author: Smith, Presiding Judge.

text:
    A01A0976.
    J. KINSON COOK, INC. et al. v. WEAVER.
    (556 SE2d 831)
   Smith, Presiding Judge.

In this appeal, we must construe the notice provisions of former OCGA § 36-82-104 as they apply to a payment dispute between a general contractor, its surety, and a sub-subcontractor claimant. Glen Weaver d/b/a Glen Weaver Construction Company brought this action against Rotell & Company, J. Kinson Cook, Inc., and the American Insurance Company, respectively a subcontractor, the general contractor, and the surety on a public works contract for construction of a school. Weaver was engaged by Rotell as a sub-subcontractor to perform earthmoving services at the site. He brought this action seeking payment from Rotell for his services and payment under the bond from Cook and American. During the trial of the case before a jury, Cook and American moved for a directed verdict on the issue of the Notice of Commencement required by OCGA § 36-82-104, the failure of Weaver to provide the Notice to Contractor also required by that Code section, and the alternative ground of recovery asserted by Weaver in quantum meruit. The motion for directed verdict was denied, the jury returned a verdict in favor of Weaver, and Cook and American appeal. Because the trial court should have granted a directed verdict on the basis of Weaver’s failure to provide the statutory Notice to Contractor, and because no claim in quantum meruit is permissible under the facts of this case, we reverse.

1. Former OCGA § 36-82-104 (f) provided in pertinent part:

The contractor furnishing the payment bond or security deposit shall post on the public work site and file with the clerk of the superior court in the county in which the public work is located a Notice of Commencement no later than 15 days after the contractor physically commences work on the public work and give a copy of the Notice of Commencement to any subcontractor, materialman, or person who makes a written request of the contractor.

Subsection (g) of the same Code section provided: “The failure to file a Notice of Commencement under subsection (f) of this Code section shall render the Notice to Contractor requirements of paragraph (2) of subsection (b) of this Code section inapplicable.”

Former OCGA § 36-82-104 (b) provided two alternative methods for a sub-subcontractor to recover under a payment bond on a public works project, depending upon whether the contractor furnishing the bond complied with the provisions of subsection (f). If the contractor failed to comply, the sub-subcontractor acquired a right of action upon the payment bond by

giving written notice to the contractor within 90 days from the day on which such person did or performed the last of the labor or furnished the last of the material or machinery or equipment for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was performed or done.

Former OCGA § 36-82-104 (b) (1). On the other hand, if the contractor complied with former OCGA § 36-82-104 (f), the sub-subcontractor had “the right of action on the payment bond or security deposit, provided that such person shall, within 30 days from the filing of the Notice of Commencement or 30 days following the first delivery of labor, material, machinery, or equipment, whichever is later, give to the contractor a written Notice to Contractor” containing specific information prescribed by the subsection. Former OCGA § 36-82-104 (b) (2).

In construing the requirements of this Code section, we must first consider an apparent ambiguity between subsections (b) and (g) of former OCGA § 36-82-104, an ambiguity which remains in the current Code provisions. Subsection (b) made the alternate provisions of (b) (1) and (b) (2) dependent upon whether the contractor “complied with the Notice of Commencement requirements in accordance with subsection (f) of this Code section,” which required filing and posting of the Notice of Commencement. Subsection (g), however, appeared to require only filing and not posting of the Notice of Commencement, as only failure to file removed the contractor from the purview of subsection (b) (2). From this inconsistency, Cook and American argue that filing of the notice was sufficient. It is undisputed that Cook filed its Notice of Commencement no later than 15 days before starting construction.

In construing the provisions of this former Code section, we must bear in mind that the statutes governing payment bonds on public works projects were enacted for the benefit of materialmen and sub-subcontractors and therefore should be “liberally construed to secure that object. [Cits.]” Huddleston Concrete Co. v. Safeco Ins. Co. &c., 186 Ga. App. 531, 533 (1) (368 SE2d 117) (1988). But we must also consider the general rules of statutory construction:

Words must be given their plain and ordinary meaning, except for words which are terms of art or have a particular meaning in a specific context. OCGA § 1-3-1 (b). We must seek to effectuate the intent of the legislature, OCGA § 1-3-1 (a), and to give each part of the statute meaning and avoid constructions that make some language mere surplusage. All parts of a statute should be harmonized and given sensible and intelligent effect, because it is not presumed that the legislature intended to enact meaningless language.

(Citations omitted.) Osborne Bonding &c. Co. v. State of Ga., 224 Ga. App. 590, 591 (481 SE2d 578) (1997). Applying these rules to the ambiguities contained in former OCGA § 36-82-104, we conclude that the statute, when read as a whole, requires posting of the notice but imposes the 15-day requirement only upon the filing of the notice in order to give effect to the Notice to Contractor requirements of former OCGA § 36-82-104 (b) (2).

We look first at the body of former OCGA § 36-82-104 (f), which states the contractor’s duties with regard to the Notice of Commencement. The operative clause provides that the contractor “shall post on the public work site and file with the clerk of the superior court in the county in which the public work is located a Notice of Commencement no later than 15 days after the contractor physically commences work on the public work.” If the phrase creating the 15-day requirement were offset by commas and placed at the beginning of the clause, it clearly would apply to both the posting and filing requirements. In contrast, the absence of offsetting commas suggests that a phrase modifies only the language immediately adjoining. Amica Mut. Ins. Co. v. Bourgault, 263 Ga. 157, 159-160 (1) (429 SE2d 908) (1993).

This interpretation is confirmed by comparison with former OCGA § 36-82-104 (b) (2), which in distinct contrast to subsection (f) places its time requirement at the beginning of the clause and offsets it with commas, showing that it applies to all the following subsections. In attempting to give meaning to this distinction in language by the legislature, we conclude that the 15-day requirement was intended to apply only to the filing of the notice with the clerk of the superior court.

This interpretation harmonizes subsection (g) of former OCGA § 36-82-104 with the requirements of subsection (i), since under this construction there is no conflict between complying with the provisions of subsection (f) and the limitation of subsection (g) to filing of the Notice of Commencement. It also harmonizes with former OCGA § 36-82-104 (b), which calculates the time for the sub-subcontractor’s Notice to Contractor from the filing of the Notice of Commencement rather than its posting. The use of the filing rather than posting date also facilitates determination of compliance with the Code section because (as shown by the testimony in this case) the exact time at which a notice is posted on a job site is subject to dispute and dependent upon the recollections of various employees of the contractor or the sub-subcontractor, while the fact and date of filing of a notice are easily determined and proved by the clerk of court’s official date stamp.

Weaver argues that the notice must be filed within- the 15-day period following the start of construction and no earlier and that Cook’s filing therefore is premature. But this interpretation is not justified by the wording of the statute. Former OCGA § 36-82-104 (f) provided that the relevant time shall be “no later than 15 days” after physical commencement of the work. (Emphasis supplied.) Cook filed the Notice of Commencement no later than 15 days after commencement of the work. Since Weaver acknowledged that he failed to send a Notice to Contractor, his claim is barred by former OCGA § 36-82-104 (b) (2).

2. The trial court also erred in allowing Weaver’s claim to go to the jury on the basis of quantum meruit. “Under Georgia law, a materialman or subcontractor may not recover against an owner or general contractor with whom it has no contractual relationship, based on the theory of unjust enrichment or implied contract; rather, it is limited to the statutory remedies provided by Georgia’s lien statute.” (Citations and punctuation omitted.) Hussey, Gay & Bell v. Ga. Ports Auth., 204 Ga. App. 504, 506 (2) (420 SE2d 50) (1992). In Hussey, this court applied to a public works contract the longstanding rule applicable to private contracts and the Georgia mechanic’s lien statute. Id.; see P.P.G. Indus. v. Hayes Constr. Co., 162 Ga. App. 151-152 (1) (290 SE2d 347) (1982).

Decided November 26, 2001

Reconsideration denied December 13,2001

Griffin, Cochrane & Marshall, John D. Marshall, Jr., Ronald J. Stay, Jr., Keith A. Pittman, for appellants.

Chesnut, Livingston & Pye, Tom Pye, for appellee.

Judgment reversed.

Barnes and Phipps, JJ, concur.

       Ga. L. 2000, p. 498 et seq. revised and renumbered the Georgia statutes pertaining to public works. The provisions of former OCGA § 36-82-104, slightly revised, were incorporated in OCGA §§ 36-91-72 and 36-91-73. Ga. L. 2001, p. 820, § 12 renumbered these provisions as OCGA §§ 36-91-92 and 36-91-93. The same provisions also are incorporated almost verbatim in OCGA §§ 13-10-62 and 13-10-63.

       Rotell was declared in default, and judgment was entered against it in favor of Weaver and in favor of Cook on its cross-claim.

       See also OCGA §§ 13-10-62 (a); 36-91-92 (a).

       See also OCGA §§ 13-10-62 (b); 36-91-92 (b).

       See also OCGA §§ 13-10-63 (a); 36-91-93 (a).

       In Arnica, the Supreme Court concluded that offsetting commas were inadvertently omitted in a clerical revision of the Code section at issue. But here, the relevant language of former OCGA § 36-82-104 was enacted by Ga. L. 1993, p. 1003, § 1 et seq. and has never contained offsetting commas.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A01A1221.
    LICKER et al. v. HARKLEROAD et al.
    (558 SE2d 31)
   Pope, Presiding Judge.

Covenants and restrictions applicable to the residential real estate development at issue in this case provide that they can be amended if 90 percent of the lot owners agree. Ninety percent of the lot owners, who wanted to allow commercial use of the property, attempted to amend the covenants and restrictions so that they no longer applied to the voting owners’ lots. Ten dissenting residents claim that these amendments are invalid because they do not apply uniformly to all lots in the development, they exceed the power to amend provided by the covenants, and the majority did not actually get ninety percent of the vote. We hold that because the amendments did not have uniform application, they are void.

Surrey Farms (located in Snellville adjacent to Ronald Reagan Parkway) was planned as a subdivision with over 100 homes, a swimming pool, and tennis courts. But, as of 2000, 12 years after it was chartered, only 18 homes had been built, there was no homeowners association or amenities, and the pool and clubhouse had been closed. The developer has abandoned the project, and investors have purchased the undeveloped lots.

Meanwhile, in the late 1980s, Donald Harkleroad — Jr. and Sr. — acquired three of the lots for the purpose of expanding the parking lot at their adjacent office park. In that regard, on November 10, 1999, 93 lot owners, or 88.6 percent of the total 105 lots, voted to amend the Declaration of Covenants to remove the Harkleroads’ three lots from the coverage of the restrictive covenants and, simultaneously, voted to reduce the percentage of lot owners needed to make future amendments to the Declaration from 90 to 75. Later on the same day, 85 lot owners, or 81 percent, agreed to remove 89 additional lots from the coverage of the restrictive covenants. Both amendments were recorded on November 17, 1999. Four months later, two additional lot owners consented to the first and second amendments, thereby allegedly raising approval of the first amendment to 90 percent.

When the Harkleroads petitioned the city of Snellville to rezone the lots for commercial use, the city refused absent a judicial determination of the validity of the amendments to the Declaration. So, the Harkleroads filed this quiet title action to remove any cloud upon their title. Ten of the homeowners, including Wayne and Maryellen Licker, opposed the petition. A special master was appointed, who, after a hearing, upheld the amendments and found that the three lots were not subject to the restrictive covenants. The trial court entered findings of fact and conclusions of law affirming the special master’s holding and granting the Harkleroads’ petition to quiet title.

The parties agree that Surrey Farms is not subject to either the Georgia Property Owner’s Association Act or the Georgia Condominium Act.

1. The Declaration of Covenants provides that the covenants and restrictions will run with the land for 20 years and that, during that time, they can be amended by a vote of “not less than 90 percent of the lot owners.” Article XI, Section 2, Amendments provides:

These covenants and restrictions may be amended during the first twenty (20) years from the date of this Declaration, by an instrument signed by not less than ninety percent (90%) of the Lot Owners and thereafter by an instrument signed by not less than seventy-five percent (75%) of the Lot Owners. Any amendment must be properly recorded.

The trial court opined that since the Declaration did not impose any limits on the types of amendments allowed, the amendments were passed “in conformity to the express language of the Declaration.” The court then reasoned that restrictions on the lawful use of land, like the restriction to use the property for residential purposes only, are generally disfavored and thus deserve strict construction in favor of those burdened by them. Accordingly, the court held that the amendments were valid.

2. We disagree with application of the rule of strict construction under these circumstances. As explained below, that rule does not override the rule that the entire document must be considered when determining the intention of the parties. Considering the entire Declaration reveals that the parties intended to form a uniformly residential community. It follows that amendments that allow commercial use are not valid unless they apply uniformly to all lot owners.

(a) In Georgia, “[t]he general rule is that the owner of land has the right to use it for any lawful purpose. Restrictions upon an owner’s use of land must be clearly established and must be strictly construed. [Cit.] Moreover, any doubt concerning restrictions on use of land will be construed in favor of the grantee.” (Punctuation omitted.) Douglas v. Wages, 271 Ga. 616, 617 (1) (523 SE2d 330) (1999). See also Elder v. Watts, 252 Ga. 212 (312 SE2d 331) (1984).

However, when applying this general rule of construction, the court must consider the entire document and not merely the provision in question. Shoaf v. Bland, 208 Ga. 709, 710-711 (2) (69 SE2d 258) (1952). As explained by the Supreme Court, “In the construction of an instrument, ‘the whole instrument is to be construed together so as to give effect, if possible, to the entire deed . . . and the construction which will uphold a deed in whole and in every part is to be preferred.’ Simpson v. Brown, 162 Ga. 529 (134 SE 161) [(1926)].” Id. at 711 (2). See also Elite Realty Svcs. v. City of Auburn, 272 Ga. 195, 197 (528 SE2d 236) (2000) (restrictive covenant should be construed “so as to give a reasonable, lawful and effective meaning to all manifestations of intention by the parties rather than an interpretation which leaves a part of such manifestations unreasonable or of no effect”) (citations and punctuation omitted); Garland v. Carnes, 259 Ga. 263 (379 SE2d 782) (1989); Davis v. Miller, 212 Ga. 836, 837 (96 SE2d 498) (1957).

In Shoaf, the Court was asked to reconcile the meaning of two seemingly incompatible restrictive covenants. 208 Ga. at 711. The first of the covenants read: “All lots in the tract shall be known, described, and used solely as residential lots. . . .” (Punctuation omitted; emphasis supplied.) Id. While the second restrictive covenant read: “No noxious, or offensive trade shall be carried on upon any lot nor shall anything be done thereon which may be or become an annoyance or nuisance in the neighborhood.” (Punctuation omitted; emphasis supplied.) Id. The Court determined the preferred construction was to give effect to both provisions consistent with the intention of the parties. Id. The Court concluded the first provision restricted the type of building allowed on a lot, while the second provision restricted the use to which that building may be put. Id.

The Georgia approach is consistent with other States and the Restatement of the Law of Servitudes. See, e.g., Montoya v. Barreras, 81 N.M. 749, 751 (473 P2d 363, 365) (1970) (Before strictly construing restrictive covenants courts must recognize that “ ‘effect is to be given to the intention of the parties as shown by the language of the whole instrument, considered with the circumstances surrounding the transaction, and the object of the parties in making the restrictions.’ ”) (quoting Hoover v. Waggoman, 52 N.M. 371, 376 (199 P2d 991) (1948)). Section 4.1 of the Restatement of Servitudes reads: “A servitude should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding creation of the servitude, and to carry out the purpose for which it was created.” Restatement (Third) of Property (Servitudes) § 4.1 (1) (2000). See also id., comment a.

Accordingly, the trial court erred in strictly construing the restrictive covenants in favor of the Harkleroads without considering the entire document.

(b) Construing the Declaration by the language of the whole instrument shows that Surrey Farms was intended to be a residential community free of commercial intrusion.

The preamble to the Declaration expresses the desire that Surrey Farms was to be a “residential community with common facilities for the benefit of the community.” The document established a homeowners association to manage the subdivision and also to preserve its values and amenities. To aid the association, the Declaration sets forth certain covenants and restrictions intended to inure to the benefit of the property and homeowners, which run with the land for a period of 20 years. In an Article entitled “Common Scheme Restrictions,” the Declaration expressly restricts the use of lots to “private single family resident purposes.” Other provisions are consistent with this express restriction and imply a limitation to residential use only. These restrictions apply to all lots in the development, and all lots were sold subject to them.

Therefore, any doubt concerning the construction of the restrictive covenants in this case will be resolved in favor of upholding the intent to create a residential use development with restrictions applicable to all lots.

(c) Construing the power to amend the covenants in this fashion leads to the conclusion that amendments that remove the restriction against commercial use from less than all the lots are not valid without the consent of the adversely affected property owners.

While Georgia has not directly addressed the issue of uniform application of amendments pertaining to common-interest communities, the Restatement of the Law of Servitudes is instructive. Section 6.10 of the Restatement reads in part: “Amendments that do not apply uniformly to similar lots or units . . . are not effective without the approval of members whose interests would be adversely affected unless the declaration fairly apprises purchasers that such amendments may be made.” (Emphasis supplied.) Restatement (Third) of Property (Servitudes) § 6.10 (2) (2000). The comments to this section explain that courts commonly protect the reliance interests of community members and disfavor nonuniform amendments which shift the benefits and burdens of community restrictions without the consent of those affected. Id. at comment f. That comment notes two exceptions to the rule disfavoring nonuniform amendments: (1) a change in conditions rendering the restrictions unreasonable, or (2) the declaration expressly puts purchasers on notice that such amendments may be made. Id. The trial court noted that the parties did not raise a change of conditions or introduce evidence on that issue. And, the Declaration did not fairly put the purchasers on notice that individual lots could be removed from the effect of the restrictive covenants.

A number of state court cases from other jurisdictions support the rule articulated in the Restatement. The New Mexico Supreme Court in Montoya v. Barreras, 81 N.M. 749, found the removal of residential restrictions on one lot only within a common-interest community was improper. The court opined that since the original restrictions found in the granting clause of the declaration applied to all the lots within the community, any changes to those restrictions must likewise be made to effect all the properties. Id. at 366-367. In support of its holding, the court focused on the intrinsic nature of common-interest communities and their reliance on restrictive covenants:

Historically, restrictive covenants have been used to assure uniformity of development and use of a residential area to give the owners of lots within such an area some degree of environmental stability. To permit individual lots within an area to be relieved of the burden of such covenants, in the absence of a clear expression in the instrument so providing, would destroy the right to rely on restrictive covenants which has traditionally been upheld by our law of real property.

Id. at 365. The court also reasoned that the removal of burdens on only certain lots would affect the “valuable property rights of the owners of all lots in the tract.” Id. at 365-366. Similarly, the court in Cowherd Dev. Co. v. Littick, 361 Mo. 1001 (238 SW2d 346) (1951), struck down a nonuniform amendment' removing restrictive covenants from a handful of lots and noted, “[s]uch restrictions are supposed to be an assurance that the purchasers of lots may build homes thereon and be immune from the attacks of commercial expansion.” Id. at 1007. See also Walton v. Jaskiewicz, 317 Md. 264, 267 (II) (563 A2d 382) (Spec. App. 1989) (removal of restrictions must apply to all lots uniformly “absent specific authorization in the declaration”); La Esperanza Townhome Assn. v. Title Security Agency of Arizona, 142 Ariz. 235, 239 (689 P2d 178) (App. 1984) (“restrictions and conditions can only be changed uniformly”); Ridge Park Home Owners v. Pena, 88 N.M. 563, 565 (544 P2d 278) (1975) (“Absent a specific provision in the agreement stating otherwise, we hold that the requisite vote cannot change the applicability of restrictive covenants to a few of the lots; the change must apply to all lots.”); Lakeshore Estates Recreational Area v. Turner, 481 SW2d 572 (Mo. App. 1972) (two-thirds of lots may not remove restrictions on a single lot); Riley v. Boyle, 6 Ariz. App. 523 (434 P2d 525) (1967) (where restrictions affect all lots within a community, the power to amend, likewise, pertains to all properties).

As in Montoya, in this case the drafters of the Declaration intended the covenants and restrictions to apply to all properties within the subdivision. The selective removal of restrictions abrogated this intent. While the Declaration contemplated future amendments, construing the scope of amendments to include nonuniform application would only frustrate the express purpose of community. As observed by the court in Riley, should the nonuniform application of amendments be allowed to stand, the result would be “a patchwork quilt of different restrictions . . . completely upset [ting] the orderly plan of the subdivision.” 6 Ariz. App. at 526.

Decided November 20, 2001

Reconsideration denied December 13,2001

Weissman, Nowack, Curry & Wilco, Jeffrey H. Schneider, for appellants.

Ultimately, the amendments would create a mixed-use community from one intended as solely residential with the burdens created by the amendments falling squarely on the shoulders of the remaining property owners. The redistribution of the benefits and burdens of community ownership in favor of the purchasing investors was improper without the consent of the affected property owners. Such consent is necessary because the amendments not only dismantled the reliance interest of homeowners but destroyed their valuable property rights. The facts of this case are no different from a situation where, in the first year of a similar development’s twenty-year term, after individuals have purchased ten of the lots and built homes, an investor purchases the remaining lots and votes to exempt his lots from the restrictions.

The Harkleroads have not raised either exception to the general rule disfavoring nonuniform amendments, and, therefore, the amendments ignoring the express and implied intent of the Declaration are invalid.

3. The trial court did not reach the issue of the validity of uniform amendments that effectively scuttle the entire development prior to the initial 20-year term. Because the First and Second Amendments were not uniform, they are invalid and we need not reach this other argument. Similarly, the issue of whether a full 90 percent of the lot owners voted for the First and Second Amendments is moot.

Judgment reversed.

Blackburn, C. J., and Mikell, J., concur.

Schreeder, Wheeler & Flint, David H. Flint, Lynn C. Stewart, Andersen, Davidson & Tate, Gerald Davidson, Jr., for appellees.

       Although these facts might suggest a change in the condition of the development that could justify a finding that the restrictive covenants should no longer be given effect, that issue was not raised in the trial court.

       The other appellants are James H. Plante, Jeffery N. White, Kenneth J. Brockway, Carlos M. Tavares, Anthony and Renee White, Marcus F. Brooks, Sandy S. Rim, Johnne V. Perry, and Richard and Virginia Arndt.

       After the special master ruled, a third amendment, approved by 75 percent of the lot owners, purportedly removed all restrictions from all lots. That amendment was not considered by the trial court because, as stated by the trial court, “the evidence in this case has been closed for over six months.” Therefore the issue of the validity of that amendment is not before us because the appellants have not had an opportunity to present evidence in opposition to the third amendment.

       Article VIII requires property owners to submit plans to an architectural control committee before proceeding with any plans to build a “residence, accessory building, tennis court, swimming pool, antennae . . . , flagpoles, fences, walls, exterior lighting, or other improvements. . . This list suggests proposed structures are limited solely to residential purposes. The various Common Scheme Restrictions listed in Article IX similarly contemplate only residential use. Those restrictions concern such items as the placement of trash containers and clothes lines, whether pets other than household pets can be kept on a lot, whether a temporary house or trailer may remain on a lot, and whether commercial vehicles may remain in a driveway for purposes other than making pickups and deliveries.

       Paragraph 2 of the Declaration’s preamble reads:
      WHEREAS, Developer desires to provide for the preservation of the values and amenities in said community and for the maintenance of said common facilities; and to this end, desires to subject the real property described in Article II to the covenants, restrictions, easements, charges and liens, hereinafter set forth, and all of which is and are for the benefit of said property and each Owner thereof. . . .


author: Barnes, Judge.

text:
    A01A1510.
    CORNELIUS v. HUTTO et al.
    (558 SE2d 36)
   Barnes, Judge.

Frank Cornelius sued psychiatrist Mark Hutto, alleging that Dr. Hutto violated the psychiatrist-patient privilege and invaded his privacy by giving an affidavit during divorce proceedings regarding custody of his son. After the close of evidence at trial, the trial court denied Mr. Cornelius’ motion for directed verdict on breach of confidentiality and granted Dr. Hutto’s motion for directed verdict on the invasion of privacy claim.

The jury returned a defense verdict, and Mr. Cornelius appeals, contending the trial court erred in denying his motion for directed verdict, in failing to charge the jury on contradictory testimony, and in granting Dr. Hutto’s motion on the invasion of privacy claim. Because the contradictory testimony rule set out in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), does not apply in this case, we affirm the jury’s verdict on the breach of confidentiality claim. For the reasons that follow, however, we reverse the trial court’s grant of a directed verdict on the invasion of privacy claim.

We affirm the denial of motions for directed verdict and new trial if at trial the evidence conflicted and some evidence supported the verdict. Pulte Home Corp. v. Woodland Nursery &c., 230 Ga. App. 455, 456 (2) (496 SE2d 546) (1998); Gwinnett Commercial Bank v. Flake, 151 Ga. App. 578, 583 (10) (260 SE2d 523) (1979). In considering this issue, we view the evidence most favorably to the party who secured the verdict. Stone v. Cook, 190 Ga. App. 11, 12 (1) (378 SE2d 142) (1989).

Viewed in that light, the evidence at trial showed that Dr. Hutto had treated both Mr. and Mrs. Cornelius, Mr. Cornelius briefly in 1995 and Mrs. Cornelius for several years. In August 1997, Mrs. Cornelius’ divorce lawyer asked her to identify those people who were most familiar with her parenting skills, and she named Dr. Hutto. The lawyer sent Dr. Hutto a proposed affidavit to support his client’s claim for temporary custody of the couple’s minor son, assuring him that the affidavit revealed no privileged information. Dr. Hutto signed it after making some revisions. The affidavit was filed, but the trial court never considered it because the parties reached an agreement regarding temporary custody and visitation and did not have a hearing. The trial court later issued a consent order granting the Corneliuses’ motion to withdraw the affidavit, expunging it from the court record before the final custody determination.

Mr. Cornelius subsequently sued Dr. Hutto, asserting five theories of recovery, including breach of confidentiality and invasion of privacy. The trial court bifurcated the trial as to liability and damages and then after the close of evidence denied Mr. Cornelius’ motion for directed verdict on breach of confidentiality and granted Dr. Hutto’s motion for directed verdict on the invasion of privacy claim. The jury concluded that Dr. Hutto did not violate any duty owed to Mr. Cornelius on the remaining theories, and the trial court entered judgment for Dr. Hutto.

1. Mr. Cornelius argues on appeal that the trial court erred in denying his motion for a directed verdict on his breach of confidentiality claim. He contends that Dr. Hutto’s testimony asserting he acquired none of the information in the affidavit from his treatment of Mr. Cornelius is contradicted by the affidavit itself, and thus that testimony must be construed most strongly against him pursuant to Prophecy Corp., supra, 256 Ga. 27, and its progeny. Mr. Cornelius contends that after eliminating this contradictory testimony, he is entitled to a verdict as a matter of law.

The affidavit read as follows:

Personally appeared before the undersigned officer duly authorized to administer oaths came MARK C. HUTTO, M.D., who states under oath the following:
. 1. I am a psychiatrist licensed by the State of Georgia. .. .
2. I had the opportunity to observe both Mr. and Mrs. Cornelius clinically. I was made aware by Mrs. Cornelius that the parties were considering divorce and that the custody of their son Carlton would be contested.
3. Based on my personal observations and experience with Mr. & Mrs. Cornelius and the information obtained . from my clinical observation and treatment of Mr. & Mrs. Cornelius, I concluded that the marriage of these parties was likely to fail. I also concluded that the minor child of the parties, Carlton Cornelius, would best be served if these parties separated.
4.1 ádvised Mrs. Cornelius that based on my own observations, both she and her son would best be served by living separate and apart from Mr. Cornelius. I also advised Mrs. Cornelius that Carlton would best be served by having limited contact with his father, even if that meant moving to another state.
5. It is my opinion, based upon the information available to me, that Mrs. Linda Cornelius is the more psychological [ly] fit and nurturing parent to Carlton and that Carlton would best be served if custody were awarded to his mother.

Mr. Cornelius’ expert testified that Dr. Hutto did not violate the psychiatrist-patient privilege in paragraphs two and three, but that paragraphs four and five do violate the privilege if they were based in any part on information Dr. Hutto received from Mr. Cornelius. The expert also admitted on cross-examination that he was aware of no information that Dr. Hutto obtained from Mr. Cornelius showing he would be an unfit father in 1997, and that paragraphs four and five would not violate any privilege if they were based only on information received from Mrs. Cornelius.

Dr. Hutto’s expert agreed that paragraphs two and three violated no psychiatrist-patient privilege. He further testified that if the opinions contained in paragraphs four and five were derived from information obtained solely from Mrs. Cornelius, then Dr. Hutto violated no privilege. Based on his review of the information in the medical records for Mr. Cornelius, the divorce lawyer’s deposition, the initial and subsequent versions of the affidavit, and information in Mrs. Cornelius’ extensive medical records, the expert thought that the information in paragraphs four and five was derived only from Mrs. Cornelius, and thus the affidavit did not violate any rules of confidentiality or privilege. Finally, Dr. Hutto himself testified that he based the opinions in the affidavit solely on information he received from Mrs. Cornelius, and not on anything he learned from Mr. Cornelius.

Mr. Cornelius argues on appeal, as he did below, that he is entitled to judgment as a matter of law based on the affidavit itself. He contends that paragraphs two and three imply that the opinions in paragraphs four and five are based on the treatment of both Mr. and Mrs. Cornelius, and any testimony by Dr. Hutto explaining otherwise should not be considered because it contradicts the affidavit.

The rule in Georgia is that the testimony of a party who offers himself as a witness in his own behalf at trial is to be construed most strongly against him when it is self-contradictory, vague or equivocal. Where the favorable portion of a party’s self-contradictory testimony is the only evidence of his right to recover or of his defense, the opposing party is entitled to a directed verdict.

(Citations and punctuation omitted.) Prophecy Corp., supra, 256 Ga. at 28 (1). The first issue to consider, then, is whether Dr. Hutto’s testimony is contradictory and should be excluded. If so, the next issue is whether the excluded testimony is the only evidence of Dr. Hutto’s defense, thus entitling Mr. Cornelius to a directed verdict.

“[T]o ‘contradict’ is ‘to assert the contrary.’” Prophecy Corp., supra, 256 Ga. at 30 (2), n. 3. In this case, Dr. Hutto’s testimony regarding the two paragraphs at issue — that he obtained all the information on which he based his custody opinion from Mrs. Cornelius — does not necessarily contradict the affidavit itself, which contains in those paragraphs the phrases, “based on my own observations” and “based upon the information available to me.” Rather, the testimony provides additional information by specifying the source of the observations and information to which it refers.

Even if we were to construe this testimony as self-contradictory, vague, or equivocal, Mr. Cornelius would only be entitled to a directed verdict if that testimony were the only evidence presented in Dr. Hutto’s defense, which is not the case here. The testimony of Mrs. Cornelius’ divorce lawyer concerning the drafting and revisions of the affidavit, along with those drafts and revisions themselves, also supports Dr. Hutto’s defense. When the party’s purported contradictory statements are not the only evidence that would authorize a verdict in his favor, the general rule applies, namely that the credibility of all witnesses — including the parties — should be determined by the jury. Barentine v. Kroger Co., 264 Ga. 224 (443 SE2d 485) (1994). The trial court did not err in denying Mr. Cornelius’ motions for directed verdict, judgment notwithstanding the verdict, or new trial.

2. Mr. Cornelius contends the trial court erred in failing to give the jury his proposed charge on contradictory testimony as follows:

I charge you that testimony of a party who offers himself as a witness in his own behalf at trial is to be construed most strongly against him when it is self-contradictory, vague, or equivocal. This rule is not restricted to contradictory testimony given in the same proceeding. “Testimony is testimony” and the “mere fact that the conflicting testimony arose” in two separate proceedings does not preclude this rule from being invoked.

The trial judge in its discretion must determine whether this rule of evidence applies, determining first if the testimony is self-contradictory, vague, or equivocal. Mattison v. Travelers Indem. Co., 167 Ga. App. 521, 526 (4) (307 SE2d 39) (1983). “As the trial judge sees and hears the witnesses, error in his application of the rule must be very manifest before the exercise of his discretion will be interfered with.” Id. Further, “such a charge is appropriate only where the party is the sole witness testifying in his behalf,” which was not the case here. Stolz v. Shulman, 191 Ga. App. 864, 869 (3) (383 SE2d 559) (1989).

Further, we consider the jury instructions as a whole in determining whether the trial court committed error. Jordan v. Santa Fe Engineering, 198 Ga. App. 600, 602 (2) (a) (402 SE2d 304) (1991). The trial court thoroughly charged the jury on witness credibility and impeachment, including the proposition that “[i]f a witness is successfully contradicted as to a material matter, his credibility as to other matters shall be a question for the jury to decide.” In light of the charges given and of our holding in Division 1, the trial court did not err in deciding not to give Mr. Cornelius’ requested charge.

3. Finally, Mr. Cornelius contends the trial court erred in granting Dr. Hutto a directed verdict on the invasion of privacy claim. We agree that this claim presented a jury question.

“The right of privacy has indeed been recognized in this State as a fundamental constitutional right, having a value so essential to individual liberty in our society that its infringement merits careful scrutiny by the courts.” (Citation and punctuation omitted.) Karpowicz v. Hyles, 247 Ga. App. 292, 295 (2) (543 SE2d 51) (2000).

The purpose of the [psychiatrist-patient] privilege is to encourage the patient to talk freely without fear of disclosure and embarrassment, thus enabling the psychiatrist to render effective treatment of the patient’s emotional or mental disorders. In recognizing a testimonial privilege for communications between psychotherapist and patient, the United States Supreme Court concluded that the privilege serves important private and public interests by facilitating appropriate treatment and thus promoting the mental health of the country’s citizenry.

(Punctuation and footnotes omitted.) Kennestone Hosp. v. Hopson, 273 Ga. 145, 148 (538 SE2d 742) (2000). In Kennestone Hosp., the Supreme Court found no implied waiver of the privilege by the appellee’s failure to object to a discovery request, noting that “[a]lthough the fact that a patient has undergone psychiatric treatment and the dates of the care are not subject to the psychiatrist-patient privilege, confidential communications between the psychiatrist and patient generally are protected.” (Footnotes omitted.) Id.

OCGA § 51-5-8, found in the Libel and Slander chapter in the Torts title of our Code, and which provides that pertinent and material information contained in “regular pleadings” filed in a court of competent jurisdiction is privileged, does not apply here. If it did, the psychiatrist-patient privilege could be circumvented in any case merely by filing the offending document with the clerk of court. Georgia law strictly interprets the definition of privileged communication, as we noted in another case involving a custody affidavit, Mrozinski v. Pogue, 205 Ga. App. 731, 734 (2) (423 SE2d 405) (1992), and again in Sletto v. Hosp. Auth. of Houston County, 239 Ga. App. 203, 206 (1) (521 SE2d 199) (1999).

Decided November 20, 2001

Reconsideration denied December 13,2001

Michael M. Catabro, for appellant.

Love, Willingham, Peters, Gilleland & Monyak, Randolph P. Powell, Jr., Ashley R. House, for appellees.

Dr. Hutto cites Garner v. Roberts, 238 Ga. App. 738, 740 (2) (520 SE2d 255) (1999), for the proposition that OCGA § 51-5-8 bestows a privilege on an affidavit used in a lawsuit. However, Garner is distinguishable, because it involved dental rather than psychiatric services. This state has a strong public policy against releasing mental health records, Sletto, supra, 239 Ga. App. at 205, and Garner provides no authority for a different result.

Judgment affirmed in part and reversed in part.

Smith, P. J., and Phipps, J., concur.


author: Blackbuen, Chief Judge.

text:
    A01A1530.
    A01A1531.
    A01A1532.
    A01A1533.
    A01A1534.
    A01A1535.
    A01A1536.
    A01A1537.
    A01A1538.
    A01A1539.
    A01A1540.
    A01A1541.
    A01A1542.
    A01A1543.
    A01A1544.
    A01A1545.
    A01A1546.
    A01A1547.
    FULMORE et al. v. CSX TRANSPORTATION, INC. BARNES v. CSX TRANSPORTATION, INC. HALL et al. v. CSX TRANSPORTATION, INC. JERNIGAN v. CSX TRANSPORTATION, INC. CREWS v. CSX TRANSPORTATION, INC. SCOTT v. CSX TRANSPORTATION, INC. ADAMSON v. CSX TRANSPORTATION, INC. STEWART v. CSX TRANSPORTATION, INC. GRAY et al. v. CSX TRANSPORTATION, INC. WARD v. CSX TRANSPORTATION, INC. POWELL v. CSX TRANSPORTATION, INC. DEEN v. CSX TRANSPORTATION, INC. GREEN v. CSX TRANSPORTATION, INC. BOOTH v. CSX TRANSPORTATION, INC. HARRIS v. CSX TRANSPORTATION, INC. PAYNE v. CSX TRANSPORTATION, INC. BRYANT v. CSX TRANSPORTATION, INC. MOODY v. CSX TRANSPORTATION, INC.
    (557 SE2d 64)
   Blackbuen, Chief Judge.

This appeal involves 18 related cases arising from the trial court’s grant of summary judgment to defendant CSX Transportation, Inc. (CSX) in plaintiffs’ (employees) Federal Employers’ Liability Act (FELA) actions based upon plaintiffs’ contraction of asbestosis and other asbestos-related diseases. Each complaint alleged FELA claims based upon approximately 18 failures of CSX under the Act, including the failure to provide a reasonably safe workplace, tools and equipment, and a failure to warn plaintiffs or to protect them from the dangers of asbestos.

Employees claim that the trial court erred by (1) granting CSX’s motion for summary judgment on grounds that plaintiffs failed to prove they had been exposed to a specific minimum level of asbestos sufficient to induce asbestosis; (2) failing to grant plaintiffs’ motions to set aside summary judgment on grounds that plaintiffs were not allowed the statutory time period to respond to CSX’s summary judgment filings prior to the trial court ruling thereon; and (3) granting CSX’s motion in limine to exclude evidence of fear of cancer. For the reasons set forth below, we affirm in part and reverse in part.

1. We first address the employees’ claim that the trial court erred by granting CSX’s motion for summary judgment on grounds that they failed to prove that they had been exposed to a specific minimum level of asbestos sufficient to induce asbestosis.

Section 51, of 45 USC §§ 51-60, provides, inter alia, that: “Every common carrier by railroad while engaging in commerce . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in . . . commerce . . . for such injury or death resulting in whole or in part from the negligence of. . . such carrier.”

The statute itself, although it conditions a defendant’s liability on a showing of negligence, does not define negligence; rather, the contours of negligence under FELA were left by Congress to the decisional law of federal courts. Urie v. Thompson. The United States Supreme Court has reiterated the strong relationship between the federal common law of negligence and that of the various states. It has noted that “common law principles, where not rejected in the text of the statute, are entitled to great weight in interpreting [FELA].” (Punctuation omitted.) Metro-North Commuter R. Co. v. Buckley. In that same opinion, the Supreme Court quoted approvingly from Justice Souter’s concurrence in Consolidated Rail Corp. v. Gottshall, where he stated that the Court’s duty “in interpreting FELA ... is to develop a federal common law of negligence . . . informed by reference to the evolving common law.” Therefore, although decisions of federal and state courts applying state tort law do not determine the meaning of negligence under FELA, nonetheless, they can serve as persuasive authority where appropriate. Under FELA, “a plaintiff must prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation.” (Punctuation omitted.) Bagley v. CSX Transp. At trial, plaintiffs must demonstrate that CSX knew, or should have known, that their exposure to asbestos dust placed them at risk of contracting asbestosis, yet failed to inform or protect them. See id.

Plaintiffs do, however, have a relaxed burden in proving causation in FELA actions. See Paul v. Missouri Pacific R. Co. Plaintiffs must only provide a reasonable basis for a jury to conclude that the employer’s negligence played a part in producing the injury for which damages are sought. See Savage v. Union Pacific R. Co. (FELA and exposure to creosote). “[T]he test of a jury case is simply whether the proofs justify with[in] reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” (Emphasis supplied.) Rogers v. Missouri Pacific R. Co.

This case involves the grant of summary judgment to movant/ defendant by the trial court. Under such circumstance, the movant has the burden of proving the nonexistence of any genuine issue of material fact. Mallard v. Jenkins. The movant has this burden, even as to issues on which the plaintiff has the burden at trial. Piano &c. Center v. Southland Bonded Warehouse.

Defendant argues that plaintiffs’ claims must fail as a matter of law, because plaintiffs have no evidence regarding the amount of asbestos that plaintiffs were exposed to during the period of their employment with defendant. Defendant took no air samples prior to 1993. Defendant contends that because asbestosis is a dose-response phenomenon, the risk posed to humans from contact with asbestos is a function of the quantity of exposure to asbestos. Defendant contends that it follows, therefore, that there is a threshold level of exposure value (TLV) necessary to cause asbestosis. If a person’s exposure to asbestos is less than this TLV, one would not expect such a person to contract asbestosis. CSX further argues that without evidence of the actual quantity of asbestos to which plaintiffs were exposed while working for defendant, plaintiffs cannot show that the quantity of asbestos fibers in the air during the relevant times exceeded the then accepted TLV. CSX argues that it is entitled to summary judgment as a matter of law because plaintiffs will not be able to prove either (1) that defendant breached the duty of ordinary care or (2) that plaintiffs’ exposure to asbestos at defendant’s workplace was sufficient to cause plaintiffs’ asbestosis.

These contentions are made as to all of the subject cases, even though it is unrefuted that asbestosis is caused solely by exposure to asbestos, that with one exception, all of the plaintiffs, or plaintiff’s deceased, contracted asbestosis, and that only three of the eighteen plaintiffs had exposure to asbestos other than at their CSX workplace. All but two of the plaintiffs worked for CSX for more than fifteen years. Under Georgia law, “[a]s a general proposition issues of negligence, diligence, [and] proximate cause . . . are not susceptible to summary adjudication but must be generally resolved by a jury except in plain, palpable and indisputable cases where reasonable minds could not disagree.” North v. Toco Hills, Inc.; Epps Air Svc. v. DeKalb County, Also, “certain issues, such as those calling for the application of a standard of conduct to certain facts, seldom lend themselves to summary treatment.” See Gregory, Ga. Civil Practice (2nd ed.), § 7-3 (A), p. 565.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp.

Viewed in this light, the record shows that in October 1991, plaintiffs filed suit, seeking to recover for asbestosis (except Hall) and other asbestos-related injuries sustained as a result of occupational exposure to asbestos while employed by CSX in its shops in Waycross. Plaintiffs are either current or former employees of CSX. Each worker individually sued CSX, alleging that CSX negligently exposed him (or her) to asbestos-containing products and, as a result, each became ill. All plaintiffs, except Hall, in Case No. A01A1532, have been diagnosed with asbestosis; however, some have been diagnosed with asbestos-related pleural disease as well. There were also two wrongful death claims and one fear of cancer allegation.

Plaintiffs worked for CSX or its predecessors in interest for varying lengths of time between 1938 and the present, occupying a variety of job classifications. During their employment, plaintiffs worked with or had been exposed to a variety of asbestos-containing products, including brake shoes, gaskets, siding, floor tile, insulating materials, packing materials, pipe covering, and cement. Plaintiffs worked with or around asbestos-containing products and were around visible dust generated from such products, while performing their duties. The affidavit of Robert L. Rollins, Jr., a retired general foreman for CSX, who held a management position and had worked at the Waycross shop facilities during the period of 1960 through 1993, established certain facts for summary judgment purposes. Rollins’ affidavit provides, inter alia, that:

5. Asbestos containing products including various insulation, pipecovering, cement, gaskets, packing, brake shoes, siding and flooring materials were used throughout the Waycross Shops on a daily basis from the time [he] began work at CSXT until approximately 1993. 6. The use of these products created visible dust on a daily basis throughout the Shop facility throughout my career. 7. It is my opinion that anyone who worked in the CSX Waycross, Georgia Shop facility during these years would have been exposed to this visible dust on a regular basis. 8.1 know that it was asbestos because I ordered asbestos gaskets and other asbestos containing materials and asbestos was written on the packages. I was familiar with what was in the storeroom where these materials were kept and saw them being used in the shops. Dust was created daily from use of these products, it was visible and could be seen every day I worked there. 9.1 was instructed by Mark Badders in the late 1980’s or early 1990’s to remove all asbestos containing products from the storeroom and tool room. I was told by Mr. Badders to keep quiet about this and not to tell any of the workers. Danny Kirkland removed the asbestos products after I showed him where they were kept. 10. To my knowledge no sampling of the air for asbestos fibers was ever done in the area of workers while I was working there. 11. No safety meetings were held to teach our employees using asbestos of the dangers of asbestos or how to use it without risking health consequences. To my knowledge, the workers at the railroad here in Waycross were never warned that asbestos exposure could harm their health. 12. No safety precautions were ever implemented, to my knowledge, to be used by workers when using asbestos products.

Because CSX did not conduct air sampling tests prior to 1993 (when Rollins retired) per Rollins’ affidavit, plaintiffs were unable to offer actual historical air sampling data indicating the concentration of asbestos fibers in the air over the course of their employment. However, to prove exposure, plaintiffs offered the affidavit testimony of Arthur Frank, M.D. and Donald Ostrum, M.RH. Drs. Frank and Ostrum offered their opinions that CSX subjected each plaintiff to a dangerous work environment throughout his or her employment because of the persistent presence of “visible dust,” which, in their opinions, contained unsafe concentrations of asbestos.

Ostrum based his opinions on plaintiffs’ deposition testimony regarding their own individual work history, including the type of materials they worked with (e.g., pipe covering, insulation) and on plaintiffs’ affidavits which state that they were exposed to and breathed asbestos dust on a daily basis, that they used asbestos-containing products, and that there was visible dust on a daily basis, as well as the affidavit of Rollins. Under Georgia law, an expert may rely on hearsay as well as reports of others in formulating his opinions. Joiner v. Lane. Such reliance goes to the weight, not the admissibility, of the expert’s opinion. J. B. Hunt Transport v. Brown (expert’s lack of firsthand knowledge and inconsistencies in testimony went to weight and not admissibility).

“CSXT admits that it is the successor in interest and liability to Seaboard System Railroad, Inc., The Seaboard Coast Lines Railroad, The Atlantic Coast Line Railroad, and The Seaboard Air Line Railroad.” CSX’s answer, par. 2, p. 3. We note, that in Bagley, supra, this court found that there was no evidence of record that CSX was the successor in liability for its corporate predecessors. This court went on to say, however, that “because a jury could reasonably infer that [physicians reported back to predecessors], we find that the discussion of the hazards of asbestos and ways to prevent dust induced lung disease evidenced in the minutes provide [s] ‘some, if minimal, probative facts in the record to show knowledge on the part of (CSX’s predecessors).’” Bagley, supra at 546 (1). This court held that because in that case, CSX denied that it was a successor in liability to Seaboard, and plaintiffs failed to prove that fact, there was no evidence that CSX either knew or should have known of the information imparted to its predecessor corporations. Likewise, plaintiffs failed to establish that CSX was a successor in liability to such corporations. In this case, such fact stands admitted, as outlined.

Plaintiffs relied upon the record, which included the deposition of Marvin Pelón, records custodian for the Association of American Railroads (AAR), authenticating their minutes. The record also contains excerpts of the AAR Minutes, Medical and Surgical Section, for the years 1932,1933,1935,1937,1939,1940,1941,1951,1952,1953, 1957, and 1958, which demonstrate both that railroad doctors discussed the hazards of dust and asbestos, including carcinogenicity and safety precautions which should be taken at the workplace. The minutes outlined above suggested the installation of forced air ventilation systems, the analysis of the air for dust, the instruction of employees regarding wetdown procedures, the implementation and enforcement of a breathing (respirator) protection program, and the provision of nontoxic substitutes for asbestos. None of these matters were adopted by CSX. See also affidavit of Dr. Ostrum.

Representatives of CSX’s corporate predecessors, for which CSX is a successor in liability, were in attendance or on the Board of Directors of the organization each of the subject years. Dr. Frank, whose qualifications stand unchallenged by CSX, testified that a workplace of the type described by the plaintiffs and by Rollins would constitute an unsafe workplace in that visible dust from the asbestos-containing products would exceed any Occupational and Safety Health Act (OSHA) limits or TLVs that have ever existed. The fact that plaintiffs contracted asbestosis clearly establishes their exposure to a dangerous level of asbestos.

Dr. Ostrum, an expert in industrial hygiene, whose qualifications were not challenged by CSX, also concluded, after a review of all of the above-referenced material, that plaintiffs’ exposures to visible dust from the use of asbestos-containing products exceeded all TLVs that have ever existed.

Notwithstanding the above, the trial court granted CSX’s motion for summary judgment because plaintiffs failed to produce reliable evidence regarding “dose.” Specifically, the trial court determined that plaintiffs’ failure to produce dosage evidence required summary judgment on the issues of breach of duty, foreseeability, and causation. Plaintiffs contend that summary judgment was improper because the evidence was sufficient to create an issue of fact for the jury as to CSX’s negligence. We agree, except as to Case No. A01A1532, Emalene Matthews Hall, individually and as executrix of the estate of Millard Mannen Hall.

Case No. A01A1532 is one of two wrongful death actions in these related cases. Plaintiff contends that her decedent died as a result of exposure to asbestos while employed by CSX during the period of 1949-1980s. Millard Hall is the only employee involved in these cases who did not contract asbestosis. There is no other evidence establishing the elements of Hall’s claim. There was no affidavit directly from Millard Hall or from Dr. Ostrum. Although the case is styled Emalene Matthews Hall, individually and as executrix, we note that her complaint does not assert a cause of action in her own right, other than for wrongful death, even though she alleges that she was exposed from her husband’s laundry. Any “fear of cancer” question will be addressed in that portion of this opinion. The trial court did not err in granting summary judgment in Case No. A01A1532.

The evidence was sufficient to avoid summary judgment in Case No. A01A1538, Ora Lee Gray, administratrix of the estate of Lawton Gray, by substitution, the only other case which contains a wrongful death claim. Lawton Gray was diagnosed with asbestosis and other asbestos-related diseases, which plaintiff contends led to his death. The record contains enough evidence of plaintiff’s contentions to avoid summary judgment in this case. The trial court erred in granting summary judgment in this and the remaining cases for the reasons outlined herein.

First, a plaintiff must offer proof of general causation: whether exposure to a substance is capable of causing a particular injury or disease. In addition, a plaintiff must also produce evidence of specific causation: whether exposure to a substance under the circumstances of the case caused a particular plaintiff’s illness or disease. While both analyses involve a question of the concentration levels of the toxin to which the plaintiffs were exposed, it does not necessarily follow that plaintiffs must show specific air measurement readings, or that they have not otherwise established causation.

Plaintiffs correctly argue that this is a FELA case which has a more relaxed standard of proof of causation. Plaintiffs incorrectly argue that, therefore, proof of any exposure to asbestos is enough to survive summary judgment. While it is true that the quantum of evidence necessary to satisfy the element of causation under FELA is relaxed, Rogers, supra at 506, plaintiffs must nevertheless present some reliable evidence on the issue. In toxic tort cases, this generally requires reliable expert testimony. See Claar v. Burlington Northern R. Co. (FELA and exposure to chemicals); see generally Stasior v. Nat. R. Passenger Corp. (FELA and carpal tunnel syndrome).

Where, as here, the cases undisputedly involve plaintiffs who have contracted asbestosis, which by definition, results only from an overexposure to asbestos, the proof of asbestosis conclusively establishes such overexposure. As the only purpose of the TLV is to determine at what level exposure to asbestos becomes dangerous, the existence of asbestosis renders moot the inquiry as to how many doses it takes to cause the disease. If that is not true, then the theory upon which the TLV is established is not true.

The defendant is free to argue that it was not aware of the level at which exposure, in fact, became dangerous, notwithstanding any generally accepted TLV standard. This involves a question of fact, however, and must be resolved by a jury, not as a matter of law by the court, under the facts of this case.

CSX argues that its duty was only to protect against foreseeable dangers. Under their theory, there were certain TLV standards in place during the employment terms of plaintiffs, and if they cannot establish what the TLV measurement was during such time, then they cannot demonstrate that CSX breached its duty. It is ironic that CSX, who failed to follow the recommendations of the AAR in the 1930s that the air in the work environment be tested, seeks to avoid liability because the plaintiffs cannot produce the data from the very tests which CSX failed to perform. CSX contends that it had no knowledge of the dangers of asbestos until the 1980s, notwithstanding the fact that TLV standards were adopted in 1946, and without acknowledging the 1935 Minutes of the Proceedings of the Fifteenth Annual Meeting of the Medical and Surgical Section 90 (AAR, Atlantic City, N.J. 1935), which counseled railroads as to the threat that the inhalation of dust — including asbestos dust — posed to the health of railroad workers and to “[h]ave frequent analyses made of the dust content of the air at different times during the work hours.”

The 1958 Report of Committee on Disability & Rehabilitation of the AAR contains the following:

The Committee has defined and described the condition of pneumoconiosis, or dust disease of the lungs, . . . and mentioned asbestosis, as [a] form of the disease most interesting to railroad surgeons. . . . An entrance to service examination is recommended particularly in those occupations where unusual quantities of . . . asbestos dust have been encountered or are contemplated as a routine occupational exposure. Such entrance to service examinations should include a complete occupational history, a careful physical examination, and an x-ray examination of the lungs recorded on films, for diagnosis and further record. It is further recommended that in periodic examinations of employees, with a history of working in noxious dust, who present symptoms suggestive of dust disease: 1) X-ray examination of the lungs should be done. 2) Change in employee’s occupation should be advised or considered.

CSX contends that plaintiffs are bound by TLV standards for dangerous levels of asbestos established in 1946, while maintaining that CSX had no knowledge of the danger of asbestos until the 1980s. We note, initially, that several of the employees were working at CSX long before the standards were ever established in 1946. The TLV standards presently in existence do not necessarily preclude tort liability, even assuming CSX had complied with same.

In Doyle v. Volkswagenwerk Aktiengesellschaft, a case involving automobile safety standards, the Supreme Court of Georgia held that compliance with federal standards or regulations does not render a defendant immune from liability, finding that “instead of acting as an impenetrable shield from liability, compliance, more appropriately, is to be a piece of the evidentiary puzzle.” As a general rule, compliance with federal standards does not, in and of itself, immunize [one] from state tort law liability. See Burt v. Fumigation Svc. &c. See also 2 Restatement (Second) of Torts, § 288 (c), which states that “compliance with a legislative enactment or an administrative regulation does not prevent a finding of negligence where a reasonable [person] would take additional precautions.”

In Kelson v. Central of Ga. R. Co., this court held that:

the case law is clear that under [a] FELA action, the standards of liability for negligence are significantly broader than in ordinary common law negligence actions. Slight negligence, necessary to support [a] FELA action, is defined as a failure to exercise great care, and that burden of proof, obviously, is much less than the burden required to sustain recovery in ordinary negligence actions.

(Citations and punctuation omitted; emphasis in original.) Id. at 203 (1) (a).

Under the FELA, and Georgia law, it is only necessary that defendant had significantly contributed to plaintiff’s injury in order to be liable therefor. In Grassis v. Johns-Manville Corp. the court stated that:

There is no requirement in the law that a single cause be found and proven. All that is required is that the plaintiff show that a defendant’s conduct or defective product was a proximate cause of the condition, i.e., a substantial factor in bringing the condition about. Apparently, the “more likely than not” or 51% standard has in this and its companion cases been thought of as applying to asbestos exposure as the single cause of the disease, rather than to the proof of a significant factor in bringing about the disease. We do not tell a jury that a significant factor must be one that is 5%, 15%, 30% or 40%; we merely tell a jury that it must be “significant.”

(Citations omitted.) Id. at 457.

CSX attempts to rely upon Figg v. CSX Transp. , a 1996 case from Chatham County Superior Court, which case was tried by then Superior Court Judge, now Court of Appeals Judge, Charles B. Mikell. The case is factually distinguishable from the subject case, in that it was a motion in limine as to the admissibility of an expert’s opinion. No such motions were filed in the present case, and there was no objection to any of the expert opinions proffered by plaintiffs in opposition to the defendant’s motion for summary judgment. The trial court here did not disregard any expert opinion based on. any infirmity in connection therewith. There were numerous deficiencies in plaintiff’s evidence noted by Judge Mikell in his ruling in Figg, including the filing of only excerpts of the plaintiff’s deposition, thereby depriving the trial court of the opportunity to review the entire testimony, the failure of the plaintiff to file the interrogatory answers, the failure of the expert to attempt to ascertain exposure levels specific to a certain plaintiff, instead, generalizing about “these Plaintiffs,” and other concerns that the court had. None of the above infirmities are present in the subject case.

In a factually and procedurally similar case, in February 2000, Judge Alaimo, United States District Court for the Southern District of Georgia, held inter alia:

[I]t is appropriate in this context to allow the jury to infer that Defendant had been negligent — despite the absence of exposure evidence — from the fact that the Railroad failed to take samples of the air which Plaintiffs would have breathed. ... A reasonable jury could conclude that sampling of levels of asbestos exposure was an element of the Railroad’s duty to observe ordinary care, and by failing to take such samples regularly, it breached that duty. The Court need not determine whether the events giving rise to this lawsuit qualify as “extraordinary” so as to justify an inference of negligence under the doctrine of res ipsa loquitur because the failure of Defendant to monitor the level of asbestos is itself evidence that the Railroad breached its duty of care to Plaintiffs.

Sanders v. CSX Transp.

Here, the evidence was sufficient to establish that those plaintiffs who contracted asbestosis had been exposed to a dangerous level of asbestos. This is true, without regard to the specific level of asbestos contained in their work environment. The trial court erred in granting summary judgment based on a failure to prove the dose exposure in all cases except Case No. A01A1532, for the reasons outlined herein.

2. We next address plaintiffs’ claim that the trial court erred by failing to set aside summary judgment on grounds that plaintiffs were not allowed the statutory 30-day period to respond to CSX’s supplemental summary judgment filings. We disagree.

CSX filed its motion for summary judgment and supporting material on May 10, 2000; a hearing was scheduled for June 14. Plaintiffs filed opposition papers on June 7, and CSX filed a supplemental brief on June 13. The trial court heard oral argument on June 14 and ordered from the bench that plaintiffs would have the opportunity to supplement and CSX would then have an opportunity to respond, before the court decided the motion. Pursuant to this order, plaintiffs filed a supplemental brief on June 23, and with leave of the court, CSX filed its second supplemental brief on August 15. On August 28, 2000, the trial court awarded summary judgment in favor of CSX.

Plaintiffs filed their motion to set aside summary judgment, objecting to the exhibits filed by CSX on August 15. On September 15, 2000, the trial court denied plaintiffs’ motion, finding that plaintiffs acquiesced to the post-hearing briefing schedule and that the affidavits that plaintiffs objected to were not dispositive to the court’s ruling.

Plaintiffs claim that OCGA § 9-11-56 (c) requires that a party be given 30 days to consider and respond to materials submitted in support of a motion for summary judgment. Thus, plaintiffs claim that because the trial court did not allow them the full 30 days to respond to CSX’s August 15, 2000 submission (i.e., through September 14, 2000), the trial court’s action violated OCGA § 9-11-56 (c).

OCGA § 9-11-56 (c) requires that only supporting material which is “on file” at least 30 days before the hearing shall be considered for the movant. Bonds v. John Wieland Homes; Gunter v. Hamilton Bank &c. The parties, however, may waive the 30-day rule by acquiescence. Gunter, supra at 381. Here, the parties agreed at the June 14 summary judgment hearing that plaintiffs would have the opportunity to supplement and CSX the opportunity to respond. Both parties supplemented with additional briefs and evidence. The record supports the trial court’s conclusion that plaintiffs waived the 30-day rule of OCGA § 9-11-56 (c). This enumeration of error is without merit.

Decided November 21, 2001

Reconsideration denied December 13,2001

Lane & Gossett, Roger B. Lane, Mark J. Bujold, for appellants.

Jordan, Bristol & Moses, Randall A. Jordan, Mary H. Moses, for appellee.

Nelson, Mullins, Riley & Scarborough, Richard K. Hines, Richard B. North, Jr., amici curiae.

3. Lastly, we address plaintiffs’ contention that the trial court erred by granting CSX’s motion in limine to exclude evidence of fear of cancer. Under Georgia law, and the United States Supreme Court’s ruling in Metro-North Commuter R. Co. v. Buckley, supra, a plaintiff may not recover for emotional distress arising from a fear of contracting a disease until he begins to manifest symptoms of the disease. With the exception of Lawton Gray, who died of cancer, no other living plaintiff has evidence of cancer. This issue is moot as to Millard Mannen Hall, in Case No. A01A1532, as summary judgment has properly been granted in that wrongful death action. Inasmuch as the Lawton Gray wrongful death case is still pending based upon our reversal of the trial court’s grant of summary judgment in all cases except Case No. A01A1532 (Hall), we affirm the trial court’s ruling on the motion in limine concerning fear of cancer evidence, except in Case No. A01A1538 (Gray), in which we reverse the trial court’s ruling.

Judgment affirmed in Case No. A01A1532. Divisions 2 and 3 affirmed and Division 1 reversed in Case Nos. A01A1530, A01A1531, A01A1533, A01A1534, A01A1535, A01A1536, A01A1537, A01A1539, A01A1540, A01A1541, A01A1542, A01A1543, A01A1544, A01A1545, A01A1546 and A01A1547. Division 2 affirmed and Divisions 1 and 3 reversed in Case No. A01A1538.

Pope, P. J., and Mikell, J., concur.

        Urie v. Thompson, 337 U. S. 163, 174 (69 SC 1018, 93 LE 1282) (1949).

        Metro-North Commuter R. Co. v. Buckley, 521 U. S. 424, 429 (II) (117 SC 2113, 138 LE2d 560) (1997).

        Consolidated Rail Corp. v. Gottshall, 512 U. S. 532, 558 (114 SC 2396, 129 LE2d 427) (1994).

        Bagley v. CSX Transp., 219 Ga. App. 544, 545 (1) (465 SE2d 706) (1995).

        Paul v. Missouri Pacific R. Co., 963 F2d 1058 (8th Cir. 1992).

        Savage v. Union Pacific R. Co., 67 FSupp.2d 1021, 1027, 1031-1032 (E.D. Ark. 1999).

        Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 506-507 (77 SC 443, 1 LE2d 493) (1957).

        Mallard v. Jenkins, 179 Ga. App. 582 (347 SE2d 339) (1986).

        Piano &c. Center v. Southland Bonded Warehouse, 139 Ga. App. 480, 482 (3) (228 SE2d 615) (1976).

       Affidavit of Dr. Isabella K. Sharpe, Pulmonary Medicine, states “asbestosis [is] a permanent, non-treatable lung condition caused only by exposure to asbestos.” Record, Deen, Case No. A01A1541, p. 892.

       Millard Mannen Hall, deceased, Case No. A01A1532, did not have asbestosis.

       Lawton Gray, Case No. A01A1538; Hubert Talmadge Booth, Sr., Case No. A01A1543; and John Ray Moody, Case No. A01A1547.

        North v. Toco Hills, Inc., 160 Ga. App. 116, 119 (286 SE2d 346) (1981).

        Epps Air Svc. v. DeKalb County, 147 Ga. App. 195, 196 (1) (248 SE2d 300) (1978).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       One plaintiff has sued in her individual capacity and as executrix. Hall, Case No. A01A1532. She does not claim to have an illness, but claims to have been exposed to asbestos through handling her husband’s laundry.

       Hall, Case No. A01A1532 (nonmesothelioma cancer); Gray, Case No. A01A1538 (asbestosis, asbestos-related pleural disease).

       Emalene Matthews Hall, whose husband died of cancer, Case No. A01A1532, individually alleges that she was exposed from doing her husband’s laundry, but her complaint does not seem to assert a cause of action in her own right, other than for the wrongful death of her husband.

       CSX’s predecessors in interest include Seaboard System Railroad, Inc., Seaboard Coast Line Railroad, Seaboard Air Line Railroad, and Atlantic Coast Line Railroad.

       We note that in a deposition in a prior case, William Edwin Mims testified that although he did not know when air sampling of any type was done at the Waycross workplace, he thought it was in the mid-1980s. For summary judgment purposes, the evidence is construed most favorably for the nonmovant, and we accept the 1993 time period for purposes of this review. See Record, Fulmore, Case No. A01A1530, pp. 2294, 2306.

        Joiner v. Lane, 235 Ga. App. 121 (508 SE2d 203) (1998).

        J. B. Hunt Transport v. Brown, 236 Ga. App. 634 (512 SE2d 34) (1999).

       The trial court did not offer an analysis, but concluded that the record did not demonstrate sufficient evidence concerning the dosage of asbestos to which plaintiffs were exposed.

        Claar v. Burlington Northern R. Co., 29 F3d 499, 503 (9th Cir. 1994).

        Stasior v. Nat. R. Passenger Corp., 19 FSupp.2d 835, 850-851 (N.D. Ill. 1998).

       The first TLV for asbestos was adopted by the American Conference of Governmental Industrial Hygienists in 1946. This limit was five million particles per cubic foot, which is approximately 20-30 fibers per cubic centimeter. This standard was subsequently lowered as follows (all measurements are in cubic centimeters): 1972 to five fibers; 1976 to two fibers; 1986 to 0.2 fibers; and 1994 to 0.1 fiber. In 1972, OSHA adopted these TLVs as the permissible exposure limits under OSHA. See affidavit of Dr. Ostrum, Record, Fulmore, Case No. A01A1530, p. 3080.

       Three at >40 years: Eugene Ward, 1943-1983; Lewis H. Powell, 1940-1980; John Willie Hall, 1948-1988. Seven at >30 years: Millard Mannen Hall, 1949-1980s; William E. Jemigan, 1948-1987; Myron L. Scott, 1951-1982; Hubert Talmadge Booth, Sr., 1944-1983; Donald Alfred Payne, 1967-present; Ernest Lamar Bryant, 1950-1984; John Ray Moody, 1938-1977. Three at >20 years: Lonnie Adamson, Sr., 1941-1967; Hattie Stewart, 1978-present; Terry Ronald Harris, 1974-present. Two at >15 years: Anthony Barnes, 1966-1983; Luther Surles, 1955-1974. One at nine years: James Fleming Crews, 1950-1959. One at six years: Lawton Gray, 1950-1956.

        Doyle v. Volkswagenwerk Aktiengesellschaft, 267 Ga. 574, 577 (481 SE2d 518) (1997).

        Burt v. Fumigation Svc. &c., 926 FSupp. 624 (W.D. Mich. 1996).

        Kelson v. Central of Ga. R. Co., 234 Ga. App. 200 (505 SE2d 803) (1998).

        Grassis v. Johns-Manville Corp., 248 N.J. Super. 446 (591 A2d 671) (1991).

        Figg v. CSX Transp., Civil Action No. CV96-0495-MI (1996).

        Sanders v. CSX Transp., Civil Action Nos. CV590-209, CV590-216, CV591-165 (2000).

       CSX filed a second supplemental brief in support of summary judgment, together with the affidavits of Larry Lieukenon, Francis Weir, Richard Bussard, and Mark Badders. CSX also filed the deposition testimony of Dr. Frank.

        Bonds v. John Wieland Homes, 177 Ga. App. 254, 255 (339 SE2d 318) (1985).

        Gunter v. Hamilton Bank &c., 201 Ga. App. 379, 380 (411 SE2d 115) (1991).


author: Miller, Judge.

text:
    A01A1690.
    HAYES v. THE STATE.
    (557 SE2d 468)
   Miller, Judge.

Following a jury trial, Victory Hayes was convicted of child molestation and various other offenses relating to sexual activity with a minor. On appeal he contends that the trial court erred in admitting a tape-recorded interview of the victim and that the evidence was insufficient to sustain his conviction for child molestation. We discern no error and affirm.

Viewed in the light most favorable to the verdict, the evidence reveals that in August 1997, J. K., an eight-year-old child, was spending the night at her grandmother’s home. J. K.’s grandmother was not home that night, but J. K. and her younger siblings were left in the care of her grandmother’s live-in boyfriend, Hayes.

During the night, Hayes entered J. K.’s bedroom, touched her on her buttocks, and inserted his finger into her anus. He then carried J. K. to her grandmother’s bedroom where he placed her on the bed and attempted to penetrate her vagina with his penis. He then sent J. K. back to her room.

Out of fear, J. K. did not tell anyone about the incident until several weeks later. J. K. first told her aunt that something happened to her, but did not provide any details. Concerned that J. K. had been harmed in some way, the aunt informed J. K.’s mother that something had occurred. Although J. K. did not initially tell her mother about the incident, her mother had noticed that J. K. had been complaining of pain in her anus following the overnight stay at her grandmother’s house and that J. K. was reluctant to be alone with Hayes. J. K. eventually told her mother the details of the incident, and her mother informed police.

The police tape recorded their interview with J. K., in which she recounted the events that transpired between her and Hayes. In the interview, J. K. stated that Hayes pulled down her panties and “tried to put his penis inside [her] private part. . . .” This tape-recorded interview was admitted at trial through the testimony of the interviewing police officer over objection from Hayes’s counsel.

The jury found Hayes guilty of, among other things, child molestation.

1. Hayes contends that the admission of J. K.’s tape-recorded interview with police was error since J. K.’s testimony was unreliable. We find this enumeration to be without merit.

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another ... is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

There are several factors that a court may consider in assessing reliability, including:

(1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child.

The trial court did not err in admitting the interview. J. K. was available to testify and did in fact testify at trial. Hayes had the opportunity to cross-examine J. K. regarding her memory and the circumstances surrounding her out-of-court statements, and the judge and jury had an opportunity to evaluate J. K.’s veracity. Further, the police officer testified about the manner in which J. K.’s mother came to him and about his involvement in recording the interview. There was no evidence that J. K. was forced to make her statements or that she was coached regarding what to say. To the extent that there may have been any inconsistencies between J. K.’s trial testimony and her tape-recorded statement, such “conflicts between the [tape-recorded] statement and the testimony of the child at trial would not necessarily render the former inadmissible, but would rather present a question of credibility of the witness to be resolved by the trier of fact. . . .”

2. Hayes further argues that the evidence was insufficient to sustain a verdict against him for child molestation. More specifically, he contends that the State did not prove that Hayes actually touched J. K.’s vagina with his penis as alleged in the indictment. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

Decided December 13, 2001.

Hugh O. Morris, Jr., for appellant.

Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

“A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” A person would indeed be guilty of child molestation if he touched a child’s vagina with his penis.

J. K.’s testimony that Hayes pulled her panties down and “tried to put his penis inside [her] private part. . . ,” if believed by a jury, would be sufficient to convict Hayes of child molestation. Even the police officer who interviewed J. K. testified that J. K. specifically referred to her vagina as her “private part.” In addition, J. K.’s mother testified that J. K. told her that Hayes had touched her inappropriately. The evidence was sufficient to sustain the conviction.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       OCGA § 24-3-16.

       (Emphasis omitted.) Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991).

        Ware v. State, 191 Ga. App. 896, 897 (2) (383 SE2d 368) (1989).

        Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       Id.; see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       OCGA § 16-6-4 (a).

       See, e.g., Morris v. State, 226 Ga. App. 535, 536 (1) (488 SE2d 685) (1997).


text:
    A01A1712.
    KILPATRICK v. THE STATE.
    (557 SE2d 460)
   Miller, Judge.

Rodney Kilpatrick was convicted of aggravated battery based on evidence that he shot a victim three times in the legs, resulting in the amputation of the lower portion of one of the legs. Kilpatrick testified that the shooting occurred during a struggle for the gun and was accidental. He enumerates two errors: (1) the trial court erred in finding he received effective assistance of counsel where trial counsel failed to challenge the admissibility of statements Kilpatrick made to police without the benefit of Miranda warnings; and (2) the trial court erred in failing to give his requested charge of self-defense in addition to his charge on accident. Discerning no error, we affirm.

Construed in favor of the verdict, the evidence showed that Kilpatrick and a woman were arguing when McArthur Robison, who had transported the woman to the scene, attempted to drive away to avoid the confrontation. To prevent this escape, Kilpatrick removed the keys from Robison’s vehicle and threw them over a fence. Kilpatrick punched Robison, bloodying his nose. Kilpatrick then threatened to rob Robison, so Robison put his vehicle in neutral and coasted down the hill to escape. Using his own vehicle, Kilpatrick chased after Robison and, upon reaching him, placed a gun to Robison’s head. He then shot Robison three times in his legs, leading to the amputation of a portion of Robison’s right lower leg. Kilpatrick left with money from Robison or from a purse in Robison’s car.

Kilpatrick testified that he and the woman agreed that Kilpatrick was to receive certain money contained in her purse, but that Robison took the purse and tried to escape with it in his vehicle. At the woman’s request to retrieve her purse, Kilpatrick chased after Robison and approached him with a gun, which Kilpatrick held pointed down. Robison tried to wrest the gun from Kilpatrick, and when Kilpatrick resisted, the gun accidentally fired, injuring Robison. The court gave Kilpatrick’s jury charge on accident but not his charge on self-defense.

The jury acquitted Kilpatrick of armed robbery and of possession of a firearm by a convicted felon, but found him guilty of aggravated assault and aggravated battery. The court merged the aggravated assault count into the aggravated battery count and gave Kilpatrick a 20-year sentence. Kilpatrick moved for a new trial, asserting ineffective assistance of counsel and failure to give his requested self-defense jury charge. Following the denial of his motion, Kilpatrick appealed.

1. To succeed on an ineffective assistance of counsel claim, Kilpatrick bore the burden of proving that trial counsel’s performance was deficient and that it prejudiced him so as to deprive him of a fair trial. “There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy.” Strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client and, when made after thorough investigation, are virtually unchallengeable. Thus, trial strategy and tactics simply do not equate with ineffective assistance of counsel. Only if the tactical decisions are so patently unreasonable that no competent attorney would have chosen them would there be grounds for finding deficient performance. In making this determination, the trial court judges reasonableness by the circumstances at the time, and not by hindsight or results.

The trial judge, who oversaw the trial and who heard the evidence presented at the motion for new trial hearing, makes the findings on whether the performance was deficient and whether it prejudiced the defendant, findings that we do not disturb unless clearly erroneous. Here the judge without explanation simply denied the motion for new trial, and thus we operate from the premise that the judge found against Kilpatrick on both questions.

The issue was trial counsel’s decision not to challenge the admissibility of statements Kilpatrick made to police. Some evidence showed that as Kilpatrick willingly approached the first officer on the scene, he volunteered that he shot the victim. To secure Kilpatrick’s safety from a gathering hostile crowd, the officer placed Kilpatrick in the back of the police car to question him. The officer testified that Kilpatrick was not under arrest. During the questioning (and without Miranda warnings), Kilpatrick again stated he. shot the victim and explained that the incident arose out of money owed him by a woman due to her selling him defective cell phones. He also told the officer where to find the gun in his car. When taken to police headquarters, he repeated that he shot the victim, again before any Miranda warnings. At trial Kilpatrick testified that he never told police he shot the victim, and at the motion for new trial hearing he testified that he was handcuffed before being placed in the back of the police car.

When questioned why he did not challenge the admissibility of the statements, trial counsel repeatedly emphasized that it was a matter of trial strategy. “[M]y strategy was . . . to go ahead and show that Rodney cooperated, and I think he did. He told the officer, ‘Hey, I had the gun. I was trying to get my money back.’ We were trying to show the jury that he was very cooperative.” He even told police where to find the gun.

Counsel further testified that his strategy provided an avenue to get in Kilpatrick’s immediate explanation to the police that it was not a robbery but simply an attempt to recover the cell phone money owed him by the woman, which attempt tragically resulted in an accidental shooting. Counsel pointed out that these tactics were successful in that Kilpatrick was acquitted on the armed robbery charge, which had carried a possible life sentence. Counsel emphasized that before trial he discussed this strategy with Kilpatrick and his family. Finally, counsel testified that he felt the evidence showed that Kilpatrick was held in the police car for his own protection and was not under arrest, and thus an admissibility challenge would have been unsuccessful in any case.

The trial court was authorized to find credible trial counsel’s explanation that the decision was tactical and that counsel reasonably believed Kilpatrick’s statements were not made in custody. As evidence supported a finding that the decision was one of reasonable tactics, we hold that the trial court did not clearly err in denying Kilpatrick’s motion for new trial on grounds of ineffective assistance of counsel.

2. Kilpatrick requested in writing that the trial court charge the jury on both accident and self-defense. He contends that the court erred in giving only the accident charge.

“Generally, either accident or self defense will be involved in a case, but not both.” This is because they are for the most part mutually exclusive, in that self-defense involves an intentional act and accident does not. Only in a “rare” case will a charge on both accident and self-defense be authorized. Such a case would be “where a party who is armed with a weapon contends that while he was defending himself from another party, his weapon accidentally discharged and killed that other party.” Thus, Koritta v. State held that a charge on both was required where the evidence showed that although it appeared defendant’s gun went off accidentally, the defendant at the time was engaged in an intentional attempt to ward off the victim’s attacks.

Here we have no evidence of any attacks or aggression by the victim. To the contrary, according to Kilpatrick’s own testimony, Robison did everything possible to avoid Kilpatrick’s aggression. Robison tried to escape the initial confrontation, only to have Kilpatrick take his keys. When Robison got out of the car, Kilpatrick struck him, and Robison (who was bigger) did not retaliate. Rather, Robison put his vehicle in neutral and coasted down a hill in an effort again to escape. Kilpatrick chased after Robison and approached him with a gun. Robison had no weapon. Robison attempted to disarm Kilpatrick, which Kilpatrick resisted, and the shooting occurred during the struggle. Kilpatrick denied squeezing the trigger or intending to shoot Robison. He claims that he resisted the efforts to disarm him out of a fear that Robison would take the gun and shoot him.

Decided December 13, 2001

Dell Jackson, for appellant.

Rodney Kilpatrick, pro se.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Michele T. McCutcheon, Assistant District Attorneys, for appellee.

This evidence may show accident, but it hardly shows self-defense. Indeed, it would turn the law on its head to allow an armed aggressor, who confronts an unarmed nonthreatening victim, to claim self-defense when the victim is shot during the victim’s struggle to disarm the aggressor. The court did not err in refusing to charge the jury on self-defense.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        Earnest v. State, 262 Ga. 494, 496 (5) (422 SE2d 188) (1992), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); see Adkinson v. State, 245 Ga. App. 178, 179 (3) (537 SE2d 474) (2000) (burden on defendant).

       (Citations and punctuation omitted.) Earnest, supra, 262 Ga. at 496 (5).

        Stephens v. State, 265 Ga. 120, 122 (2) (453 SE2d 443) (1995); Adkinson, supra, 245 Ga. App. at 179 (3); Teat v. State, 237 Ga. App. 867, 869 (2) (516 SE2d 794) (1999).

        Rogers v. State, 247 Ga. App. 219, 232 (18) (b) (543 SE2d 81) (2000).

        Mack v. State, 242 Ga. App. 256, 258 (2) (c) (529 SE2d 393) (2000); see Adkinson, supra, 245 Ga. App. at 180 (3) (“ ‘an attorney’s judgment need not necessarily be right, so long as it is reasonable.’ [Cits.]”).

        Slade v. State, 270 Ga. 305, 307 (2) (509 SE2d 618) (1998).

       Id. at 308 (2); Johnson v. State, 266 Ga. 380, 383 (2) (467 SE2d 542) (1996).

       Cf. Lobdell v. State, 256 Ga. 769, 773 (6) (353 SE2d 799) (1987) {“Tor Miranda to apply a person must be taken into custody or otherwise deprived of his freedom of action in some significant way”).

       See Stansell v. State, 270 Ga. 147, 149-150 (2) (510 SE2d 292) (1998); Earnest, supra, 262 Ga. at 496-497 (5).

       Cf. Himmel v. State, 246 Ga. App. 845, 849 (2) (b) (542 SE2d 557) (2000).

        Turner v. State, 262 Ga. 359, 360 (2) (b) (418 SE2d 52) (1992).

       Cf. id. at 360-361 (2) (b), (c).

        Prayor v. State, 217 Ga. App. 56, 59 (5) (456 SE2d 664) (1995).

       (Footnote omitted.) Turner, supra,' 262 Ga. at 360 (2) (b).

       263 Ga. 703, 704-705 (438 SE2d 68) (1994).

       See also Turner, supra, 262 Ga. at 360 (2) (a) (self-defense charge authorized where victim attacked defendant with knife).

       See Strong v. State, 263 Ga. 587, 588-589 (2) (436 SE2d 213) (1993); Penn v. State, 224 Ga. App. 616, 618 (481 SE2d 602) (1997).

       See OCGA § 16-3-21 (b) (3).