text:
    A96A0598.
    ELDRIDGE et al. v. ARONSON et al.
    (472 SE2d 497)
   Judge Harold R. Banke.

Bill and Jane Eldridge, the custodial parents of David Eldridge, sought damages under OCGA § 51-1-18 (a) against Mark and Patricia Aronson for allegedly furnishing alcoholic beverages to their underage son without their permission. The Eldridges appeal the trial court’s grant of Mark Aronson and Patricia Aronson’s separate motions for summary judgment.

Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the evidence was as follows. On the afternoon of March 11, 1989, Justin Gross, age 16, accompanied Patricia Aronson to a liquor store where she purchased a substantial quantity of alcoholic beverages including at least two boxes of wine coolers and six or seven cases of beer including Foster’s Lager. Gross helped Aronson take the alcoholic beverages to the Aronsons’ residence, allegedly bought for a party to be held that night for high school friends of Jason Aronson. Gross testified that on previous occasions he had observed both Aron-sons serve alcohol to high school students. Although Patricia Aronson was present at the party, Mark Aronson was not. Gross testified that Patricia Aronson was serving beer, that she encouraged the students to help themselves to the beer in the refrigerator, and was standing by the refrigerator as David Eldridge, age 16, took out a Foster’s Lager. Gross stated that he observed David Eldridge consume at least two Fosters that night at the Aronsons’ house. Patricia Aronson denied serving David Eldridge any alcoholic beverages.

The trial court granted summary judgment to Mark Aronson based primarily on evidence that he was out of town on March 11, 1989, and had no knowledge of the party being held at his house. Relying on OCGA § 51-1-40 (d), and concluding that “ ‘a provider of alcoholic beverages cannot be held liable to a consumer of alcoholic beverages for injuries sustained as a result of such consumption,’ ” the trial court determined that both Aronsons were entitled to summary judgment as a matter of law. Held:

1. The trial court erroneously granted summary judgment to Patricia Aronson. OCGA § 51-1-18 (a) is a statutory tort vesting a right to a cause of action to custodial parents of a minor child against anyone who sells or furnishes alcoholic beverages to and for the use of their minor child without the parent’s permission. “The purpose of the statute is to prevent the furnishing of alcoholic beverages to underage children in the absence of parental consent.” Stepperson, Inc. v. Long, 256 Ga. 838, 839 (1) (353 SE2d 461) (1987). See Wright v. Smith, 128 Ga. 432, 433 (57 SE 684) (1907) (recovery of both general and special damages authorized by this tort action). It is undisputed that the Eldridges were the custodial parents of David Eldridge and that neither gave permission for the Aronsons to supply David with alcoholic beverages. Whether the Aronsons furnished David Eldridge alcohol for his use is a disputed issue of material fact.

We reject the Aronsons’ contention that the Eldridges’ recovery is foreclosed by OCGA § 51-1-40 which precludes recovery by a consumer against a provider. That statute has no application under these facts because the alleged consumer (David Eldridge) did not bring an action for damages and is not a party. See OCGA § 51-1-40; compare Sutter v. Hutchings, 254 Ga. 194 (327 SE2d 716) (1985) (decided prior to the legislative enactment of limited statutory liability under OCGA § 51-1-40). Here, the parents are seeking damages in their own right for an alleged violation of the statutory prohibition against furnishing alcoholic beverages to a minor.

The Aronsons’ reliance on Burch v. Uokuni Intl., 192 Ga. App. 861 (386 SE2d 889) (1989) is misplaced because in that case, the child involved was 19 years old, not a minor, and recovery by the father pursuant to OCGA § 51-1-18 was barred because his son had attained the age of majority. Burch, 192 Ga. App. at 862. OCGA § 51-1-18 (a). Moreover, the father’s attempt to recover expenses incurred on his son’s behalf as a result of the accident was a thinly veiled attempt to circumvent the prohibition against a consumer of alcohol recovering against a provider. Burch, 192 Ga. App. at 862. Whereas, in this case, the Eldridges seek damages in their own right as parents. Steedley v. Huntley’s Jiffy Stores, 209 Ga. App. 23, 24 (3) (432 SE2d 625) (1993) does not demand a different result because in that case the minor and his parents sought to recover damages for the minor’s injuries suffered in a serious motor vehicle collision. Compare Wright, 128 Ga. at 433.

Decided June 6, 1996

Adele L. Grubbs, Amelia G. Pray, for appellants.

By holding as it did, the trial court judicially abolished the Eldridges’ statutory right to bring suit under OCGA § 51-1-18 (a). To eliminate the parental cause of action is to abolish by judicial fiat what the legislature chose to permit. As recently as 1988, the legislature indicated its interest in continuing the viability of this tort action by rewriting the parental right of recovery in gender neutral terms. For these reasons, we reverse summary judgment.

2. Mark Aronson was not entitled to summary judgment because material issues of disputed fact remain unresolved. To avoid summary judgment, the Eldridges had to present some evidence that Mark Aronson “furnished” alcohol to their son David. “As used in the liquor laws, ‘furnish’ means to provide in any way, and includes giving as well as selling.” Black’s Law Dictionary (5th ed.). The evidence showed that Mark Aronson had served alcohol to high school students on several previous occasions, and Aronson admitted that he had purchased alcohol for his son and friends to drink on at least one other occasion. Moreover, this was not the first party at the Aron-sons’ home where alcohol was served to minors. Patricia Aronson testified that with her husband’s knowledge, she regularly purchased alcoholic beverages from a joint account financed by his business. The fact that Mark Aronson did not personally attend the party does not settle the question of whether he “furnished” alcoholic beverages within the meaning of the law. Because there are unresolved issues of disputed material fact, summary judgment must be reversed. Lau’s Corp., 261 Ga. at 491.

Judgment reversed.

Pope, P. J., and Andrews, J., concur.

Downey & Cleveland, Rodney S. Shockley, for appellees.

       Bill Eldridge individually and as administrator of his son’s estate filed a separate federal action against various Cobb County law enforcement officials to recover for damages allegedly sustained when David Eldridge was beaten by the police.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A93A1303.
    ICI AMERICAS, INC. v. BANKS et al.
    (472 SE2d 570)
    Decided June 7, 1996.

      Rogers & Hardin, Brett A. Rogers, Phillip S. McKinney, Susan D. Burnell, Schweber, Izenson & Anderson, Barry L. Anderson, Hagler, Hyles, Adams & McKenna, M. Stephen Hyles, for appellant.
   Andrews, Judge.

In Banks v. ICI Americas, 264 Ga. 732 (450 SE2d 671) (1994), our decision in ICI Americas v. Banks, 211 Ga. App. 523 (440 SE2d 38) (1993), reversing the trial court’s judgment in favor of the plaintiffs, Banks et al., was affirmed in part, reversed in part, and remanded to this Court with directions “that a new trial be granted [to the plaintiffs on their defective design claim] unless a new trial is precluded by the Court of Appeals’ resolution of the remaining enumerations of error [raised by ICI].” Banks, 264 Ga. at 737. On remand in ICI Americas v. Banks, 218 Ga. App. 237 (460 SE2d 797)

(1995) , we addressed ICI’s remaining enumerations of error and concluded that none of those enumerations precluded a new trial. We also concluded that, in a new trial under the new risk-utility analysis adopted and retroactively applied by the Supreme Court in Banks, supra, 264 Ga. 732, punitive damages could not be awarded against ICI if the jury found it failed to comply with the new retroactively applied rule. In Banks v. ICI Americas, 266 Ga. 607 (469 SE2d 171) (1996) , the Supreme Court held that “the Court of Appeals erred by holding that plaintiffs are barred upon retrial from seeking punitive damages and its opinion is accordingly reversed.”

Pursuant to the above cited decisions of the Supreme Court, our decision in Banks, supra, 218 Ga. App. 237 is vacated, and the judgment of the Supreme Court is made the judgment of this Court. Accordingly, as to the plaintiffs’ claims based on inadequate or inaccurate product labeling, the judgment of the trial court is reversed. Banks, supra, 211 Ga. App. 523, 527, aff’d, 264 Ga. 732, 737. As to the plaintiffs’ design defect claims, the trial court’s judgment is vacated, and the case is remanded for a new trial under the new test for design defect claims set forth by the Supreme Court in Banks, supra, 264 Ga. 732.

Judgment reversed in part, vacated in part, and case remanded with directions.

Beasley, C. J., McMurray, R J, Birdsong, P. J, Pope, P. J., Johnson, Blackburn, Smith and Ruffin, JJ, concur.

Webb, Carlock, Copeland, Sender & Stair, Wade K. Copeland, Doffermyre, Shields, Canfield & Knowles, Robert E. Shields, Denney, Pease, Allison, Kirk & Lomax, Ray L. Allison, Richard A. Childs, for appellees.


text:
    A96A0409.
    SOUTHFUND PARTNERS v. CITY OF ATLANTA.
    (472 SE2d 499)
   Andrews, Judge.

Southfund Partners (“Southfund”) appeals from the trial court’s order granting the City of Atlanta’s (“City’s”) motion for summary judgment on Southfund’s claims of inverse condemnation and continuing nuisance. We affirm the judgment of the trial court.

The land in question is an 80 acre tract of undeveloped property that Southfund bought in May 1984, with the intention of developing it for residential use. The property lies within the 70 to 75 Level of Day/Night Noise contour lines of Hartsfield Airport and is 3.2 miles from Runway 26R and Runway 26L. Runway 26L has been in operation since 1969 and Runway 26R became operational in December 1984.

In 1993, Southfund presented its residential plan to Bill Kennedy, the City Planner. Kennedy informed Southfund that any request for rezoning would be denied due to the property’s proximity to the airport. As a result of this inability to rezone, a contract for the sale of the property became null and void.

On June 17, 1994, Southfund served the City with an ante litem notice under OCGA § 36-33-5. On September 28, 1994, Southfund filed a complaint against the City alleging that alterations in flight paths and an increase in noise since the property was purchased have made the property unmarketable. Southfund also claimed that the level of noise would cause emotional and physical injury to any future occupant of the property.

The trial court found that Southfund’s claims were barred because the complaint was filed more than four years after the alleged taking and damages became immediately apparent; namely, when Runway 26R became operational. Further, the court found since Southfund failed to show any increase in flights or noise levels since 1987, it could not support its contention that the airport was a continuing nuisance.

Southfund argues on appeal that because the City presented no evidence showing specifically the noise levels or overflights at the property in question, it cannot show that the nuisance did not increase during the past four years. Alternatively, Southfund argues the statute of limitation does not accrue until the landowner is denied compensation for the taking and, therefore, the complaint is not barred by the statute of limitation. As to its nuisance claim, Southfund contends this is not time barred because the airport is a continuing nuisance and the statute of limitation begins to run with each fresh occurrence of the injury complained of.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. ... A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

1. Southfund’s claims are governed by the four-year statute of limitation for trespass or damage to realty under OCGA § 9-3-30. City of Atlanta v. Starke, 192 Ga. App. 267, 268 (384 SE2d 419) (1989). Accordingly, as Southfund’s complaint was filed on September 28, 1994, its cause of action for inverse condemnation must have accrued after September 28, 1990.

The City submitted evidence showing that the number of flights of the noisier Stage 2 aircraft declined from 1077 flights daily in 1987 to 479 flights in 1991, and then to 369 flights in 1993. Further, although there was a corresponding increase in quieter Stage 3 aircraft, the total number of flights has not increased since September 1990, and flight patterns have not changed since February 1986.

Southfund does not dispute the accuracy of this evidence, but instead contends the City is not entitled to summary judgment because it presented no evidence specific to the noise levels and overflights at Southfund’s property. We disagree. The City’s evidence as to the frequency of flights, flight patterns, and reduction in numbers of flights of Stage 2 aircraft, is sufficient to show there has been no increase in the nuisance over Southfund’s property and, if Southfund had a cause of action, it accrued more than four years prior to the date of the filing of their complaint. See Provident Mutual Life Ins. Co. v. City of Atlanta, 864 FSupp. 1274, 1284 (N.D. Ga. 1994). In light of this, Southfund cannot rest on its pleadings, but, in order to create a triable issue, must point to some specific evidence showing that the overall reduction in noise levels does not apply to its property. Lau’s Corp., supra at 491. As Southfund has submitted no evidence on this issue, we find the trial court correctly granted summary judgment to the City on the inverse condemnation claim.

2. Alternatively, Southfund argues its cause of action did not accrue until it was denied compensation for the taking. But, that is not the law in Georgia. The Georgia Constitution, Art. I, Sec. Ill, Par. I, provides: “(a) Except as otherwise provided in this Paragraph, private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.” Therefore, as the court points out in Provident Mutual, the denial of just compensation is operative at the moment of the taking. Provident Mutual, supra at 1282. In this instance, we find the moment of taking to be the time when the runways became operational and the injury became immediately apparent. Even if it can be argued that a new taking occurred when the number of flights increased in 1987, this is still outside the four-year statute of limitation.

3. Southfund also argues that its claim of nuisance is not barred by the four-year statute of limitation because the airport is a continuing nuisance and the statute of limitation begins to run with each fresh occurrence of the nuisance.

In City Council of Augusta v. Lombard, 101 Ga. 724 (28 SE 994) (1897), the Georgia Supreme Court discussed the tests for determining whether a nuisance is continuing or permanent as follows: “A nuisance, permanent and continuing in its character, the destruction or damage being at once complete upon the completion of the act by which the nuisance is created, gives but one right of action, which accrues immediately upon the creation of the nuisance and against which the statute of limitations begins, from that time, to run. . . . Where a nuisance is not permanent in its character but is one which can and should be abated by the person erecting or maintaining it, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie.” (Citations and punctuation omitted.) Id. at 727. Further, i£[w]here one creates a nuisance and permits it to remain, it is treated as a continuing wrong and giving rise, over and over again, to causes of action. But the principle upon which one is charged as a continuing wrong-doer is, that he has a legal right, and is under a legal duty, to terminate the cause of the injury.” Id.

Applying these principles to the instant case, we find the airport to be a permanent rather than a continuing nuisance. Once Runway 26R was completed in 1984, its use necessarily constituted an injury to Southfund’s property. Further, as previously discussed, the damage to the property was complete and capable of being fully compensated from the first day the runway became operational.

We note the District Court came to the same conclusion in Provident Mutual Life Ins. Co. v. City of Atlanta, No. 1:93-CV-1341-JTC (N.D. Ga. March 28, 1995). In that case, the court found that the operation of the airport is done for the public’s benefit, the noise, vibration, and pollution associated with its operation will not be abated, and this damage was apparent from the initial operation of the runway. Accordingly, the court determined that the airport was not a continuing nuisance and the claim was barred by the statute of limitation. Id.

Further, although Southfund alleges the noise injury comes from improper operations and maintenance of the airport and improper operation of the Noise Abatement Program, it points to no evidence of this in the record. Inasmuch as the City has presented evidence of the airport’s proper construction, maintenance, noise abatement operations and environmental protection measures, Southfund may not rest on its pleadings but must point to some evidence creating a triable issue. Lau’s Corp., supra at 491.

Accordingly, we find the airport is not a continuing nuisance in the instant case. Therefore, since the damage complained of became apparent at the time the runways in question began operating, and since Southfund does not show any increase in the nuisance occurring within the four-year period prior to the bringing of its complaint, the nuisance claim is likewise barred by the applicable four-year statute of limitation. The trial court did not err in granting the City’s motion for summary judgment on this claim.

4. In light of our findings that Southfund’s claims are barred by the applicable statute of limitation and rejecting its contention that the airport is a continuing nuisance, we need not address South-fund’s remaining arguments concerning the constitutionality vel non of OCGA § 36-33-5 requiring ante litem notice to municipalities.

Decided June 7, 1996

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, for appellant.

Clifford E. Hardwick IV, Charles G. Hicks, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       The Level of Day/Night Noise or “LDN” represents the amount of noise the property is subjected to over the period of a year.

       The aircraft operating out of Hartsfield are classified as Stage 2 or Stage 3 aircraft, with Stage 3 being the quieter of the two types.

       See Duffield v. DeKalb County, 242 Ga. 432 (249 SE2d 235) (1978) (increase in activity-may constitute a “fresh” nuisance).

       In the first Provident Mutual case, the U. S. District Court granted summary judgment to the City on plaintiff’s inverse condemnation claim based on a physical taking and denied summary judgment on plaintiff’s claims of nuisance and inverse condemnation because of nuisance. See Provident Mutual Life Ins. Co. v. City of Atlanta, 864 FSupp. 1274 (N.D. Ga. 1994). In the second case, on renewed motion for summary judgment, in an unpublished opinion, the court granted summary judgment to the City on plaintiff’s remaining claims. The court held that the airport was a permanent, not a continuing nuisance, and, therefore, the claims were time-barred. Provident Mutual Ins. Co. v. City of Atlanta, No. 1:93-CV-1341-JTC (N.D. Ga. March 28, 1995).


text:
    A96A0454.
    SMITH v. THE STATE.
    (472 SE2d 503)
   Andrews, Judge.

A Bibb County jury convicted William C. “Spud” Smith, Jr., of one count of “omission to practitioner” (OCGA § 16-13-43 (a) (6)), in that he obtained from one physician a prescription for a powerful Schedule II painkiller called hydrocodone but withheld from that doctor the fact that he had, in the same time period, obtained from another doctor a prescription for a different brand of the same drug. His sole ground of appeal is the trial court’s failure to grant his motion to suppress evidence he claims led to the conviction. Because we find this conviction was not based on any evidence which Smith sought to suppress, we affirm the trial court’s judgment.

Smith was tried on two joined indictments. The first charged him with possession of Percocet, Valium, Dilaudid, and Vicodin with intent to distribute and with possession of burglary tools. The second indictment contained seven counts of omission to practitioner. The trial court granted him directed verdicts on all but one of the “omission to practitioner” counts and on the charge of possessing burglary tools. The jury acquitted on all remaining counts except the one “omission to practitioner” charge.

Smith based his motion to suppress on alleged irregularities in a search of his car and motel room by Macon police on August 2, 1994. He sought to exclude the drugs seized in those searches, as well as “all seized items, things, and testimony.”

Smith’s conviction on the charge of “omission to practitioner” resulted from the testimony of two of Smith’s physicians and two pharmacists who filled his prescriptions. That evidence showed that on April 21, 1994, Smith obtained from one doctor a prescription for 60 tablets of Lorcet Plus (hydrocodone), a Schedule II drug. On April 23, 1994, Smith filled a prescription for that amount of this drug. Smith obtained another prescription for hydrocodone on April 25, 1994 from another doctor but did not tell that doctor he had already obtained 60 tablets of the drug just two days before. He filled this second prescription a week later.

Decided June 7, 1996.

Althea L. Buafo, for appellant.

Charles H. Weston, District Attorney, Kirby H. Wincey, Jr., Laura D. Hogue, Assistant District Attorneys, for appellee.

1. First, we note Smith made no objection to this testimony at trial on any of the constitutional grounds he raises in this appeal. “Only tangible physical evidence is subject to motions to suppress. . . . [TJestimony is outside the scope of a motion to suppress[ ] and should be objected to on the trial.” (Citations and punctuation omitted.) Stephenson v. State, 171 Ga. App. 938, 939 (321 SE2d 433) (1984); see also Robinson v. State, 208 Ga. App. 528, 530 (2) (430 SE2d 830) (1993); Bradshaw v. State, 163 Ga. App. 819, 820 (1) (296 SE2d 119) (1982). Smith’s motion to suppress cannot be deemed a motion in limine to exclude this testimony, so he has failed to preserve any objection to it. See Bradley v. State, 213 Ga. App. 468 (1) (444 SE2d 842) (1994).

2. Even assuming the court erred in failing to grant Smith’s motion to suppress, the record clearly shows this testimony is no “fruit of the poisonous tree.” At the time of the search, Smith was on probation for selling prescription drugs, and for several months before the search Macon police had suspected him of continuing that practice. He was convicted based upon evidence and testimony obtained by subpoena from his physicians and pharmacists, not upon any materials seized.

Because this evidence was adduced independently of the séarches and seizures, “any error which may have been committed in denying the motion to suppress was harmless.” Norris v. State, 176 Ga. App. 164, 168 (7) (335 SE2d 611) (1985). “[E]ven if [this] evidence would not have been discovered but for the [allegedly] illegal police conduct, [because] the derivative evidence has only an attenuated link to the [alleged] illegality, it need not be suppressed.” Ruffin v. State, 201 Ga. App. 792, 793 (2) (412 SE2d 850) (1991) (citing Wong Sun v. United States, 371 U. S. 471, 487 (83 SC 407, 9 LE2d 441) (1963)). See also Lewis v. State, 180 Ga. App. 890, 892 (3) (351 SE2d 100) (1986), holding that “[p]roof of the same fact by legally admissible evidence renders harmless admission of incompetent or inadmissible evidence.” As the validity of the searches and seizures is immaterial to the conviction, we need not address that issue.

Judgment affirmed.

Pope, P. J., and Smith, J, concur.


author: Smith, Judge.

text:
    A96A0416.
    MULLER et al. v. ENGLISH.
    (472 SE2d 448)
   Smith, Judge.

This is a case of first impression construing the Injuries From Equine Activities Act, OCGA § 4-12-1 et seq., which provides immunity from liability for certain equine and llama activities. Because the activity in question here falls within the purview of the Code section, we conclude the trial court erred in denying defendants’ motion for summary judgment.

Dyna English, a rider and fox hunter of over 20 years’ experience, was injured during a hunt sponsored by appellant Shakerag Hounds, Inc. English, riding her own horse, was in a small group known as the “hilltoppers” led by appellant Henry Muller. According to Muller’s wife and the other riders in that small group, English was kicked by Muller’s horse when she “lost control” and allowed her horse to run up “really fast” and cut between Muller and his wife, who was riding immediately behind him. According to English, she was riding along at a steady pace when Muller’s horse suddenly and without warning kicked her in the leg.

English brought this action against Muller and Shakerag, seeking actual and punitive damages. Defendants answered, asserting OCGA § 4-12-3 inter alia as an affirmative defense, and moved for summary judgment on the basis of that Code section and assumption of the risk. The trial court denied summary judgment and certified the judgment for immediate review. We granted the application of Muller and Shakerag for interlocutory appeal.

1. The Injuries From Equine Activities Act, OCGA § 4-12-1 et seq., was enacted in 1991. The General Assembly made express legislative findings that “persons who participate in equine activities . . . may incur injuries as a result of the risks involved in such activities,” that “the state and its citizens derive numerous economic and personal benefits from such activities,” and that “[i]t is, therefore, the intent of the General Assembly to encourage equine activities ... by limiting the civil liability of those involved in such activities.” OCGA § 4-12-1.

OCGA § 4-12-3 (a) provides that “an equine activity sponsor, an equine professional ... or any other person . . . shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities,” subject to certain exceptions provided in subsection (b). “Equine activity sponsor,” “equine professional,” “participant,” and “inherent risks of equine activities” are defined in OCGA § 4-12-2. Specifically, “‘[inherent risks of equine activities’. . . means those dangers or conditions which are an integral part of equine activities . . . including, but not limited to: (A) The propensity of the animal to behave in ways that may result in injury, harm, or death to persons on or around them; (B) The unpredictability of the animal’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals; (C) Certain hazards such as surface and subsurface conditions; (D) Collisions with other animals or objects; and (E) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within his or her ability.” OCGA § 4-12-2 (7). English does not dispute that this incident falls within the general scope of the Act. English contends, however, either that Muller and Shakerag have failed to comply with certain conditions precedent to the Act, or that they fall under one of the enumerated exceptions to immunity.

To invoke the privileges of immunity provided by the Code section, an equine activity sponsor or equine professional must post warning signs containing the text specified in OCGA § 4-12-4 (b), and certain contracts between equine activity sponsors or equine professionals and participants must contain the same language. OCGA § 4-12-4 (a). English contends that Shakerag failed to comply with the Code because it posted “a single sign” rather than “signs” at the start of the day’s hunt, and that the sign was not “conspicuously posted” because English and some other members of the hunt did not recall seeing it.

The precise wording of the Code section requires only that such signs be posted “on or near stables, corrals, or arenas where the equine professional or the equine activity sponsor conducts equine activities.” OCGA § 4-12-4 (a). Foxhunting, however, does not involve stables, corrals, or arenas. The undisputed testimony in this case shows that the sport is conducted across miles of open rural country, its route and distance are not predictable because they are determined by the path of the fox or other animal, and it ordinarily begins with riders conveying their horses by trailer to a “meet” in any number of locations on the property of numerous landowners.

One of the Shakerag masters testified that she purchased seven signs before this incident. She kept one or two signs in her trailer and posted five: one at the Shakerag clubhouse and the others at various locations at which the hunt frequently met. Because the hunt on the day of the incident did not begin at one of these locations, a sign was placed on a vehicle windshield. The master particularly recalled this because at the start of the meet she “advised everyone for a period of time about the Georgia law poster, that it was clearly in sight and that this was something new and that they needed to be aware of it.” Moreover, English also signed a release that contained the full text of the statutory warning sign as required by OCGA § 4-12-4 (a). Substantial compliance with a statutory requirement shall be deemed sufficient. OCGA § 1-3-1 (c). Because the unique circumstances of fox hunting were not expressly contemplated by the Act, we conclude that the efforts made to post signs and the inclusion of the prescribed language in the release signed by English amounted to substantial compliance with the requirements of OCGA § 4-12-4.

2. English also relies upon certain exceptions provided in OCGA § 4-12-3 (b) to contend that Shakerag and Muller are not entitled to the immunity granted by the statute.

(a) English first asserts that Muller falls under the exception in OCGA § 4-12-3 (b) (1) (B), which makes immunity inapplicable when the “equine activity sponsor, an equine professional... or any other person . . . [p]rovided the animal and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity . . . and to safely manage the particular animal based on the participant’s representations of his or her ability.” She contends the evidence calls into question Muller’s “ability to safely manage the particular animal.” This section is inapplicable by its terms because no defendant “[p]rovided the animal” to the participant, English, “based on the participant’s representations of his or her ability”; she was riding her own mount.

(b) English also attempts to rely on subsection (b) (2), which provides an exception when the person seeking the benefit of the statute “[o]wns, leases, rents, or otherwise is in lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition which was known or should have been known to the equine activity sponsor, equine professional ... or person and for which warning signs have not been conspicuously posted.” She asserts that Muller’s horse amounted to a “dangerous latent condition” on Muller’s land, where the incident occurred. English relies on the proposition that a vicious animal “permitted ... by careless management, to go at liberty” may constitute a dangerous condition on the property of an owner or occupier of land. Sutton v. Sutton, 145 Ga. App. 22, 24-25 (243 SE2d 310) (1978) (vicious bull running at large). This proposition seems inapplicable, because Muller’s horse was not “at liberty.” It was under the direct control of its rider and was merely passing across land owned by the rider.

We need not reach this question, however, because the exception in OCGA § 4-12-3 (b) (2) applies only to those conditions “for which warning signs have not been conspicuously posted.” The text of the warning signs required by OCGA § 4-12-4 (b) explicitly refers to “the inherent risks of equine activities, pursuant to Chapter 12 of Title 4 of the Official Code of Georgia Annotated.” These inherent risks include “[t]he propensity of the animal to behave in ways that may result in injury,” “[t]he unpredictability of the animal’s reaction” to persons and things around it, and “[t]he potential of a participant to act in a negligent manner that may contribute to injury.” OCGA § 4-12-2 (7). As noted above, a warning sign was posted at the start of the hunt on the day of the incident, and English additionally signed a release that contained the statutory warning as required by the Code section.

Moreover, the construction of subsection (b) (2) urged by English would amount to a nullification of the statute with respect to the very risks for which it provides immunity where the defendant “owns, leases, rents, or otherwise is in lawful possession and control of the land or facilities upon which the participant sustained injuries.” This would effectively vitiate the statute’s application to most stables, riding schools, colleges, horse show sponsors, instructors, and trainers, see OCGA § 4-12-2 (5), providing immunity only for trespassers conducting equine activities on another’s property without permission. “It is a basic rule of construction that a statute or constitutional provision should be construed to make all its parts harmonize and to give a sensible and intelligent effect to each part, as it is not presumed that the legislature intended that any part would be without meaning.” (Citations and punctuation omitted.) Gilbert v. Richardson, 264 Ga. 744, 747-748 (3) (452 SE2d 476) (1994). The General Assembly could not reasonably have intended to provide immunity only for trespassers, or to base liability for equine behavior exclusively on the ownership of the property where the injury occurred.

(c) English next contends the exception under OCGA § 4-12-3 (b) (3) applies because Muller’s conduct in riding a “vicious horse with a known propensity to kick in a fox hunt” constitutes “an act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or omission caused the injury.” We disagree, because English has failed to present evidence that the horse’s conduct was anything other than ordinary equine behavior, at least in the context of fox hunting.

Georgia decisions have defined “willful” and “wanton” in the context of other statutory enactments as well as the common law. These definitions are essentially consistent, regardless of context. “Wilful conduct is based on an actual intention to do harm or inflict injury; wanton conduct is that which is so reckless or so charged with indifference to the consequences as to be the equivalent in spirit to actual intent.” (Citations and punctuation omitted.) Chrysler Corp. v. Batten, 264 Ga. 723, 726 (3) (450 SE2d 208) (1994) (statute of repose in products liability). “Wilful misconduct, or wilful failure or refusal to perform a duty required by statute, is more than negligence or even gross negligence; it involves conduct of a criminal or quasi-criminal nature, the intentional doing of something, either with the knowledge that it is likely to result in serious injury, or with the wanton and reckless disregard of its probable consequences.” (Citations, punctuation, and emphasis omitted.) Wilbro v. Mossman, 207 Ga. App. 387, 390 (1) (427 SE2d 857) (1993) (workers’ compensation). See also Cullen v. Novak, 201 Ga. App. 459, 460 (411 SE2d 331) (1991) (award of punitive damages under OCGA § 51-12-5). “In order to prove wilful or wanton conduct, a plaintiff must demonstrate that a defendant’s acts were such as to evidence a wilful intention to inflict the injury, or else were so reckless or so charged with indifference to the consequences ... as to justify . . . finding a wantonness equivalent in spirit to actual intent.” (Citations and punctuation omitted.) McNeal Loftis, Inc. v. Helmey, 218 Ga. App. 628, 629 (462 SE2d 789) (1995) (tortious interference with burial rights).

The evidence in the record shows without dispute that fox hunting is a very dangerous sport, over and above the inherent dangers of all equine activities. English herself, an experienced rider and fox hunter, acknowledged that fox hunting was dangerous. The release that English signed at the beginning of the hunting season provides: “I fully understand that cross-country horseback riding and fox hunting (which includes riding over fences, other obstacles, and steep and rough terrain) are very dangerous activities. I wish to participate in these activities knowing they are dangerous. I accept and assume all the risks of injury (including death) to me or my property.” This release also included the text of the warning required by OCGA § 4-12-4 (b).

The witnesses in this action, including English, agreed that “horses do kick” and the particular risks of fox hunting include being kicked by a horse. Witness after witness testified that “in fox hunting or even anything to do with horses, the expectation is or the assumption is that a horse is going to kick,” particularly when horses are galloping across country in groups, often in unfamiliar surroundings and with strange horses, and that “safe hunting distance” must be maintained to keep out of kicking range of another horse. Moreover, the witnesses’ testimony is replete with accounts of kicks and injuries resulting from kicks by their own and others’ horses, some in circumstances almost identical to the incident in which English was injured.

Witnesses, including English, distinguished between a horse that kicks “on occasion” and a “habitual” or “confirmed” kicker. While English acknowledges that being kicked by a horse is a particular risk in fox hunting, she contends that Muller’s horse was unusual because it “has kicked numerous times.” She was unable, however, to support that allegation with any evidence of specific incidents. This record reflects that Muller’s horse kicked only “on occasion”: that is to say, twice in two years. The testimony showed that the horse kicked out on one occasion when another horse ran into or close to it during a runaway, and on a second occasion when Muller believed another horse nuzzled or mouthed it from behind. Both these incidents occurred within approximately six months of the horse’s purchase in the summer of 1989. Muller testified that in his opinion the horse was unfamiliar with the hunt field when purchased, but at the time of the incident in 1991, had been hunted for “something like” two or three years.

In summary, the evidence shows, and English acknowledges, that most horses “do kick,” and that kicking does occur during fox hunts. Based on the evidence presented in this case, a horse intended for the sport of fox hunting that kicks out twice at other horses during the first six months of ownership, and then does not kick again for approximately one and one-half years before this incident, is not so unusually prone to kick that continuing to ride it while fox hunting is evidence of “willful or wanton disregard” for the safety of others.

Nor can we conclude that failure to adhere to such traditional fox hunting customs as tying a red ribbon in the tail of an inexperienced or irritable horse rises to the level of wilful or wanton disregard. The evidence did not show the violation of any statutes, ordinances, regulations or guidelines officially adopted by any governing body of fox hunting, or indeed by Shakerag itself. In attempting to show that this custom amounts to a rule or regulation, English relies upon several sentences in a pamphlet published by a Virginia equine magazine and distributed by Shakerag to its members. Even if evidence had been presented that Shakerag by corporate action officially adopted the pamphlet, however, it still would not establish negligence. Standards or recommendations published by a private entity for use as guidelines do not create a legal requirement to comply with those standards, “and violation of such privately set guidelines, although admissible as illustrative of negligence, does not establish negligence. [Cit.]” Manley v. Gwinnett Place Assocs., 216 Ga. App. 379, 380-381 (2) (454 SE2d 577) (1995) (ANSI standards). Moreover, even were it to establish negligence, it would not show criminal or quasi-criminal conduct, recklessness, or indifference to the consequences so as to amount to evidence of “willful or wanton disregard for the safety of the participant.” OCGA § 4-12-3 (b) (3).

Finally, there was no agreement among the witnesses as to the precise meaning of a red ribbon; English herself did not testify that it necessarily denoted a kicker. She stated it “signifies that the horse could possibly be an inexperienced hunting horse, a horse that . . . the rider is not quite sure of” or a horse that might “buck or strike out,” or “is just not used to going forward.” Only on further questioning did she agree with her counsel that the red ribbon could “possibly” denote a horse that might kick. This lack of agreement demonstrates the danger of relying upon privately established standards or recommendations to establish negligence; moreover, as revealed in this record, the number of hunting customs and the disagreement as to their meaning make it particularly unwise to rely upon them to establish wilful and wanton conduct. This evidence is insufficient as a matter of law to support a finding that Muller’s or Shakerag’s conduct manifested a “willful or wanton disregard” for English’s safety.

Decided May 22, 1996

Reconsideration denied June 10, 1996

Lord, Bissell & Brook, James H. Wynn, for appellants.

Boone, Papadakis & Levine, James J. Gormley III, for appellee.

The evidence adduced in the trial court demonstrates that appellants fall within the scope of the Injuries From Equine Activities Act, properly invoked the privileges of immunity provided by that Act, and are subject to no exception established by the Act. Accordingly, the trial court erred in denying summary judgment.

3. Because we conclude that the trial court should have granted appellants’ motion for summary judgment on the basis of immunity under OCGA § 4-12-3, we need not consider appellants’ contention that they were entitled to summary judgment on the basis of English’s assumption of the risk.

Judgment reversed.

Pope, P. J, and Andrews, J., concur.

       The Act recognizes that llamas are camelids rather than equines. OCGA § 4-12-2 (8).

       English apparently has abandoned her contention, made at the conclusion of her deposition, that the signs “were not there.” This statement, however, conflicted with her original deposition testimony that she did not observe any signs, and thus could not say whether they were present or not. Unexplained contradictory testimony must be construed against English on summary judgment. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).

       The Act became effective on July 1, 1991. Ga. L. 1991, pp. 680, 685. This incident occurred on November 9, 1991.

       This exception appears to be intended for those equine professionals and activity sponsors, such as livery stables, trail rides, or riding schools, that hire or furnish horses to their customers and may be unable to verify the customer’s representation of his or her skill and ability.

       Had the incident here occurred a few minutes earlier or later, it would have taken place on another individual’s land.

       We do not reach the issue of the degree of equine misbehavior which might give rise to an inference of wilful and wanton disregard in a less openly hazardous equine activity, e.g., a horse used by or near small children or novice riders. See OCGA § 4-12-3 (b) (1) (B).

       The unusual hazards of fox hunting have been recognized for over 150 years. See, e.g., the oft-noted comment of John Jorrocks, M.P.H.: “ ‘Unting ... - it’s the sport of kings, the image of war without its guilt, and only five-and-twenty per cent, of its danger.” Robert Smith Surtees, Handley Cross 64 (George Bayntun 1926) (1843).

       We do not decide this appeal on the basis of assumption of the risk. However, the participants’ knowledge of the dangers of fox hunting, as in an assumption of the risk context, is relevant to the issue of wilful or wanton conduct under OCGA § 4-12-3 (b) (3). See, e.g., Sewell v. Dixie Region Sports Car Club, 215 Ga. App. 611 (451 SE2d 489) (1994), involving assumption of the risks of car racing. In Sewell the decedent was a spectator, a category of participant expressly excluded from the Equine Activities Act. OCGA § 4-12-2 (2). English, in contrast, was an active participant whose position is more analogous to a race car driver in Sewell.

       While English disputed the testimony of other witnesses that Muller’s horse was wearing a red ribbon on the day of the incident, this dispute is not material.

       This is particularly true since equal weight is often given to rules based solely in tradition and custom rather than any recognizable safety concern. Traditionally, writers on “hunting rules” make little if any distinction between such matters as warning other riders of hazards, precedence at jumps or gaps, disturbing hounds, “eccentricity of dress,” or putting a colored browband on a horse’s bridle. See, e.g., M. F. McTaggart, The Art of Riding 105-108 (4th ed. 1934); Belle Beach, Riding and Driving for Women 58-63 (1912).


author: Pope, Presiding Judge.

text:
    A94A2233.
    KILLEBREW v. SUN TRUST BANKS, INC.
    (472 SE2d 504)
   Pope, Presiding Judge.

In Killebrew v. Sun Trust Banks, 216 Ga. App. 159 (453 SE2d 752) (1995), we reversed the trial court’s grant of summary judgment for defendant bank on the grounds that a prior similar crime on the premises, reported to the police but not to the bank, created a jury question regarding the bank’s awareness of the risk of crime at its automatic teller machine (“ATM”). The Supreme Court granted certiorari and reversed our decision on this issue in Sun Trust Banks v. Killebrew, 266 Ga. 109 (464 SE2d 207) (1996). Concluding that a jury question exists regarding the bank’s superior knowledge of the danger at this ATM even in the absence of knowledge of a similar crime at that location, we again reverse the trial court’s grant of summary judgment for the bank.

1. In a premises liability case involving the criminal act of a third party, the first question is whether the criminal act was foreseeable, as the plaintiff cannot show his damages were proximately caused by the landowner’s negligence if it was not. See, e.g., Camelot Club Condo. Assn. v. Bonner, 207 Ga. App. 634 (1) (428 SE2d 625) (1993). Evidence that the landowner knew of a similar crime at the same location is one way to establish foreseeability. See Savannah College of Art & Design v. Roe, 261 Ga. 764 (2) (409 SE2d 848) (1991). But it is not the only way to do so. In Lau’s Corp. v. Haskins, 261 Ga. 491, 492-493 (405 SE2d 474) (1991), for example, the Supreme Court relied in part on evidence that the landowner knew the business was located in a high crime area in concluding that an issue of fact existed regarding whether the risk of violent criminal activity was foreseeable. See also Wallace v. Boys Club &c., 211 Ga. App. 534, 536, n. 2 (439 SE2d 746) (1993), in which we noted that an absolute requirement of a similar crime at the same location would “create the equivalent of a ‘one free bite rule’ for premises liability cases.”

As Justice Sears points out in her special concurrence in this case, the dangers of ATMs are well known and undeniable. See Sun Trust Banks v. Killebrew, 266 Ga. 109, 110. In the face of this well-documented reality, it would be difficult to say that a criminal occurrence at an ATM is unforeseeable as a matter of law. Indeed, such a conclusion could be reached only by turning “foreseeability” into a legal term of art totally divorced from its meaning in every day usage. Accordingly, the grant of summary judgment based on lack of foreseeability/proximate cause in this case was improper.

2. The analysis does not end here, however. Once the plaintiff in a premises liability case clears the proximate cause hurdle, he still must show that the landowner had a duty to protect him, and the existence of a duty depends not just on foreseeability, but on superior knowledge. See Days Inns of America v. Matt, 265 Ga. 235 (454 SE2d 507) (1995); Lau’s Corp. v. Haskins, 261 Ga. 491. If a criminal act is not foreseeable, it logically follows that the landowner does not have superior knowledge of the danger of its occurrence. But even if the criminal act is foreseeable, it does not necessarily follow that the landowner has superior knowledge, since the danger may be equally apparent to the plaintiff.

Arguably, that is just the situation presented in many ATM cases. Criminal activity is foreseeable, and the general danger of criminal activity at ATMs is apparent to the bank. But the danger of criminal activity is equally apparent to the plaintiff as a member of the public — unless the bank has specific knowledge leading to an awareness that a particular ATM is even more dangerous than it appears to members of the public based on their general knowledge.

Decided June 10, 1996

Robert C. Koski, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Frederick M. Valz III, William G. Pike, Jr., Philip P. Taylor, for appellee.

In this case, there is evidence from which a jury could conclude that defendant bank had this specific (and thus superior) knowledge. The bank stationed an employee in the parking lot who looked like a security guard, but who was in fact there only to prevent patrons at nearby restaurants from parking on the bank’s property. Thus, it appeared to the public that defendant bank’s ATM was protected and more secure than other ATMs (and many may have patronized that ATM because of that misleading appearance), but the bank knew that it was not. Based on this evidence of superior knowledge, we conclude that a grant of summary judgment based on the landowner’s lack of duty was also improper. Thus, the trial court’s grant of summary judgment is reversed.

3. Looking at the bank’s false security guard from a slightly different perspective, the evidence of his presence also gives rise to a jury question with respect to an alternative cause of action based on § 311 of the Second Restatement of Torts: one who negligently conveys false information and thereby causes physical harm to another who reasonably relies on that information is liable for such harm. See Sun Trust Banks v. Killebrew, 266 Ga. 109, 113. (Sears, J., concurring specially). For this reason as well, the grant of summary judgment was error.

Judgment reversed.

McMurray, P. J., and Smith, J., concur in judgment only.


author: Johnson, Judge.

text:
    A96A0456.
    CRIDER’S FURS, INC. et al. v. ATKINSON.
    (472 SE2d 507)
   Johnson, Judge.

Kevin Atkinson injured his back while working for Crider’s Furs in December 1992. He underwent back surgery in March 1993. Although Atkinson continued to experience pain and movement limitations related to his back condition, he continued to work for Crider’s Furs until July 1993, when he left his job for reasons unconnected with his back injury.

Atkinson immediately began a new job with a different employer. He continued to experience symptoms of back injury, however, and as a result stopped working in January 1994 and has not been employed since. He underwent a second back operation in February 1994 and was released to work by his surgeon effective June 15, 1994. Atkinson later had further back symptoms, however, and consulted a different doctor in September 1994, who examined him but prescribed no treatment.

Atkinson pursued a claim for workers’ compensation benefits against Crider’s Furs, contending he should be found totally disabled from January 1994 onward. An administrative law judge (“ALJ”) heard the claim and awarded temporary total disability benefits from January 25, 1994, to June 15, 1994, and no benefits thereafter. The State Board of Workers’ Compensation adopted the ALJ’s decision as its own. Atkinson then appealed to the Superior Court of Coffee County, which reversed the State Board’s decision and ordered total disability benefits to be paid from June 16, 1994, onward. Crider’s Furs appeals. We reverse.

The factual findings of the State Board of Workers’ Compensation, in the absence of fraud, are binding upon the courts so long as there is “sufficient competent evidence in the record to warrant” them. OCGA § 34-9-105 (c) (4); Iso-Graphics v. Evans, 205 Ga. App. 880, 881 (424 SE2d 24) (1992). The courts may, howevér, review the Board’s legal conclusions. OCGA § 34-9-105 (c) (5); see Bouldware v. Delta Corp. &c., 160 Ga. App. 100, 101 (286 SE2d 333) (1981).

The ALJ framed her factual finding of no disability after June 15, 1994, as a choice between conflicting medical opinions, stating that the first physician found Atkinson to have no restrictions after that date, and that the second physician found Atkinson totally disabled. There is no evidence in the record to support such a characterization of either physician’s opinion. In fact, the first physician found that Atkinson had a 15 percent permanent disability of the body as a whole as a result of objective permanent physical damage that would certainly cause back pain, and was consistent with Atkinson’s complaints of leg pain. Though the first physician himself imposed no specific limitations upon Atkinson, he stated that Atkinson should impose his own limitations based upon what activities caused him pain.

The second physician’s opinion was in near complete agreement. He found that Atkinson had a ten percent permanent disability of the body as a whole. Other pertinent medical evidence in the record, not mentioned by the ALJ’s decision, substantially comports with the two opinions just discussed.

The ALJ’s legal analysis was apparently focused solely on the question of whether Atkinson was entitled to benefits for total disability under OCGA § 34-9-261. We have no quarrel with the finding that he was not. But the ALJ failed to make any factual findings or legal conclusions regarding whether Atkinson’s indisputable permanent pain amounts to a permanent partial disability which would entitle him to benefits under OCGA § 34-9-263. See generally Sutton v. Quality Furniture Co., 191 Ga. App. 279, 280-281 (381 SE2d 389) (1989). The ALJ’s consideration of the evidence thus apparently was not “in the light of correct and applicable legal principles, [and] the case should be remanded to the board for further findings.” (Citations and punctuation omitted.) Bouldware, 160 Ga. App. at 101.

Decided June 11, 1996.

Kissiah & Richter, James W. Richter, for appellants.

Farrar & Hennesy, Curtis Farrar, Jr., for appellee.

We do not find the evidence to demand as a matter of law the superior court’s finding of total disability. See generally Coulter v. Royal Indem. Co., 95 Ga. App. 124, 127 (97 SE2d 358) (1957), rev’d on other grounds, 213 Ga. 277 (98 SE2d 899) (1957). We therefore reverse the superior court and direct that the case be remanded to the Board pursuant to OCGA § 34-9-105 (d) for further proceedings consistent with this opinion.

Judgment reversed and case remanded with direction.

McMurray, P. J., and Ruffin, J., concur.


author: Judge Harold R. Banke.

text:
    A96A0590, A96A0591.
    RUSSAW et al. v. MARTIN et al. (two cases).
    (472 SE2d 508)
   Judge Harold R. Banke.

Debra Russaw and her husband Jerry Russaw sued Ramona Martin and Liberty Memorial Hospital (“Liberty”) for negligence, battery, reckless conduct, and loss of consortium after Debra Russaw sustained a needle strike injury from a used, non-sterile needle which fell from Martin’s pocket. Contending the alleged damages were too remote under OCGA § 51-12-8, Liberty and Martin moved for partial summary judgment. The Russaws filed a cross-motion for partial summary judgment regarding the negligence of Martin and Liberty’s liability under respondeat superior. The trial court granted partial summary judgment to Liberty and Martin, and denied the Russaws’ cross-motion for summary judgment. Both sides appeal.

Summary judgment is appropriate when the trial court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the evidence was as follows. Debra Russaw was awaiting treatment for her daughter at Liberty’s emergency room at the same time as an elderly patient was receiving treatment. Martin, an emergency room nurse, capped the needle used to administer the elderly patient’s medication and put the syringe and the needle into her pocket along with her pen and the keys to the narcotics cabinet. Intending to distract Russaw’s daughter, as Martin attempted to remove the keys from her pocket, the hypodermic needle intertwined with the keys and fell out, striking and puncturing Debra Russaw’s thigh and drawing blood. Martin cleaned and bandaged Russaw’s thigh. Initially, Martin told Russaw that the needle was “clean” but shortly afterwards revealed that the needle was considered “contaminated.” Martin informed Russaw of her rights concerning blood testing for hepatitis and human immunodeficiency virus infection (“HIV”). With Russaw’s consent, an attending medical staff employee administered a blood test. Within approximately ten days, Russaw received a test report indicating that she had tested negatively for hepatitis and HIV. The elderly patient also tested negatively for hepatitis and HIV. Over the next several months, Debra Russaw and her husband had additional tests performed with negative reports.

In support of summary judgment, Martin testified that the syringe contained the remainder of the elderly patient’s anti-anxiety medication. Martin further testified that the needle was not contaminated by bodily fluids. Martin stated that she did not recall that Debra Russaw showed any distress at the time of the incident, and the medical report specifically notes that Russaw was not experiencing any acute distress. The Russaws did not offer medical testimony or other evidence to show that the needle made contact with the elderly patient’s bodily fluids when it was used in the heparin lock.

The trial court denied the Russaws’ motion for partial summary judgment, determining that there were genuine issues of disputed material fact concerning Martin and Liberty’s liability for negligence. The trial court determined that any mental anguish claim based on fear of contracting hepatitis or acquired immune deficiency syndrome (“AIDS”) in the future was speculative and not compensable. McQuaig v. McLaughlin, 211 Ga. App. 723, 727 (440 SE2d 499) (1994) (absence of a cognizable physical injury precludes recovery for any mental distress). However, the trial court found that Russaw had a potentially compensable claim for mental anguish from the time of the physical injury until the negative results of the first HIV test. Held:

Case No. A96A0590

1. The Russaws contend that the trial court erroneously restricted the scope of the damage claim because Georgia law permits recovery for future mental suffering. Where a claim is based on ordinary negligence, the general rule is that damages for mental distress can only be recovered in the event of a physical injury. Hamilton v. Powell, Goldstein &c., 252 Ga. 149, 150 (311 SE2d 818) (1984). In this case, it is undisputed that Debra Russaw incurred a physical injury when the needle pricked her leg.

This case presents an issue of first impression in Georgia as to the scope of permissible damages for mental distress based on a non-sterile needle strike injury. With the exception of McQuaig, supra, in which a cognizable physical injury was lacking, Georgia appellate courts have not yet confronted the issues of 1) whether a plaintiff can recover damages premised on a fear of developing AIDS; or 2) whether such fear is unreasonable as a matter of law in the absence of proof of actual exposure to HIV.

Because this is a case of first impression, it is instructive to examine how other states have proceeded. Most jurisdictions require actual exposure to disease as a prerequisite to recovery for damages, in part, because the statistical probability of contracting HIV from a single, needle stick exposure of HIV contaminated blood is only approximately 0.3 to 0.5 percent. De Milio v. Schrager, 666 A2d 627, 630 n. 3 (N.J. Sup. Ct. 1995). See, e.g., Burk v. Sage Products, 747 FSupp. 285 (E.D. Pa. 1990) (paramedic who pricked finger could not recover absent proof the needle had actually been used on an AIDS patient); Carroll v. Sisters of St. Francis Health Svcs., 868 SW2d 585 (Tenn. 1993) (needle prick plaintiff had to show actual exposure to HIV as prerequisite to recovery for emotional damages); Funeral Svcs. by Gregory v. Bluefield Community Hosp., 413 SE2d 79 (W. Va. 1991) (overruled on other grounds) (fear of contracting AIDS in absence of an actual exposure to the virus, unreasonable and not a legally compensable injury).

A few jurisdictions permit recovery under a “window of anxiety” theory whereby a person possibly exposed to HIV can recover for anxiety and emotional distress up to the point of receiving definitive negative test results. See, e.g., Faya v. Almaraz, 620 A2d 327 (Ct. App. Md. 1993) (where operating surgeon failed to disclose his AIDS condition, patients could seek recovery for possible exposure to AIDS during “window of anxiety” period including time lag inherent in obtaining HIV-negative test results); and De Milio, 666 A2d at 635 (where dentist violated regulatory requirements for medical waste disposal, sanitation worker could recover for worry during “reasonable window of anxiety” period if he could show reasonable degree of medical probability that “distinct event” occurred whereby the virus could have been transmitted). In a recent case, a federal court elected to allow the jury to determine whether there was a rational basis for the mental anguish claim because the plaintiff could not determine who had used the discarded needle and whether he had been exposed to HIV. See Marchica v. Long Island R. Co., 31 F3d 1197, 1200 (2nd Cir. 1994) (cert. denied_U. S. _(115 SC 727, 130 LE2d 631) (1995) (FELA case involving puncture wound caused by hypodermic needle).

In concluding that the needle prick was a sufficient physical injury to support a claim for mental anguish from the time of injury until the negative results of the first HIV test, the trial court here implicitly adopted the “window of anxiety” approach, yet did not simultaneously require proof of actual exposure and proof of a possible channel of communication of disease. For the following reasons, we choose not to adopt this approach.

It is axiomatic that for recovery, there must be some reasonable connection between the act or omission of a defendant and the damages which a plaintiff has suffered. See Prosser & Keeton, Law of Torts, 5th ed., § 54. Without factual evidence of a causal connection between the alleged breach of duty and the purported damages, the damages must be considered whimsical, fanciful and above all too speculative to form the basis of recovery under OCGA § 51-12-8. As in any negligence case, the Russaws had to show both cause in fact and legal cause — that the needle strike injury caused their mental suffering, a generalized fear of contracting disease. The Russaws offered no evidence that the needle was contaminated with HIV or hepatitis. Neither of the Russaws allege that they contracted HIV or AIDS as a result of the needle stick. It is undisputed that the elderly patient tested negatively for both maladies. Debra Russaw has repeatedly tested negatively as has her husband. Moreover, the Russaws failed to refute the affidavit and deposition testimony of Martin that the needle never came into contact with the elderly patient’s bodily fluids. Because the statistical probability of contracting HIV from a non-HIV contaminated needle is zero, it cannot be said that in the absence of evidence of actual exposure and a channel of communication, that any purported damages naturally flow from the injury. See OB-GYN Assoc. v. Littleton, 259 Ga. 663 (1) (386 SE2d 146) (1989).

To allow recovery for emotional injuries and mental anguish, without any proof whatsoever that Debra Russaw was actually exposed to HIV or hepatitis is per se unreasonable. Compare Littleton, 259 Ga. at 664 (1) (recovery of consequential damages for emotional distress permissible where nature of fright or mental suffering naturally follows from physical injury). The Russaws cite no authority that damages can be based on imagined possibilities. Because the Russaws offered no evidence of actual exposure to HTV or AIDS or hepatitis and no evidence of a channel of communication of disease, we hold that their recovery for fear and mental anguish is per se unreasonable as a matter of law. Compare Boyd v. Orkin Exterminating Co., 191 Ga. App. 38, 40 (2) (381 SE2d 295) (1989) (fear of contracting disease in the future not compensable, without showing a “reasonable medical certainty” that such consequence will occur), overruled on other grounds, Hanna v. McWilliams, 213 Ga. App. 648, 651 (446 SE2d 741) (1994); and Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 592 (4) (452 SE2d 159) (1994) (expert medical testimony of pesticide exposure created a jury question).

Decided June 12, 1996

2. The record supports the Russaws’ contention that they did not stipulate to items two through five in the trial court’s statement of undisputed facts. The Russaws especially challenge Martin’s veracity and the precise circumstances under which the needle in question was used. However, in light of the discussion in Division 1, the trial court’s treatment of disputed matters as stipulations of fact was harmless error. OCGA § 9-11-61; Miller Grading Contractors v. Ga. Fed. Sav. &c. Assn., 247 Ga. 730, 734 (3) (279 SE2d 442) (1981).

3. The trial court did not err in holding that material issues of disputed fact precluded summary judgment on the issue of negligence. Issues of negligence, proximate cause, diligence, and contributory negligence are ordinarily reserved for jury determination except in plain and indisputable cases. Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 295 (322 SE2d 737) (1984).

Case No. A96A0591

4. In their cross-appeal, Liberty and Martin request that the controlling test for the imposition of damages be based on a reasonableness standard and actual exposure, or, in the alternative, that we affirm the trial court order’s limiting damages to the “window of anxiety” period. In light of our decision in Division 1, we need not further address the damages issue.

Judgment affirmed in part and reversed in part in Case No. A96A0590. Judgment reversed in Case No. A96A0591.

Birdsong, P. J., and Blackburn, J., concur.

David Roberson, Mark R. Jeffrey, for appellants.

Fendig, McLemore, Taylor, Whitworth & Durham, Philip R. Taylor, Beth M. Duncan, for appellees.

       Debra Russaw received four separate negative test results over a several month period.

       Recovery for the physical injury from the needle stick and the mental anguish associated with that injury is not foreclosed by this holding.


author: Birdsong, Presiding Judge.

text:
    A96A0052.
    A96A0053.
    A96A0054.
    GAMBLE v. DIAMOND “D” AUTO SALES. GAMBLE v. STARSHIP RECORDS & TAPES. GAMBLE v. SPRADLEY’S AUTO REPAIR.
    (472 SE2d 446)
   Birdsong, Presiding Judge.

Monica C. Gamble in Case Nos. A96A0052 and A96A0053, and George K. Gamble, Jr., in Case No. A96A0054, appeal the decision of the lower court under OCGA § 9-15-2 (d) to deny the filing of their complaints. Although these appeals are factually unrelated, we have consolidated them for appellate consideration because of the relationship of the parties and because the same legal principles generally govern their disposition. Held'.

1. Under OCGA § 9-15-2 (d), when parties, who are not represented by counsel and are unable to pay costs, attempt to file their complaints under affidavits of indigence, the lower court is obligated to review the complaints and determine whether the complaints show on their face that justiciable issues of law or fact exist. If the court determines that the pleadings show such a complete absence of a justiciable issue of law or fact that it cannot be reasonably believed any relief could be granted against any party named in the pleadings, the court must enter an order denying the filing of the complaint. OCGA § 9-15-2 (d); Hawkins v. Rice, 203 Ga. App. 537 (417 SE2d 174). “ ‘ “When examining a complaint, courts are compelled to determine whether the facts alleged state a claim for relief under which the plaintiff may recover.” ’ ” Id. The complaint need not be perfect in form or set out all of the issues in detail; it is sufficient if it places the defendant on notice of the claim against him. Evans v. City of Atlanta, 189 Ga. App. 566 (377 SE2d 31). Only if the pleading is completely devoid of any justiciable issue of law or fact may the court deny filing. See Yizar v. Ault, 265 Ga. 708 (462 SE2d 141).

On appeal, we must construe the pleadings in the light most favorable to the losing party (Grant v. Byrd, 265 Ga. 684, 685 (461 SE2d 871)) and pro se complaints are not held to the stringent standards of formal pleadings. Battle v. Seago, 208 Ga. App. 516, 517 (431 SE2d 148).

2. Appellants’ motion for a declaratory judgment by default is denied. Because the lower court did not permit the filing of these complaints, the defendants are not in default. Moreover, this Court does not have the power to grant the relief requested.

Case No. A96A0052

3. Although the principles discussed in Division 1 would apply, this appeal must be dismissed because Monica C. Gamble, the plaintiff below, did not sign the notice of appeal. Only George K. Gamble, her husband, signed the notice of appeal and, because he is not admitted to the State Bar of Georgia, he is not authorized to represent her. OCGA § 15-19-51 (a) (1); Pfeiffer v. State, 173 Ga. App. 374 (326 SE2d 562). Although Monica C. Gamble could have represented herself (Ga. Const. 1983, Art. I, Sec. I, Par. XII), she did not do so. Therefore, as the notice of appeal filed by George K. Gamble was ineffectual (see U. S. Fire Ins. Co. v. Farris, 146 Ga. App. 177, 178 (245 SE2d 868); Eubank v. Barber-Colman Co., 115 Ga. App. 217 (154 SE2d 638)), this appeal must be dismissed.

Case No. A96A0053

4. In this appeal, Monica Gamble contends that Starship Records & Tapes filed a complaint against her in magistrate court because one of her checks was not honored. The complaint alleges that she was arrested and held for bond. Although she was convicted, apparently the conviction was set aside when Monica Gamble produced evidence she redeemed the dishonored check from Starship Records & Tapes with a money order prior to the date that the complaint was filed against her. The complaint alleges that the check was issued on February 9, 1995, was paid off on March 13, 1995, but that Starship Records & Tapes filed a complaint in magistrate court on May 15, 1995, and proceeded with-the prosecution until Monica Gamble proved that Starship Records & Tapes had cashed the money order. The complaint further alleges that Monica Gamble was arrested and held for bond because of these charges.

We find that Monica Gamble’s complaint in this case was sufficient to allege a claim under OCGA § 9-11-8 because the allegations were sufficient to put Starship Records & Tapes on notice that Monica Gamble was asserting a claim of malicious prosecution under OCGA § 51-7-40. See Wal-Mart Stores v. Blackford, 264 Ga. 612 (449 SE2d 293) (elements of malicious prosecution). Although immunity might be granted to Starship Records & Tapes by OCGA § 16-9-20 (h) under appropriate circumstances, Monica Gamble could present a claim if the evidence establishes that she redeemed the check within the time allotted after statutory notice of dishonor but Starship Records & Tapes nevertheless swore out a warrant against her. See Williams v. Taylor, 202 Ga. App. 720, 722 (415 SE2d 498). Therefore, “[a]s the pleading is not completely devoid of any justiciable issue of law or fact, it was error to deny its filing.” Yizar v. Ault, supra at 709. Accordingly, the order of the lower court denying the filing of the complaint in this case must be reversed.

Decided May 22, 1996

Reconsideration dismissed June 13, 1996

Monica C. Gamble, pro se.

George K. Gamble, Jr., pro se.

Diamond “D” Auto Sales, pro se.

Starship Records & Tapes, pro se.

Spradley’s Auto Repair, pro se.

Case No. A96A0054

5. In this appeal, George K. Gamble, Jr., contends that on August 17, 1994, he took his wife’s car to Spradley’s Auto Repair to have a used transmission installed, and paid $254.84 in advance so that the work would be done. When the transmission was not replaced by September 15, 1994, he visited Spradley’s Auto Repair and was informed that he would have to pay the entire balance in advance before the transmission would be installed. After George Gamble demanded the immediate return of the car, Spradley’s Auto Repair issued a check for the amount previously paid minus $100. As George Gamble contends that Spradley’s Auto Repair’s actions were motivated solely by racism, he seeks the return of the $100 and $1,000 in additional damages. Pretermitting whether George Gamble has stated a cause of action for racial discrimination in Spradley’s Auto Repair’s contract policies, he has alleged a claim for money had and received in that he paid Spradley’s Auto Repair a deposit so that Spradley’s Auto Repair would perform certain work, but Spradley’s Auto Repair refused to perform the work and also refused to refund the full deposit. See Reid v. Hemphill, 82 Ga. App. 391, 396 (61 SE2d 201). Therefore, this complaint is also not completely devoid of any justiciable issue of law or fact, and it was error to deny its filing. Yizar v. Ault, supra. Accordingly, the order of the lower court denying the filing of the complaint in this case also must be reversed.

Appeal dismissed in Case No. A96A0052. Judgments reversed in Case Nos. A96A0053 and A96A0054.

Beasley, C. J., and Blackburn, J., concur.


text:
    A96A0076.
    LINSON v. THE STATE.
    (472 SE2d 690)
   Andrews, Judge.

Timothy T. Linson appeals his conviction of aggravated child molestation, contending that his trial counsel was ineffective and that the court erred in its charge to the jury.

1. Linson was charged with one count of aggravated child molestation by causing physical injury to K. L. and one count of sodomy on her. Viewed in favor of the verdict, the evidence was that Linson had been staying with his brother, sister-in-law, and their daughter K. L., then three years old, for about a week. Both the mother and father were attending night school and generally left K. L. in the care of her grandmother. On the evening of March 23, 1994, however, they could not do this because Mr. Linson was late getting home from work. The parents asked Linson to keep K. L. while they attended class. When they left for class, K. L. was playing outside and Linson was watching her.

Upon returning home, the parents found Linson asleep on the sofa in the living room of their trailer and K. L. in her bedroom asleep. The adults talked for awhile and, before retiring, the father woke K. L. and took her to the bathroom. The child was having difficulty relieving herself, however, and the father discovered blood and what he believed to be semen in the toilet. The parents examined K. L. and discovered that she was bleeding from the rectum. They immediately took her to the hospital and took Linson with them, although he was reluctant to go.

K. L. was examined by the emergency room doctor who discovered tears and bruising around her rectum and bruising of the rectal muscle. K. L. was in extreme pain from her injuries. Because of their severity, the doctor asked K. L. if anyone had put anything in her rectum and she said her uncle, Linson, had. The doctor opined that the damage he saw could not have been caused by a human finger.

Linson made a statement acknowledging that he was caring for K. L. that evening. He said she had played with a neighbor, Keshaun, who brought K. L. to him to take K. L. to the bathroom. When he did, Linson noticed K. L. was bleeding. As he attempted to clean her up, his middle finger of his right hand accidentally slipped into her rectum. He did not mention any of this to her parents when they returned home.

The evidence was legally sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); McGarity v. State, 212 Ga. App. 17, 21 (6) (440 SE2d 695) (1994).

2. Linson contends that he received ineffective assistance of counsel. The bases argued here and contained in his motion for new trial filed by appellate counsel are that trial counsel was ineffective because Linson was denied his right to testify, counsel did not interview witnesses before trial, counsel told the jury during his opening argument that Linson would testify, but then advised him not to, and counsel’s cross-examination of the doctor was not beneficial. Trial counsel testified during the motion for new trial hearing and was cross-examined about his decisions.

“A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990). A conviction will not be reversed on the basis of ineffective assistance of counsel unless “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Carter v. State, 176 Ga. App. 632, 633 (337 SE2d 413) (1985), quoting from Strickland v. Washington, 466 U. S. 668, 669 (104 SC 2052, 80 LE2d 674) (1984).

(a) Linson’s argument that counsel improperly advised Linson not to testify consists of a summary of Linson’s testimony concerning this issue at the motion for new trial hearing. During trial, however, Linson’s trial counsel requested the court advise Linson of his right to testify or not, which the court did. In response to the court’s inquiry, Linson said “I ain’t going to testify.” Determination of the credibility of Linson and his trial attorney were for the trial court and this court will not reweigh such determinations. Linson has failed to support this allegation.

(b) Part of Linson’s argument is that not having him testify was ineffective because, in his opening statement, “trial counsel told [the jury] that the defendant would testify.” What counsel said, however, was “we ask you to listen to the whole entire evidence that everybody gives and listen to Mr. Linson’s story, if and when he gets on the stand, and then we’re going to ask you at the end of this trial to weigh all the evidence and come up with a proper verdict.”

Because Linson had given a statement to the police which had been held admissible by the court, trial counsel knew that there would be evidence of Linson’s version of the events before the jury whether Linson testified or not. That counsel suggested the possibility that Linson might testify does not amount to ineffective assistance of counsel, particularly in light of the volatile relationship between counsel and client, addressed below.

(c) Linson argues that, because trial counsel was hostile to him, counsel failed to adequately prepare for trial and conduct his defense. Counsel testified that he and Linson had difficulty communicating and that Linson’s account of events, including the part played by the neighbor child, varied. He was given several different names for one witness suggested by Linson.

“As observed by the United States Supreme Court in Morris v. Slappy, 461 U. S. 1, 14 (103 SC 1610, 75 LE2d 610) (1983) and by this court in Jefferson v. State, 209 Ga. App. 859, 862 (1) (434 SE2d 814) (1993), ‘a meaningful relationship’ between a defendant and his counsel is not a Sixth Amendment guarantee.” Hammonds v. State, 218 Ga. App. 423, 424 (1) (461 SE2d 589) (1995).

“ ‘Effectiveness is not judged by hindsight or by the result. . . . [T]he fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate. [Cits.]’ Hosch v. State, 185 Ga. App. 71, 72 (2) (363 SE2d 258) (1987).” Foreman v. State, 200 Ga. App. 400, 401 (3) (408 SE2d 178) (1991).

While counsel did not interview the parents of K. L. or the numerous officers who had arrested and interviewed Linson, he had filed discovery requests, a motion to have Linson evaluated, and a demand for trial. Counsel spent at least an hour and a half over two visits to Linson in jail discussing the case before trial. He conducted cross-examination of the witnesses and argued effectively.

After reviewing the record, the trial court’s conclusion that counsel was not ineffective was not clearly erroneous. Stewart v. State, 263 Ga. 843, 846 (6) (440 SE2d 452) (1994); Duitsman v. State, 217 Ga. App. 435, 436 (1) (457 SE2d 702) (1995).

3. Linson was charged with aggravated child molestation by an act “causing physical injury to said child.” In a second count, he was charged with sodomy. During the charge to the jury, the court read OCGA § 16-6-4 (c) in its entirety. This put before the jury two methods of committing aggravated child molestation, by an act physically injuring the child or by an act of sodomy.

As urged by Linson, such a charge was misleading because it allowed the jury to convict Linson for aggravated child molestation involving an act of sodomy instead of the method charged in the indictment. Dukes v. State, 265 Ga. 422, 423 (457 SE2d 556) (1995); Heard v. State, 221 Ga. App. 166 (471 SE2d 22) (1996); Walker v. State, 146 Ga. App. 237, 243 (2) (246 SE2d 206) (1978).

The potential for confusion on this issue was particularly high in this case because there was a separate charge of sodomy before the jury. It cannot be said, in these circumstances, that such a charge was harmless.

Judgment reversed.

Pope, P. J., and Smith, J., concur.

Decided April 29, 1996

Reconsideration dismissed June 13, 1996

William J. Mason, for appellant.

John G. Conger, District Attorney, Mark C. Post, Assistant District Attorney, for appellee.

       Pursuant to Linson’s motion for new trial, the court vacated its prior judgment and resentenced Linson on only the aggravated child molestation conviction, concluding that the two counts merged for sentencing purposes.


author: Blackburn, Judge.

text:
    A96A0583.
    GREEN v. THE STATE.
    (472 SE2d 457)
   Blackburn, Judge.

Jeffrey Green was convicted of armed robbery and aggravated assault. The trial court denied his motion for a new trial, and he appeals.

1. In his first enumeration of error, Green contends that the trial court erred in permitting the State, over objection, to ask potential jurors who indicated that they knew someone who used cocaine, how evidence of a witness’s drug use would affect their perception of that witness’s credibility.

“[Hypothetical voir dire questions are not per se improper, in that voir dire should allow both parties an opportunity to ascertain the ability of the prospective jurors to decide the case on its merits, with objectivity and freedom from bias and prior inclination. Since the distinction between questions which ask jurors how they would decide issues and questions which merely inquire whether jurors can start the case without bias or prior inclination is not always crystal clear, the control of the voir dire examination is vested in the sound legal discretion of the trial judge and will not be interfered with by this court unless the record clearly shows an abuse of that discretion.” (Citations and punctuation omitted.) Atlantic Zayre v. Meeks, 194 Ga. App. 267, 270-271 (390 SE2d 398) (1990). As the trial court accepted the State’s explanation that it was merely trying to determine if any potential jurors had biases against witnesses who used drugs, we find no abuse of discretion in the instant case. Accordingly, this enumeration is without merit.

2. In his second enumeration of error, Green contends that the trial court erred in giving a jury instruction on aggravated assault which allowed the jury to convict him of a crime for which he had not been indicted. The instruction provided: “A person commits the offense of aggravated assault when that person assaults another person with the intent to rob or with a deadly weapon or with any object, device or instrument which when used offensively against a person is likely to or actually does result in serious bodily injury.” See OCGA § 16-5-21. The count in the indictment accusing Green of committing aggravated assault alleges that Green struck and beat a victim with a pistol, but did not allege that Green intended to rob the victim. Thus, Green, citing Dukes v. State, 265 Ga. 422 (457 SE2d 556) (1995), alleges the trial court violated his due process rights by instructing the jury that he could be convicted for aggravated assault if they find that he assaulted another person with the intent to rob because that was not specifically alleged in the aggravated assault count. In Dukes, the defendant was indicted for two counts of theft by taking in violation of OCGA § 16-8-2 on the grounds that he unlawfully took two vehicles. The trial court, however, gave a jury charge that quoted the entire theft by taking Code section, defining the crime as either: 1) the unlawful taking of another’s property, or 2) the unlawful appropriation of another’s property while in lawful possession of it. The Supreme Court of Georgia affirmed one conviction for theft by taking but reversed the other conviction because, in light of the evidence presented, there was a reasonable possibility that the jury could have concluded that the defendant was in lawful possession of one of the vehicles, but unlawfully appropriated its parts. The Supreme Court of Georgia determined that the variance between the indictment and jury charge violated the defendant’s due process rights by not providing him proper notice of the charges he must defend.

The instant case is distinguishable. The reversal in Dukes was based on the fact that there was sufficient evidence to suggest a reasonable possibility that the defendant violated the statute as charged to the jury, but did not do so in the manner alleged in the indictment, violating the defendant’s due process right to notice of the charges against him. The same is not true in the case sub judice.

Green’s jury was given a copy of the indictment, on which they wrote their verdict as to the various counts contained therein. Count 3 of the indictment provided as follows: “THE GRAND JURORS . . . charge and accuse JEFFREY GREEN with the offense of — AGGRAVATED ASSAULT for that said accused . . . did, unlawfully commit an assault upon the [victim] by striking and beating him with a pistol, thereby placing him in reasonable apprehension of immediately receiving serious bodily injury.” (Emphasis supplied.) No mention of intent to rob was made. In support of the aggravated assault count, a witness testified that Green hit the victim in the head with the pistol so violently that it sounded like a shot and resulted in bleeding. The jury signed a verbatim copy of Count 3 of the indictment as follows: “We the jury find the defendant guilty as charged.” (Emphasis supplied.) Therefore, we find that there is no reasonable possibility that the jury believed that Green committed an aggravated assault, but did not do so in the manner alleged in the indictment. Furthermore, we do not believe that Green’s due process rights were violated simply because the jury may have also believed that the assault was committed with the intent to rob. Under the facts of this case, unlike the facts of Dukes, the defendant was not denied a fair trial as a result of the faulty jury charge because it is apparent that no harm resulted from said charge. Therefore, this enumeration is without merit.

3. In his third enumeration of error, Green contends that the trial court erred in refusing to charge the jury on the lesser included offense of battery.

Striking and beating a victim with a pistol is an aggravated assault. The indictment alleged and the evidence showed that an aggravated assault occurred. Moreover, Green merely testified that he had no idea how the victim was injured. Therefore, the evidence did not warrant a charge on battery. See Scott v. State, 208 Ga. App. 561, 562 (430 SE2d 879) (1993).

4. In his fourth enumeration of error, Green contends that the trial court erred in limiting portions of his testimony on hearsay grounds because the excluded testimony was reliable and would have supported the argument that he was framed. Green, however, acquiesced in the trial court’s sustaining of the State’s hearsay objections, and no offer of proof was made. Therefore, we are unable to review this enumeration. See Pittman v. State, 208 Ga. App. 211, 218 (430 SE2d 141) (1993). Moreover, in support of this enumeration of error, Green relies on Chambers v. Mississippi, 410 U. S. 284 (93 SC 1038, 35 LE2d 297) (1973) and Green v. Georgia, 442 U. S. 95 (99 SC 2150, 60 LE2d 738) (1979), in which the United States Supreme Court ruled that the confessions of a third party were admissible as an exception to the hearsay rule, dependent upon a finding that the out-of-court statements demonstrated a strong indicia of reliability. Davis v. State, 194 Ga. App. 482, 484-485 (391 SE2d 124) (1990). However, unlike the defendants in Chambers and Green, Green does not argue on appeal that the excluded out-of-court statements consisted of third-party confessions, nor has he established a strong indicia of their reliability. See Timberlake v. State, 246 Ga. 488, 492-493 (271 SE2d 792) (1980) (distinguishing the exception to the hearsay rule created by Chambers and Green). In light of the above, this enumeration is without merit.

5. In his fifth and sixth enumerations of error, Green alleges that the trial court erred in limiting his ability to cross-examine the State’s witnesses about past drug usage. Green claims that he innocently stumbled into a drug deal gone bad that involved certain witnesses, and that he was framed for the armed robbery of these witnesses so as to draw attention away from their criminal activity. Green argues that evidence of the witnesses’ past drug usage is relevant because it establishes their motive for testifying falsely against him. Green, however, does not cite to any evidence in the record, nor can we find any, that a drug deal occurred on the day in question. Moreover, apparently it was one of the witnesses who called the police.

Evidence that the witnesses were involved in illegal drug activities prior to the date in question renders the desired inference that they framed Green to cover their own criminal conduct more probable than the inference would be without the evidence. Therefore, it should not have been excluded. See Henderson v. State, 255 Ga. 687, 689 (341 SE2d 439) (1986). However, in view of the overwhelming evidence of guilt consisting of the sworn testimony of several witnesses and the tenuous relevance of the witnesses’ drug usage prior to the date in question, it is highly probable that the error did not contribute to the jury’s verdict. See Hodges v. State, 265 Ga. 870, 874 (463 SE2d 16) (1995). Accordingly, the exclusion of the proffered evidence was harmless.

6. In his seventh enumeration of error, Green contends that he was denied his right of confrontation of witnesses guaranteed by the Sixth and Fourteenth Amendments. Green’s lawyer had previously represented one of the State’s witnesses in a prior matter whereby the witness pled guilty to possession of cocaine. Green contends that, as a result of the prior representation, his lawyer was unable to effectively cross-examine and impeach the witness with his earlier conviction. The record, however, reveals that Green’s counsel testified that he did not realize that the State’s witness was a previous client of his when he cross-examined the witness. Moreover, Green’s counsel testified that the only reason that he did not impeach the State’s witness with his prior conviction was because on cross-examination the State’s witness denied that he was the individual convicted.

“[T]he United States Supreme Court rejected a per se rule of presumed prejudice for all cases involving conflicts of interest. Prejudice is presumed only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance.” (Citation and punctuation omitted.) Weeks v. State, 190 Ga. App. 373, 374 (378 SE2d 895) (1989). As to the first part of this test, a defense counsel’s cross-examination of a former client who is now a State’s witness does not amount to “ ‘actively representing conflicting interests.’ ” Id. As to the second part of the test, in light of the lawyer’s failure to realize that he was cross-examining a former client, Green has not demonstrated that the prior representation negatively affected his lawyer’s performance. In light of the above, no prejudice was proven, nor can it be presumed. As a result, this enumeration is without merit.

7. In his eighth enumeration of error, Green contends that he was denied effective assistance of counsel, citing a laundry list of alleged errors which overlap with his first seven enumerations. In light of our discussion in Divisions 1 through 6 of this opinion, this enumeration is without merit.

Decided May 29, 1996

Reconsideration denied June 13, 1996

Jonathan D. Gaul, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Suzanne W. Ockleberry, Assistant District Attorneys, for appellee.

Judgment affirmed.

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