable. Sutton v. B & L Express, 215 Ga. App. 394 (450 SE2d 859) (1994).

It has been recognized that the burden of proving causation under these standards may be difficult to carry in cases of this nature. For example, in heart attack cases “it is often difficult for the trier of fact to find the line between a noncompensable heart injury that is a symptom of an existing disease merely manifested during job exertion, and a compensable heart injury to which the job exertion was a contributing precipitating factor. [Cits.] The generalized and complex nature of a heart injury may prevent causation from being conclusively attributed to the work performed. In determining whether claimant’s job activities caused or contributed to his heart injury, it has been said that the factfinder may rely on different forms of evidence, including medical opinion or ‘the natural inference through human experience.’ Carter v. Kansas City Fire &c. Ins. Co., [138 Ga. App. 601, 604 (226 SE2d 755) (1976)].” Guye, supra at 215-216. The “natural inference” rule has been stated as follows: “ ‘[T]he evidence must show the work engaged in by the employer to have been sufficiently strenuous or of such a nature that, combined with the other facts of the case, it raises a natural inference through human experience that the exertion contributed toward the precipitation of the attack. . . .’ Hoffman v. Nat. Surety Corp., 91 Ga. App. 414 (85 SE2d 784) (1955).” Southwire Co., supra at 897. The same “natural inference” rule has been applied in cases involving cerebral vascular accident or stroke. Employers Mut. Liability Ins. Co. v. Videtto, 124 Ga. App,. 458, 461 (184 SE2d 210) (1971).

In concluding that Reynolds’ job-related mental stress caused or contributed to his stroke, the ALJ relied on two types of evidence: (1) the lay observations and opinions of Reynolds and his brother, and (2) the natural inference through human experience. The award must be affirmed if there was any competent evidence of causation to support it. Because I conclude that neither lay observations and opinions nor the “natural inference” was competent evidence of causation in this case, there was a lack of any evidence of causation to support the award.

First, I address the ALJ’s use of the “natural inference” in this case to establish a causal connection between continuous job-related mental stress and worry and the stroke. Although the majority characterizes this as a case involving employment-related “stress and fatigue,” the record shows that Reynolds did not claim the stroke was caused by any type of physical exertion on the job. Rather, he claimed that the stroke was caused by three years of job-related mental stress and worry.

The primary use of the “natural inference” has been in cases where the claimant alleged that a heart attack was caused by job-related physical exertion. In Guye, supra, the Supreme Court determined that the “natural inference” was available as competent evidence that a heart attack was caused by strenuous manual labor at work. See also Carter, supra (natural inference available when heart attack followed physical exertion at work). In other heart attack cases, it has been determined that the “natural inference” was not available, either because the physical exertion was not sufficient to support the inference (see Hoffman, supra), or because facts otherwise failed to show a sufficient connection between the physical exertion at work and the onset of the attack. See Southwire Co., supra at 898 (natural inference not available where the symptoms of the heart attack did not occur until the claimant had been home for several hours); see also Travelers Ins. Co. v. Maddox, 118 Ga. App. 596, 598-599 (164 SE2d 850) (1968) (physical precedent) (Quillian, J., concurring specially on basis that the job-related physical exertion was not sufficient to raise a natural inference that it precipitated the heart attack); compare Gallman v. Coronet Indus., 182 Ga. App. 649, 650 (356 SE2d 654) (1987) (sufficient physical exertion demonstrated to authorize use of the natural inference). The “natural inference” has also been found available in cases where the claimant asserted that job-related physical exertion caused or contributed to a stroke. Videtto, supra; Hartford Accident & Indem. Co. v. Waters, 87 Ga. App. 117 (73 SE2d 70) (1952).

Although the “natural inference” has been applied in cases where mental stress, worry, or excitement has been claimed as contributing factors in a heart attack, in these cases there has also been evidence that physical exertion caused or contributed to the heart attack. See Southwire Co. v. Eason, 181 Ga. App. 708 (353 SE2d 567) (1987) (natural inference found available in case where evidence showed that the heart attack symptoms started during claimant’s physically strenuous workshift and claimant’s doctor testified that the work was also emotionally stressful); Sewell v. Bill Johnson Motors, 213 Ga. App. 853 (446 SE2d 239) (1994) (natural inference available where evidence showed claimant’s job was physically and emotionally demanding, that the heart attack symptoms started on the job following work-related exertion, and claimant was under unusually high work-related stress on the afternoon prior to the heart attack).

In cases where the claim was that mental or emotional stress alone caused a heart attack or heart disease, awards for the claimant have been affirmed based on expert medical testimony in support of causation without reliance on the “natural inference.” City Council of Augusta v. Williams, 137 Ga. App. 177 (223 SE2d 227) (1976); Zippy Mart v. Fender, 170 Ga. App. 617 (317 SE2d 575) (1984). The same rule has been applied in cases where the claimant contended that mental stress alone caused a stroke. In Ga. Bureau of Investigation v. Worthington, 149 Ga. App. 628 (255 SE2d 99) (1979), the claimant contended that job-related stress and tension caused his injury. See Williams v. ARA Environmental Svcs., 175 Ga. App. 661, 662 (334 SE2d 192) (1985) (noting that the record in Worthington showed a diagnosis of a stroke). An award for the claimant in Worthington was affirmed on the basis of expert medical testimony that the stress precipitated the stroke without reference to the “natural inference.” In H. M. Patterson & Sons v. Glover, 128 Ga. App. 736 (197 SE2d 851) (1973), the claimant contended that his light job duties as a hearse driver, a “traumatic experience” at work, and other job-related “consternation,” caused or contributed to his stroke. In reversing an award for the claimant which was unsupported by any medical evidence of causation, the Court held that the “natural inference” was not available to establish that the job conditions caused the stroke. Id. at 739.

As the above analysis demonstrates, the cases in which the “natural inference” has been relied upon to establish a causal connection between a condition of employment and an injury, including those where mental or emotional stress was a factor, have all involved evidence that some type of physical exertion caused or contributed to the injury. These are the type of cases where a cause and effect relationship between the strenuous work conditions and the injury can be inferred based on common sense and human experience. See OCGA §§ 24-1-1 (6); 24-4-9. Awards based solely on claims that job-related mental or emotional stress caused an injury have relied on expert medical evidence rather than the “natural inference” to establish causation. The “natural inference” has not been relied upon as competent evidence of causation in a case of the present type, where Reynolds claims that the cumulative effects of three years of job-related mental stress and worry caused him to suffer a stroke.

Two underlying reasons have been associated with application of the “natural inference through human experience” as competent evidence of causation in some cases, while in other cases expert medical evidence should be required to supply competent evidence of causation. Larson, 2B, The Law of Workmen’s Compensation, § 79.53. First, in. some cases lay testimony, including testimony from the claimant, has probative value in establishing simple matters such as the fact and location of pain, the nature of the events surrounding the injury, and the fact and extent of the claimant’s ability or inability to work. See Thomas v. United States Cas. Co., 218 Ga. 493 (128 SE2d 749) (1962); Fulton Bag & Cotton Mills v. Speaks, 90 Ga. App. 685, 692-696 (83 SE2d 872) (1954); Truelove v. Hulette, 103 Ga. App. 641 (120 SE2d 342) (1961); Kelley v. West Point Pepperell, 164 Ga. App. 187 (296 SE2d 191) (1982). Second, in some types of cases it may be possible to rely on a demonstrated expertise developed by the factfinder in analyzing uncomplicated kinds of medical facts, particularly in such matters as disability, malingering, and other issues not involving purely medical questions. Larson, supra at § 79.53; see Autry v. General Motors &c. Plant, 85 Ga. App. 500 (69 SE2d 697) (1952). On the other hand, “reliance on lay testimony and administrative expertise [as competent evidence of causation] is not justified when the medical question is no longer an uncomplicated one and carries the factfinders into realms that are properly within the province of medical experts.” (Emphasis omitted.) Larson, supra at § 79.54 (a).

Whether a causal connection exists between the continuous job-related mental stress experienced by Reynolds over a period of three years and his stroke involving a cerebrovascular occlusion is not a simple medical question about which a cause and effect relationship may be inferred by laymen based on common sense or human experience. It is a medical question of the sort that requires expert medical testimony. See Nat. Dairy Products Corp. v. Durham, 115 Ga. App. 420 (154 SE2d 752) (1967); Jordan v. United Ins. Co. &c., 158 Ga. App. 520, 521 (281 SE2d 286) (1981); see generally Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200, 204 (345 SE2d 904) (1986). As this Court recognized in setting forth the “natural inference” rule in Hoffman, supra, some cases are appropriate for use of the “natural inference” to establish causation, but “[i]n other cases, the opinions of experts that [a causal connection exists] is also sufficient. . . . [I]n one way or another, the fact must appear.” Id. at 417. And as stated in McDaniel v. Employers Mut. Liab. Ins. Co., 104 Ga. App. 340, 343 (121 SE2d 801) (1961), where the natural inference is not available in a case of this nature to establish causation, the issue of causation “becomes solely a medical question. . . .” See also Callaway Mills Co. v. Hurley, 100 Ga. App. 781 (112 SE2d 320) (1959). Accordingly, I conclude that the ALJ erred by using the “natural inference” in this case to establish the necessary causal connection between the stroke and the continuous job-related mental stress and worry experienced by Reynolds over a period of three years.

It follows from these conclusions that the second form of evidence relied upon by the ALJ, lay observations and opinions given by Reynolds and his brother, was not sufficient to establish causation in this case. The three forms of evidence which may be used by the factfinder to establish a causal connection between the job conditions and a resulting heart attack or similar type injury were identified in Carter, supra at 604, as follows: “medical opinion, lay observations and opinion, and ‘the natural inference through human experience.’ See McDaniel v. Employers Mut. Liab. Ins. Co., 104 Ga. App. 340 (2), supra. See also dissent in Brown Transport v. Jenkins, 129 Ga. App. 457, 463 (199 SE2d 910) [(1973)].” The supporting opinions in McDaniel, supra, and Brown Transport, supra, make clear that “lay observations and opinion” refer not to lay opinion as to causation, but to lay opinion and observations about the strenuous nature of the work, the symptoms of the injury, the disability experienced by the claimant, and other factual matters surrounding the work and the injury. Obviously, to accept lay opinion testimony as competent evidence of causation in a case of this nature would be to substitute another “natural inference” as to causation for the same “natural inference” not available to the factfinder.

Since neither the “natural inference through human experience” nor the lay opinions and observations presented by Reynolds were competent evidence of causation, and Reynolds produced no medical evidence in support of causation, there was no competent evidence of causation necessary to support the award, which must be reversed. This is not to say that the factfinder was required to accept the expert medical testimony presented by the employer. It is to say that Reynolds had the burden tb produce some competent evidence in support of causation and he produced none. Nevertheless, I would hold that, since the unavailability of the “natural inference” in this case was “an issue of first impression whose resolution was not clearly foreshadowed,” Reynolds should be given an opportunity to furnish additional competent evidence of causation to avoid imposing any “injustice or hardship.” Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 712 (300 SE2d 673) (1983). Accordingly, as in Hoffman, supra at 417, and Southwire Co. v. Cato, supra at 898, this case should be remanded for further proceedings before the ALJ for this purpose.

Decided July 14, 1995

Whelchel, Brown, Readdick & Bumgartner, Richard A. Brown, Jr., Gregory T. Carter,. Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., for appellants.

Edward E. Boshears, for appellee.

       Due to weather and economic problems, the construction company’s income fell dramatically, experiencing a 90 percent decrease in its gross sales. Creditors repossessed much of the company’s equipment, its insurance policies were cancelled due to lack of payment and the company was forced to fire 25 to 30 of its employees. Moreover, Reynolds had personally guaranteed many of the company’s debts and was being pursued individually by numerous creditors. When construction jobs were available, Reynolds would work seven days a week, often spending over fifteen hours a day at the job site.

       Previous cases suggest that stress may be an aggravating factor in cardiovascular problems. See Zippy Mart v. Fender, 170 Ga. App. 617 (317 SE2d 575) (1984).

       This “natural inference” rule is not the same as the natural presumption applicable in unexplained death cases. See Southwire Co., supra at 896-897; LaVista Equip., supra at 587; Odom v. Transamerica Ins. Group, 148 Ga. App. 156 (251 SE2d 48) (1978).

       I do not conclude whether or not the “natural inference” may be available in other types of mental or emotional stress cases. For example, this case does not deal with a claim that a sudden, brief excitement or stimulus caused or precipitated an attack of some nature which immediately followed the event. See Travelers Ins. Co. v. Neal, 124 Ga. App. 750 (186 SE2d 346) (1971).


author: Blackburn, Judge.

text:
    A95A0405.
    WINDING RIVER VILLAGE CONDOMINIUM ASSOCIATION, INC. et al. v. BARNETT.
    (459 SE2d 569)
   Blackburn, Judge.

The appellants, Winding River Village Condominium Association, Inc. (Winding River), and Perry Realty Services, Inc. (Perry Realty), appeal from the trial court’s grant of appellee Harvey Barnett’s motion for partial summary judgment in this wrongful death action.

In March 1989, Barnett and his family resided at Winding River Village Condominiums in Fulton County. On March 23, 1989, Barnett’s 22-month-old daughter Rachel gained access to the condominium’s swimming pool, fell into the pool, and nearly drowned. Rachel, through Barnett as her father and next friend, filed a personal injury action in the State Court of Fulton County against Perry Realty and Winding River for the catastrophic brain damage she sustained as a result of the fall into the swimming pool. Barnett, in his individual capacity, also sought damages for past and future medical, nursing, and rehabilitation expenses incurred in caring for the child.

The case was assigned to court-sponsored compulsory, non-binding arbitration pursuant to Local Rule 1000, and the arbitration panel awarded $1,250,000 on Rachel’s personal injury claim and $500,000 on Barnett’s claim for medical and rehabilitation expenses. Neither side appealed the arbitration award, and the award became the judgment of the court.

On October 6, 1992, Rachel died allegedly as a result of the injuries that she received when she fell into the pool, and Barnett subsequently instituted the instant action. Perry Realty and Winding River filed motions for summary judgment, and Barnett moved for partial summary judgment in his favor. Perry Realty and Winding River also moved to join Rachel’s mother, Laura Barnett, as a necessary party. Rachel was in her mother’s care at the time she fell into the pool. Perry Realty and Winding River asserted that Laura Barnett’s negligence caused or contributed to her daughter’s injuries. The trial court initially denied the parties’ summary judgment motions and also denied Perry Realty and Winding River’s motion to add Mrs. Barnett. However, upon reconsideration at Barnett’s request, the trial court granted Barnett’s motion for summary judgment as to the issues of Perry Realty and Winding River’s negligence and whether such negligence was the proximate cause of Rachel’s injuries.

1. Perry Realty and Winding River maintain that the trial court erred in denying their motion for summary judgment because the recovery in the prior action extinguished any right to pursue a wrongful death action. We disagree.

In Dayhuff v. Brown & Allen, 150 Ga. 291, 292 (103 SE 458) (1920), this Court certified the following question to the Supreme Court: “Did the suit brought by the husband for the injury to him flowing from the alleged wrongful and negligent act of the defendant, which suit was prosecuted to a judgment in favor of his wife as his administratrix, the judgment being paid by the defendant, constitute a bar to the present suit by the wife for her husband’s homicide due to the same alleged wrongful and negligent act of the defendant?” The Supreme Court, relying upon its earlier decision in Spradlin v. Ga. R. &c. Co., 139 Ga. 575 (77 SE 799) (1913), answered the question in the negative and refused to overrule Spradlin.

In Spradlin, the decedent died during the pendency of his personal injury action against the tortfeasor, and the administrator of the estate was substituted as the party plaintiff. The decedent’s wife subsequently instituted a wrongful death action. The administrator’s suit proceeded to trial and resulted in a verdict in favor of the tortfeasor. The Spradlin Court concluded that an action brought by an administrator on behalf of the estate for personal injuries would not bar a wrongful death action brought by the widow. The Court noted that the administrator could not recover for the full value of the life of the deceased since such recovery was for the widow alone. Id. See also OCGA § 51-4-2 (a). The Court rejected the application of the doctrine of estoppel by judgment because the causes of action were so different and the damages recoverable in one action were not recoverable in the other. In addition, the widow was not a party to the prior action. The Court further recognized that two causes of action may arise from the same tortious transaction. Id.

We believe that Dayhuff and Spradlin are controlling under the facts presented herein. The damages recoverable in the present wrongful death action, that is, the full value of the life of the child and the expenses resulting from the death of the child, were not recoverable in the prior action arising from the child’s permanent injuries. See OCGA §§ 19-7-1; 51-4-5. Therefore, Barnett’s wrongful death action was not barred by the prior personal injury action.

Our recent decision of Greene County Hosp. Auth. v. Waldroup, 215 Ga. App. 344 (451 SE2d 62) (1994), relied upon by Perry Realty and Winding River, does not demand a different result. In Waldroup, we held that a plaintiff who brought an action in her individual capacity and as guardian of an injured person could not amend her complaint to add a claim for wrongful death arising from the same incident and reassert her claims as administratrix of the estate following the dismissal of some of the parties based upon her failure to file an affidavit as required under OCGA § 9-11-9.1. The Waldroup court held that the doctrine of collateral estoppel applied to the wrongful death action and the plaintiff was precluded from relitigating the issues litigated in the previous action, such as the negligence of the defendants. Since the plaintiff failed to file the appropriate expert affidavits, the complaint was subject to dismissal for failure to state a claim, and such a dismissal constituted a dismissal on the merits. Although the Waldroup court stated the majority rule which bars a subsequent wrongful death suit following the entry of judgment for or against a decedent in a personal injury action, this language was mere dicta inasmuch as the court decided the narrow issue presented on the principles of collateral estoppel and res judicata. In fact, the rationale used in Waldroup supports the conclusion reached in the case at bar based upon the facts presented herein.

2. Next, Perry Realty and Winding River maintain that the trial court erred in granting Barnett’s motion for summary judgment on the issue of their negligence and whether their negligence proximately caused Rachel’s injuries. Specifically, they assert that the doctrine of estoppel by judgment has not been used offensively in Georgia, and assert that the use of the doctrine in the present case would be unfair since they did not foresee the prosecution of a wrongful death action.

The doctrine of estoppel by judgment prevents relitigation in a subsequent suit involving a different cause of action on a matter which was actually adjudicated in a former case. Miller v. Charles, 211 Ga. App. 386 (439 SE2d 88) (1993). See also McFadden Business Publications v. Guidry, 177 Ga. App. 885 (1b) (341 SE2d 294) (1986). Contrary to Perry Realty and Winding River’s assertions, the doctrine has been successfully asserted by plaintiffs in subsequent litigation. See id.; see also Reese Realty Co. v. Pal Realty Co., 182 Ga. App. 215 (355 SE2d 125) (1987). In the present case, in reaching its decision, the arbitration panel necessarily decided that Perry Realty and Winding River were negligent and their negligence was a proximate cause of the decedent’s injuries. Therefore, the trial court was correct in granting Barnett’s partial motion for summary judgment on those issues. Id.

3. Lastly, Perry Realty and Winding River assert that the trial court erred in denying their motion to add Laura Barnett, Rachel’s mother, as a party plaintiff so that issues concerning her negligent supervision could be litigated. We agree.

OCGA § 9-11-19 (a) (1) provides that a person who is subject to service shall be joined as a party if complete relief cannot be afforded in his absence. This court has stated that the test for whether a party is considered indispensable under this provision is “if full justice cannot be done in the party’s absence.” Banca Nazionale Del Lavoro v. SMS Hasenclever, 211 Ga. App. 360, 363 (439 SE2d 502) (1993). Because full justice cannot be done unless Laura Barnett is added as a party to this lawsuit, the trial court erred in denying defendants’ motion to add Laura Barnett as a party.

As Perry Realty and Winding River correctly argue, they are entitled to assert different defenses in the wrongful death action than they were able to assert in the prior action. See Fulford v. ITT Rayonier, 676 FSupp. 252 (S.D. Ga. 1987). In the prior action, under OCGA § 51-2-1, the issue of the contributory negligence of Laura Barnett, if any, was not relevant since the negligence of a parent is not imputable to a child in an action for personal injuries by the child nor was Laura Barnett a plaintiff in the action. However, in an action for wrongful death, a parent’s contributory negligence may be raised and is relevant. See generally Fulford, supra; Hall v. Lewis, 135 Ga. App. 730 (218 SE2d 706) (1975).

While Laura Barnett’s negligence may not bar Mr. Barnett’s recovery, her contributory negligence is relevant to the instant case. “Georgia courts have long held that the ‘contributory negligence of one beneficiary in a wrongful death action does not defeat recovery when the right to recovery exists in multiple beneficiaries.’ ” (Citations omitted.) Matthews v. Douberley, 207 Ga. App. 578, 581 (1) (428 SE2d 588) (1993). However, the total amount of the damage award in a wrongful death action may be reduced due to the contributory negligence of one of the beneficiaries. Id.

In Matthews, the husband of the decedent brought a wrongful death action in his individual capacity and also as the representative of the decedent’s only child. This court upheld the jury verdict awarding one-half of the value of the decedent’s life to the child and nothing to the husband. The court also held that the jury was authorized to find that the husband’s contributory negligence could not reduce the one-half recoverable by the other beneficiary, but could reduce the one-half award of the contributorily negligent beneficiary. Matthews, supra at 583.

Barnett does not argue that the doctrine of estoppel by judgment bars litigation of Laura Barnett’s contributory negligence, because he concedes that these issues were not adjudicated in the prior suit. He does contend, however, that the issue of Laura Barnett’s negligence can be determined in her absence. But, there is no authority for this proposition. Cases cited by Barnett in his response to defendants’ motion to add Laura Barnett as a party refer to the adjudication of the negligence of decedents, who, of course, cannot be parties to an action. Further, Barnett contends that the court could apportion the award pursuant to OCGA § 19-7-1 (c). But, this statute applies only to situations in which the spouses are divorced, separated, or living apart and provides for a hearing as to each parent’s relationship with the child. This is not applicable in the instant case.

Decided June 21, 1995

Reconsideration denied July 17, 1995 —

Gorby & Reeves, Michael J. Gorby, Amanda R. H. Burri, Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Dennis A. Brown, for appellants.

Wood & Meredith, Hugh C. Wood, Dwight A. Meredith, for appellee.

Goldner, Sommers, Scrudder & Bass, Henry E. Scrudder, amicus curiae.

Judgment affirmed in part and reversed in part.

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


author: Pope, Presiding Judge.

text:
    A95A0272.
    TILLEY v. CITY OF HAPEVILLE et al.
    (459 SE2d 567)
   Pope, Presiding Judge.

Richard Tilley suffered serious injuries when the car he was driving collided with a Chevrolet Blazer, which was parked facing backward on 1-85 near Hartsfield International Airport. Tilley sued the City of Hapeville, Georgia, and one of its police officers, J. M. Traylor, for negligence in failing to warn or direct him away from the Blazer, and for Traylor’s alleged gross negligence. Tilley appeals the trial court’s grant of summary judgment to Hapeville and Traylor. We affirm because Hapeville and Traylor owed no cognizable duty of care to Tilley at the time of the collision.

Construed in a light most favorable to Tilley, the material facts of this case are as follows: In the early morning hours of December 16, 1990, Tilley and two friends, Alberto Ponce de Leon and Chris Logie, returned to the airport from a skiing trip. After retrieving his luggage, Logie left the airport in his own car. A few minutes later, Tilley and Ponce de Leon also left the airport.

From the airport, Logie got on 1-85. While travelling northbound in the far left lane, Logie saw an unidentified person waving a flashlight at him from the right-hand side of the interstate near an overpass. Unbeknownst to Logie, a black Blazer, without any headlights, was stopped facing southbound in the far left lane. Logie changed lanes within a few seconds of reaching the overpass, thereby avoiding a collision. Logie testified that the man with the flashlight was standing next to a car. Logie was unable to discern any markings on this car, or whether the man next to the car was a police officer. Logie did notice, however, that the car had some sort of unlit emergency light on its roof. Although he could not determine the emergency light’s color, he concluded that the car must have been a police car.

Tilley and Ponce de Leon followed the same route that Logie took. When they approached the location of the Blazer, however, neither saw any police car nor any warning lights. They collided head-on with the Blazer.

Traylor witnessed the above collision. He testified that he was on the scene responding to a radio bulletin regarding an abandoned vehicle on 1-85. Upon locating this vehicle, he went down a ramp onto the interstate and stopped his car on the road’s shoulder. Then, he put his car in reverse and cut his blue light on so that he could back down the shoulder of the road in order to place his car behind the Blazer. According to Traylor, just as he started to back up, Tilley’s car collided with the Blazer.

The collision resulted in serious injury to Tilley. Consequently, he sued Hapeville and Traylor. Hapeville and Traylor answered Tilley’s complaint denying liability, and subsequently moved for summary judgment. On July 28, 1994, the trial court granted their summary judgment motion.

1. In his first enumeration, Tilley contends that the trial court erred in granting summary judgment to Hapeville and Traylor based on the trial court’s determination that they owed no cognizable duty to Tilley at the time of the collision. We reject this contention.

In determining whether a duty exists upon which a police officer or municipality may be held liable for failure to provide police protection to an individual citizen, we follow the majority rule that: “ ‘liability does not attach where the duty owed by the governmental unit runs to the public in general and not to any particular member of the public(,) (except where there is) a special relationship between the governmental unit and the individual giving rise to a particular duty owed to that individual.’ ” (Emphasis supplied.) City of Rome v. Jordan, 263 Ga. 26, 27 (426 SE2d 861) (1993). A “special relationship” exists if: (1) the governmental unit, through promises or actions, explicitly assures the injured party that it will act on his or her behalf; (2) the governmental unit has knowledge that inaction could lead to harm; and (3) the injured party justifiably and detrimentally relies on the governmental unit’s affirmative undertaking. Id. at 29 (2). In this case, there is no record evidence to suggest that Hapeville or Traylor ever explicitly assured Tilley that they would act on his behalf. Moreover, there is no record evidence suggesting that Tilley detrimentally relied on any affirmative remedial actions taken by Traylor. In fact, the record demonstrates that before the collision Tilley was not aware of the existence of the Blazer or any efforts to remove it from the roadway. Consequently, the trial court correctly determined that no special relationship existed in this case.

Having said this, we note that “even in the absence of one or more of the three express requirements for the existence of a special relationship with the injured citizen, a special duty to protect that citizen might be found under some circumstances where a police officer is present at the scene of a crime about to be perpetrated against the citizen (who at that point is an identifiable victim) and the officer fails to act to protect the citizen despite his ability to do so.” Landis v. Rockdale County, 212 Ga. App. 700, 702 (445 SE2d 264) (1994). In the instant case, we hold that no such special duty existed. When Traylor arrived at the scene of the Blazer, Tilley was not an identifiable victim in immediate danger of harm. Traylor’s duty was only to the general public and not to Tilley. Absent a showing of imminent harm to an identifiable victim, the trial court properly concluded that Hapeville and Traylor breached no duty.

Although Tilley argues that the circumstances of this case are beyond the scope of the holdings in City of Rome and Landis because those cases dealt with a municipality’s failure to act, as opposed to the commission of affirmative acts of negligence, such an argument has no basis in fact. As the trial court noted, Tilley’s entire complaint alleges various inactions by Hapeville and Traylor. The only affirmative acts about which Tilley complains are those of the unidentified man waving the flashlight at cars, and Traylor backing his car down the shoulder of the interstate with the blue light on. Such acts, even if negligent, were not the proximate cause of the collision. It is undisputed that Tilley never noticed them, and thus, they did not divert his attention from, or in any way distract him from, the potential danger posed by the Blazer.

We also reject Tilley’s attempt to distinguish the abovementioned cases on the ground that, in this case, there were no “potential tortfeasors” or “potential third party acts” from which the police were expected to protect Tilley. It is undisputed that a third party placed the Blazer in the hazardous location where Tilley collided with it. It also is undisputed that Tilley’s lawsuit is premised on Traylor’s alleged failure to protect him from the act of this third party. It makes no difference whether or not the third party’s act was completed before Traylor arrived on the scene. Consequently, the holdings in City of Rome and Landis are applicable to this case.

Decided June 21, 1995

Reconsideration denied July 18, 1995

Cochran, Camp & Snipes, Scott A. Cochran, for appellant.

McLain & Merritt, Joe O’Conner, England & McKnight, George M. Weaver, for appellees.

2. In light of our analysis and holding in Division 1 of this opinion, we also conclude that the trial court properly determined that no issue of material fact exists in this case with regard to Tilley’s claim of gross negligence.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


text:
    A95A0364.
    PARHAM v. THE STATE.
    (460 SE2d 78)
   Pope, Presiding Judge.

Defendant Ronald Parham was convicted by a jury of felony theft by shoplifting for concealing two shirts in his pants at a Belk’s department store in Savannah, Georgia. Defendant appeals from the trial court’s denial of his amended motion for a new trial. We affirm.

Construed in a light most favorable to the jury’s verdict, the evidence in this case demonstrates the following: On January 8, 1994, Chatham County District Attorney Investigator Glenn Kessler was working off-duty at Belk’s as a security agent. Kessler was monitoring Belk’s security cameras when he observed defendant enter the “Tommy Hilfiger” section of the store. While in that section of the store, defendant went into a dressing room carrying an article of clothing. When defendant exited the dressing room, however, Kessler noticed that defendant was not carrying the article of clothing. Consequently, Kessler turned on the surveillance camera located directly above defendant. Kessler then observed defendant take a wooden hanger with a shirt on it off a clothes rack. Defendant unbuttoned the shirt, took it off the hanger and began folding it into a small square. Subsequently, defendant reentered the dressing room carrying the shirt in his hand. Within approximately 25 seconds, defendant exited the dressing room, at which time, Kessler noticed a large bulge in the front of defendant’s pants.

Kessler described the situation to two of Belk’s security officers and two Savannah police officers who happened to be in the store. The security officers and police approached defendant and patted him down. When defendant began to struggle, he was placed on the ground and handcuffed by the police. Thereafter, security officer Raymond Woodberry pulled up defendant’s shirt and removed two “Tommy Hilfiger” shirts that were concealed inside of defendant’s pants. At the time defendant was detained, he did not have any money or credit cards on him. According to Kessler, when the shirts were recovered the price tags were still on them. At trial, Kessler testified that the retail value of the shirts exceeded $100. Moreover, during the trial, a videotape of the incident and a photograph of the two shirts were admitted into evidence without objection. The videotape was played for the jury. Defendant presented no evidence.

1. Defendant contends that the evidence was insufficient to support his conviction. We disagree. “A person commits the offense of theft by shoplifting when he alone or in concert with another person, with the intent of appropriating merchandise to his own use without paying for the same . . . [c] onceáis or takes possession of the goods or merchandise of any store or retail establishment.” OCGA § 16-8-14 (a) (1). Although defendant argues that the State failed to prove beyond a reasonable doubt that he had the intent to shoplift, “[w]hether the requisite intent is manifested by the circumstances is a question for the trier of fact, and, on review, this court will not disturb the factual determination unless it is contrary to the evidence and clearly erroneous. (Cit.) Foster v. State, 192 Ga. App. 720 (386 SE2d 383) (1989).” (Punctuation omitted.) Racquemore v. State, 204 Ga. App. 88 (418 SE2d 448) (1992). In this case, we hold that the evidence, as set forth above, was sufficient for a rational trier of fact to have found defendant guilty beyond a reasonable doubt of the offense of theft by shoplifting. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. We reject defendant’s contention that the State failed to prove that the value of the two stolen shirts exceeded $100, and that defendant was therefore improperly sentenced for felony theft by shoplifting. See OCGA § 16-8-14 (b) (2). “Value is established in a shoplifting case by showing ‘the actual retail price of the property at the time and place of the offense.’ OCGA § 16-8-14 (c).” Kowalczk v. State, 195 Ga. App. 714, 715 (2) (394 SE2d 594) (1990). In the instant case, Kessler specifically testified that at the time the shirts were recovered from defendant they still had their price tags on them. He further testified that the retail price of the first shirt was $92, and that the retail price of the second shirt was $59.50. Consequently, there was sufficient evidence in this case for the jury to have found beyond a reasonable doubt that the retail value of the two shirts was in excess of $100. See Warsham v. State, 200 Ga. App. 322 (3) (408 SE2d 122) (1991).

3. The trial court did not err in refusing to instruct the jury on criminal attempt, OCGA §§ 16-4-1 and 16-4-2, as a lesser included offense of theft by shoplifting. In the case at bar, the undisputed record evidence clearly shows that defendant concealed two shirts in his pants while he was in Belk’s. Therefore, the only issue remaining for jury determination, with regard to whether the crime of theft by shoplifting was completed, was whether or not defendant concealed the shirts “with the intent of appropriating [them] to his own use without paying for the same. . . .” See OCGA § 16-8-14 (a) (1). As stated in Division 1, there was sufficient evidence for the jury to find that defendant had the requisite intent to shoplift at the time he concealed the store’s merchandise in his pants. If the jury had not found the requisite intent, it would have been required to acquit defendant. “Where, as here, the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense. Hambrick v. State, 174 Ga. App. 444 (2) (330 SE2d 383) (1985) and cits.” Peebles v. State, 260 Ga. 430, 433 (4) (396 SE2d 229) (1990). See Scott v. State, 208 Ga. App. 561, 562 (2) (430 SE2d 879) (1993).

Decided April 17, 1995

Reconsideration denied July 18, 1995

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

4. Finally, defendant contends that the trial court erred in denying his appointed counsel’s motion to withdraw from the case. The record shows that on the day of trial, defendant informed the trial court that he wished to have his appointed counsel removed. The only reason given in support of this request was that defendant did not feel that appointed counsel “was defending [defendant] to the best of his ability.” Defendant did not make any request that he be allowed to hire other counsel, nor did he indicate a desire to represent himself. “(While) all criminal defendants have a constitutional right to be defended by counsel of their own choosing whenever such counsel may reasonably be securedQ ... an indigent criminal defendant does not have an absolute right to discharge one court-appointed counsel and have another substituted in his place. A request of this sort addresses itself to the sound discretion of the trial court. . . . [(Citation and punctuation omitted.)] Turner v. State, 199 Ga. App. 836 (1) (406 SE2d 512) (1991).” Chambers v. State, 213 Ga. App. 414, 417-418 (4) (444 SE2d 820) (1994). Upon review of the record and trial transcript in this case we find no abuse of discretion on the part of the trial court.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


author: Ruffin, Judge.

text:
    A95A0401.
    HOWIE v. THE STATE.
    (459 SE2d 179)
   Ruffin, Judge.

Thomas Howie was convicted of robbery and appeals his judgment of conviction following the denial of his motion for new trial.

The victim in this case, an elderly gentleman, was sweeping his sidewalk when someone grabbed him from behind and stole his wallet which contained five $100 bills. The robber fled to an apartment complex across the street from the victim’s house. The victim told the police the robber was wearing white jeans with a blue stripe and a white buttoned-down shirt. After the victim described the robber to the police, an alert was broadcasted over the police radio for a thin, black male approximately six feet tall, who had a mustache and was wearing an earring and light-colored clothing.

At the hearing on Howie’s motion to suppress and at trial, police officers testified to the following. Responding to the radio call, police drove to the area of the robbery and approximately two minutes later, they spotted Howie at an apartment complex across the street from the victim’s house. When Howie saw their police car, he began to run, but the officers blocked him in with their car and told him to stop and to place his hands on the car. Howie was not free to leave at this point. Officer Willix testified that Howie seemed nervous, jittery, and evasive when asked his name and why he was running.

After Howie was in custody, he was searched and a wallet containing five $100 bills was found in his pocket. When questioned, Howie gave a fictitious name and initially told the officers he was staying at a nearby motel but later changed his story to say he lived under a highway bridge. He was then taken to the victim’s house for identification, and the victim stated he was fairly certain Howie was the same man who robbed him except that his clothes were different.

When Howie was questioned at the police station, a card in the wallet revealed his true address to be an apartment complex across the street from the victim’s house. After Howie’s wife consented, the apartment was searched, and police found a pair of white jeans with a blue design and a white buttoned-down shirt on the floor. The clothes were brought to the victim who confirmed they were the exact clothes worn by his attacker.

1. Howie contends the trial court erred in denying his motion to suppress evidence found during his warrantless arrest. He argues that the arresting officers lacked probable cause to arrest him and that the ensuing search of his wallet was unlawful. We disagree. The officers testified at the suppression hearing that Howie matched the physical description of the suspect which had been broadcasted on the police radio. Although the description of the clothing the suspect was wearing did not exactly match those worn by Howie, this was not fatal and did not prevent the officers from considering the description of the suspect’s physical appearance such as build, race, and facial hair. See Gray v. State, 207 Ga. App. 648 (2) (428 SE2d 663) (1993). In addition, Howie was spotted across the street from the scene of the crime within minutes after it occurred, and he began to run when he saw the police officers.

We have held that “[pjrobable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances. . . . Flight in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search.” (Citations and punctuation omitted.) State v. Billoups, 191 Ga. App. 834, 835 (383 SE2d 198) (1989). We conclude, based on the totality of these circumstances, including Howie’s attempted flight upon seeing the police car, that there was probable cause for the warrantless arrest.

2. Having determined that probable cause existed for the warrantless arrest of Howie, we accordingly hold that the ensuing search of his person was authorized pursuant to that arrest. See Paxton v. State, 160 Ga. App. 19 (1) (285 SE2d 741) (1981). Accordingly, we do not reach the issue of whether the seizure of Howie’s wallet — which clearly did not resemble a weapon — would have been permissible as a protective search for weapons had the circumstances warranted merely a limited Terry-type detention rather than an arrest.

3. Howie contends the search of his apartment was unlawful and that the trial court erred in denying his motion to suppress evidence seized from the apartment. Howie’s wife testified that she is a diabetic and went home the day of the arrest to take her medication. When she arrived home, a police officer was outside her door, and Mrs. Howie testified that he detained her for 15 minutes until Detective Christopher arrived. Mrs. Howie also testified that she explained she needed to enter the apartment to take her medicine because she was going into a diabetic shock but that when Detective Christopher arrived, he refused to allow her to enter the apartment until she signed a form consenting to a search.

In contrast, Detective Christopher testified that he did not refuse to allow Mrs. Howie to enter the apartment until she signed the consent to search. The evidence being in conflict as to whether valid consent was given, the issue was a matter for the trial court as the finder of fact. State v. Williams, 212 Ga. App. 164, 165 (1) (441 SE2d 501) (1994). The court’s finding on this issue has not been shown to be clearly erroneous, and therefore, we must accept it. Id.

4. Howie contends that the jury’s verdict is contrary to the weight of the admissible evidence. In light of our holdings in Divisions 2 and 3 that the fruits of the search of Howie and his apartment were admissible, and viewing that and other evidence in a light most favorable to support the verdict, we find that a rational trier of fact could have found guilt of robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

5. Howie also contends the trial court erred in denying his Batson motion regarding the State’s peremptory strikes of the only two black jurors on the venire. Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Howie argues that the State’s proffered reasons for striking the two jurors — that they worked in the legal field and were young — were guises and insufficient to overcome his motion because a younger, white juror was not struck and because the juror struck who purportedly worked in the “legal field” was only a copier for Atlanta Legal Copies.

However, Howie offers only an allegation but no proof in the record that a younger, white juror was seated. Moreover, while we are aware that a reason given to strike a black juror which is not used against a white juror is particularly suspect, “[w]e are not authorized to create an inference of discrimination . . . where none has been found by the trial court, to whose findings we must give great deference. [Cit.]” Lingo v. State, 263 Ga. 664, 668 (437 SE2d 463) (1993). With that proviso in mind, we examine the second reason given for striking juror number 73, that his job as a copier involved the legal field. This reason was neutral and related to the case (see Gamble v. State, 257 Ga. 325 (5) (357 SE2d 792) (1987)), and if the trial court found no inference of discrimination in application, we are not authorized to ignore this finding unless it is clearly erroneous. Lingo, supra. We do not find that it is. Accordingly, we find no error in the denial of Howie’s Batson challenges.

6. Howie contends the trial court erred in failing to grant his motion for a mistrial after it was learned that a juror made improper comments to other jurors about quickly finding Howie guilty. However, the record demonstrates that when discussing the appropriate remedy with the court, Howie’s attorney never moved for a mistrial and stated only that he was not waiving his right to a mistrial; thus, nothing was preserved for appellate review on this issue. Gazaway v. State, 210 Ga. App. 540 (2) (436 SE2d 738) (1993).

7. In two enumerations of error, Howie complains of three instances where the State led a witness. “A judge is given latitude and discretion in permitting leading questions, and unless there has been an abuse thereof, resulting in prejudice and injury, there is no reversible error.” (Citation and punctuation omitted.) Barker v. State, 211 Ga. App. 279, 280 (3) (438 SE2d 649) (1993). After reviewing the record, we find no abuse of discretion, prejudice, or injury. Accordingly, this enumeration is without merit.

Judgment affirmed.

Beasley, C. J., and Pope, P. J., concur.

Decided July 3, 1995

Reconsideration dismissed July 19, 1995.

Lauren L. Becker, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.


text:
    A95A0724.
    STYLES v. MOBIL OIL CORPORATION.
    (459 SE2d 578)
   Ruffin, Judge.

Randolph Styles sued Mobil Oil Corporation (“Mobil”) for injuries he received when he fell approximately 30 feet from an icy steel beam on the roof of a building he was helping to construct for Mobil. Styles was an employee of Williams Erection Company, a subcontractor on the project. Styles alleged that the general contractors were negligent per se for failing to provide safety nets for the men working on the steel frame of the building’s roof as required by OSHA and the Associated General Contractors of America (“AGC”). Styles further alleged that Mobil ratified the negligent conduct and was therefore vicariously liable to him under OCGA § 51-2-5 (6). The trial court granted Mobil’s motion for summary judgment, ruling that because Styles knew the frame was icy but nonetheless walked on it, he assumed the risk of his injury and his vicarious liability claim against Mobil therefore failed as a matter of law.

1. Styles contends the trial court erred in ruling that he assumed the risk of his injury and in granting summary judgment accordingly. We agree that a genuine issue of material fact remains as to whether Styles voluntarily and without coercion chose a perilous course of conduct.

In Kitchens v. Winter Co. Builders, 161 Ga. App. 701 (289 SE2d 807) (1982), we addressed an almost identical factual situation. Kitchens, a construction worker, fell from a slippery ladder and sued the general contractor alleging its violation of federal and industry safety standards was negligence per se. The contractor moved for summary judgment, contending that because Kitchens had repeatedly complained about the dangers of the ladder but continued to use it, he assumed the risk of his injury.

We reversed the grant of summary judgment to the contractor because the doctrine of assumption of the risk applies only when a person voluntarily pursues a dangerous course of conduct without coercion, and by the very nature of construction work, Kitchens’ conduct was restricted by the coercion of his employment: “It goes without saying that all construction work is dangerous and if we applied the doctrine of assumption of the risk, which the defendant desires the court to do here, there would be no construction work, as all employees would immediately be required to walk off the job or assume the risk of injury. . . . [I]t is for the jury to determine whether under the facts and circumstances and inferences drawn from the evidence that a situation is so dangerous that the person injured in continuing to work with full appreciation of the danger involved and without restriction of his freedom of choice by circumstances or coercion deliberately pursued an obviously perilous course of conduct. Any construction worker as a servant and employee has a certain amount of his freedom of choice restricted by the circumstances under which he works and the coercion of seeking to remain employed.” Id. at 703.

In this case, the record shows that on the morning of the accident, Styles expressed his concern about the danger posed by the ice on the steel beams. After the meeting, co-workers who had already walked on the frame called down to Styles that the conditions were icy and that they were sliding everywhere. Styles testified that he discussed the fact that the steel was icy with his supervisor, and the supervisor replied, “I cannot tell you to go up there, but we’ll get somebody who can[,]” which Styles understood as a threat to work or be terminated. Styles further testified that having worked with the subcontractor, it was his belief that if an employee “buck[s] the system, the system gets rid of you.” He also testified that he was aware of instances where employees had been terminated for “not producing or being a little too safe.” When asked why he did not tell his co-workers to come down when they complained about the icy conditions, Styles replied that the supervisor was within earshot and would have fired him. Finally, Styles testified that once he stepped from the ladder onto the frame and saw it was icy, he remained and walked around to ensure that the skylight being welded on the roof that day for which he was responsible was done correctly and to encourage his co-workers to come down.

Given this evidence, there is a genuine issue of material fact as to whether Styles’ decision to walk on the beams was an exercise of his free choice unrestricted by coercion or intimidation regarding his employment. Kitchens, supra. Accordingly, the trial court erred in ruling that Styles assumed the risk of his injury.

2. Despite our determination that a jury question exists as to whether Styles assumed the risk of his injury, the grant of summary judgment was not erroneous if Styles’ injury was not the result of Mobil’s negligence. See Lipham v. Federated Dept. Stores, 208 Ga. App. 385 (1) (430 SE2d 590) (1993), rev’d on other grounds, 263 Ga. 865 (440 SE2d 193) (1994). (Question of assumption of risk does not arise unless there first exists an issue of fact as to defendant’s liability.) Styles contends that the failure of the contractors to use safety nets as required by OSHA and AGC was negligence per se and that an issue of fact exists as to whether Mobil ratified that conduct such that it is vicariously liable to him under OCGA § 51-2-5 (6). See Cardin v. Telfair Acres of Lowndes County, 195 Ga. App. 449 (2) (393 SE2d 731) (1990).

Decided July 5, 1995

Reconsideration denied July 19, 1995.

Phillips & Reid, Stephen G. Lowe, Kenneth T. Horton, Jr., for appellant.

OCGA § 51-2-5 (6) provides that an employer is liable for the negligence of a contractor “[i]f the employer ratifies the unauthorized wrong of the independent contractor.” We have held that such ratification of a wrongful act “may result from acceptance of the work on the theory that acceptance shifts the responsibility for maintaining the . . . defective condition to the employer. . . . Ordinarily, in order to ratify an act, one must have knowledge of the act.” (Citations and punctuation omitted.) Wilmock, Inc. v. French, 185 Ga. App. 259, 261 (1) (363 SE2d 789) (1987).

Styles presented evidence that Mobil’s contract mandated compliance with OSHA standards (29 CFR 1926) and the standards set forth in the AGC’s accident prevention manual. Both require the use of safety nets in circumstances such as these and that the contractor’s practice violated OSHA regulations. Further, Mobil does not deny on appeal that it ratified the contractors’ failure to comply with the requirements but instead addresses this enumeration of error simply by stating again that Styles assumed the risk of his injury. Because of the aforementioned evidence, a material issue of fact exists as to whether Mobil ratified the allegedly unauthorized conduct of its contractors, and the grant of summary judgment to Mobil was error.

3. As noted, the trial court’s order granting Mobil summary judgment was predicated on a finding that Styles’ vicarious liability claim failed because he assumed the risk of his injury. To the extent the court’s order is read as granting summary judgment on Mobil’s argument that punitive damages were improper, that finding is likewise based on the court’s determination that Styles’ liability claim failed; with no liability, there can obviously be no award of damages. Because we reverse the court’s finding that Mobil has no liability as a matter of law, the reversal is, necessarily, a reversal of the grant of summary judgment on punitive damages as well.

Judgment reversed.

Beasley, C. J., and Pope, P. J., concur.

Chambers, Mabry, McClelland & Brooks, Jan P. Cohen, F. Scott Young, for appellee.


text:
    A94A0759.
    DUKES v. THE STATE.
    (458 SE2d 713)
    Decided July 19, 1995.

      W. Washington Larsen, Jr., Celia Larsen, for appellant.

      Ralph M. Walke, District Attorney, L. Craig Fraser, Assistant District Attorney, for appellee.
   Blackburn, Judge.

In Dukes v. State, 213 Ga. App. 701 (446 SE2d 190) (1994), we affirmed the defendant’s conviction on two counts of theft by taking, one involving a red 1989 Toyota Tercel and one involving a white 1990 Dodge Spirit. In Dukes v. State, 265 Ga. 422 (457 SE2d 556) (1995), the Supreme Court granted certiorari and reversed our decision as to the Toyota Tercel while affirming our decision as to the Dodge Spirit. Accordingly, our prior opinion as to the defendant’s theft by taking convictions is vacated and the judgment of the Supreme Court is made the judgment of this court. All other portions of our prior opinion were not subject to the Supreme Court’s writ of certiorari and, therefore stand.

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

Birdsong, P. J., and Ruffin, J., concur.