author: Benham, Judge. Birdsong, Judge, Deen, Presiding Judge,

text:
    A89A0619.
    HORNE et al. v. THE STATE.
    (385 SE2d 704)
   Benham, Judge.

Tried under a four-count indictment, appellants, husband and wife, were jointly convicted of one count of child molestation and one count of enticing a child for indecent purposes; Mr. Horne was also convicted of an additional count of child molestation and one count of sodomy.

1. Appellants assert that the trial court erred in refusing to allow them to have their own expert examine the child or her treatment records for the purpose of rebutting the State’s expert’s testimony concerning the victim’s exhibition of symptoms of child sexual abuse accommodation syndrome. Whether to permit such an examination is within the trial court’s discretion (J. B. v. State, 171 Ga. App. 373 (4) (319 SE2d 465) (1984)), and under the circumstances here, including the fact that the request was filed the day before trial began, we find no abuse of discretion in the denial.

2. Appellants assert that the trial court erred in allowing “golden rule” arguments. During closing argument, the prosecuting attorney said: “Think about it, how would you like to walk over here, walk up these stairs and sit in this chair and have this microphone in your face and talk to twelve grownups, twelve people you’d never met before about the last time that you had sex.” Appellants objected on the specific ground that this constituted a “golden rule” argument. The trial judge overruled the objection. The prosecution thereafter argued, without immediate objection from appellants, as follows: “Think about what it would be like to sit in this chair and talk about the last time that you had sex. Is that an easy thing to do? Is that something that you would want to do, just want to do it for no reason?” Subsequently, while suggesting why another young girl might deny being molested, the State made the following argument without immediate objection by appellants. “Well, ladies and gentlemen, look at it from the children’s eyes. The right thing to do? It ruins their lives to tell. It ruins their lives to live through it, but look what happens to them when they tell about it. Nobody believes them. . .

After the State’s closing argument, appellants moved for a mistrial based on the prosecuting attorney’s statements which led to appellants’ “golden rule” objection and on another statement made thereafter. The trial court denied both the motion and appellant’s request for curative instructions. The State’s argument does not fit neatly within the category of so-called “golden rule” arguments. In a classic “golden rule” argument, jurors are invited to place themselves in the victim’s place in regard to the crime itself. See generally Wolke v. State, 181 Ga. App. 635 (3) (353 SE2d 827) (1987). However, any argument, regardless of nomenclature, which importunes the jury to place itself in the position of the victim for any purpose must be carefully scrutinized to ensure that no infringement of the accused’s fair trial rights has occurred.

“A trial court has broad discretion in ruling on a motion for a mistrial, and this court will not disturb a court’s ruling in the absence of a manifest abuse of discretion, and a mistrial is essential to preserve a defendant’s right to a fair trial. [Cit.]” Id. at 637. We are satisfied, after having carefully examined the closing argument in its entirety and the basis for and timing of appellants’ objections and mistrial motion, that the trial court did not manifestly abuse its discretion in denying the motion for mistrial. We also find that a mistrial was not essential to preserve appellants’ right to a fair trial. More-Iover, assuming arguendo that the prosecuting attorney’s argument was improper and that it was error not to grant appellants’ request for a curative instruction, consideration of the entire record satisfies us that it is highly probable that the argument did not contribute to the verdict. Blanchard v. State, 247 Ga. 415 (2) (276 SE2d 593) (1981).

3. Appellants assert that the trial court erred in allowing the State to present a witness to testify in rebuttal and to permit that witness to prove by testimony the contents of regulations of the Department of Corrections.

After the defense has rested, it is within the discretion of the trial judge whether to allow the State to introduce additional evidence. Payne v. State, 168 Ga. App. 485 (2) (309 SE2d 667) (1983). The trial judge may allow introduction of additional evidence even though it is not strictly in rebuttal of presented defense evidence. Cooper v. State, 103 Ga. 63 (1) (29 SE 439) (1897). We find the trial court did not err in allowing the rebuttal witness to be called as a witness after the defense rested.

Appellants raised a best evidence objection to testimony concerning the contents of correctional institution regulations. Mr. Horne had testified on direct examination that sexually-oriented materials introduced into evidence by the State had come into his possession as a result of inmate “shakedowns” while he was a Ware County corrections officer. On cross-examination, he was questioned about the existence of a policy concerning the seizure and disposition of contraband during shakedowns. He responded that it depended upon the “seriousness of the contraband.” Further, in response to a question regarding the propriety of taking contraband items home, Mr. Horne testified to the “policy of our state corrections” regarding the handling of seized contraband. This and other testimony by him regarding the discretion that guards exercised in determining whether to initiate disciplinary actions against inmates were introduced without objections.

Assuming without deciding that it was error to allow the witness to testify to the contents of the correctional institution’s regulations in the face of a best evidence objection, we find the error harmless. The question of how Mr. Horne came into possession of the contraband and the propriety of that possession had no bearing on the real issues to be decided at trial, the guilt or innocence of the defendants. Considering that the testimony concerning correctional department regulations was at best collateral, if not completely irrelevant, to the issues at hand, we find it highly probable that the error did not contribute to the verdict. See Jackson v. State, 187 Ga. App. 449, 450 (370 SE2d 633) (1988).

4. Appellants assert that the trial court erred in refusing to allow defense counsel to take possession of medical records prepared by State’s witnesses and demanded and subponeaed by defense counsel before trial. Appellants argue that the trial court erred in allowing a medical doctor and certain social science witnesses to testify without their records first having been produced pursuant to OCGA § 17-7-211; that the trial court erred by failing to review the medical records prior to trial and to provide them to defense counsel; and that the j trial court erred in refusing to review scientific reports and records under appellant’s specific Brady request. I

(a) At trial appellants asserted they had been denied access to certain scientific reports (“records from the [D.A.I.S.Y.] Youth Clinic . . . including the records of Doctor Butler . . . Ms. Bernice Gordon and Ms. Donna McClain”) in contravention of OCGA § 17-7-211. The State responded that there were no “scientific reports in these cases, and they’re not entitled, necessarily, to the doctors’ notes.” We are satisfied that any written notations made by Dr. Butler constituted only “notes and work products” not within the purview of OCGA § 17-7-211. However, even assuming that Dr. Butler had compiled a “written scientific report” within the meaning of OCGA § 49-5-40, such a report would be privileged and exempt from disclosure under OCGA § 17-7-211.

OCGA § 49-5-40, as amended, provides that “[e]ach and every record concerning reports of child abuse and neglect . . . which is in the custody of the [Department of Human Resources] or other state or local agency is declared to be confidential, and access thereto is prohibited except as provided in Code Section 49-5-41 and Code Section 49-5-41.1.” “[U]nder OCGA § 49-5-41 (a) (2), where a court considers it necessary for the resolution of an issue before it, the court may order the disclosure of the information.” Napper v. Ga. Television Co., 257 Ga. 156 (2b) (356 SE2d 640) (1987). These statutes establish that the statutory right of discovery of such matter is limited to those few exceptions contained in OCGA §§ 49-5-41 and 49-5-41.1.

Thus, “[e]ach and every record” of the D.A.I.S.Y. Clinic concerning reports of child abuse maintains its confidentiality and is not subject to discovery under OCGA § 17-7-211 unless properly ordered to be disclosed by the court. Davidson v. State, 183 Ga. App. 557 (4b) (359 SE2d 372) (1987). That is, OCGA § 17-7-211 does not provide an independent statutory basis for discovery of “scientific records” of' child abuse maintained by institutions listed in OCGA § 49-5-40. In the absence of obtaining a statutory exception by compliance with OCGA §§ 49-5-41 or 49-5-41.1, as applicable, such child abuse records remain protected. It appears to have been the clear intent of the legislature to interpret OCGA § 49-5-40 broadly to provide maximum protection to records and reports of child abuse and neglect, and likewise to construe OCGA §§ 49-5-41 and 49-5-41.1 strictly to limit the scope of statutory exceptions of OCGA § 49-5-40.

Accordingly, we find that all of the express requirements of OCGA § 49-5-41 have not been met and that the records and reports of the D.A.I.S.Y. Clinic, including those authored by Ms. Gordon and Ms. McClain, were not subject to disclosure under OCGA § 17-7-211. OCGA § 49-5-40. See also Napper, supra at Division 2 (b). Moreover, assuming OCGA § 49-5-40 does not take precedence over OCGA § 17-7-211, we find that § 17-7-211 does not apply to the testimony of mental health therapists and psychologists, even if such testimony is based on written notes or reports. Moss v. State, 191 Ga. App. 387 (381 SE2d 765) (1989).

(b) Appellants assert that the trial court erred in refusing to review the records in question prior to trial and in refusing to provide them to the defense. Appellants also assert that the trial court erred in refusing to review the records in question under appellants’ specific Brady request. The trial record reflects that appellants were authorized access during trial to the reports of the D.A.I.S.Y. Clinic pertaining to Ms. Gordon and Ms. McClain. After obtaining the court’s permission to gain access to the reports of Ms. Gordon and Ms. McClain, appellants never requested a continuance to review those documents or permission to recall the child for further cross-examination based on matters exclusively within those reports.

A technical violation of OCGA § 17-7-211 would occur as to any matters which were required to be timely disclosed thereunder and which were not so produced. Nevertheless, under OCGA § 17-7-211, “[i]f the prosecuting attorney furnishes a copy [of the scientific record] but not in the time frame specified, there is nothing in the statute to require exclusion of the document from evidence. Perhaps late furnishing of a copy will mean the defendant is entitled to a continuance or recess of the trial as the trial judge may determine. The only circumstance making the exclusionary rule applicable is the failure of the prosecuting attorney to afford discovery at all.” Law v. State, 251 Ga. 525, 527 (307 SE2d 904) (1983). See also White v. State, 181 Ga. App. 170 (351 SE2d 536) (1986).

The burden is on the appellant to establish any type of Brady violation. See generally Cromer v. State, 253 Ga. 352 (6) (320 SE2d 751) (1984). It is well established that “Brady is not violated when the Brady material is available to the defendant during trial, since Brady does not require a pre-trial disclosure of the materials. [Cit.]” Glenn v. State, 255 Ga. 533 (2) (340 SE2d 609) (1986). Even assuming that the records of Ms. Gordon and Ms. McClain were discoverable under Brady before trial, “the prosecutor will not have violated his constitutional duty of disclosure unless such omitted evidence creates a reasonable doubt as to the defendant’s guilt which did not otherwise exist. [Cits.]” Id. The reports here in question did not meet that standard of materiality.

Moreover, regarding the notes of Dr. Butler, assuming without deciding such notes were discoverable under Brady, appellants have failed to show “that the information withheld so impaired [their] defense that [they were] denied a fair trial within the meaning of the Brady rule. . . .” Davidson v. State, supra at 559. We are satisfied that there exists no reasonable probability that had this evidence been disclosed to the defense, “the result of the proceeding would have been different.” Rogers v. State, 257 Ga. 590 (3) (361 SE2d 814) (1987).

5. Appellants assert that the trial court erred by allowing the State to introduce a statement made by Mr. Horne asserting that the State’s evidence was insufficient to indict him. We are satisfied that reasonable inferences could be drawn from this voluntary statement that would have relevance in this case. “Admission of evidence is a matter which rest largely within the sound discretion of the trial court and an appellate court will not interfere with its rulings absent abuse of that discretion. [Cit.] If an item of evidence has a tendency to establish a fact in issue, then it is relevant and admissible. [Cit.] Georgia law favors admission of any relevant evidence no matter how slight its probative value.” Whisnant v. State, 178 Ga. App. 742 (1) (344 SE2d 536) (1986). We need not consider in this instance whether the probative value of the statement was outweighed by any potential for prejudice it might cause, as no specific objection on that ground was raised at trial. See Weaver v. State, 179 Ga. App. 641 (7) (347 SE2d 295) (1986).

6. Mr. Horne contends that the child molestation count with which he was separately charged and the sodomy count with which he was also separately charged merged. The child molestation count alleged that appellant committed various acts, including an act of sodomy; the sodomy count alleged an act of sodomy of the same type. The evidence showed only one act of sodomy occurred.

“ ‘(A) crime is an included crime and multiple punishment therefor is barred if it is the same as a matter of fact or as a matter of law. . . .’ [Cit.] OCGA § 16-1-6 defines an included crime as one ‘established by proof of the same or less than all the facts . . . required to establish the commission of the greater crime charged.’ ” Green v. State, 170 Ga. App. 594 (2) (317 SE2d 609) (1984).

Under the indictment in this case, the offense of child molestation involved several acts, one of which was an act of sodomy, and had as one element proof of the age of the victim. The sodomy count of the indictment alleged only the commission of an act of sodomy. Since the evidence established only one act of sodomy, the proof of which was necessary to prove the child molestation count as alleged, the sodomy count of the indictment was “established by proof of . . . less than all the facts . . . required to establish the commission of [child molestation].” OCGA § 16-1-6 (1). It follows that the offense of sodomy as alleged was included as a matter of fact in the offense of child molestation as alleged. Therefore, the sodomy count merged into the child molestation count. Green, supra.

The State asserts that since there were several acts of molestation alleged and proved, there was sufficient evidence for both counts. That argument ignores the fact that the State alleged and proved the act of sodomy as part of the child molestation count. McCollum v. State, 177 Ga. App. 40 (338 SE2d 460) (1985), does not control the present case because there were numerous acts of sodomy proved in that case. Here, there was the single act of sodomy, and it was alleged and proved as part of the child molestation count.

Because of the merger, Mr. Horne’s conviction of sodomy must be vacated.

7. Appellants further contend that there was a Brady violation in the trial court’s failure to conduct a pre-trial in camera inspection of the State’s files to determine whether they contained anything impeaching, mitigating, or exculpatory. Specifically, they complain that a tape recording of an interview of the victim by a police officer showed inconsistencies between the child’s testimony at trial and her statements in the interview.

Without going into the question of how the trial court could have determined from a pre-trial inspection that the child’s statements to the officer would differ from her trial testimony, we find that there was no Brady violation. The recording was introduced at trial and appellants were provided with transcripts of it. Although they did not ask for a continuance when they got the transcripts, appellants requested and were given “a moment to look over” one of the transcripts. Under those circumstances, there was no Brady violation. Glenn v. State, supra, Division 2; see Chambers v. State, 250 Ga. 856 (2) (302 SE2d 86) (1983).

8. Appellants have abandoned their eleventh enumeration of error. Rule 15 (c) (2) of the Rules of the Court of Appeals; Adams v. State, 187 Ga. App. 340 (3) (370 SE2d 197) (1988). We have reviewed all of appellants’ remaining enumerations of error and find them to be without merit.

For reasons stated in Division 6, the conviction of and sentence for sodomy only are reversed; the remaining convictions and sentences are affirmed.

Judgment affirmed in part and reversed in part.

Banke, P. J., Birdsong, Sognier and Pope, JJ., concur. Birdsong, J., also concurs specially. Carley, C. J., Deen, P. J., and McMurray, P. J., concur in part and dissent in part. Beasley, J., concurs in Divisions 1-5, and dissents as to Division 6.

Birdsong, Judge,

concurring specially.

1.1 fully concur in all divisions of this opinion, and as to Division 6, I concur specially.

2. Regarding Division 6, I wish to emphasize the following: Some type of merger is required as stated by the majority. In State v. Estevez, 232 Ga. 316 (1) (206 SE2d 475), it was held that OCGA §§ 16-1-6 and 16-1-7 “establish alternative rules for determining when one crime is included in another as a matter of fact or as a matter of law so as to bar conviction and punishment for more than one crime. Heretofore the rule was that an accused could not be convicted and punished for more than one crime if they were the same as a matter of fact and as a matter of law.” (First emphasis supplied.) Id. at 319.

These offenses (child molestation as averred and simple sodomy) may be separate as a matter of law; however, I believe that in this instance they definitely are not separate as a matter of fact. The trial record conclusively establishes that one and only one act of sodomy occurred during this entire period. Clearly, in order to prove the offense of child molestation, as that offense was charged, the State of necessity had to prove the entire offense of simple sodomy. A crime is a lesser included offense, as a matter of fact, whenever “[i]t is established by proof of the same or less than all the facts . . . required to establish the commission of the [other] crime charged.” (Emphasis supplied.) OCGA § 16-1-6 (1); compare LaPalme v. State, 169 Ga. App. 540 (313 SE2d 729). As stated succinctly by Chief Judge Carley, Presiding Judge Deen and Judge Sognier, in Kelly v. State, 188 Ga. App. 362 (3) (373 SE2d 63), “ ‘[o]ffenses merge as a matter of fact pursuant to OCGA § 16-1-6 (1) if one of them is established by proof of the same or less than all the facts required to prove the other.’ ” (Emphasis supplied.) Id.; Fredrick v. State, 181 Ga. App. 600 (2) (353 SE2d 41), citing Haynes v. State, 249 Ga. 119, 120 (288 SE2d 185) (when the State uses up all the evidence that the defendant committed one crime in establishing another crime, the former is included as a matter of fact under OCGA § 16-1-6).

The case of McCollum v. State, 177 Ga. App. 40 (338 SE2d 460), should be obvious to all to be clearly distinguishable from the operative facts conclusively established by this record. In McCollum the evidence unequivocally established that the defendant had committed numerous acts of sodomy over a long period of time. Thus, the jury could have found the defendant guilty of one particular sodomy offense to support its guilty verdict of the sodomy charge and of entirely different sodomy offenses to support its verdict of guilty of child molestation. In this case, there was only one act of sodomy committed, and it is impossible to prove appellant committed child molestation as averred in Count I without also proving that he committed simple sodomy as charged in Count III. Thus, appellant’s conviction of both offenses without some type of merger violates OCGA § 16-1-7 (a) (1).

3. Believing that some type of merger is mandated, I would have preferred to seize upon this opportunity to overrule in part Green v. State, 170 Ga. App. 594 (317 SE2d 609). Green needlessly restricts the express power of this court, see generally OCGA §§ 15-1-3 (6) and 15-2-8 (7), by requiring that in all such cases merger be accomplished by merging the so-called lesser offense into the greater. Nothing expressly contained in OCGA §§ 16-1-6; 16-1-7 or 16-1-8 requires that merger be accomplished in any particular manner. All that is required is some type of merger so that an offender is not in effect convicted, as in this case, twice for committing either the same offense or the same criminal misconduct (as above discussed). Normally, I would prefer to apply the rule that merger will be accomplished by merging the less serious criminal misconduct into the more serious misconduct. In such cases, the maximum punishment prescribed by statute normally would control in determining which conduct is most serious. Utilization of this rule would generally result in amending an offender’s criminal conviction record in a manner which would more accurately reflect the true gravity of the defendant’s criminal misconduct. However, it would be appropriate in certain cases to apply other merger rules to more accurately affirm conviction results. For example, in this case we could merge the offending language from the child molestation specification into the simple sodomy specification and affirm both convictions, as amended. The requirements of OCGA § 16-1-7 (a) (1) would be met, but in a more accurate manner so as to reflect the true gravamen and scope of the criminal conduct of which appellant was convicted.

Deen, Presiding Judge,

concurring in part and dissenting in part.

I concur fully with the majority opinion except for Division 6, from which I dissent.

If the act of sodomy were the sole evidentiary basis for both the sodomy conviction and the child molestation conviction of Gary Horne, I would agree with the majority opinion that under Green v. State, 170 Ga. App. 594 (317 SE2d 609) (1984), a merger occurred. However, the indictment alleged other acts of child molestation in addition to the sodomy, and the evidence adduced at trial included a plethora of other incidents, completely separate and distinct from the act of sodomy, that would support the child molestation conviction.

Specifically, the indictment charged Gary Horne with child molestation by (1) exposing his genitals to the victim, (2) by performing sodomy on the victim, and (3) having the victim sit on the defendant’s lap. The evidence adduced to support this child molestation charge was (1) the victim’s testimony that Gary Horne had exposed his genitalia by masturbating in her presence 10 to 20 times over the period of a year; (2) the evidence concerning the act of sodomy; and (3) the victim’s testimony about an incident when Gary Horne had her sit on top of him while he was lying on a bed so that his erected penis touched her vagina. Even though the evidence concerning the act of sodomy was the same evidence used to prove the sodomy charge, all of the episodes of masturbation and the lap-sitting incident certainly independently and separately support the conviction for child molestation. Under McCollum v. State, 177 Ga. App. 40 (338 SE2d 460) (1985), Gary Horne’s convictions for child molestation and sodomy both should be affirmed.

Further, the jury was authorized to infer that the pornographic photographs introduced into evidence promulgated, promoted, and portended the permissiveness and perversion of mental and physical abuse and molestation, and acted as a type of Bundy “blueprint” of anticipated assaults and acts, or as a type of “pied piper” approach, to try to round up or turn the victim on. See Megar v. State, 144 Ga. App. 564, 568 (241 SE2d 447) (1978). See also Howell v. State, 172 Ga. App. 805 (324 SE2d 754) (1984). Accordingly, I respectfully dissent.

Decided July 14, 1989

Rehearing denied July 28, 1989

Hackel & Hackel, Thomas M. Hackel, for appellants.

Harry D. Dixon, Jr., District Attorney, Richard E. Currie, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Benham, Judge. Birdsong, Judge,

license: Public Domain

text:
    A89A0647.
    DAN RIVER, INC. v. CARROLL.
    (385 SE2d 686)
   Benham, Judge.

This is a workers’ compensation appeal. On March 12, 1981, ap-pellee/employee was injured in the course of his employment with appellant/employer Dan River, Inc. Shortly thereafter, appellant, a self-insurer, began paying workers’ compensation benefits to appellee. At the time of the injury and initiation of payments, the Workers’ Compensation Act provided that “[i]f any income benefits payable without an award are not paid within 14 days after becoming due, there shall be added to the accrued income benefits an amount equal to 15 percent thereof. . . .” OCGA § 34-9-221 (e) (1982 ed.). On July 1, 1985, the Code section was changed to provide that “[i]f any income benefits payable without an award are not paid when due, there shall be added to the accrued income benefits an amount equal to 15 percent thereof . . .,” thereby eliminating the 14-day grace period the employer had under the previous provision. Appellee sought to have the 15 percent penalty imposed against appellant for its failure to pay benefits in accordance with the 1985 amendment for the payments due appellee after the effective date of the amendment. The ALJ ruled in appellee’s favor, but the board reversed the decision, finding that only one payment was untimely made and that the allegedly untimely payments were excused as being due to circumstances beyond the employer’s control. The superior court reversed the decision of the board, and appellant sought discretionary review by this court. We granted its petition and affirm the decision of the superior court.

1. Appellant contends that the board’s findings regarding the late payments were findings of fact and so were binding on the superior court under the “any evidence” rule. Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408 (1), (7) (224 SE2d 65) (1976). However, appellant does not cite us to nor do we find any evidence in the record that supports the findings in question. In the absence of supporting evidence, the appellate courts are not bound by the board’s findings, and so the superior court did not exceed its authority by reversing the board.

Decided July 11, 1989

Rehearing denied July 28, 1989

Woodson & Hanofee, H. Clifton Woodson, for appellant.

Don L. Hartman, William G. Boyd, for appellee.

2. Appellant’s other argument is that the change in the law regarding the timing of payment is a substantive change and not a procedural one. If it is a substantive change, it should not have an application retroactive to the initiation of compensation payments. See Hart v. Owens-Illinois, 250 Ga. 397 (297 SE2d 462) (1982). While we agree that statutes of limitation are not applied retroactively (id.), OCGA § 34-9-221 (e), like subsection (d), “ ‘is not a statute of limitation, a statutory estoppel or bar to contest issues but one of sanctions.’ [Cit.]” Carpet Transport v. Pittman, 187 Ga. App. 463, 466 (370 SE2d 651) (1988). Appellee’s “substantive right” to receive benefits payments existed before the amendment in question. The statutory change did not create a new substantive right to have the benefits paid when due, but merely shortened the time period within which the employer can make the payments without a penalty, which is a procedural matter. See Atha v. Jackson Atlanta, 159 Ga. App. 433, 436 (283 SE2d 654) (1981). The granting of a grace period for payment of benefits is a statutory privilege and, as such, neither the claimant nor the employer has a vested right in it. Id. Appellant’s argument has no merit.

Judgment affirmed.

Carley, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Pope and Beasley, JJ., concur. Birdsong and Sognier, JJ., dissent.

Birdsong, Judge,

dissenting.

I must dissent. There was evidence in the record that supports the findings of the full board and, under the any evidence rule, the case should be reversed and the findings of the full board affirmed. See Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408 (224 SE2d 65).

I respectfully dissent. I am authorized to state that Judge Sognier joins in this dissent.


author: Beasley, Judge. Carley, Chief Judge,

text:
    A89A0755.
    GROSS v. FRANK’S WAREHOUSE FOODS, INC.
    (385 SE2d 688)
   Beasley, Judge.

Plaintiff Gross appeals the grant of summary judgment to defendant Frank’s Warehouse Foods, Inc., in this “slip and fall” suit.

Around 3:00 p.m. Gross went grocery shopping at the defendant store. She had shopped there many times before. In this instance the store was not too crowded. As the cashier finished ringing up Gross’ groceries, Gross realized that she had forgotten to purchase onions. Consequently, she left the check-out line and went to the produce department. Gross reached for and grabbed about a five pound bag of onions from a waist-high display. Gross turned to go back to the check-out register, took some steps, and slipped and fell. She fell back on another shopper, Mr. Walker.

In her complaint, Gross alleged that the defendant store negligently maintained its premises so as to create a dangerous condition which was the proximate cause of her fall. Gross steadfastly maintains that she slipped and fell because defendant’s floor was improperly waxed or overwaxed, but she offered no basis for this conclusory opinion.

After a hearing and consideration of the depositions of Gross, Mr. Walker, Mrs. Walker, Langston (defendant’s grocery manager) Ellis (defendant’s meat supervisor), and Daniels (defendant’s head stock clerk), and of the opposing affidavit by Walker and the supporting affidavit by Langston, the trial court concluded that defendant’s employees’ depositions pierced plaintiff’s pleadings and granted the defendant summary judgment.

Gross contends that the trial court erred in applying the standard in Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980), that it erred in finding certain evidence sufficient to counter her opinion that the floor was too heavily waxed, and that it erred in not giving her the benefit of all reasonable inferences.

Where plaintiff alleges that the fall was because of wax defendant placed on the floor, the principles recited in Alterman Foods, supra at 624, apply: “[T]he plaintiff may make out a cause of action by showing an act or omission on the part of the defendant which was the proximate cause of his injury and which could not have been avoided by the plaintiff through the exercise of ordinary care. [C'it.]

“ ‘[P]roof of nothing more than the occurrence of the fall is insufficient to establish the proprietor’s negligence.’ [Cit.] To presume that because a customer falls in a store that the proprietor has somehow been negligent would make the proprietor an insurer of his customer’s safety which he is not in this state. [Cit.] ‘What the law requires is not warranty of the safety of everybody from everything, but such diligence toward making the store safe as a good business man is in such matters accustomed to use.’ [Cits.]

“Thus the plaintiff must, at a minimum, show that the defendant was negligent either in the materials he used in treating the floor or in the application of them.”

Grocery manager Langston’s affidavit averred that he witnessed the incident involving Gross. Immediately after she stumbled, he examined the floor in her vicinity and there was no debris or foreign object whatsoever on the floor. During the time in which Gross stumbled, the store floors were periodically waxed by a hired independent contractor. When Langston examined the floor immediately after Gross’ stumble, it was apparent that the procedures utilized to wax the floor, as well as the materials used, were ordinary and proper.

Langston described in some detail how a floor was waxed. Although he stated he was not a floor expert, he said he had mopped and cleaned floors for the last fifteen years and knew what did or did not cause trips. He further stated that he walked the store every morning and looked at the floor, and that immediately after the Gross incident, they took photographs and examined the floor and there was no slippery substance or anything else there.

Langston’s affidavit, standing alone, was sufficient to pierce any allegations that the store was negligent either in the materials used to wax the floor or in their application. In addition, defendant submitted the further supporting deposition evidence of its employees.

Daniels’ deposition testimony echoed Langston’s to the effect that immediate examination of the incident site revealed nothing on the floor. Ellis in deposition testified that the floors were regularly swept, that he walked the floors, and that among other things he would check and notice if the floor was slippery. There was no evidence that any other customer had slipped on the floor which had been waxed the evening before.

Inasmuch as the defendant store produced piercing evidence in support of its motion for summary judgment, Gross could not rest upon her case but had to set forth specific facts and present her case in full in order to show there was a genuine issue for trial. See Alghita v. Universal Investment &c. Co., 167 Ga. App. 562, 566-7 (307 SE2d 99) (1983). This she failed to do.

Patron Walker’s affidavit stated that he was present when Gross fell. He could tell it was wax on the floor where Gross slipped because it looked like a “right smart” of wax down on the floor where she fell. From what he could see, Gross fell on a waxy spot on the floor. He formed the opinion from years of working at a commissary. In Walker’s deposition, although he stated that in his opinion the reason Gross fell was that the floor was pretty slick, when specifically asked if he saw anything unusual about the wax, he stated, “I don’t know how to say it. It looked like a right smart of wax down there, but I couldn’t just say it was too much or what, you know.”

Assuming Walker’s phrase “right smart of wax” meant that the floor had a substantial quantity of wax, this, particularly in the context of his qualifier, did not raise an inference of excessive wax. Plaintiff’s witness could not say, and did not say, there was “too much” wax. His testimony with all reasonable inferences does not counter defendant’s averment that the materials used and the waxing of the floor were ordinary and proper.

Mrs. Walker’s deposition shed no light on the condition of the waxed floor.

Portions of Gross’ deposition consisted of her relating a statement allegedly made by Walker to the effect that the floor was too slick or was too wet or had too much wax on it, and her statements that the whole floor looked like it was too waxy but that the only reason she thought the floor had too much wax on it was because it was shiny and because she fell on it. She did not see anything specific on the floor nor did she remember feeling the floor at the time of her fall.

The alleged statement by Walker as related by Gross was inadmissible as hearsay and would not be considered in the summary judgment proceeding. See Davidson v. American Fitness Centers, 171 Ga. App. 691, 693 (2) (320 SE2d 824) (1984). Gross’ statements as to her own observations did not assist her in showing that a material issue of fact remained. Her conclusion that the floor was too waxy was based on the fact of her fall and on her perception that the floor was shiny. The fact of the fall was insufficient in and of itself to establish the proprietor’s negligence. See Harmon v. Reames, 188 Ga. App. 812 (374 SE2d 539) (1988); Alterman Foods, supra. The fact that the floor was shiny, see Jiffy Store v. Bishop, 190 Ga. App. 716 (379 SE2d 602) (1989), did not suggest that the wax used or its application was defective; a primary purpose of waxing a floor is to make it glossier or shinier.

Giving plaintiff the benefit of all reasonable inferences, her opposing evidence failed to set forth specific facts to rebut defendant’s showing that the waxing of the floor was ordinary and proper. Summary judgment was not error.

Judgment affirmed.

Banke, P. J., Birdsong, Sognier and Pope, JJ., concur. Carley, C. J., Deen, P. J., McMurray, P. J., and Benham, J., dissent.

Decided July 11, 1989

Rehearing denied July 28, 1989

John G. Wolinski, for appellant.

Jones, Cork & Miller, Bradley J. Suruant, for appellee.

Carley, Chief Judge,

dissenting.

Because I believe that the majority, as did the trial court, improperly weighs the evidence and resolves disputed issues of fact contrary to the established rule on summary judgment, I cannot agree to the affirmance of the judgment of the trial court. The majority relies upon Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980). However, the majority admits that in addition to the plaintiff’s own testimony, the affidavit and deposition of Mr. Walker stated that the plaintiff slipped because the floor was slick and Walker testified from his experience that there was a “right smart” of wax on the floor. When this evidence presented by the plaintiff as respondent to a motion for summary judgment is considered, this case is no more controlled by Alterman than was the case of Martin v. Sears, Roebuck & Co., 253 Ga. 337 (320 SE2d 174) (1984). In reversing this Court, which had relied upon Alterman, the Supreme Court in Martin held that the testimony submitted by the plaintiff “satisfie[d] the test in Al-terman by offering some evidence of negligent application of materials used in treating the floor. [Appellant’s evidence] created a conflict in the evidence as to a material issue which was sufficient to survive the [appellee’s] motion for directed verdict. [Cit.] ” Martin v. Sears, Roebuck & Co., supra, 338.

Because I believe that the trial court incorrectly granted summary judgment in favor of appellee, I must respectfully dissent.

I am authorized to state that Presiding Judge Deen, Presiding Judge McMurray, and Judge Benham join in this dissent.

       The trial court did not consider an opposing affidavit by Gross which was filed approximately l-'/2 weeks after the summary judgment hearing. See OCGA §§ 9-11-6 (d); 9-11-56 (e); Splish Splash Waterslides v. Cherokee Ins. Co., 167 Ga. App. 589, 596 (7) (307 SE2d 107) (1983).


author: Deen, Presiding Judge. Birdsong, Judge,

text:
    A89A0761.
    WARE COUNTY v. MEDLOCK.
    (385 SE2d 429)
   Deen, Presiding Judge.

This is an interlocutory appeal of the denial of the defendant Ware County’s motion for summary judgment.

The appellee Medlock claimed injuries as a result of falling into a hole when the grass caved in beneath him on the Ware County Courthouse lawn. He had stepped on the lawn, just off the sidewalk, to examine a moonshine still which had been put on display near the jailhouse. He contended that because the grass in that area was brownish or dying, and the nearby sidewalk was cracked above where it was later found the hole extended, the county had a duty to inspect the grounds and protect him as an invitee, and that its failure to do so rendered it liable.

In denying appellant’s motion for summary judgment the trial judge set forth in his order that appellee “contends that defendant had constructive knowledge of the existence of an underground hollow since grass in the area was turning brown. Defendant, in support of its motion for summary judgment, argues that patches of brown grass could result from heat, drought, disease, or insect damage, and alone could not constitute constructive knowledge of an underground hollow or any other defect. It appearing to the Court from a review of the record, briefs, and oral arguments that there is a genuine issue as to one or more material facts and that defendants are not entitled to judgment as a matter of law, defendant’s motion for summary judgment is hereby denied.”

Where actionable constructive knowledge on the part of the defendant is asserted against the defendant and the case is considered on summary judgment, the latter would have the burden of proof by offering affirmative evidence to negate the existence of any knowledge of a defect or danger. Yet, this court’s decisions in Bright v. Food Giant, 177 Ga. App. 641 (340 SE2d 272) (1986), and Newman v. Ruby Tuesday, Inc., 184 Ga. App. 827 (363 SE2d 26) (1987) “hold that an allegation of constructive knowledge may be summarily rejected in a slip-and-fall case based upon the mere absence from the record of evidence tending to support the inadequate inspection theory of liability, rather than upon the presence of evidence tending to negate it.” Baldwin County Hosp. Auth. v. Coney, 188 Ga. App. 339, 343 (373 SE2d 252) (1988). Also see Shiver v. Singletary, 186 Ga. App. 746 (368 SE2d 523) (1988), and cases cited therein. The majority opinion in Shiver sought and purported to overrule the two cases of Bright v. Food Giant, supra, and Newman v. Ruby Tuesday, Inc., supra, and further stated, “They are hereby overruled.” But, the whole court vote in Shiver was actually 4-1-4. The one vote, a special concurrence, indicated that “these two cases should not be overruled.” Only four judges voted to overrule the two cases. After further consideration and study, we conclude that the majority position in Shiver was correct and that Bright and Newman must be overruled.

As stated in Shiver at 748-749, “the plaintiff, as respondent on motion for summary judgment, cannot properly be called upon to offer proof of actionable constructive knowledge on the part of the defendant until the defendant, as movant, has come forward with evidence tending to negate the existence of such knowledge.” In the instant case, two of appellant’s employees specifically stated that they had not inspected the area for safety purposes. This evidence did not eliminate all issues of fact with regard to constructive knowledge of the hazard, and the trial court properly denied appellant’s motion for summary judgment.

Judgment affirmed.

Carley, C. J., McMurray, P. J., Banke, P. J., Pope and Benham, JJ., concur. Birdsong, Sognier and Beasley, JJ., dissent.

Birdsong, Judge,

dissenting.

If the majority intends to overrule Bright v. Food Giant, 177 Ga. App. 641 (340 SE2d 272) and Newman v. Ruby Tuesday, Inc., 184 Ga. App. 827 (363 SE2d 26), and to thus establish a rule of absolute liability upon proprietors for defective conditions or foreign substance hazards, then it will also have to overrule the underlying authority, Alternan Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327), as well as Mitchell v. Food Giant, 176 Ga. App. 705 (337 SE2d 353), and a host of other Georgia Supreme Court and Court of Appeals cases.

These cases are well founded; I have difficulty understanding the source of the perceived need to overrule them, or how it can be lightly done. In Alterman Foods v. Ligon, supra, the Supreme Court asseverated that in foreign substance/hazardous conditions cases the plaintiff must show “an act or omission on the part of the defendant which was the proximate cause of his injury . . .” (emphasis supplied; id. p. 624); and that the proprietor is “not [an insurer of his customer’s safety] in this state” (id. p. 624) and is not to be held liable under a theory of constructive knowledge (by failure to inspect) unless he had an opportunity to discover and remove the hazard. Id. pp. 622-623. These are general principles of negligence law that apply equally to this case.

Secondly, the majority is incorrect on the facts where it states that “two of appellant’s employees specifically stated that they had not inspected the area for safety purposes.”

No such statement, specific or implied, was made. The employees, who were the county’s maintenance supervisor and a worker, testified affirmatively that they inspected for beautification purposes, but neither employee ever said or implied he had not inspected the area for safety purposes. In fact, the maintenance supervisor specifically stated that he generally inspected the grounds each week to be sure there were no holes or dangerous areas, and would repair a cracked sidewalk “if it was a hazard where somebody would get hurt or cause . . . damage.” The worker affirmed he was told by the supervisor to inspect the grounds and that he did so, but he did not say that he never inspected for safety purposes.

Moreover, only a few days earlier the worker had traversed this same spot with a lawnmower without any problem and with nothing unusual to capture his attention but a few ordinary brown spots in the grass, not shown to be unlike the many other apparently harmless brown spots he had seen on the grass. In my view, this act by itself constituted as good an “inspection” as anything suggested by the plaintiff, for the plaintiff has not suggested any kind of inspection that would have uncovered this hole.

Further, the substantive law newly created by the majority upon this misstatement of the facts completely eviscerates the summary judgment law. It creates a dangerous precedent that in effect places the entire burden of proof upon a defendant to absolutely disprove negligence or superior knowledge even where the plaintiff cannot rebut with any evidence that there was negligence or superior knowledge. In all cases such as this, of which we see hundreds, the defendant will as a mater of procedural law always be denied summary judgment despite the plaintiff’s complete inability to muster any proof of negligence at the threshold, and these cases will go to a jury upon evidence that will not sustain a plaintiff’s verdict if he gets one.

Thus, I see the summary judgment procedure being destroyed in this state, or effectively removed from a defendant’s grasp, despite his presentation of a prima facie case and the complete failure of the plaintiff to produce anything in rebuttal.

1. The evidence in this case should be more fully stated. The hole that appeared beneath Medlock measured about two feet across by one and one-half feet deep. About a week earlier, a county maintenance man had mowed that area; despite patches of brownish grass and a crack in the nearby sidewalk, the ground appeared to be normal and the employee had no idea there was a hole beneath it.

This employee had seen smaller holes, or “bumpy stuff,” in many places on the courthouse lawn and had diligently worked to cover them, for he had previously worked at a golf course and was accustomed to smooth areas. He had been told to inspect or look over the grounds and did so, mainly to see if they needed tending. He had noticed “[t]hese brown places like this and the yellow color that was in the front yard [of the jailhouse]” and went over the whole place looking for mole crickets, “which [cause] dead spots just like this”; he knew if he “wet the [ground] very very much they’d come up and I’d find them,” which later he did, and “got some stuff to take care of them. ...” The maintenance worker further testified that he had seen “some [brown] spots like that made by mole crickets,” but that he knew a mole cricket did not make this hole, and he said: “I’d hate to see the mole cricket [that would have made this hole].”

The maintenance man viewed the hole the next work day after the plaintiff fell in it, and peered into it, expecting to see ground water suggesting a “wash-out” but the hole was “dry like powder . . . just as dry as sand and dirt,” and the soil in the hole “looked to be good, dark dirt, dark soil which is good for growing grass.” While examining the hole on this occasion, he cut the grass away around the hole and discovered that the hole extended under that grass and beneath the sidewalk less than five feet away; but while picking or cutting away the remaining grass, he found “the grass part was very thick. I mean it wasn’t like it was real thin, you know, but it was thick. And then when I cut it is when it dropped. But, when I tried to pick it out I liked to never got it out by myself because there was so much dirt on the bottom of this grass. It wasn’t whatever caused it didn’t come right up to the edge of the ground. It was still thick. [There was a thick turf that had been over that hole?] Yes, sir. All the rest that I cut out was very thick." (Emphasis supplied.)

This witness testified further that before he cut away this surrounding grass and discovered the hole extended beneath it, he got his lawnmower and “mowed over it. And I mowed the rest of it . . . not thinking I’d fall in or anything like that. But, then whenever I cut it out, well, I stopped and I looked in that hole and I said, Man, this — I stuck my arm in there and I said, Boy, what’ a hole. But, I went ahead and mowed and everything was fine. I didn’t dream that they had a hole like there was up side of that sidewalk — from there back to the sidewalk. I couldn’t —it just puzzled me when I [saw] that hole under there after I dug it out. Because it felt firm. My mower didn’t shake the ground or anything. I just mowed back and to like there wasn’t nothing to it." (Emphasis supplied.)

The county maintenance director testified that he inspected the grounds about once a week and presumed he did so within the week preceding Medlock’s fall, but could not remember specifically. He testified he inspected for beautification purposes. However, he also clearly testified that he performed a general inspection of the area around the moonshine still to “make sure the grass was cut and there was no holes or anything danger [sic] like that"; and that he had seen cracks in the courthouse sidewalks and “there’s cracks all over the sidewalk around the courthouse,” and that he would repair the sidewalk if it was causing a problem or “[i]f it was a hazard where somebody would get hurt or cause . . . damage.” (Emphasis supplied.) But, he stated he had never known a crack “that size to indicate some type of hidden danger,” and that he could not recall any other occasion in his whole life that he “found grass dead because there was a hollow spot underneath the earth.”

Throughout these employees’ testimony, there was not a piece of evidence as to what caused the hole. The maintenance supervisor and his worker each stated clearly they did not know. The maintenance supervisor testified the sidewalk crack, as shown in a photograph, appeared to be an old crack; that he had examined the grounds and there was no drainage problem around the jail; that whenever grass appeared to be dead he would fertilize it and water it; and that he had no idea whether the hole which exhumed itself had happened “overnight.”

The maintenance worker was closely examined by plaintiff in an unsuccessful attempt to elicit a competent statement that the presence of dead grass would indicate a hidden hole, as follows: he stated that he had mowed back and forth around the hole before he discovered the hole extended underneath where he was mowing, and “everything was fine. . . . Q. The only thing to indicate, then, that there might have been a hole there was the dead grass? A. Well. . . . Q. And that might not indicate a hole. That could have meant a disease in the grass. A. Right. Q. But, it meant something was wrong there? A. Right. But, we had lots of spots that was speckled. You’d be mowing and hit a real green patch of grass and then it would be bare like this table. Q. Did you have any other spots that was several feet big as these were — or this spot was? A. Well, see, whenever [I was] mowing it really looked all green, you know, just mowing. But, then when you just really stopped and looked at it you could see brown places. But, it wasn’t — I would imagine it was like this, but I don’t remember it.”

The plaintiff contends that merely because he (erroneously) has asserted proof of a failure of the defendant to properly inspect the grounds, the burden is thus cast upon defendant to show or prove it could not have had constructive knowledge of the concealed defect. The flaw in this reasoning, however, is that a breach of a duty to inspect gains the plaintiff nothing unless, as with any other breach of duty, it is shown to have caused the plaintiff’s injury. See Alterman Foods v. Ligon, supra, p. 624.

This case is devoid of any evidence as to what caused the concealed hole to form. No inference can be made that the hole could have been discovered because there is not any evidence beyond sheer speculation that it existed prior to the moment the grass collapsed beneath Medlock, and of course there is no telling how long it existed. Moreover, there is not even any evidence that a hole, or a hole-causing disease, caused the brownish color of this grass, or caused a crack to form in the sidewalk nearby, or that there was any connection at all between the hole and the crack and brown spot. Therefore, neither of these conditions can be said to be “notice” of a concealed danger.

2. The plaintiff in this case is urging, in effect, that wherever it appears impossible for the plaintiff to muster a showing that the defendant had superior knowledge of the defect, the defendant must shoulder the equally impossible burden to prove it did not. This has never been the law in Georgia, and it does not become the law so as to deny summary judgment to a defendant on the confused grounds that as movant he bears an absolute burden of proof.

The defendant has the burden on its motion for summary judgment to prove it can conclusively negate at least one element entitling the plaintiff to recover under any theory fairly drawn from his pleading and prove there is no material issue of fact. P. F. Collier, Inc. v. Dreesen, 128 Ga. App. 64 (195 SE2d 766); Turner v. Noe, 127 Ga. App. 870 (195 SE2d 463). But when the defendant has thus shown a prima facie right to judgment, the burden is then cast on the plaintiff to produce rebuttal evidence, or else concede the grant of defendant’s motion. Stephens County v. Gaines, 128 Ga. App. 661 (197 SE2d 424).

This procedural structure is well established and the reason for it is obvious: the plaintiff has the burden to prove his case in the first instance, and when it is shown by the defendant that he cannot do so, there is no point in sending the case to a jury, for there is no reason to assume the plaintiff can do at trial what he is unable to do upon the defendant’s prima facie challenge.

A procedural construction which places the burden upon the defendant to disprove what the plaintiff has not shown he can ever prove, virtually destroys the summary judgment procedure, for it will send every case to the jury despite the plaintiff’s inability to muster proof of his claim. Such a result is clearly not what the legislature intended. See Scales v. Peevy, 103 Ga. App. 42 (118 SE2d 193). If the defendant is forced to disprove what the plaintiff finds it impossible to prove, then defendants will always be denied the right to summary judgment in the very cases where it is most deserved. At this juncture, summary judgment motion by a defendant becomes a useless procedure except for the plaintiff, who can use it deftly to keep alive a suit he can never prove at trial.

The summary judgment procedural rules apply equally to all negligence cases whether engendered by the presence of a “foreign substance” or by a concealed defective condition, or by actual malfeasance. Recently, in West End Investments v. Hills, 188 Ga. App. 274, 276 (372 SE2d 665), we held again: “ ‘When a motion for summary judgment is made and supported as provided in (OCGA § 9-11-56), an adverse party may not rest upon the mere allegations ... of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.’ [Cit.] “ ‘ “ ‘When the (defendant-) movant for summary judgment presents evidence apparently destroying the plaintiff’s cause of action, the movant has met his burden, and the burden then shifts to the plaintiff to present any alternative theories, if such exist, which would support his action and within which genuine issues of fact remain.’ [Cit.]” ’ ” (Emphasis supplied.)

In Celotex Corp. v. Catrett, 477 U. S. 317, 322 (106 SC 2548, 91 LE2d 265), the United States Supreme Court said: “In our view, the plain language of Rule 56 (c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” (Emphasis supplied.) See also Wilson v. Nichols, 253 Ga. 84, 86 (316 SE2d 752).

Certainly any case of this kind could be laid before a jury (see dissent, Mitchell v. Food Giant, supra, p. 710), but in Alterman Foods v. Ligon, supra, the Supreme Court held that when the defendant in one of these cases makes a motion for summary judgment, “[ijt is the duty of each party at the hearing on the motion for summary judgment to present his case in full” (emphasis supplied) id. p. 625; and although the burden of establishing the nonexistence of any genuine issue of material facts rests upon the defendant-movant, when the motion is supported as provided in OCGA § 9-11-56 (e), the plaintiff “may not rest upon the mere allegations or denials of his pleading, but his response . . . must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” (Emphasis supplied.) Id.

If the defendant’s evidence is sufficient to pierce the pleadings of the plaintiff, the burden shifts to the plaintiff “to produce issuable negligence or suffer judgment.” (Emphasis supplied.) Id.

There was absolutely nothing to put the defendant on notice of a concealed hole in this case. The ordinary brown spots on the grass and the nearby sidewalk crack were not even shown to be connected to the hole. There is not even any evidence that there was a hole until the plaintiff fell in it; there is no evidence as to what caused the hole, no evidence as to what caused the grass to be brown, and no evidence as to what caused the sidewalk crack. A worker had mowed the same area the week before, and the grass did not collapse beneath him and his mower. After the hole caved in, he mowed the surrounding area without any thought that it too might collapse and the earth did not even tremble, although unbeknownst to him there was a hole extending beneath it. In short, there is not a single piece of evidence that would indicate the defendant should have guessed there was a hole beneath the grass before it collapsed beneath the plaintiff, or that there was a hole-causing disease in the grass.

The plaintiff is utterly unable to show defendant had actual knowledge that a certain patch of brownish grass among many on the courthouse lawn, and one certain crack among many cracks in the sidewalk, concealed a hole; therefore, he is obliged to rely upon the theory of constructive knowledge, by notice. This, he says, is proved or shown by defendant’s failure to “properly” inspect for safety purposes, but he fails completely to even suggest what might have constituted a “proper” inspection or what, if anything, such an inspection would have revealed.

At the basis of the. majority’s opinion in this case lies an earlier unsuccessful attempt to overrule Bright, supra, and Newman, supra. In the inconclusive minority opinion in Shiver v. Singletary, 186 Ga. App. 746, 747 (2) (368 SE2d 523), in which most of the present majority concurred, and which Presiding Judge Deen now adopts and Judge Benham now joins in theory, this statement is made: “A lack of actionable constructive knowledge is normally established in [foreign substance] cases by evidence or [sic] compliance with reasonable inspection and/or cleaning procedures. . . .” However, this statement is seriously flawed if (as seems to be the case) it is used to mean that evidence of constructive knowledge arises unless defendant can show reasonable inspection and/or cleaning procedures. This is because even outright proof of a failure to inspect (which does not exist in this case) proves nothing if there is no evidence that an “inspection” would have enabled the defendant to discover the concealed defective condition, such that his failure to discover and correct it was causative of the plaintiff’s injury. Alterman Foods v. Ligon, supra, pp. 622-623, 624.

Even though the plaintiff has not suggested there was anything to discover, he urges that the defendant should be forced to prove what a “proper” inspection would involve, how and to what extent the area should have been “tested,” or how deep the defendant should have dug before it discovered something (whatever that might be), or at what point it could have given up without discovering anything. By this time the defendant will have been forced to prove the plaintiff’s entire case for him, and then disprove it, before ever proving a prima facie case for summary judgment. The defendant, and all others similarly situated, might as well forget about summary judgment and go to trial, however flimsy may be the plaintiff’s case.

In fact, the trial court and the majority have held here that since the defendant cannot prove what, if anything, was concealed beneath the grass any better than the plaintiff could, the case goes to trial. Yet, at trial the plaintiff will bear all these burdens of proof. If he gets a verdict despite his inability to bear this burden, he will not be able to sustain it by a single fact, for it will be based on sheer speculation.

Decided July 13, 1989

Rehearing denied July 28, 1989

Memory, Thomas, Walker & Sweat, Bruce M. Walker, for appellant.

Delman L. Minchew, C. Edwin Rozier, for appellee.

This case admirably proves the procedural wisdom of requiring the plaintiff to respond in rebuttal once the defendant has borne its burden as movant in summary judgment. The plaintiff owes this burden of rebuttal fairly, for he will have to bear the burden of proof at trial; and if he cannot sustain the burden to rebut in reply to a motion for summary judgment, there is no reason to assume he could bear the burden of proof at trial. Celotex Corp. v. Catrett, supra.

I would find that the trial court clearly erred in failing to grant summary judgment to the defendant, and in finding that there was a single fact that would have provided an inference of constructive knowledge of a concealed defective condition. And I do not believe we can or should overrule Bright or Newman, supra, unless we are prepared to ask the Supreme Court to overrule Alterman Foods v. Ligon and Mitchell v. Food Giant, supra, and the entire body of negligence law and summary judgment law of this state.

I respectfully dissent. I am authorized to state that Judge Sognier joins in this dissent.


author: McMurray, Presiding Judge. Carley, Chief Judge,

text:
    A89A0687, A89A0688.
    HOME INSURANCE COMPANY v. NORTH RIVER INSURANCE COMPANY; and vice versa.
    (385 SE2d 736)
   McMurray, Presiding Judge.

Plaintiff North River Insurance Company and defendant The Home Insurance Company provided policies of liability insurance to Intex Products, Inc. (“Intex”), a South Carolina chemical company. The defendant’s policy provided “primary coverage to Intex, which coverage included a duty to defend any lawsuits against Intex at the expense of the defendant. The plaintiff’s policy was an “umbrella” or “excess” policy which protected Intex against adverse judgments in amounts exceeding the primary coverage up to a limit of ten million dollars. The plaintiff’s policy required, and Intex warranted to plaintiff, that certain types and amounts of primary coverage be maintained by Intex, including products liability coverage in an amount of $500,000 for each occurrence.

In 1978 Intex sold several drums of an industrial solvent to Diamond Manufacturing Company (“Diamond’). Diamond used the solvent to clean the fuel tanks of a tugboat, which was being repaired in Diamond’s shipyard. On December 26, 1978, a cleaning crew of Diamond employees was overcome by fumes from the solvent. Additional employees breathed the fumes while rescuing the cleaning crew. Twenty-six persons received medical attention as a result of the incident.

Intex notified defendant of the incident on the tugboat via an “Acord” form. The form had been prepared and typed by the independent insurance agent which had obtained the coverage for Intex. The Acord form bore in the space labeled “Bodily Injury” the notation “500,000” and underneath that figure the notation “1,000,000,” and following those figures the typed words “Products Liability.”

When the Acord form reached defendant’s regional office in Charlotte, North Carolina, an experienced claims supervisor attempted to verify defendant’s coverage by checking the Acord form against the policy “daily.” The “daily” is an abbreviated memorandum of the provisions of an insurance policy from which the entire contact can be reconstructed. The “daily” consists of the declarations page, including a list of the standard forms of clauses which make uf a policy, and duplicates of any schedule, lists or other writings whicl are unique to a particular policy.

When defendant’s claims supervisor examined the “daily” for the policy issued to Intex he saw the figures 500,000 and 1,000,000, anc concluded that the figures on the Acord form were correct, that is that the policy issued by defendant to Intex provided coverage o: $500,000 for each person to a maximum of $1 million for each acci dent injuring more than one person. The claims supervisor did no notice that the language of the daily specified that $500,000 was th< maximum available for any particular incident or “occurrence,” o that $1 million was the aggregate amount available for all occurrence during the policy period. The claims supervisor filled out a “Clerica Instruction Sheet” to show the limits as “500/1000” and checked th “yes” blank on the form in the space labeled “Daily Report Availa ble.” A typist then opened a claims file and typed the word “Daily on defendant’s form No. 10-800. That word signaled any defendant’ employee who later looked at the form that the coverage shown ha< been verified against the daily.

Near the end of 1980 three Diamond employees filed lawsuits i: federal court against Intex alleging severe personal injuries froi breathing the toxic fumes on the tugboat. These three product liabi’ ity suits sought a total of $4 million for physical and psychiatric inji ries. Intex sent the suit papers to its independent insurance ager which in turn sent the complaints to plaintiff and defendant, alon with Acord forms.

When the suit papers reached defendant’s regional office they were referred to R. M. Morgan, an assistant claims manager. Morgan looked at the Form 10-800 which had been typed in 1979 and saw that the limits were “500/1000” and that the coverage had been verified against the “daily” (in 1979). Because the complaints in federal court were asking for an amount in excess of what Morgan understood defendant’s coverage limits to be, Morgan wrote Intex, warning that defendant’s policy “affords coverage in the amount of $500,000 for each person to a maximum of $1,000,000 for each accident of more than one person. . .” Morgan’s letter directed attention to the amount of the claims asserted in the federal lawsuit and recited that it was Intex’s “right and privilege to engage counsel, at your expense, to protect your uninsured interest in this litigation.” Although Morgan did not know when he wrote the letter whether Intex had excess coverage or not, he also stated that, “If you have policies (sic) available to you under any other insurance policies, it is suggested that you report this matter to such other company. ...” Morgan sent a copy of his letter to Intex’s independent insurance agent and the agent sent a copy of Morgan’s letter and the Acord form to plaintiff.

While plaintiff’s claims representative had developed an initial impression, from the Acord form and from figures given on the telephone by defendant’s Savannah office, that a million dollars coverage was available for the three claims, this conclusion was reinforced by the receipt of the copy of defendant’s letter by Morgan reciting policy coverage in that amount. Plaintiff relied on Morgan’s excess letter and on defendant’s other assertions. Plaintiff twice examined defendant’s claims files which contained the false information as to coverage. Defendant’s strategy and course of conduct, including the action of its attorney in the federal litigation, continuously reflected defendant’s false assertion about its coverage limits.

During discovery in the federal cases, plaintiff monitored the litigation and periodically prepared detailed evaluations of the damages in each claim in view of the developing medical evidence. While plaintiff’s claims personnel had some concern that adverse verdicts might exceed defendant’s purported limits of $1 million and thus involve exposure to plaintiff’s coverage, plaintiff did not attend settlement conferences in the federal cases since settlement demands were within the purported primary limits. Thus lulled into a passive posture, plaintiff took no active part in the defense or settlement negotiations concerning the federal cases and allocated a reserve of only one dollar for each claimant.

Meanwhile, the three.federal cases progressed with jury selection being scheduled for August 27, 1981, and the trial of the first case was to begin on September 2, 1981. On August 7, 1981, the attorney employed by defendant to represent Intex recommended that he be given authority to offer $600,000 in settlement of the three claims. On August 26, 1981, defendant’s claims committee decided to authorize $400,000 in settlement of the claims, but directed that the offer not be extended until the three claimants’ settlement demands were reduced.

At the time defendant’s claims committee met it was anticipated that the three federal cases would be tried separately. However, following jury selection the federal judge announced that the three cases would be consolidated for trial. This precipitated a warning from the attorney retained to represent Intex that such constituted a major change, making defeat even more likely than before, since each victim’s account of his emotional and physical injuries would gain credence from the fact that the other claimants were similarly injured. The attorney recommended that defendant pay plaintiffs’ demand of $705,000. Defendant offered to settle for $225,000 and finally during trial offered $400,000, which was refused. The three-day trial in federal court concluded with the jury’s return of verdicts against Intex totalling $1,250,000.

It was only after the return of the verdict in the federal court cases that defendant discovered its error regarding its coverage limits and asked plaintiff to pay all of the judgment over $500,000. In order to protect Intex from levy or attachment plaintiff paid, but under protest. Plaintiff’s offer to arbitrate its dispute with defendant was refused and the filing of the case sub judice followed.

The case sub judice was tried before the State Court of Chatham County sitting without a jury. The state court entered its findings of fact (many of which are incorporated in our statement of the facts) and conclusions of law awarding a judgment in favor of plaintiff and against defendant in the amount of $494,871 special damages, $190,525.33 prejudgment interest and $53,081.33 expense of litigation or a total judgment of $738,477.66, plus court costs. In Case No. A89A0687 defendant appeals from the judgment entered against it. Plaintiff’s cross-appeal is Case No. A89A0688. Held:

1. The trial court concluded that when an insurance company defends its insured pursuant to a policy of liability insurance against a claim which seeks damages in excess of the policy’s limits and a judgment is returned in excess of those limits, an insurance company which issued a policy of excess or umbrella coverage to that insured is equitably subrogated to any rights the insured might have against its primary carrier for negligent failure to settle. Thus, the trial court found plaintiff to be subrogated to the rights of its insured, Intex, as to claims which Intex might have against defendant, its primary insurer, arising out of the defense of the tugboat claims. While finding no Georgia cases on point, the trial court adopted the holding of the Ohio Supreme Court in Centennial Ins. Co. v. Liberty Mut. Ins. Co., 404 NE2d 759, 762, “that an excess insurer is subrogated to the insured’s rights against a primary insurer and may maintain an action for breach of the primary carrier’s good faith duty to settle and defend.” See also Peter v. Travelers Ins. Co., 375 FSupp. 1347, 1350; Continental Cas. Co. v. Reserve Ins. Co., 238 NW2d 862; Valentine v. Aetna Ins. Co., 564 F2d 292, and Vencill v. Continental Cas. Co., 433 FSupp. 1371.

Defendant contends the trial court erred in concluding that plaintiff was equitably subrogated to the rights of Intex since such an extension of the doctrine of equitable subrogation (that is in the context of excess and primary insurer) fails to advance the underlying public policies. However, we reach the contrary conclusion since placing the excess insurer in the shoes of the insured advances the public interest in obtaining prompt and just settlement of claims. The existence of excess or umbrella coverage must not relieve the primary insurer of its responsibility to accept reasonable settlement offers lest, in those situations where a claim exceeds the amount of primary coverage, the primary insurer be encouraged to attempt to place its financial burden upon the excess insurer.

2. In addition to plaintiff’s claim in its capacity as subrogee of Intex for negligent failure to settle, the pleadings and evidence presented a separate claim based on the Restatement of Torts 2d, § 552 as adopted in Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680 (300 SE2d 503). See also Badische Corp. v. Caylor, 257 Ga. 131 (356 SE2d 198). This alternative theory presents a direct action by plaintiff against defendant based on the false representations by defendant as to its coverage limits.

The trial court concluded that plaintiff, standing in the shoes of Intex, was reasonable in relying upon the defendant’s negligently prepared excess letter, both as a matter of fact and as a matter of law. This conclusion by the trial court obviously refers to plaintiff as sub-rogee of Intex but relates to a claim predicated on the false representations by defendant concerning its coverage limits. Thus, the trial court’s judgment is predicated at least in part upon a third theory, that Intex had a right to recover for the misrepresentation as to coverage, which right could be asserted by plaintiff as subrogee of Intex.

Insofar as plaintiff was subrogated to the rights of Intex, plaintiff is put in the place of Intex, entitled to recover all that was available to Intex but also subject to any defenses which could have been asserted against Intex. Liberty Mut. Ins. Co. v. Alsco Constr., 144 Ga. App. 307, 308 (1) (240 SE2d 899). Intex, as the insured under its policy with defendant, was under a duty to read its policy with defendant and is charged with knowledge of the provisions of that policy. King v. Brasington, 252 Ga. 109 (312 SE2d 111); Appling v. Home Fed. Savings &c. Assn., 185 Ga. App. 356, 358-359 (1) (364 SE2d 91); Ethridge v. Assoc. Mut., 160 Ga. App. 687, 689 (288 SE2d 58); Barnes v. Mangham, 153 Ga. App. 540 (265 SE2d 867); Atlanta Intl. Properties v. Ga. Underwriting Assn., 149 Ga. App. 701, 702 (2) (256 SE2d 472). Since Intex is charged with knowledge of the terms of its policy with defendant, including its coverage thereunder, it could not reasonably rely on conflicting representations by defendant. It follows that plaintiff, as subrogee of Intex, could not reasonably rely on defendant’s letter containing the false representation as to the amount of defendant’s coverage of Intex. Thus, the trial court’s conclusion in this regard was error and any claim by plaintiff in its capacity as sub-rogee predicated on defendant’s false representation as to coverage is without merit. At the same time, we note that the trial court apparently did not reach any conclusion, nor do we express any opinion regarding the merits of plaintiff’s direct action against defendant based only on the false representations.

Nonetheless, it does appear that the judgment against defendant is predicated, at least in part, upon an erroneous theory of law. The trial court’s reliance upon an erroneous legal theory requires reversal. Wood v. Dan P. Holl & Co., 169 Ga. App. 839, 840 (2) (315 SE2d 51).

3. While in Division 1 we accepted the reasoning of Centennial Ins. Co. v. Liberty Mut. Ins. Co., 404 NE2d 759, supra, concerning the subrogation issue, we do not thereby alter the standard of care applicable to negligent failure to settle cases in Georgia. Under both Centennial and Georgia law recovery is allowed for damages on account of the bad faith tortious refusal of an insurer to settle a liability claim within the policy limits resulting in damage to the insured. A divergence occurs, however, where the refusal of the insurer to settle arises from negligence which does not amount to bad faith. Since the issue of the correct standard of care is easily separated from the sub-rogation issue, we follow our well settled Georgia law on the standarc of care issue. Under Georgia law (but not under Ohio law as stated ir Centennial) a recovery is permitted for a negligent refusal to settle While there are Georgia cases which refer to a recovery predicated or a bad faith refusal to settle and make no reference to the availability of a recovery for a negligent refusal to settle, such should not b< viewed as inferring that a mere negligent refusal is inadequate-to sup port a recovery. See in this regard United States Fid. &c. Co. v. Evans, 116 Ga. App. 93, 94 (2) (156 SE2d 809), and McCall v. Allstate Ins. Co., 251 Ga. 869, 870 (1) (310 SE2d 513), a recent case stating that a recovery may be had where the insurer fails to settle because i is “guilty of negligence or of fraud or bad faith.”

Defendant also contends the trial court erred in its factual find ing that defendant was negligent in failing to alter its trial strategy after the August 27, 1981, announcement of the federal court whicl changed the procedure to be used in the trial of the tugboat cases While there was evidence that the federal court’s decision to consolidate the trial of the three claims against Intex created problems for both sides in that case, the inference drawn by the trial court, that the changes in federal court procedure caused a significant increase in the probable verdict against Intex, was authorized by the evidence. While recognizing that the evidence on this issue was conflicting, the resolution of the conflict was for the trial court and we find no error in the trial court’s conclusion that defendant was negligent in failing to respond to the change in circumstances. Evans v. Marbut, 140 Ga. App. 329, 332 (231 SE2d 94).

4. The trial court erred in finding plaintiff’s damages to be liquidated. “A liquidated claim is for an amount certain and fixed. Conversely, a claim is unliquidated when there is a bona fide contention as to the amount owing. Ryan v. Progressive Retailer Pub. Co., 16 Ga. App. 83 (84 SE 834) (1915).” International Indem. Co. v. Terrell, 178 Ga. App. 570 (2) (344 SE2d 239). A liquidated claim is “an amount certain and fixed, either by the act and agreement of the parties or by operation of law; a sum which cannot be changed by the proof; it is so much or nothing; . . .” Nisbet v. Lawson, 1 Ga. 275, 287. Where, as in the case sub judice, the amount of damages can only be established by the trier of fact, the damage award is unliquidated. Marathon Oil Co. v. Hollis, 167 Ga. App. 48, 51 (3), 52 (305 SE2d 864). Since prejudgment interest is not allowable where the amount recovered is un-liquidated and there was no compliance with the Georgia Unliqui-dated Damages Interest Act, OCGA § 51-12-14 (a), the trial court’s award of prejudgment interest was error.

5. The trial court erred in awarding plaintiff expenses of litigation under OCGA § 13-6-11. In order to authorize such an award it is necessary that one of the three statutory conditions exists. The trial court predicated its award on its ruling that defendant was guilty of constructive bad faith and was stubbornly litigious.

The trial court stated its finding that defendant did not act in bad faith at any time. The trial court then proceeded to award expenses of litigation under a theory of constructive bad faith. We find no authority under either Georgia law (or the foreign authority cited by the trial court) for the trial court’s theory of constructive bad faith which is apparently somehow derived from constructive fraud. Additionally, as bad faith and constructive bad faith, as conceived by the trial court, are distinctive and the latter is not included among the statutory conditions authorizing an award of expenses of litigation under OCGA § 13-6-11, the award predicated on that theory was error.

Neither was the trial court’s conclusion, that defendant was stubbornly litigious in resisting the claim of plaintiff as subrogee of Intex for the misrepresentation of coverage, well founded. Since plaintiff was not entitled to damages for this claim there can be no award of expenses of litigation for resisting the claim. Bayliner Marine Corp. v. Prance, 159 Ga. App. 456, 460 (3), 461 (283 SE2d 676); Minter v. Powell, 152 Ga. App. 449, 452 (4) (263 SE2d 235).

6. Finally, in the cross appeal, Case No. A89A0688, the plaintiff raises four enumerations of error, all of which are addressed to the trial court’s finding that some payment for the liability of Intex by plaintiff was inevitable and determining that such inevitable contribution was $205,000, which amount was used to reduce the amount of plaintiff’s damages. Plaintiff contends it is entitled to recover all of the sum which it paid under its coverage of Intex, and that we should adopt a clear line rule to govern the determination of damages when a primary carrier misinforms an excess carrier as to the coverage it provides the insured. However, the purpose of damages is to place an injured party in the same position as it would have been in had there been no injury or breach of duty, that is, to compensate for the injury actually sustained. Plaintiff’s clear line rule while offering simplicity would afford a windfall to the excess insurer and depart from the basic tenet that compensation, not enrichment, is the basis for the award of damages. Smith v. Overby, 30 Ga. 241; Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36 (60 SE2d 770). We find no error in the measure of damages utilized by the trial court. These enumerations of error are without merit.

7. In Divisions 1 and 3 we have addressed two of defendant’s enumerations of error which are directed (at least in part) to overturning the trial court’s conclusions regarding plaintiff’s claim, as sub-rogee of Intex, for damages arising from defendant’s negligent failure to settle the federal cases. Thus, as these enumerations are without merit, the trial court’s conclusions as to this claim are not affected by this opinion.

In Division 2 we determined that the trial court’s judgment was predicated at least in part on an erroneous theory of law and thus requires reversal. Accordingly, the judgment in Case No. A89A0687 is reversed and the case remanded for the entry of a new judgment which should include a redetermination on the issue of plaintiff’s entitlement to recover expenses of litigation.

Judgment reversed and case remanded with direction in Case No. A89A0687. Judgment affirmed in Case No. A89A0688.

Carley, C. J., concurs specially. Beasley, J., concurs in the judgments only.

Carley, Chief Judge,

concurring specially.

Appellee-plaintiff was proceeding under two theories. The first theory of recovery was that appellee was subrogated to the claim that Intex, its insured, would have for appellant-defendant’s negligent failure to settle. This theory is discussed in Division 1 and I concur in the majority’s- resolution of that issue.

The second theory of recovery was that appellee had its own direct action against appellant based upon the negligent misrepresentation made to Intex as to the limits of coverage. See Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. App. 680 (300 SE2d 503) (1983); Badische Corp. v. Caylor, 257 Ga. 131 (356 SE2d 198) (1987). In Division 2, the majority declines to address this theory of recovery, concluding instead that the trial court’s judgment is predicated in part upon an alternative “third theory, that Intex had a right to recover for the misrepresentations as to coverage, which right could be asserted by plaintiff as subrogee of Intex.” In my opinion, the majority misconstrues the trial court’s judgment. When the relevant language of the judgment is read in context, it would appear that no such alternative third theory of recovery was advanced by the trial court. Instead, it appears that the trial court relied upon an erroneous interpretation of the direct action theory that was advanced by appel-lee. As I read the judgment, the trial court holds that, under the direct action theory, it is ultimately immaterial whether appellant was actually aware that appellee would rely upon the representations as to the limits of coverage, since appellant was actually aware that Intex would rely upon those representations and appellee is subrogated to the rights of Intex. This is clearly an erroneous interpretation of the direct action theory. If appellee is to recover under the direct action theory, it must necessarily recover in its own right and not in the capacity as Intex’s subrogee. In order for appellee to recover in its own right under the direct action theory, it must be shown that appellant was “actually aware [that appellee would] rely upon the information [appellant] prepared.” Badische Corp. v. Caylor, supra at 133. Obviously, appellant’s actual awareness of appellee’s reliance cannot be shown by evidence of appellant’s actual awareness of Intex’s reliance.

Accordingly, I concur in the majority’s conclusion that the trial court’s judgment is predicated in part upon an erroneous legal theory. In my opinion, however, that error relates to the direct action theory and not the so-called alternative third theory of recovery. Therefore, I would not address the merits of the illusory third theory but would simply reverse and remand for the entry of a new judgment which applies the correct legal principles to the issue of appellant’s liability under the direct action theory. As to this direct action theory, the trial court “ ‘has not considered all of the evidence in the light of correct and applicable legal principles [.] [Accordingly,] the case should be remanded to the [trial court] for further findings. [Cit.]’ [Cit.]” Williams v. Morrison Assur. Co., 138 Ga. App. 191, 193 (1) (225 SE2d 778) (1976). See also Ayers v. Yancey Bros. Co., 141 Ga. App. 358, 362 (2) (233 SE2d 471) (1977); Smith v. Helms, 140 Ga. App. 267, 269 (3) (231 SE2d 778) (1976).

Decided July 28, 1989.

Bouhan, Williams & Levy, M. Brice Ladson, Joseph A. Mulherin III, Troutman, Sanders, Lockerman & Ashmore, Daniel S. Reinhardt, William N. Withrow, Jr., Stephen W. Riddell, for appellant.

Drew, Eckl & Farnham, W. Wray Eckl, Stephen R. Kane, for appellee.

I concur in the reversal and remand for the entry of further findings as to the appellee’s entitlement to recover the expenses of litigation. The issue of appellee’s entitlement to recover the expenses of litigation should be redetermined after the trial court readdresses the issue of appellant’s liability pursuant to correct legal principles.