text:
    A01A0246.
    RUTLEDGE et al. v. AUTO-OWNERS INSURANCE COMPANY.
    (548 SE2d 86)
   Andrews, Presiding Judge.

We granted this application for interlocutory review to consider the meaning of “relative” under Georgia law in the context of a certain insurance contract. Having determined that the trial court applied an erroneous definition of the meaning of that term, we reverse.

The issue of insurance coverage arose in these circumstances. On the night of September 21, 1996, Rachel Rutledge and her sole passenger, Rhonda Jackson, were involved in a single vehicle accident. Rutledge was driving a 1996 Nissan pickup truck belonging to John Thomas, the surviving spouse of her sister who died in October 1994. Both Rutledge and Jackson were injured when Rutledge lost control of the truck and it slammed into a tree. After Jackson brought a personal injury suit against Rutledge, Auto-Owners Insurance Company (Auto-Owners) filed a declaratory judgment action. Auto-Owners, the issuer of an automobile liability insurance policy to John Thomas, contended that Rutledge did not have permission to drive the vehicle and was not otherwise insured under Thomas’s policy. Asserting that it had no duty to defend or provide any insurance coverage to Rutledge, Auto-Owners sought a declaration to that effect.

Rutledge, Jackson, and Jackson’s uninsured motorist carrier, Metropolitan Property & Casualty Insurance Company (Metropolitan), filed separate answers to Auto-Owners’ complaint. Subsequently, Auto-Owners moved for partial summary judgment on the basis that it had no duty to defend Rutledge, arguing that at the time of the loss, Rutledge was not a resident relative of its named insured, John Thomas. While acknowledging that coverage might be available for other reasons, Auto-Owners nevertheless sought partial summary judgment on that ground to “shorten the ultimate trial and narrow the issues for presentation to the jury.”

Rutledge, Jackson, and Metropolitan, the defendants in the declaratory judgment action, filed a cross-motion for summary judgment against Auto-Owners. They contended that at the time of the accident, Rutledge was a “resident relative” within the meaning of the insurance policy due to her relationship to John Thomas and his son, Chris Thomas, Rutledge’s 16-year-old nephew. They also claimed that Rutledge had permission from both John Thomas and Chris Thomas to operate the truck involved in the accident.

The trial court awarded partial summary judgment to Auto-Owners on the basis that Rutledge was no longer a relative of John Thomas. The court found, “[t]he relationship between Defendant Rutledge and John Thomas was that of brother-in-law and sister-in-law. That relationship ended upon the death of Shirley Thomas.” The trial court denied the cross-motion for summary judgment finding a genuine factual issue remained for resolution as to whether Rutledge had operated the vehicle with permission. This appeal followed.

1. Rutledge, Jackson, and Metropolitan contend that the trial court erred in finding as a matter of law that Rutledge was not a “resident relative” of John Thomas on the date of the automobile accident. We agree.

Insurance is a matter of contract, and parties are free to fix responsibility for various risks as long as the contract does not violate state law or public policy. See Hulstzman v. State Farm Fire &c. Co., 188 Ga. App. 12, 13 (2) (372 SE2d 9) (1988). By law, “[e]very insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any rider, endorsement, or application made a part of the policy.” OCGA § 33-24-16. Under the statutory rules of contract construction, the contract will be construed strictly against the insurer/drafter. Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 716 (4) (470 SE2d 659) (1996). When an insurer agrees to provide coverage to an insured, any exclusions from that coverage must be defined clearly and distinctly. American Southern Ins. Co. v. Golden, 188 Ga. App. 585, 586 (373 SE2d 652) (1988).

With these principles in mind, we review the policy issued by Auto-Owners to Thomas. The policy was created in Georgia and issued and reviewed in this State. Auto-Owners’ underwriting supervisor, Dan Sills, testified that this insurance contract was “subject to certain terms and conditions contained in the policy and applicable Georgia law.” Under the “liability coverage” section, the policy states: “We will pay damages for bodily injury and damage to tangible property for which you become legally responsible and which involve your automobile. We will pay such damages on your behalf, on behalf of any relative who lives with you, or on behalf of any person using your automobile with your permission.” (Emphasis supplied.) But, under the liability section, the term “relative” is not defined. The only definition of “relative” in the poliey appears in the “uninsured motorist amendatory endorsement” and is instructive for purposes of analysis. That endorsement states: “1. You means the first named insured stated in the Declarations. 2. Relative means a person who resides with you and who is related to you by blood, marriage or adoption. Relative includes a ward or foster child who resides with you.” It is undisputed that Rutledge was residing with the policyholder, John Thomas, and his son, Chris Thomas, on the date of loss. Rutledge had moved in with the Thomases a few months earlier and was occupying a spare bedroom. Thus, the only remaining determination is whether under “applicable Georgia law,” Rutledge remained a relative of John Thomas by marriage despite the intervening death of her sister, Shirley Thomas.

Black’s Law Dictionary (6th ed. 1990) defines “relative” as: “A kinsman; a person connected with another by blood or affinity. When used generically, includes persons connected by ties of affinity as well as consanguinity, and, when used with a restrictive meaning, refers to those only who are connected by blood.” Rutledge and Thomas are not connected by consanguinity, and in Auto-Owners’ view, Rutledge ceased to be the sister-in-law of John Thomas on the day that her sister, Shirley Thomas, died. Apparently, as Auto-Owners points out, some other jurisdictions consider the relationship of affinity created by marriage to be terminated at death in these circumstances. Nevertheless, according to controlling Georgia law, the relationship created by affinity may sometimes continue after death. Ga. Power Co. v. Moody, 186 Ga. 343, 344 (197 SE 844) (1938). In Moody, the Supreme Court stated: “The general rule is that the husband is related by affinity to the blood relatives of the wife, and the wife is likewise related to the blood relatives of the husband. This relationship by affinity is dissolved by the death of either party to the marriage which created the affinity provided the deceased party left no issue living” (Emphasis in original.) Id. at 344. That rule is conclusive on this issue. See Miller v. State, 97 Ga. 653, 657 (2) (25 SE 366) (1895); Parks v. Citizens Bank of Valdosta, 40 Ga. App. 523 (2) (150 SE 438) (1929). Since John Thomas and Shirley Thomas had a son living when Shirley died, the relationship created by affinity in marriage between John Thomas and the decedent’s sister, Rachel Rutledge, survived Shirley’s death. Thus, Rutledge remains a relative of John Thomas. This meaning of “relative” comports with Georgia law and does not otherwise contradict the terms of the contract. See Hurst, 266 Ga. at 716-717. Therefore, Auto-Owners is obligated to provide coverage on behalf of Rutledge, regardless of whether Rutledge was a permissive user of the vehicle. Boston v. Allstate Ins. Co., 218 Ga. App. 726, 728 (463 SE2d 155) (1995); Golden, 188 Ga. App. at 586. Had Auto-Owners, as the drafter of this policy wanted to narrow coverage for circumstances like these, it should have definitively done so. Peachtree Cas. Ins. Co. v. Kim, 236 Ga. App. 689, 690 (512 SE2d 46) (1999). We reverse the entry of partial summary judgment entered in favor of Auto-Owners and direct the entry of same in favor of Rutledge, Jackson, and Metropolitan. See Hill v. Nationwide &c. Ins. Co., 214 Ga. App. 715, 718 (448 SE2d 747) (1994).

Decided April 25, 2001

Drew, Eckl & Farnham, Lawrence L. Bennett, Jr., Joe A. Weeks, Stephen M. Ozcomert, for appellants.

Conoscienti, Storm & Kendall, Michael C. Kendall, for appellee.

2. In light of this holding, we need not address the remaining issues.

Judgment reversed.

Eldridge and Miller, JJ, concur.


source: Caselaw Access Project

author: Eldridge, Judge. Andrews, Presiding Judge,

license: Public Domain

text:
    A01A0837.
    SMITH v. ONTARIO SEWING MACHINE COMPANY, LTD. et al.
    (548 SE2d 89)
   Eldridge, Judge.

This is an appeal from the grant of summary judgment to the manufacturer-seller in a fact-intensive product liability case based upon proximate cause involving the post-sale warnings, i.e., a mop assembly machine that had a cutter blade activated without the controls being activated by the plaintiff. The plaintiff, Regina Smith, was injured after the post-sale notice was sent by Ontario Sewing Machine Company, Ltd. to her employer, Wilen’s Mop Manufacturing; the notice only warned the employer to stop using the machinery and to purchase a more expensive newer model to avoid the dangerous manufacturing design of the old equipment. The notice did not identify the design defects or any method to correct the danger other than to stop using the machine. The trial court found that Wilen’s failure to stop using the dangerous machinery after this notice was the supervening proximate cause of plaintiff’s injury. Ontario initially took remedial steps to correct what it believed was the cause of two prior injuries by moving the control buttons apart and by recessing them. But when these remedial steps failed to prevent further injuries, Ontario took no further steps to correct the dangerous design defect other than to send the post-sale warning to Wilen. When Wilen notified Ontario, both verbally and in writing, that it could not take the machines out of service, Ontario was in negotiation with Wilen over making corrections or sale of new machinery at the time of plaintiff’s injury. Ontario had the duty not only to adequately warn of the danger from its product’s defective design, but also to exercise ordinary care to correct the danger, which duty was not relieved by the acts or omissions of Wilen, because Ontario had actual notice that Wilen would not stop using the machinery. Thus, Ontario should have reasonably foreseen that its concurrent negligence with Wilen’s negligence would cause further injuries to employees if the defect was not corrected. Therefore, we reverse, because the issue of proximate cause in this case is for the jury.

On July 22, 1998, while working as a temporary production worker for Wilen, with only ten weeks experience, Smith had her hand badly cut by the cutter blade when the cutter blade activated without the two separated control buttons being pushed simultaneously and intentionally by the operator. She did not know that Ontario had given Wilen a “recall” notice or that two employees had previously been injured when the blade activated spontaneously, as in her case.

In order to operate the mop making machine the operator reaches under the blade cage, which also acts as a clamp for the yarn while the blade is activated, pulls a bundle of yarn under the cage and over the blade opening, and only then the cutting blade activates when the operator pushes two control buttons simultaneously with separate hands. To carry out this full operation, the operator’s hands have been removed from under the cage and the cutting area and are on the control buttons.

The cutter blade is a retractable ten-inch rotary blade mounted under the table, like a table saw, which blade rises through the blade opening when activated. After the desired length of yarn is pulled across the blade, the cage/clamp comes down, and the blade comes up on activation by pressing the two buttons. Upon release of the buttons, the blade stops and retracts below the opening. Plaintiff was taught that this was the correct way to operate the machine, and there is no evidence to the contrary.

Plaintiff had some general concern that placing her hand under the cage/clamp and across the blade opening could be dangerous; however, to activate the blade required that both hands be free from the area of danger and used to depress the two buttons; therefore, her hands were safe when pushing the buttons. She did not know that the blade could activate without the control buttons being pressed, so she had no actual and subjective knowledge of the real danger in this case.

On July 22, 1998, plaintiff reached with her left hand above the blade opening to grasp the yarn, when the cage/clamp came down and the blade came up, cutting her hand without both control buttons being depressed.

Plaintiff’s expert testified that the defect causing the injuries was that the circuit control design allowed spontaneous activation if the control circuit valves of the pneumatic control system malfunctioned; this constituted a violation of American National Standards Institute standards. Notably, this was not the defect identified by Ontario and known by Wilen.

Several production workers testified that they had seen the blade activate without the buttons being pushed prior to plaintiff’s injury. Prior to plaintiff’s injury, two other workers had been injured by the activation of the blade without the buttons being pressed. The first was in September 1994. On November 25, 1996; a second employee was injured when the blade spontaneously activated. All of this was known by Ontario prior to plaintiff’s injury. Ontario failed to exercise ordinary care to investigate properly and to discover the cause of the injuries; it identified a defect that did not cause the injuries and sought to correct the wrong defect. Ontario believed that a design defect allowed operators to depress the buttons with their bodies accidentally activating the blade. In early 1996, Ontario redesigned the controls by moving them farther apart so that the operator’s body could not depress them and later made the buttons recessed after the second injury, because it still believed that the buttons were being depressed accidentally by the operators. Both Ontario and Wilen held this wrong belief that the operators had depressed the buttons with their bodies and believed that moving the buttons farther apart and recessing them corrected the danger.

On September 19, 1997, Ontario sent to Wilen what it denominated a “Re-call of cut-off option on DD-16 machines,” but it failed to identify any defect or specific danger in the notice. The “recall” notice stated:

As you are aware, there have been two incidents where serious operator injury occurred while using equipment. In order to avoid any possibility of further injuries, we are recalling this equipment. You are hereby advised to immediately cease use of this equipment, and to disable operation by removing electrical and compressed air supplies to it. You will be reimbursed for the actually paid cost of this equipment as per our records on receipt of the equipment, complete and in working order, by us. We will arrange for pickup or shipment of the equipment in our plant. This offer to reimburse the full invoice cost is valid for 90 days. We have designed a new feeder/cutter machine which provides improved safety and productivity, which could be used to replace the re-called cut-off options. Please let me know at your earliest convenience when this equipment is available for return.

On October 2, 1997, Dietmar Jeske, the principal at Ontario who had redesigned the controls, was notified by Joe Wilen in writing and earlier by telephone that Wilen could not and would not remove the cutter without an immediate replacement cutter, because this would shut down all production. Jeske and Wilen had agreed that 90 days was insufficient time to resolve the problem. Wilen also reminded Jeske in the letter that, during Jeske’s September 24, 1997 visit and inspection at the Wilen plant after the notice, they had agreed “that it may be possible to secure the existing cutters.” Wilen also wrote that Wilen’s position was that Ontario should correct the problem at its expense and that Ontario said that this would cost too much. Wilen reminded Jeske that Wilen’s downtime to change over the cutter machines would be considerable. He stated, ‘Wilen should not be made to carry the burden of additional costs due to the engineering design that Ontario feels is unsafe.” Thus, Wilen and Ontario fought over money, while the true defect remained unidentified and uncorrected, resulting in plaintiff’s injuries.

Jeske denied the delay agreement and testified that Wilen refused the “recall” and threatened suit. But, Jeske admitted that he was aware, prior to plaintiff’s injury, that another customer at its own expense had modified the equipment to make it equivalent to the new and improved equipment offered in the “recall” letter. Such customer modification did away with the need for replacement of all the machinery. However, Ontario never told Wilen that self-help remedial action was possible.

After plaintiff’s injury and at Wilen’s own expense, Wilen modified the defective control system for all the cutters, eliminating the defects causing the injuries, at a cost of $400 per unit. Thus, the evidence showed that two reasonable, quick, and relatively inexpensive remedial redesigns existed that users made themselves to eliminate the dangerous defects; this is compared to defendant’s third solution, which was costly in downtime or lost production time from production and in money for purchase of Ontario’s new generation of equipment. Ontario demanded in the “recall” notice that Wilen replace Ontario’s old generation machine with a new generation machine.

To determine the issue of proximate cause of plaintiff’s injuries, Ontario’s different duties must be analyzed to determine as a mixed question of law and fact supervening proximate cause versus concurrent proximate cause, as well as the question of plaintiff’s assumption of risk.

(a) Georgia law imposes on the manufacturer of personal property the duty to exercise, ordinary care to warn users of a known or reasonably foreseeable risk of injury or death after a product’s sale, because the manufacturer’s duty does not cease upon sale. This is illustrated under OCGA § 51-1-11 (c), which creates the statute of repose for product liability, which states that “[n]othing contained in this subsection shall relieve a manufacturer from the duty to warn of a danger arising from the use of a product once that danger becomes known to the manufacturer,” and which applies ten years post-sale. Chrysler Corp. v. Batten, 264 Ga. 723, 727 (4) (450 SE2d 208) (1994).

The manufacturer is in the best position to either discover or learn of dangerous product defects and to determine how to correct such defects through remediation. The manufacturer has superior knowledge of such defects and the ability to find them, because notice of the defects comes to the manufacturer through product testing, quality control, product complaints, product liability suits, warranty suits, government-imposed recalls, and industry experience. See Chrysler Corp. v. Batten, supra at 724 (1); Love v. Whirlpool Corp., 264 Ga. 701, 704 (1) (449 SE2d 602) (1994); Mack Trucks v. Conkle, 263 Ga. 539, 544 (4) (436 SE2d 635) (1993); DeLoach v. Rovema Corp., 241 Ga. App. 802, 804 (527 SE2d 882) (2000); Bishop v. Farhat, 227 Ga. App. 201, 206 (6) (489 SE2d 323) (1997). “[T]hat the duty to warn arises 'once the danger becomes known’ reflects the existing case law with its actual or constructive knowledge standard. . . . [Thus, the] manufacturers [are not relieved] of their liability for failing to warn of a danger arising from the use of a product whenever that danger becomes known to the manufacturers.” Chrysler Corp. v. Batten, supra at 727 (4); see also DeLoach v. Rovema Corp., supra at 804. Thus, Ontario was under a duty to adequately warn of the specific danger that it knew or reasonably should foresee from making a proper investigation into the two prior injuries caused by its product. See Center Chem. Co. v. Parzini, 234 Ga. 868, 869-870 (3) (218 SE2d 580) (1975); Moore v. ECI Mgmt., 246 Ga. App. 601, 605 (2) (542 SE2d 115) (2000); Giordano v. Ford Motor Co., 165 Ga. App. 644, 645-646 (2) (299 SE2d 897) (1983); Talley v. City Tank Corp., 158 Ga. App. 130, 137 (279 SE2d 264) (1981).

(b) When the manufacturer subsequently learns that its products have been sold with dangerous defects, it is under a duty to recall the product from the market and to remedy the defect or replace the product in some cases in the exercise of ordinary care beyond the duty to give a post-sale warning. See generally Banks v. ICI Americas, 264 Ga. 732, 737 (1) (450 SE2d 671) (1994); Chrysler Corp. v. Batten, supra at 724. In this case, Ontario neither found the right defect, fixed the defect, nor replaced the machine at its expense.

(c) Here, Ontario was both the product manufacturer and seller; it had actual knowledge of the existence of the dangerous condition causing the activation of the blade without the controls being activated, but it misidentified the cause and failed in its attempts to fix the dangerous design defect. Further, it knew after the notice had been sent to Wilen that the employer and employees were continuing to use the dangerously defective product from Jeske’s visit to the plant to discuss the danger and Wilen’s refusal to stop using the dangerous machinery.

The common-law duty imposed upon suppliers of chattels includes the duty to warn of foreseeable dangers arising from the reasonable use for which the product is intended and requires the exercise of reasonable care to inform third persons of the dangerous condition or of the facts which make the product likely to become dangerous.

(Citation omitted.) Powell v. Harsco Corp., 209 Ga. App. 348, 349-350 (2) (433 SE2d 608) (1993); see also Corbin v. Farmex, 227 Ga. App. 620, 623-624 (490 SE2d 395) (1997). Also, Ontario had actual knowledge of the two prior injuries at Wilen’s plant and took the step of telling Wilen in writing to immediately cease using the products because the machines were dangerous. When Wilen began to quibble over money to remedy this dangerous defect that Ontario could not or would not fix, Ontario sent its officer, Jeske, to the Wilen plant to talk to Wilen, knowing that Wilen had refused to take the dangerously defective machinery out of use. Thus, there existed foreseeability of injury.

(d) A post-sale warning must be adequate and specific to satisfy the manufacturer-seller’s duty to the ultimate user to protect from harm; a vague or generalized warning that fails to warn of the specific defect, the danger from the defect, and remediation is not an adequate warning. Further, the evidence showed that plaintiff was not such an experienced and professional operator that a specific warning of the danger was not necessary to relieve Ontario of its duty to warn her. See Yaeger v. Stith Equip. Co., 177 Ga. App. 835, 836 (341 SE2d 492) (1986); Giordano v. Ford Motor Co., supra at 645-646. In this case, there was a generalized warning only of a general danger from use of the product without specific notice or warning of the actual defect and danger. In fact, Ontario did not even warn of what it erroneously believed was the cause of the injuries, i.e., but-

tons too close together and not recessed. Further, the warning failed to be directed to the third parties actually using the product, who were in immediate danger from the defect, and the notice was not intended to reach such user, even though such users were known and reasonably foreseeable to Ontario. Yaeger v. Stith Equip. Co., supra at 836; Giordano v. Ford Motor Co., supra at 645-646. Although Jeske had actual knowledge of the production workers’ general identity and could have, with the exercise of reasonable care, determined with certainty their identity, Ontario failed to do so, because it sought refuge behind the “recall” notice to shift the burden of liability to Wilen, abdicating its duties of reasonable care. See Powell v. Harsco Corp., supra at 349-350 (2); see also J. C. Lewis Motor Co. v. Williams, 85 Ga. App. 538, 541-542 (69 SE2d 816) (1952).

(e) The trial court granted summary judgment, because Wilen failed to heed Ontario’s warning and remove the machines from use in production as Ontario directed; therefore, the trial court reasoned erroneously that the sole proximate cause of plaintiff’s injury was Wilen’s failure to stop the use of the dangerously defective machinery, which constituted the supervening proximate cause of plaintiff’s injury and which cut off the liability of Ontario in design and in failing to warn as the proximate cause. However, failure to heed the warning did not constitute the supervening proximate cause of plaintiff’s injury.

“As a general rule, issues of causation are for the jury to resolve and should not be determined by a trial court as a matter of law except in plain and undisputed cases.” Ogletree v. Navistar Intl. Transp. Corp., 245 Ga. App. 1, 3-4 (1) (535 SE2d 545) (2000). For damages to be recovered in a tort action, there must be both causation in fact and proximate cause of the injury resulting from defendant’s tort. See Atlanta Obstetrics &c. Group v. Coleman, 260 Ga. 569, 570 (398 SE2d 16) (1990); Talley v. City Tank Corp., supra at 134 (3). “The defendant’s conduct is not a cause of the event, if the event would have occurred without [the causal link or connection].” (Citation and punctuation omitted.) Gen. Motors Corp. v. Davis, 141 Ga. App. 495, 496 (1) (233 SE2d 825) (1977); see also Ogletree v. Navistar Intl., supra at 3.

Whether proceeding under a strict liability or a negligence theory, proximate cause is a necessary element of [plaintiff’s] case. . . . It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act... of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury. While the question of proximate cause is usually submitted to the jury as a question of fact, it may be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion, that the defendant’s [defective design and inadequate recall] were not the proximate cause of the injury.

(Citations and punctuation omitted.) Powell v. Harsco Corp., supra at 350. However, factually such was not the case under the evidence in this record, because Ontario had actual knowledge that Wilen was not going to follow its alleged “recall” warning notice and that the “recall” failed to specify any defect and gave only a general warning that its machinery should not be used and should be returned. Jeske went to the Wilen plant after the “recall” notice and prior to the injury, and Ontario took no steps to remove the danger, although it had actual knowledge of the third-party users who would be affected by the dangerous defect unless it was corrected. Id.

In this case, the design defect caused the injury both in fact and as proximate cause; Wilen’s failure to heed the warning might have prevented the injury by totally stopping use of the machinery, but such omission did not in fact cause the injury from the machine starting improperly; Ontario’s conduct did. Such is the difference between concurrent proximate cause and proximate cause. While Wilen’s omission to heed the notice was not a sufficient independent supervening act to alone constitute the proximate cause and was directly related to Ontario’s inadequate “recall” efforts, the warning was inadequate.

While the general rule is that if, subsequently to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act. . . and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act.

Southern R. Co. v. Webb, 116 Ga. 152, hn. 1 (42 SE 395) (1902); see also Williams v. Grier, 196 Ga. 327, 338 (2) (26 SE2d 698) (1943); Storer Communications v. Burns, 195 Ga. App. 230, 231-232 (393 SE2d 92) (1990); Edwards v. Robinson-Humphrey Co., 164 Ga. App. 876, 881 (3) (298 SE2d 600) (1982).

As has been previously discussed, the warning could be found inadequate and failed to be directed to the ultimate user. More importantly, Ontario had actual knowledge that the warning was not being heeded by Wilen, placing the production workers at immediate risk of injury and death, and knew of the actual existence of such production workers from the observation of its officer Jeske in touring the production lines. Thus, Ontario could reasonably foresee the negligence of Wilen and the consequence to the plaintiff. This made Ontario’s negligence concurrent with the negligence of Wilen, who enjoyed immunity under workers’ compensation, in failing to heed the warning and either fix the machines, as it subsequently did, or take them off line. Thus, Wilen was not the supervening proximate cause but a concurrent proximate cause with Ontario’s negligence in design, recall, and failure to adequately warn of the known danger. Ontario urges foreign law, which follows a radically different tort jurisprudence from Georgia tort law, be engrafted into our law with unforeseeable consequences, and this Court will not follow such foreign cases for this reason.

(f) Ontario, as the manufacturer, had a duty to exercise reasonable care to discover and to repair the known dangerous design defects in the production machinery on recall, because the duties to warn of subsequent known dangers may coexist with the duty of safe manufacture or repair. Chrysler Corp. v. Batten, supra at 724; see also Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 335 (319 SE2d 470) (1984); Greenway v. Peabody Intl. Corp., 163 Ga. App. 698, 699-701 (1) (294 SE2d 541) (1982). The manufacturer could not satisfy its duty to exercise reasonable care for a dangerous design defect merely by giving a warning to Wilen, because it was reasonably foreseeable that third parties would be in danger if Wilen failed to act. See Yaeger v. Stith Equip. Co., supra at 836; Giordano v. Ford Motor Co., supra at 645-646. There is evidence in the record raising material issues of fact that Ontario knew of an alternative design used to correct the danger of the design defect by another customer prior to plaintiff’s injury and failed either to employ such alternative design at the Wilen plant or to inform Wilen of it so that Wilen could use such remedial measures. Chrysler Corp. v. Batten, supra at 724. Further, Wilen developed its own design to eliminate the danger after plaintiff’s injury, demonstrating the feasibility of such immediate on-site remediation without replacing all of the machinery, which Ontario in the exercise of ordinary care failed to discover or to make as an alternative to its own costly remedy. See Banks v. ICI Americas, supra at 734-737; Chrysler Corp. v. Batten, supra at 724. ££[W]hether the manufacturer acted reasonably in choosing a particular . . . design, given the probability and seriousness of the risk posed by the design, the usefulness of the product in that condition, and the burden on the manufacturer to take the necessary steps to eliminate the risk” applies not only in the risk-utility analysis of initial design, but also on a product recall for repair or for remanufacture under an alternative redesign for the same reasons. Banks v. ICI Americas, supra at 734 (1). “When a jury decides that the risk of harm outweighs the utility of a particular design (that the product is not as safe as it should be), it is saying that in choosing the particular design and cost trade-offs, the manufacturer exposed the consumer to greater risk of danger than he should have.” (Citation and punctuation omitted.) Id. However, in this case the product failed to perform in a reasonably safe manner for intended or foreseeable uses as the manufacturer intended. See Center Chem. Co. v. Parzini, supra; see also Banks v. ICI Americas, supra at 733; Chrysler Corp. v. Batten, supra at 724.

Also Ontario, in its role as a seller-dealer, may have had no duty to issue a recall warning and to remediate the dangerous known defect in design, because it has a duty only to warn of dangers actually or constructively known at the time of sale. See DeLoach v. Rovema Corp., supra at 804; Bishop v. Farhat, supra at 206 (6). However, having issued a recall notice as seller-dealer, it has voluntarily assumed the duty to exercise ordinary care in conducting such recall.

“[A] seller of products is liable for harm caused by defects in products where: (a). . . (2) the seller or distributor, in the absence of a recall requirement under Subsection (a) (1), undertakes to recall the product; and (b) the seller or distributor fails to act as a reasonable person in recalling the product.” Restatement of Torts, 3rd, Product Liability, § 11. This restates the existing common law in Georgia as it pertains to a person who assumes to act as a volunteer, regarding a recall of the product it sold, and who must do so in the exercise of reasonable care. See Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 837-838 (331 SE2d 899) (1985); see also Blossman Gas Co. v. Williams, 189 Ga. App. 195, 197 (1) (375 SE2d 117) (1988) (physical precedent only).

(g) Ontario urges that the trial court should be affirmed under the right for any reason standard. In this regard, Ontario urges that plaintiff assumed the risk of an open and obvious danger from its dangerous design. However, the design employed by Ontario had a control system, if it worked correctly as designed, which kept the operator’s hands from under the cage and away from the blade opening when in operation, so that the real danger was not open and obvious to the operator. In fact, the safety design could lull the operator into believing that it was safe to place her hand under the cage and around the blade opening, because the blade could not operate without the two buttons being pushed at the same time by the operator’s two hands. See Daniels v. Bucyrus-Erie Corp., 237 Ga. App. 828, 829-830 (516 SE2d 848) (1999).

Plaintiff lacked knowledge of the specific danger of operating the machine, i.e., spontaneous activation of the blade without the control buttons being activated. Plaintiff had worked at Wilen’s plant only ten weeks prior to her injury and believed prior to her injury that the blade could not activate without the two buttons being pushed, and such apparent safety feature did not constitute an open and obvious danger to her as a user. She had no knowledge of the prior two injuries or of the previous blade activations without the buttons being pushed. While she had a generalized concern of danger over placing her hand under the cage and across the retracted blade, she had no specific knowledge of danger and had a right to rely on Ontario’s safety design of two control buttons, preventing the activation of the blade without the buttons being depressed. See Hillman v. Carlton Co., 240 Ga. App. 432, 433-435 (1) (522 SE2d 681) (1999) (operator of forklift dumped from forks which suddenly gave way); Adler’s Package Shop v. Parker, 190 Ga. App. 68, 70-72 (1) (b) (378 SE2d 323) (1989) (voluntarily hiring a security guard to protect customers as well as property).

In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. Knowledge of the risk is the watchword of assumption of risk, and means both actual and subjective knowledge on the plaintiff’s part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. The knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might be associated with such conditions or activities. As stated by Dean Prosser: In its simplest and primary sense, assumption of the risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of . conduct toward him, and to take his chances of injury from a known risk arising from, what the defendant is to do or leave undone.

(Punctuation and footnotes omitted; emphasis in original.) Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996); see also Muldovan v. McEachern, 271 Ga. 805, 807-808 (2) (523 SE2d 566) (1999); Hillman v. Carlton Co., supra at 433-435; Jimenez v. Morgan Drive Away, 238 Ga. App. 638, 640 (1) (519 SE2d 722) (1999); Lowery’s Tavern v. Dudukovich, 234 Ga. App. 687, 690 (3) (507 SE2d 851) (1998).

[T]he standard to be applied in assessing an assumption of the risk defense is a subjective one, geared to the particular plaintiff and his situation, rather than that of a reasonable person of ordinary prudence who appears in [the completely separate defense of] contributory negligence. Thus, the extent to which a plaintiff assumes the risk of injury caused by another’s action or inaction depends upon the extent to which the plaintiff subjectively comprehended the specific hazard posed, and affirmatively or impliedly assumed the risk of harm that could be inflicted therefrom. Where a plaintiff subjectively assumed only the specific risk of harm emanating from negligent conduct, recovery is barred only for injuries that were negligently inflicted.

(Punctuation and footnote omitted.) Muldovan v. McEachern, supra at 808 (2).

Neither the facts in the record nor the law is so clear and palpable that we can hold as a matter of law that plaintiff assumed the risk of her injury but, to the contrary, supports this Court’s finding that assumption of risk is not an appropriate defense under the facts and circumstances of this case. The evidence of record shows that the plaintiff lacked both actual and subjective knowledge of the specific danger of blade activation without the buttons being pushed.

Judgment reversed. Miller,

J., concurs. Andrews, P. J., concurs specially.

Andrews, Presiding Judge,

concurring specially.

I agree that the trial court’s grant of summary judgment in favor of Ontario Sewing Machine Company, Ltd. and Texmatic Machinery, Ltd. (the manufacturers of the machine at issue) must be reversed, but not for all the reasons stated in the majority opinion.

Ontario and Texmatic moved for summary judgment on several grounds, one of which was that, even assuming the machine was negligently designed or manufactured, the injury suffered by Regina Smith while using the machine in the employment of Wilen’s Mop Manufacturing was proximately caused by acts of Wilen and not by acts of Ontario or Texmatic. In support of this claim Ontario showed that, over a year prior to Smith’s injury, it sent Wilen a letter stating that: (1) because of two prior injuries suffered by machine operators at Wilen’s plant, Ontario was voluntarily recalling the machine to avoid any further injuries; (2) Wilen was advised to stop using the machine; (3) Wilen would be reimbursed for what it paid Ontario for the machine; and (4) the reimbursement offer was valid for 90 days. It is undisputed that Wilen was aware of the two prior injuries, that it refused to stop using the machine, and that Smith subsequently suffered an injury similar to the two prior injuries while using the machine in the employment of Wilen. Ontario and Texmatic claimed that Wilen’s refusal to stop using the machine after receiving the recall letter was an intervening act by Wilen which proximately caused Smith’s injury and negated any claim that they proximately caused the injury.

In granting summary judgment to Ontario and Texmatic, the trial court addressed only this ground. The trial court found that: (1) Wilen was aware of the danger of continuing to use the equipment because of the two prior similar injuries to its employees; and (2) Wilen chose not to stop using the equipment and refused to participate in the recall because the costs of doing so, including lost profits, were too great and because Ontario refused to pay for all the costs of the recall. The trial court specifically found that whether the warning of the danger given by Ontario was sufficient to put the machine user, Smith, on notice of the danger was not the issue being addressed by the court. The trial court stated that the issue was whether Wilen had a duty to stop using the machine after receiving the recall letter and whether its refusal to do so was an intervening cause of Smith’s injury which relieved Ontario and Texmatic from any liability. Finally, the trial court decided this issue by ruling that Wilen’s refusal to stop using the machine was an intervening act which caused Smith’s injury and severed any proximate causal connection between the injury and actions of Ontario and Texmatic.

I agree in principle that a negligent failure by a business in Wilen’s position to cooperate with a manufacturer’s reasonable recall of a product may become the sole proximate cause of injuries sustained by an employee of the business while using the product. “A [business’] negligent failure to cooperate with a manufacturer’s reasonable recall program [may become] the proximate cause of injuries sustained by [an employee of the business]. Thus, the duty of the manufacturer may be excused because of this intervening negligence of the [business].” Maleski, Ga. Products Liability (2nd ed. 1993), § 1-6. Under the present facts, however, whether Wilen’s refusal to stop using the machine and cooperate in the recall was an intervening act which became the sole proximate cause of the injuries is a question of fact for the jury.

It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury.

(Citations and punctuation omitted.) Jones v. Central of Ga. R. Co., 192 Ga. App. 806, 807 (386 SE2d 386) (1989). Ontario’s recall offered to reimburse Wilen for the actual cost of the machine if accepted within 90 days. Whether this was reasonable in light of the time constraint and the total costs the recall would have imposed on Wilen and whether Wilen’s refusal to comply with the terms of the recall was foreseeable by Ontario and Texmatic are factual issues in this case. Accordingly, it is for the jury to decide whether the proximate cause of Smith’s injury was solely acts of Ontario and Texmatic, or solely acts of Wilen, or a combination of those acts. Blossman Gas Co. v. Williams, 189 Ga. App. 195, 196-199 (375 SE2d 117) (1988).

Ontario and Texmatic also moved for summary judgment in the trial court on four other grounds which the trial court did not address in its order: (1) the sole proximate cause of Smith’s injury was Wilen’s failure to install recessed activation buttons on the machine; (2) Smith assumed the risk of incurring the injury; (3) the alleged defective condition of the machine was known and obvious; and (4) because Wilen substantially modified the machine prior to Smith’s injury, any defect allegedly existing in the machine at the time it was sold to Wilen was not the proximate cause of the injury. Given that a judgment right for any reason will be affirmed, it is necessary to consider whether the trial court’s grant of summary judgment can be upheld based on any of these additional grounds raised in the motion. Newsome v. Dept. of Human Resources, 199 Ga. App. 419, 423 (405 SE2d 61) (1991).

As to the claim regarding recessed buttons for the machine, after Ontario became aware of the two prior injuries suffered by Wilen employees while operating the machine, Ontario received information that those accidents may have been caused when the employees inadvertently activated the machine cutting sequence when they leaned over the machine to grab yam. According to this theory, the two buttons which the operator had to depress to activate the cutting sequence were designed and placed in such a manner that the operator’s body could possibly lean onto and depress both buttons at the same time and thereby inadvertently activate the cutting sequence while the operator’s arm or hand was in the cutting area. In order to prevent this possibility, Ontario designed new recessed buttons for the machine at its own cost which could be depressed only by use of the operator’s finger and which prevented accidental activation by leaning on the machine. These buttons were shipped to Wilen over a year prior to Smith’s injury, but Wilen failed to install the newly designed buttons prior to Smith’s injury.

Ontario and Texmatic argued on summary judgment that, like the prior injuries, Smith’s injury occurred when she inadvertently activated the cutting sequence by leaning onto the original nonrecessed buttons and that Wilen’s failure to install the new recessed buttons was an intervening act that was the sole proximate cause of Smith’s injury. Smith concedes on appeal that “[t]his would be a good ground for summary judgment if a lack of recessed buttons were the cause of [her] injury.” But Smith points to evidence that this was not what caused her injury. Smith testified on deposition that, at the time of her injury, she was not pushing or leaning on either of the buttons and that the machine’s cutting sequence spontaneously activated and cut her hand. Moreover, there was expert testimony in the record from which a jury could conclude that the machine was defectively designed or manufactured in a manner that would allow the cutting sequence to spontaneously activate without depressing the buttons. Accordingly, issues of fact precluding summary judgment remain on this claim, including resolution of the conflicting theories of what caused the cutting sequence to activate.

Ontario and Texmatic also claimed in the summary judgment motion that Smith cannot recover because evidence that she admitted knowing it was dangerous to reach over the cutting area established that she assumed the risk of the injury she incurred. However, knowing the cutting area was dangerous does not establish that Smith understood and appreciated the risk that she could be injured if the machine spontaneously activated without the buttons being pushed. Vaughn v. Pleasent, 266 Ga. 862, 864 (471 SE2d 866) (1996). Summary judgment was not appropriate on this issue.

Decided April 25, 2001

Butler & MacDougald, Daniel MacDougald III, for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Earl W. Gunn, Ashley P. Nichols, for appellees.

Ontario and Texmatic sought summary judgment on the additional ground that, as to Smith’s claim that they failed to warn of the danger, they had no duty to warn of any danger associated with operation of the machine that was obvious or generally known or of which Smith had actual knowledge. Daniels v. Bucyrus-Erie Corp., 237 Ga. App. 828, 829 (516 SE2d 848) (1999). Although Smith concedes there was no duty to warn her that she should not knowingly press the activation buttons with her hand in the cutting area, she points to evidence that the danger of being injured if the machine spontaneously activated was not known or obvious. Summary judgment was not appropriate on this issue.

Finally, Ontario and Texmatic claimed they were entitled to summary judgment because, after they sold the machine to Wilen, it was substantially modified by Wilen prior to Smith’s injury. Accordingly, they claimed that the injury suffered by Smith was proximately caused not by an alleged defect in the machine as it was originally designed or manufactured by them, but by Wilen’s modified version of the machine. Talley v. City Tank Corp., 158 Ga. App. 130 (279 SE2d 264) (1981). The record shows, however, that whether or not the modifications at issue were done before or after Smith’s injury is a contested issue of fact, and summary judgment was not appropriate.

The above issues, which were the only issues raised and addressed by the parties in the motion for summary judgment, are the only issues presented on appeal to this Court. Fedeli v. UAP/Ga. Ag. Chem., 237 Ga. App. 337, 339 (514 SE2d 684) (1999). Accordingly, I do not concur in the majority’s commentaries on legal issues not presented in this appeal, nor do I concur in the majority’s numerous findings on disputed factual issues that are clearly for the jury in this case.

       In cases imposing successor liability for an earlier manufacturer, this Court has recognized that the duty to warn of danger discovered after the sale exists in the proper case. See Corbin v. Farmex, 227 Ga. App. 620, 624 (2) (490 SE2d 395) (1997), rev’d on other grounds, Farmex v. Wainwright, 269 Ga. 548, 549 (501 SE2d 802) (1998). Corbin approved citation to § 13 (b) (1) of the Restatement of Torts, 3rd, Product Liability. While not a successor corporation, Ontario was in the same position of actual knowledge that would cause even a successor corporation to be liable for failure to warn of post-sale knowledge of danger. Jeske was aware of the actual production workers, because he saw them in the plant. Also, he was aware that Wilen was not going to remove the machines with the defective controls from service despite his inadequate warning, and he took no steps to warn the actual known users either by warning signs to be attached to each machine, by verbally telling the production workers personally when he was in the plant, by mailing to each a personal warning; by having warning fliers distributed, or by other reasonable methods to warn the actual users. See Restatement of Torts, 3rd, Product Liability, § 13 (b) (2).

        Nishida v. E. I. du Pont de Nemours & Co., 245 F2d 768 (5th Cir. Miss. 1957); Rehab, Inc. v. Hrubetz & Co., 261 Md. 141 (274 A2d 107) (1971); Temple v. Velcro USA, 148 Cal. App.3d 1090 (196 Cal. Rptr. 531) (1983); Ford Motor Co. v. Wagoner, 183 Term. 392 (192 SW2d 840) (1946); E. I. du Pont de Nemours & Co. v. Ladner, 221 Miss. 378 (73 S2d 249) (1954). The trial court relied upon these foreign authorities urged by Ontario. The majority of these cases were decided prior to the advent of the modern development of product liability law and while the different jurisdictions still followed contributory negligence as an absolute bar without comparative negligence.

       In each of these foreign jurisdictions, either comparative fault, pure comparative negligence, modified comparative negligence, or common law contributory negligence is followed, which differs from Georgia’s comparative negligence. Under comparative fault or pure comparative negligence in such jurisdictions, assumption of risk, contributory negligence, contribution, and joint and several liability have been abolished, and all parties’ and nonparties’ liability is compared; each party defendant pays only their portion of the damages based upon their negligence. In short, plaintiff can recover some damages so long as his or her negligence is only a concurrent proximate cause and not the sole proximate cause of injury. See Donald v. Triple S Well Svc., 708 S2d 1318,1326 (Miss. 1998); Daly v. Gen. Motors Corp., 20 Cal.3d 725 (575 P2d 1162) (1978). Tennessee follows a modified form of comparative negligence similar to Georgia’s comparative negligence. McIntyre v. Balentine, 833 SW2d 52 (Tenn. 1992). Maryland follows the common law contributory negligence that bars recovery if the plaintiff was negligent at all and follows no form of comparative negligence. See Stewart v. Hechinger Stores Co., 118 Md. App. 354 (702 A2d 946) (1997); Harrison v. Montgomery County Bd. of Ed., 295 Md. 442 (456 A2d 894) (App. 1983).


author: Mikell, Judge.

text:
    A01A1113.
    GOSIER v. THE STATE.
    (548 SE2d 107)
   Mikell, Judge.

Jermaine Gosier pleaded guilty to two counts of aggravated assault and was sentenced to serve eleven years on probation on condition, among others, that he serve not less than 270 nor more than 360 days in a Department of Corrections detention center, followed by a minimum of 180 days in a diversion center until his fine and restitution were paid in full. Gosier does not challenge the trial court’s authority to order such limited confinement as a special condition of probation. At the end of the sentencing hearing, however, Gosier asked the court to permit him to remain out on bond pending the availability of a bed at the detention center. The court replied: “Not today. We’ll see what the bed opening situation is, and then I’ll review it at that time.” On appeal, Gosier alleges that the trial court lacked the authority to impose confinement after sentencing him to probation. We disagree.

Decided April 25, 2001.

Ronald L. Beckstrom, for appellant.

Gosier’s argument misinterprets Pitts v. State and its progeny. In Pitts, we held that a trial court cannot impose any period of continuous and uninterrupted incarceration in a jail or penitentiary as a special condition of probation. Subsequently, in Jones v. State and Johnson v. State we held that the trial court could not order, as a condition of probation, that the defendants remain incarcerated until space became available for them in a boot camp. Here, in contrast, the trial court’s ruling that the defendant be held in jail until space became available in the detention center was not included in his conditions of probation. While this difference may be purely semantic, nevertheless it suffices to distinguish Jones and Johnson from the instant case. Moreover, in Penaherrera v. State we observed: “The fact that defendant was not transferred to the detention center until 27 or 28 days after sentencing does not invalidate the sentence or violate its terms. The types of confinement designated in the sentence were within the bounds of the law and did not constitute an abuse of discretion.” Here, too, we hold that the trial court did not abuse its discretion in declining to release Gosier on bond pending the availability of a bed in the detention center.

Judgment affirmed.

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

J. David Miller, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

       In Penaherrera v. State, 211 Ga. App. 162, 163 (1) (438 SE2d 661) (1993), this court held that a trial court has the discretion to condition probation upon limited confinement in a detention or diversion center or in the defendant’s own home.

       206 Ga. App. 635 (426 SE2d 257) (1992).

       Id. at 637 (3).

         224 Ga. App. 340, 341 (1) (480 SE2d 618) (1997).

       219 Ga. App. 547, 550 (3) (466 SE2d 63) (1995), rev’d on other grounds, 267 Ga. 77 (475 SE2d 595) (1996).

       Supra at 164.


author: Eldridge, Judge.

text:
    A01A0309.
    PARKER v. CRIDER POULTRY, INC. et al.
    (549 SE2d 711)
   Eldridge, Judge.

Appellee-plaintiff Crider Poultry, Inc. and Crider, Inc. (“Crider”) brought the instant damages action against appellant-defendant Jeffrey A. Parker seeking repayment of a portion of a bonus advanced to Parker when employed as Crider’s president upon counts averring indebtedness arising out of money had and received and unjust enrichment. The complaint also alleged that Parker breached a fiduciary duty owed Crider by assisting the company’s vice president of marketing in finding employment with a competitor and sought punitive damages and attorney fees under OCGA § 13-6-11. Parker timely answered and counterclaimed, alleging breach of contract for Crider’s failure to give him 90 days notice of his termination in violation of his employment contract, wrongful termination, entitlement to attorney fees under OCGA § 13-6-11 for stubborn litigiousness by Crider, and punitive damages. The superior court granted Parker’s motion to amend counterclaim, permitting him to add an equitable cause of action in quantum meruit. Parker now appeals from the superior court’s grant of partial summary judgment to Crider on Parker’s original counterclaim. Finding no merit in Parker’s claims of error, we affirm.

1. Parker contends that the superior court erred in granting Crider summary judgment as to his breach of contract claim for alleged violation of the 90-day notice provision of his employment contract. Citing our decision in Burritt v. Media Marketing Svcs., 204 Ga. App. 848 (2) (420 SE2d 792) (1992), Parker correctly argues that

an employer may terminate the employment of an at-will employee for any or no reason, but if an employer further agrees that notice of that termination is to be given, the employer’s failure to give the requisite notice upon the election to terminate the employment constitutes an actionable breach of contract. Belcher v. Thomson Newspapers, 190 Ga. App. 466 (379 SE2d 204) (1989).

(Emphasis in original.) Id. However, unlike Burritt wherein an employment contract at will containing a termination provision was in issue, there is here no contract for violation of the Statute of Frauds. See OCGA § 13-5-30 (5) (“To make the following obligations binding on the promisor, the promise must be in writing and signed by the party to be charged therewith or some person lawfully authorized by him: ... (5) Any agreement that is not to be performed within one year from the making thereof.”). Parker submitted his resignation more than two years after he started working. As a consequence, the performance of his employment agreement was not to be completed within one year and was within the Statute of Frauds, requiring that Parker’s employment agreement be in writing. Id. Where, as here, a letter from the employer is relied on as sufficient to remove an agreement from the Statute of Frauds, such letter must, at a minimum, address the duration of the term of the employment. Wheeling v. Ring Radio Co., 213 Ga. App. 210, 211 (444 SE2d 144) (1994). That such a letter discussed increasing levels of salary or bonus opportunities over a term of years, or that the employee terminated his or her prior employment, relocated, and began work, does not show a partial performance of the contract sufficient to vitiate the requirement for a writing in satisfaction of the Statute of Frauds. Id. Moreover, while parol evidence is admissible to explain ambiguities in contracts required to be in writing by the Statute of Frauds, it is inadmissible to supply terms which are missing. Sawyer v. Roberts, 208 Ga. App. 870, 871 (432 SE2d 610) (1993); Gatins v. NCR Corp., 180 Ga. App. 595, 597 (349 SE2d 818) (1986). The superior court did not abuse its discretion in construing the letter in issue as failing to include a definite term of employment. Contracts, even when ambiguous, are to be construed by the court, and no jury question is presented unless after application of the applicable rules of construction an ambiguity remains. Travelers Ins. Co. v. Blakely, 255 Ga. 699, 700 (342 SE2d 308) (1986). “Summary judgment is proper even though the parties contend the contract should be construed differently. [Cit.]” Gatins v. NCR Corp., supra at 596. Since Parker’s employment agreement was thus unenforceable as a matter of law under the Statute of Frauds, the superior court did not err in granting Crider summary judgment on Parker’s counterclaim for breach of contract.

2. Parker enumerates that the superior court erred in granting Crider summary judgment as to his counterclaim in tort for wrongful termination. Parker argues that a jury should determine whether the conditions of his Crider employment forced him to resign. We disagree. “It is well settled that in this state an indefinite hiring may be terminated at will by either party, with or without cause, and there is no cause of action against an employer for an alleged wrongful termination.” (Citations and punctuation omitted.) Burritt v. Media Marketing Svcs., supra at 848 (1). Further, in Georgia, a claim for wrongful termination does not lie when it is undisputed that the employment was terminated incident to resignation, even if under pressure. Precise v. City of Rossville, 261 Ga. 210, 211 (2) (403 SE2d 47) (1991); Johnson v. Gen. Motors Corp., 144 Ga. App. 305, 306 (1) (241 SE2d 30) (1977); Wilkinson Trust v. Trust Co. of Ga. Assoc., 128 Ga. App. 473, 474 (1) (197 SE2d 146) (1973). “This is true even if the employee resigned under pressure and at the employer’s request and even if the employee knew [the] action would be taken in the absence of [his] resignation. [Cits.]” Clark v. Chick-Fil-A, 214 Ga. App. 758, 759 (1) (449 SE2d 313) (1994). That Parker resigned is not in issue. Accordingly, this claim of error is without merit.

Decided April 12, 2001 —

Reconsideration denied April 26, 2001

Capers, Dunbar, Sanders & Bruckner, Ziva P. Bruckner, for appellant.

Troutman Sanders, Steven J. Hewitson, William M. Droze, for appellees.

3. Punitive damages are not available in actions for breach of contract. OCGA §§ 13-6-10; 51-12-5.1; Trust Co. Bank v. C & S Trust Co., 260 Ga. 124, 126 (2) (390 SE2d 589) (1990). In light of our disposition of Division 2, the superior court properly granted Crider summary judgment on Parker’s counterclaim for punitive damages.

4. Finally, inasmuch as the provisions of OCGA § 13-6-11 are not available to a defendant, even when pressing a counterclaim, White v. Watson Enterprises, 129 Ga. App. 203 (199 SE2d 357) (1973), rev’d on other grounds, Mock v. Canterbury Realty Co., 152 Ga. App. 872 (264 SE2d 489) (1980), the superior court did not err in granting Crider summary judgment on the issue of OCGA § 13-6-11 attorney fees.

Judgment affirmed.

Andrews, P. J., and Miller, J, concur.


text:
    A01A0473.
    BRYANT v. THE STATE.
    (547 SE2d 721)
   Eldridge, Judge.

A Fulton County jury found Willard Bryant guilty of aggravated child molestation, child molestation, and aggravated sexual battery for acts Bryant perpetrated against his stepdaughter when she was between the ages of three and six. He appeals. Upon review, we affirm his convictions.

1. In his first three enumerations of error, Bryant challenges the trial court’s jury instruction on each of the three offenses for which he was charged. Bryant contends that, by reading the entire statutory definition of each charged offense, the jury was permitted to find him guilty in a manner not alleged in the indictment. We disagree.

As a general rule, it is not error to charge an entire Code section even though part of the section may be inapplicable. When an indictment, however, specifies the commission of a crime by only one of several methods possible under the statute, it may be reversible error to charge the entire Code section if a reasonable possibility exists that the jury may convict the defendant of committing the crime in a manner not alleged in the indictment. But, “jury instructions must be read and considered as a whole in determining whether such charge contained error.” And when an entire statutory definition is given, we will not find error if the instructions sufficiently limit the jury’s consideration to the elements of the offense as charged in the indictment.

Here, the trial court repeatedly — in pre-trial instructions, during similar transaction limiting instructions, and in its final charge — instructed the jury that the State must prove the offenses as charged in the bill of indictment and that Bryant was on trial only for the offenses as charged in the indictment. In addition, the indictment was before the jury to aid them in their deliberations. Under these circumstances, the trial court properly limited the elements of the crimes to those charged in the indictment, and we find no error.

2. Completely without merit is Bryant’s contention that the trial court failed to sufficiently limit the jury’s consideration of similar transaction evidence prior to the introduction of such evidence. No limiting instruction was requested, and thus no error exists: “having failed to request a limiting instruction, defendant cannot assert that the trial court erred because it did not give such an instruction.” But pretermitting such fact, the trial court sua sponte gave the jury an exhaustive pre-trial instruction on the limited use of similar transaction evidence and, even without request, charged the jury — repeatedly — on such evidentiary limitations prior to each of the State’s similar transaction witnesses. There was no error.

3. A “continuing witness” objection is not applicable to drawings or other documents which are “demonstrative evidence that serve only to illustrate testimony given by the witnesses.” Accordingly, we find no error in the trial court’s decision to permit drawings made by the child/victim to go out with the jury, after the social worker identified such drawings as made during the victim’s outcry testimony to her. The drawings served only as tools used during the social worker’s interview with the victim and were seen on the videotape of the victim’s interview.

Moreover, a review of the drawings shows that they do not substantively impact on the issue of Bryant’s guilt of the sex offenses as charged. The drawings have no incriminating testimonial value in and of themselves which would create “an unfair advantage over oral testimony of the other side[ ] by speaking to the jury more than once” as to any element of the offenses with which Bryant was charged and thus to the ultimate issue of his guilt. As such, the drawings are not subject to a “continuing witness” objection.

4. Bryant claims the victim’s videotaped statement lacked “sufficient indicia of reliability” necessary to warrant admission, because the statement contained inconsistencies and the victim’s demeanor demonstrated unreliability. The trial court, however, determined otherwise. And, although the videotaped statement is not before this Court, we find no error in such determination for the following reasons:

(a) “[If] defense counsel had the opportunity to confront. . . and cross-examine [the witness who made the out-of-court statement, the statement] was admissible.” Here, the child/victim was called as the court’s witness, and Bryant was given the opportunity to cross-examine her. That he chose not to do so does not alter the result; it is the opportunity, not the follow-through, that is the determinative factor: tim’s version of events appear to stem from (i) her tender years, (ii) her- attempt to recount multiple instances of abuse, (iii) her natural reticence to recount the sexual acts perpetrated against her by Bryant, and (iv) confusion on the part of the interviewer as to names of the victim’s numerous family members. Under such circumstances, “any alleged inconsistencies in the victim’s outcry statements were a matter for the jury’s consideration in weighing the evidence, not a matter of admissibility.”

[A]ppellant had every conceivable opportunity to examine and cross-examine the child in the presence of the jury, regarding the child’s memory of and the circumstances surrounding his making of. . . the out-of-court statements in question, and had the opportunity to allow the jury to judge the child’s demeanor in response to any examination or cross-examination about the alleged making and veracity of [the] statements. This procedure provided an additional safeguard to appellant’s right of fair trial, and provided appellant full opportunity for confrontation.
(b) From a review of the record, any inconsistencies in the vic-

Decided April 10, 2001

Reconsideration denied April 26, 2001

(c) “The trial court has broad discretion in determining the admissibility of child hearsay evidence.” Here, the trial court reviewed the videotape and found it admissible after the court specifically considered:

the total taped circumstances and evidence, given the atmosphere, and circumstances of this statement and the overall conditions and way in which the interview was conducted, . . . also the age of the child, the interval of time between the main offense discussed and the interview, the child’s general demeanor, the child’s condition, the absence of any allegations of threats to this child, the Court’s observation of the child’s general demeanor from the film, and consistency of the child’s statement, and I also believe some consistent repetition of certain types of statements, there was no evidence on the tape of coaching.

Utilizing such thorough considerations, which are necessarily based on findings of fact, we conclude the trial court did not abuse its discretion in admitting the victim’s videotaped interview. Bryant may argue that the victim’s demeanor “was flat and distracted,” thereby demonstrating unreliability; however, such is a factual finding. And Bryant’s argument on its face fails to illustrate that the trial court’s contrary finding of fact was an abuse of discretion. Accordingly, this enumeration of error is without merit.

Judgment affirmed.

Andrews, P. J, and Miller, J., concur.

Steven E. Phillips, Whitman M. Dodge, for appellant.

Paul L. Howard, Jr., District Attorney, Alvera A. Wheeler, Assistant District Attorney, for appellee.

        Ferguson v. State, 221 Ga. App. 212, 213 (1) (470 SE2d 909) (1996).

        Dukes v. State, 265 Ga. 422, 423 (457 SE2d 556) (1995).

        Hambrick v. State, 256 Ga. 688, 690 (3) (353 SE2d 177) (1987).

        Roberson v. State, 241 Ga. App. 226, 230 (526 SE2d 428) (1999).

        Buice v. State, 239 Ga. App. 52, 59 (5) (520 SE2d 258) (1999).

        State v. Belt, 269 Ga. 763, 764-765 (505 SE2d 1) (1998).

       (Emphasis omitted.) Gabbard v. State, 233 Ga. App. 122, 124 (3) (503 SE2d 347) (1998).

        Griffin v. State, 243 Ga. App. 282, 286 (6) (531 SE2d 175) (2000).

        Shedden v. Stiles, 121 Ga. 637, 640 (4) (49 SE 719) (1905); Gabbard v. State, supra at 124.

        Calloway v. State, 199 Ga. App. 272, 273 (2) (404 SE2d 811) (1991); Gregg v. State, 201 Ga. App. 238, 241 (3) (c) (411 SE2d 65) (1991).

        Gregg v. State, supra at 241 (3) (c).

       (Punctuation omitted.) Myrick v. State, 242 Ga. App. 892, 895 (2) (531 SE2d 766) (2000).

       (Punctuation omitted.) Woolums v. State, 247 Ga. App. 306 (1) (540 SE2d 655) (2001).

        Medina v. State, 234 Ga. App. 13, 14 (1) (a) (505 SE2d 558) (1998); Gregg v. State, supra at 240-241 (3) (b).

        Robbins v. State, 243 Ga. App. 21, 23-24 (532 SE2d 127) (2000).


author: Phipps, Judge.

text:
    A01A0889.
    COOLEY v. CITY OF CARROLLTON et al.
    (547 SE2d 689)
   Phipps, Judge.

The City of Carrollton provided free after-school recreational and swimming therapy to certain disabled individuals at a pool owned or maintained by West Georgia College. Demond Baker was a participant in the program. Myrtle Cooley, his mother, sued the city, its employees Kimberly Pullen and David Weeks, and others, seeking damages for injuries allegedly sustained by Baker when he became submerged in water during one of the program sessions. Cooley charges the city and its employees with failure to supervise and control program activities and with failure to guard against a dangerous condition. The trial court granted summary judgment to the city and its employees on grounds that they are immune from liability under the Recreational Property Act (RPA) and under a release from liability for personal injury claims executed by Cooley before her son’s mishap. We agree that the city and its employees are entitled to summary judgment under the RPA. We, therefore, affirm without reaching issues relating to the release.

Pullen and Weeks were primarily responsible for supervising the swim program. Pullen was the director of the program. Weeks is the recreational department swim coach. The program was open to students in the City of Carrollton and Carroll County schools, and to young adults, with any sort of physical or mental disability. Program participants ranged from children who required individual supervision to competitive swimmers preparing for the Special Olympics. Baker was a fifth grade student and did not know how to swim.

Pullen testified that, pursuant to an oral agreement, the college gave the city exclusive use and control of its pool during program sessions and that she did not allow anyone other than program participants in the pool. She further testified that department policy was never to allow participants in the water unless Weeks was there.

On the day in question, there were approximately 20 program participants at the pool. The program did not begin at the scheduled time because Weeks was late. Mike Snyder, a West Georgia College student employed by the city as a lifeguard, was also at the pool awaiting Weeks’s arrival. Snyder, however, was not on duty at the time and was wearing street clothes doing homework in a chair by the pool.

After Weeks arrived, Pullen saw him walking toward the pool. She then accompanied the participants into the pool area. Pullen entered the shallow end of the pool with some of the participants. Other participants entered the deep end. Baker went into the middle area of the pool, but then climbed out of the pool and began to play.

Unnoticed by Pullen, Weeks made a detour into an office to place a telephone call rather than proceeding directly to the pool. Before Weeks entered the pool area, Baker fell into the pool and became submerged in the water after trying to swim toward the deep end. One of the program participants alerted Snyder, who jumped into the pool and rescued Baker. At or about the time Snyder pulled Baker out of the pool, Weeks arrived. After Weeks applied mouth-to-mouth resuscitation, Baker regurgitated and began to breathe. He was then taken to the hospital by ambulance. After being discharged from the hospital, Baker began experiencing certain physical problems requiring his rehospitalization. He testified in his deposition that these problems lasted a few weeks. According to Pullen, Baker was submerged between 30 and 50 seconds.

The trial court did not err in awarding summary judgment to the city and its employees under the RPA. “The purpose of the RPA is to encourage property owners to make their property available to the public for recreational purposes by limiting the owners’ liability. [Cit.]” The RPA applies to “an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes.” In general, the RPA provides that such owner owes no duty of care to keep the premises safe or to give warning of any dangerous condition or activity. And it does not confer upon recreational users of the property the legal status of an invitee or licensee to whom a duty of care is owed, except that there is no limitation on the owner’s liability for wilful or malicious failure to guard or warn against a dangerous condition or activity.

“ ‘A wilful failure imports a conscious, knowing, voluntary, intentional failure, a purpose or willingness to make the omission, rather than a mere inadvertent, accidental, involuntary, inattentive, inert, or passive omission.’ [Cits.]” “Malice means . . . either an actual intent to cause the particular harm produced or the wanton and wilful doing of the act with an awareness of the plain and strong likelihood that harm may result. [Cit.]”

Decided April 3, 2001 —

Reconsideration dismissed April 26,2001.

Graylin C. Ward, for appellant.

Thurbert E. Baker, Attorney General, Brenda A. Raspberry, Assistant Attorney General, Crim & Bassler, Harry W. Bassler, Wiggins & Camp, William J. Wiggins, Caryl S. Black, for appellees.

Importantly, the RPA defines “owner” as “the possessor of a fee interest, a tenant, a lessee, an occupant, or a person in control of the premises .” Cooley argues that although the city invited Baker and others to use the college pool for recreational purposes without charge, the city does not qualify as an “owner” under the RPA because it was not “in control of the premises” during program sessions.

Cooley bases this argument on evidence showing that the city’s scheduling of the pool had to be approved by college personnel, that Pullen was not provided with a key to the pool until she arrived on the premises for each session, and that the city had no involvement with management or maintenance of the pool. This evidence, however, merely establishes that the college (or the university system of which it is a part) retained ownership of the pool while granting a license authorizing the city to use it during program sessions. The evidence establishes without contradiction that the city, with the permission of the college, was in control of the pool premises at those times. Therefore, the city qualifies as an owner under the RPA.

As such, the city and its employees are liable only for wilful or malicious failure to guard or warn against a dangerous activity or condition. Because it is undisputed that Pullen allowed the children to enter the pool based on the mistaken belief that Weeks was proceeding to the pool area at the same time, the evidence is insufficient to show a wilful or malicious omission by the city or its employees. Therefore, the grant of summary judgment in their favor was proper.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

        Cedeno v. Lockwood, Inc., 250 Ga. 799, 801 (2) (301 SE2d 265) (1983).

       OCGA § 51-3-23.

       OCGA § 51-3-22.

       OCGA § 51-3-23.

       OCGA § 51-3-25 (1).

        Spivey v. City of Baxley, 210 Ga. App. 772, 774 (437 SE2d 623) (1993).

        Bowers v. State, 241 Ga. App. 122, 123 (1) (526 SE2d 163) (1999).

       (Emphasis supplied.) OCGA § 51-3-21 (3).

       Contrary to argument advanced by Cooley, the Statute of Frauds (OCGA § 13-5-30 (4)) does not apply to such agreements. See Barton v. Gammell, 143 Ga. App. 291, 293 (2) (a) (238 SE2d 445) (1977).


text:
    A01A0916.
    THURMAN v. THE STATE.
    (547 SE2d 715)
   Eldridge, Judge.

A Clayton County jury convicted defendant Quinton Louis Thurman of one count of aggravated assault, four counts of terroristic threats, three counts of criminal use of an article with an altered identification mark, three counts of carrying a concealed weapon, one count of possession of a firearm during the commission of a felony, and one count of violation of the Georgia Controlled Substances Act. He was sentenced concurrently to 15 years to serve. The defendant appeals, contending that the superior court erred in denying his motion for recusal at the motion for new trial hearing grounded upon the claim that the State’s attorney had formerly been employed as the court’s law clerk; that the superior court erred in charging the law of conspiracy and the law concerning the criminal use of an article having an altered identification mark for want of any evidence thereof; and that the evidence was insufficient to support his conviction of aggravated assault. Finding these claims of error to be without merit, we affirm. Held:

1. The superior court did not err in refusing Thurman’s motion to recuse made at the hearing on the motion for new trial. The motion was untimely made.

“Motions to recuse must be timely, i.e., made as soon as the facts demonstrating the basis for disqualification become known. [Cit.]” (Punctuation omitted.) Pope v. State, 256 Ga. 195, 214 (26) (345 SE2d 831) (1986), overruled on other grounds, Nash v. State, 271 Ga. 281 (519 SE2d 893) (1999). Uniform Superior Court Rule 25.1 provides that such motions must be made “not later than five (5) days after the affiant first learned of the alleged grounds for disqualification,” unless good cause is shown. In this case, trial ended on December 20, 1999. On September 5, 2000, defendant, through counsel, filed his motion for recusal, seeking to disqualify the superior court from hearing his motion for new trial upon the claim that, on an unspecified date after trial, he first learned that the prosecutor had formerly been the trial judge’s law clerk. Trial counsel, however, supported his motion for recusal by the defendant’s affidavit, dated February 8, 2000, in which defendant likewise stated that he had learned of the prosecutor’s former employment after trial. On these facts, it is evident that defendant, at the very latest, knew of the prosecutor’s status as the trial judge’s former law clerk on February 8, 2000. The defendant, having known that he had a possible basis for recusal shortly after he was tried, failed to raise the issue in a timely manner and filed his motion for recusal approximately seven months after trial. Id.; Gillman v. State, 239 Ga. App. 880, 883 (2) (b) (522 SE2d 284) (1999). The defendant has therefore failed to preserve this issue for review. Harris v. State, 202 Ga. App. 618, 623 (7) (414 SE2d 919) (1992).

Even were this not the case, the trial judge was under no duty to disclose that the State’s attorney had formerly been his law clerk as a possible basis for recusal. Such employment ended two years before the instant case was tried and before it was pending in the district attorneys office. See Pope v. State, supra (in circumstances where trial judge’s law clerk has accepted employment in the district attorney’s office then prosecuting case before the trial judge, trial judge ideally should disclose such future employment on the record, or, at a minimum, excuse his or her law clerk from any further participation in the case).

2. (a) The superior court did not err in charging the jury on the law of conspiracy.

In order to establish a conspiracy, the state need only prove that two or more persons tacitly came to a mutual understanding to accomplish or to pursue a criminal objective. A conspiracy may be inferred from the nature of the acts done, the relation of the parties, the interest of the alleged conspirators, and other circumstances.

(Citations and punctuation omitted.) Agnew v. State, 267 Ga. 589, 590-591 (2) (481 SE2d 516) (1997). There is evidence of record showing that the defendant and his co-defendants arrived together in a black car at the home of the victims in this case, a mother and her children. The car stopped, and all its windows came down. With a pistol at first held in his lap as he sat in the driver’s seat, the defendant asked the mother, “[B]itch, what are you gonna do, which one of y’all say y’all were going to kill me, kill us?” Thereafter and now pointing a pistol at the mother which he had been given by a co-defendant passenger, the defendant threatened her saying, “[W]hat y’all want to do, die, say, all y’all want to die, y’all want to die[?]” Defendant’s co-defendants then got out of the car, pulled their weapons, “and stood over the top of the car cowboy style and asked, ‘who want to die?’ ” This certainly was sufficient to raise an inference of conspiracy. It is not error to charge on the subject of conspiracy when the evidence tends to show a conspiracy, even if a conspiracy is not alleged in the indictment. Id. at 591. Moreover, “the trial court has a duty, even in the absence of a request, to charge the jury the law as to every substantial and vital issue in the case.” Hull v. State, 265 Ga. 757, 762 (12) (462 SE2d 596) (1995), overruled on other grounds, Woods v. State, 269 Ga. 60, 63 (3) (495 SE2d 282) (1998). The charge on the law of conspiracy was authorized by the evidence.

(b) Neither did the superior court err in charging the jury concerning the criminal use of an article with an altered identification mark. “[Wjhen there is any evidence, however slight, upon a particular issue, it is not error for the court to charge the law in relation to the issue.” (Citations and punctuation omitted.) Russell v. Superior K-9 Svc., 242 Ga. App. 896, 898 (2) (531 SE2d 770) (2000). OCGA § 16-9-70 (a), criminal use of an article with an altered identification mark, requires knowledge and intent as essential elements of the offense. See Power v. State, 260 Ga. 101 (390 SE2d 47) (1990); Blair v. State, 144 Ga. App. 118 (240 SE2d 319) (1977); Rogers v. State, 139 Ga. App. 656 (229 SE2d 132) (1976). The defendant and his co-defendants were arrested in possession of seven weapons, the serial numbers on each having been removed, immediately after confronting their victims. This constitutes circumstantial evidence of the offense sufficient to authorize the charge complained of. “[KJnowledge or scienter may be proved, like any other fact, by circumstantial evidence. [Cits.] Even though knowledge is denied by the defendant, [as here, a] jury would be authorized to return a verdict of guilty based upon the facts of the case. [Cits.]” Id. at 657 (1).

Decided April 10, 2001 —

Reconsideration denied April 26, 2001

Michael B. King, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

3. While the defendant denied pointing a pistol at the mother as set out in Division 2 (a), “Conflicts in the testimony of the witnesses . . . [are] a matter of credibility for the jury to resolve.” (Citations and punctuation omitted.) Jones v. State, 220 Ga. App. 161, 162 (469 SE2d 300) (1996). Viewed in the light most favorable to the verdict, the evidence was sufficient for a rational trier of fact to find the defendant guilty of aggravated assault by pointing a pistol at another. OCGA § 16-5-21 (a) (2); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997).

Judgment affirmed.

Andrews, P. J., and Miller, J, concur.