author: Ruffin, Judge. Andrews, Presiding Judge,

text:
    A99A0510.
    KMART CORPORATION v. JACKSON et al.
    (521 SE2d 93)
   Ruffin, Judge.

Marian Jackson sued KMart Corporation for injuries she sustained when she slipped in a pool of detergent and injured her back. Jackson underwent multiple surgeries as a result of her injury and continues to take medication for her ongoing back problems. The jury awarded her $462,000 in damages. In its sole enumeration of error on appeal, KMart argues that the trial court erred in failing to grant a directed verdict because Jackson failed to prove that KMart had either actual or constructive knowledge of the hazardous condition that caused Jackson to slip. For reasons which follow, we affirm.

“The granting of . . . [a] directed verdict is a very, very grave matter.” (Punctuation omitted.) Svc. Merchandise v. Jackson, 221 Ga. App. 897, 898 (1) (473 SE2d 209) (1996). In directing a verdict, the trial court takes the case away from the jury and substitutes its own judgment for the combined judgment of the jury. Id. In reviewing the trial court’s denial of a motion for directed verdict, we construe the evidence most favorably to the party opposing the motion, and we will not reverse the ruling unless the evidence and all reasonable deductions therefrom demand a particular verdict. Id.; OCGA § 9-11-50 (a). “ ‘On appeal, the standard of review of a trial court’s denial of a motion for directed verdict is the “any evidence” standard.’ ” Kroger Co. v. Brooks, 231 Ga. App, 650, 651 (500 SE2d 391) (1998).

Viewed in a light most favorable to Jackson, the evidence showed that she visited a KMart store on July 3, 1991. While Jackson was turning into an aisle that contained cleaning supplies, her shopping cart slipped away. As Jackson grabbed for the cart, she began to slide in a puddle of yellow liquid detergent. Although Jackson never fell, she testified that she “stiffened up” and “felt like lightning was going through” her. After Jackson stopped, she turned around and saw a pool of yellow liquid that spanned the breadth of the aisle and approximately two-thirds of its length. She also saw a bottle cap, but did not see an empty bottle on the floor. She looked at the shelves and saw a bottle without a cap. According to Jackson, immediately after she slipped she was approached by Kennis and a stock boy. She testified that it appeared as if the two were approaching the spill. Kennis asked Jackson “did you go through that,” and Jackson responded affirmatively. Kennis then told the stock boy to stand by the spill to make sure no one else walked down the aisle while Kennis went to get a mop. Kennis returned with the mop and directed the stock boy to clean the spill. Although Kennis saw an empty detergent bottle, he could not recall who found the bottle or where it was located. Kennis also could not recall the name of the stock boy who cleaned the spill, and at trial, Kennis was the only KMart employee to testify. According to Kennis, he did not know about the spill until he walked up and saw Jackson standing near the puddle.

In order to recover for her injuries, Jackson must prove “(1) that [KMart] had actual or constructive knowledge of the hazard; and (2) that [she] lacked knowledge of the hazard despite the exercise of ordinary care.” (Punctuation omitted.) Kelley v. Piggly Wiggly Southern, 230 Ga. App. 508, 509 (2) (496 SE2d 732) (1998). Here, KMart asserts that Kennis’ unequivocal, uncontradicted testimony that he did not know about the spill before Jackson slipped warrants a directed verdict. We disagree.

As an initial matter, the jury arguably could have found that KMart had actual knowledge of the spill notwithstanding Kennis’ testimony to the contrary. There were marked discrepancies between Kennis’ and Jackson’s testimony regarding the sequence of events. Compare Lovins v. Kroger Co., 236 Ga. App. 585, 586 (1) (a) (512 SE2d 2) (where evidence uncontradicted, circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists). Whereas Jackson testified that Kennis and the stock boy approached the spill together, Kennis testified that he was patrolling the store alone and sent for the stock boy only after he saw Jackson near the spill. The jury apparently believed Jackson that Kennis was with the stock boy. If the jury felt Kennis was not truthful, they could have concluded he had something to hide — namely, the reason he was with the stock boy. It is not unreasonable to infer that Kennis, the store manager, directed a stock boy to clean up the spill. We also note that KMart never identified the stock boy. KMart’s failure to identify him permits the jury to infer that he could have seen the spill, and that KMart should thus be charged with actual knowledge. See Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30 (1) (500 SE2d 353) (1998).

Moreover, even if KMart did not have actual knowledge, the jury was authorized to conclude that the store had constructive knowledge. Constructive knowledge can be established “in one of two ways: by evidence that an employee was in the immediate area of the hazard and could easily have discovered and removed it, or by showing that the owner did not use reasonable care in inspecting the premises.” Deloach v. Food Lion, 228 Ga. App. 393, 394 (491 SE2d 845) (1997).

With regard to the second method, a jury may infer constructive knowledge unless KMart shows “not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident.” Ingles Markets v. Martin, 236 Ga. .App. 810, 811 (513 SE2d 536) (1999). Kennis testified that KMart’s inspection policy consisted of having employees walk the store. According to Kennis, as a manager, he would walk from “associate to associate” and that associates would “walk and make sure if there are any customers in the area that need help, whether they’re putting out the stock or ringing somebody up. We are constantly walking the store.” However, Kennis admitted that employees did not have “scheduled areas” for which they were responsible. Additionally, Kennis never testified that any KMart employee had the specific task of inspecting floors. Under these circumstances, we cannot say that KMart’s inspection procedure is reasonable as a matter of law. Rather, we believe that the facts gave rise to a jury issue on the reasonableness of KMart’s inspection policy and the jury was authorized to conclude that it was not reasonable. See Jones v. Krystal Co., 231 Ga. App. 102, 104-105 (d) (498 SE2d 565) (1998) (reasonableness of inspection policy was question for jury).

Additionally, we cannot say that KMart established, as a matter of law, that it actually carried out its inspection program on the day Jackson slipped. The only evidence presented in this regard was Ken-nis’ testimony that he was “walking the store” and his estimate that he had “been in [the] vicinity” of the spill “probably 15 minutes, at least” before he saw Jackson. Kennis never stated that he was in the aisle where Jackson slipped, nor did he state that, when he was in the vicinity, he inspected the floor. Compare Morris v. Ryan’s Family Steak Houses, 206 Ga. App. 369 (425 SE2d 362) (1992) (manager testified that the floor was inspected routinely and clerk averred he inspected the area 30 minutes prior to patron’s fall).

“The existence of. . . constructive knowledge is a matter for the jury when there is evidence from which it may be inferred.” (Punctuation omitted.) Brooks, supra at 654 (1) (a). Although the evidence of KMart’s constructive knowledge was not overwhelming, we must remember that

[i]t is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable.

(Punctuation omitted.) McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178, 183 (2) (129 SE2d 408) (1962). As there was some evidence from which the jury could infer that KMart had actual or constructive knowledge, the trial court did not err in denying KMart’s motion for directed verdict.

Judgment affirmed.

Johnson, C. J., McMurray, P. J., Pope, P. J., Smith and Eldridge, JJ, concur. Andrews, P. J., dissents.

Andrews, Presiding Judge,

dissenting.

KMart Corporation was entitled to a directed verdict because there was an absence of evidence from which the jury could have reasonably concluded that KMart had actual or constructive knowledge of the hazard which caused Jackson to slip and suffer an injury.

There is no evidence in the record which could support a reasonable inference that KMart had actual knowledge of the spilled liquid before Jackson stepped in it. The only direct evidence on this issue was testimony from the KMart store manager that he was not aware of the spill until he saw Jackson standing in an aisle of the store next to a large, obviously visible spill of brightly colored liquid and asked her what happened. The manager recalled that the spill was about two feet long and two feet wide, while Jackson remembered that the spill was a bright yellow liquid covering the entire width of the aisle. The manager testified that, as part of KMart’s policy of keeping the premises clean and safe, he walked the store on a constant basis over the course of his shift, and that he discovered Jackson standing next to the spill while he was patrolling the store. The manager further testified that he had walked that vicinity of the store about 15 minutes prior to discovering the spill and Jackson standing next to it. Jackson testified that, when she saw the manager approach her, he was accompanied by a stock boy. The manager testified that there was no stock boy with him when he first discovered the spill. According to Jackson, neither the manager nor the stock boy had any cleaning equipment with them when they approached her. It was undisputed that a KMart stock boy later cleaned up the spill after it was discovered.

Based on this evidence, the majority finds that the jury could have reasonably concluded the manager was lying about the presence of the stock boy with him and then inferred that the lie was to conceal the fact that the manager was walking to the spill with the stock boy to direct the stock boy to clean up the spill — thus showing that KMart had prior actual knowledge of the spill. Majority op. p. 177. To draw these inferences from the bare fact that Jackson saw a stock boy with the manager is pure speculation. At best this evidence would support the mere possibility that KMart had prior actual knowledge of the spill. In fact, when Jackson’s counsel asked Jackson at trial what she surmised the manager and the stock boy knew about the spill, the trial judge sustained defense counsel’s objection that the question called for speculation. A reasonable inference sufficient to create a triable issue of fact cannot be based on mere possibility, conjecture, or speculation. Pafford v. Biomet, 264 Ga. 540, 544 (448 SE2d 347) (1994); Butler v. Huckabee, 209 Ga. App. 761, 762 (434 SE2d 576) (1993).

Citing Straughter v. J H. Harvey Co., 232 Ga. App. 29, 30 (500 SE2d 353) (1998), the majority further concludes that KMart’s failure to identify the stock boy permits the jury to reasonably infer that the stock boy, and thus KMart, had prior actual knowledge of the spill. Majority op. p. 177. This conclusion is based on Straughter’s application of the rebuttable presumption created in OCGA § 24-4-22. Id. at 30-31. Section 24-4-22 provides that:

If a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted.

By creating an adverse presumption of fact, this Code section imposes a penalty on a party for withholding evidence within the party’s power to produce and for relying on evidence of a weaker nature. Fields v. Yellow Cab Co. &c., 80 Ga. App. 569, 571 (56 SE2d 845) (1949); Speagle v. Nationwide &c. Ins. Co., 138 Ga. App. 384, 387 (226 SE2d 459) (1976). Without saying so explicitly, the majority concludes that it was within the power and control of KMart to identify and produce the stock boy and that its failure to do so gives rise to an adverse presumption of fact under OCGA § 24-4-22.This is a misapplication of the rule set forth in OCGA § 24-4-22.

There is absolutely no evidence that KMart knew of and withheld the identity of the stock boy. The manager testified that a stock boy cleaned up the spill after it was discovered, but that he could not recall his name. The record shows that Jackson’s injury occurred in 1991, that she did not file suit until 1996, and that the manager, who had long since moved on to another store, was testifying from memory at a trial in 1998. The record also shows, that, at Jackson’s request, KMart produced the names of all its employees working at the store during the period when the accident occurred.

In Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 31 (174 SE 708) (1934), the Supreme Court cautioned that the principle set forth in OCGA § 24-4-22 applies only in cases where it is shown that a party has withheld evidence within the party’s power and control and held that an instruction on OCGA § 24-4-22 “can be given in charge only in exceptional cases, and the greatest caution must be exercised in its application.” Jackson did not request a jury charge, and none was given by the trial court on the adverse presumption arising from OCGA § 24-4-22. The sua sponte invocation of this adverse presumption by the majority is a strained attempt to find a factual issue on actual knowledge by attempting to give substance to an inference based on pure possibility, speculation, or conjecture.

I also disagree with the majority’s conclusion that there was evidence in the record sufficient to show that KMart had constructive knowledge of the spill.

Constructive knowledge can be shown in either of two ways: (i) by presenting evidence that an employee of the defendant was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard; or (ii) by presenting evidence that the substance was on the floor for such a time that (a) it would have been discovered had the proprietor exercised reasonable care in inspecting the premises and (b) upon being discovered, the substance would have been cleaned up had the proprietor exercised reasonable care in cleaning the premises.

Lovins v. Kroger Co., 236 Ga. App. 585, 586 (1) (b) (512 SE2d 2) (1999). There was no evidence that an employee of KMart was in the immediate area of the hazard, so the issue as to constructive knowledge related to the second method of proof.

Under the second method of proving constructive knowledge, where the proprietor shows that it had a reasonable inspection procedure that was followed on the day of the injury, this is sufficient to show that reasonable care was exercised to keep the premises safe, and thus no constructive knowledge can be charged to the proprietor. Morris v. Ryan’s Family Steak Houses, 206 Ga. App. 369 (425 SE2d 362) (1992); Drake v. Kroger Co., 213 Ga. App. 72, 73 (443 SE2d 698) (1994). At the trial, the manager was specifically asked, “[H]ow did y’all go about making sure that the premises were clean and safe, the floors were safe for your customers?” The manager responded that, in addition to associates who were responsible for specific parts of the store, as manager he walked the entire store on a constant basis over the course of his shift, and that he had walked the vicinity of the store where Jackson was injured about 15 minutes prior to returning to the area and discovering the spill with Jackson standing next to it. This testimony plainly shows that an inspection procedure for keeping the floors safe was in place and that the manager had conducted an inspection of the area where the spill occurred about 15 minutes before he later discovered the spill in the same area. In responding to the question about how the floor was inspected, it was not necessary, as the majority holds, that the manager specifically say he was in the aisle or that he inspected the floor. Common sense and a fair reading of plain English show that the manager said he inspected the floor area where the spill occurred without finding anything about 15 minutes before the accident. This testimony established as a matter of law that KMart conducted a reasonable inspection of the floor area and therefore had no constructive knowledge of the spill. Id.

Moreover, even if KMart had produced no evidence of adherence to reasonable inspection procedures on the day of the accident, the absence of any evidence showing how long the spill had been on the floor rendered it impossible for a jury to reasonably conclude that the spill had been on the floor long enough to havé been discovered by a reasonable inspection. If the spill had not been on the floor long enough to have been discovered by a reasonable inspection, then any failure by KMart to conduct a reasonable inspection could not be the cause of the accident.

On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

(Citations and punctuation omitted.) Nelson v. Polk County Historical Society, 216 Ga. App. 756, 757 (2) (456 SE2d 93) (1995). As the Supreme Court held in Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991), in the context of summary judgment, a defendant who does not carry the burden of proof at trial is not required to produce evidence that its alleged negligence was not the proximate cause of the plaintiff’s injury. Rather, the absence of such evidence is sufficient to entitle the defendant to a favorable verdict. Id. Without any evidence as to how long the spill had been on the floor, it was a matter of pure speculation or conjecture for the jury to conclude that the spill had been there long enough so that the proximate cause of the accident was KMart’s failure to discover and remove the spill by conducting a reasonable inspection. It follows that the trial court erred by refusing to direct a verdict in favor of KMart.

Decided July 16, 1999

Alston & Bird, James C. Grant, Jeffrey J. Swart, for appellant.

Victor Hawk, for appellees.

       There was some evidence suggesting the liquid on the floor was bleach rather than detergent.

       KMart store manager Jim Kennis testified the aisle was approximately five feet wide and twenty-five feet long. According to Kennis’ estimation, the spill was only two feet in diameter.

       Kennis testified that he was patrolling the store when he saw Jackson and that the stock boy was not with him when he approached her.

       No issue was raised on appeal as to application of the two-year statute of limitation in OCGA § 9-3-33, and the record is also silent on this issue.


source: Caselaw Access Project

author: Pope, Presiding Judge. Eldridge, Judge,

license: Public Domain

text:
    A99A0526.
    CHAMLEE et al. v. HENRY COUNTY BOARD OF EDUCATION et al.
    (521 SE2d 78)
   Pope, Presiding Judge.

Samuel and Linda Jane Chamlee brought suit individually and on behalf of their son Samuel Chamlee, Jr. against Jeff Ianitello and the Henry County Board of Education arising out of a car accident. The Chamlees appeal summary judgment in favor of both defendants.

On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998); Lane v. Spragg, 224 Ga. App. 606 (481 SE2d 592) (1997). The record shows that Ianitello was employed by the Board as an automotive shop instructor at Henry County High School and that Samuel was a student in his class. As a part of the instruction, students got hands-on training by working on cars owned by students and teachers at the school. As a part of the class, Mike Felix, another student, or Samuel test drove a car owned by another teacher. During the test drive on public roads, Samuel was injured in an accident.

The Chamlees brought suit alleging that Ianitello negligently instructed and allowed Felix and Samuel to leave the classroom unsupervised, contrary to Board of Education rules, and that the Board failed to establish sufficient policies to protect against such an accident. The trial court granted summary judgment to Ianitello on the ground of official immunity and to the Board on the ground of sovereign immunity. The Chamlees appeal.

1. The court concluded Ianitello was performing discretionary functions when he supervised and controlled his shop class even though he may have acted in violation of specific school policies, and that he did not act maliciously or with intent to injure. Therefore he was covered by official immunity. See Perkins v. Morgan County School Dist., 222 Ga. App. 831, 835 (2) (476 SE2d 592) (1996); Wright v. Ashe, 220 Ga. App. 91 (469 SE2d 268) (1996). The Chamlees contend that because Ianitello violated several school policies, his inadequate supervision of Samuel and Felix constituted negligent performance of ministerial duties, and therefore he was not entitled to official immunity.

The Chamlees identify three school policies allegedly violated. A review of the depositions of the principal and the assistant principal shows that the Chamlees completely failed to establish that any of the three so-called policies applied to the situation where a shop teacher might allow a student to test drive a car. In fact, both the principal and the vice-principal testified that there was no policy covering use by students of vehicles in the automotive shop class, nor is there one today.

Even if it is possible to construe these policies as applying to automotive shop class, Ianitello is protected from liability by official immunity. Official immunity “protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice or corruption.” Guthrie v. Irons, 211 Ga. App. 502-503 (1) (439 SE2d 732) (1993), disapproved on separate grounds, Gilbert v. Richardson, 264 Ga. 744, 750 (4) (452' SE2d 476) (1994). The determination of whether an action is discretionary or ministerial must be made on a case-by-case basis, 211 Ga. App. at 504 (2), but monitoring, supervising and otherwise controlling students are considered discretionary acts. Perkins, 222 Ga. App. at 835 (2); Lewis v. McDowell, 194 Ga. App. 429, 431 (3) (390 SE2d 605) (1990). Supervision of students is considered discretionary even where specific school policies designed to help control and monitor students have been violated. Perkins, 222 Ga. App. at 835 (2); Wright, 220 Ga. App. at 93-94; see also Guthrie, 211 Ga. App. at 504-505 (2).

The policies at issue here all relate to the monitoring, supervision and control of students in and around the school during school hours and for extracurricular activities. As such, the implementation of those policies is discretionary in nature and therefore protected by official immunity. Perkins, 222 Ga. App. at 835; Wright, 220 Ga. App. at 93-94.

2. The Chamlees contend the court erred when it held both that the Board was immune from suit based on the doctrine of sovereign immunity and that immunity was not waived by the purchase of liability insurance pursuant to OCGA § 33-24-51.

Sovereign immunity can be waived only by a specific act of the General Assembly. Art. I, Sec. II, Par. IX. OCGA § 33-24-51 (b) provides that sovereign immunity is waived, if the pertinent subdivision of the state purchases insurance as described in OCGA § 33-24-51 (a) , but only if the insurance “provide[s] liability coverage for the negligence of a duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties” and only “to the extent of the amount of insurance so purchased.” OCGA § 33-24-51 (b) . The mere purchase of insurance coverage does not constitute waiver. Woodard v. Laurens County, 265 Ga. 404, 405 (1) (456 SE2d 581) (1995).

In this case, the Board identified two insurance agreements in response to the following interrogatory,

Please state whether there is in existence any insurance agreement under which any . . . insurance business may be liable to satisfy part or all of any judgment which may be entered in this action, or to indemnify or reimburse payments made to satisfy any such judgment.

The Board also indicated that one of the insurers had denied coverage under its policy. Neither policy is in the record. Construing this evidence and all inferences therefrom in favor of the Chamlees requires a conclusion that the Board has purchased the insurance described in OCGA § 33-24-51 (a), i.e., insurance that covers claims arising out of the ownership, maintenance, operation, or use by the automotive shop class of any motor vehicle which is being examined or repaired by the class, regardless of whether it is owned by the school.

The next question is whether the Board’s insurance policy covers “the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties.” OCGA § 33-24-51 (b). Again, without the policy and with a concession by the Board that there is some coverage, we must conclude that the identified policy or policies provide this coverage.

One question remains however. That is whether the claim arising out of the injuries in this case would be covered by the policy. Although, in determining whether there has been a waiver, similar cases speak only in terms of whether the defendant has purchased the type of insurance described in OCGA § 33-24-51 (b), ultimately these cases examine whether the facts of the case fall within such coverage. See, e.g., Butler v. Dawson County, 238 Ga. App. 808 (518 SE2d 430) (1999) (no waiver despite insurance where damages caused by county’s negligence not connected with motor vehicles); Saylor v. Troup County, 225 Ga. App. 489, 490 (484 SE2d 298) (1997) (no waiver because injury not covered by the policy); Lincoln County v. Edmond, 231 Ga. App. 871, 873-874 (1) (501 SE2d 38) (1998) (no waiver because non-use of motor vehicle not encompassed in definition of policy in OCGA § 33-24-51 (a)); Long v. Hall County Bd. of Commrs., 219 Ga. App. 853, 857 (2) (b) (467 SE2d 186) (1996) (no waiver because liability was not predicated on official’s use of an insured vehicle, but rather on the negligent failure to prevent an inmate from escaping); Crider v. Zurich Ins. Co., 222 Ga. App. 177, 179-180 (2) (474 SE2d 89) (1996) (waiver where backhoe was a “motor vehicle” within the meaning of OCGA § 33-24-51 (a)).

Accordingly, even if the defendant has purchased the type of insurance described in OCGA § 33-24-51 (a) and (b), if the claim does not fall within the type of coverage described in subsection (a) as limited by subsection (b), then sovereign immunity is not waived. Resolution of whether sovereign immunity has been waived necessarily requires an analysis of whether the defendant has purchased the type of insurance defined in OCGA § 33-24-51 (a) and (b) and whether the claim falls within that coverage.

Therefore, the final issue in this case is whether the Chamlees’ claim arises out of “the negligence of a duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties” such that it would be covered by the policy. To answer this question, the trial court relied on Gilbert, 264 Ga. at 748-749 (4); Woodard, 265 Ga. 404; Long, 219 Ga. App. at 856-857; and Blumsack v. Bartow County, 223 Ga. App. 392, 393-396 (1) (477 SE2d 642) (1996), for the rule that sovereign immunity is waived only if an official representative of the Board acting in his or her professional capacity was actually using, i.e., driving, the vehicle.

In Gilbert v. Richardson, 264 Ga. at 748-749 (4), the Supreme Court had to address whether sovereign immunity was waived by liability insurance coverage provided by the defendant county’s participation in the Georgia Interlocal Risk Management Agency (GIRMA). Id. at 745. The plaintiff had been injured in an accident with a deputy sheriff who was responding to an emergency call within the scope of her employment. Id. There was no question that the accident was covered by the GIRMA insurance; the issue was whether GIRMA insurance constituted the type of liability insurance that waives sovereign immunity under OCGA § 33-24-51 (b).

In so doing, the Supreme Court began its discussion with this general statement: “OCGA § 33-24-51 provides that a county waives its governmental immunity to the extent of the amount of liability insurance purchased for the negligence of its officers, agents, servants, attorneys, or employees arising from the use of a motor vehicle.” (Footnotes omitted; emphasis supplied.) Gilbert, 264 Ga. at 748-749 (4). Reading the case as a whole, together with the statute, it is clear that the Supreme Court did not hold that waiver was limited to those situations involving use of a motor vehicle as opposed to ownership, maintenance, or operation, the three other categories described in OCGA § 33-24-51 (a). The Court was not addressing any distinction between these categories and had no reason to reach such a conclusion. The Court was either paraphrasing to mean all four categories or indicating which situation applied to the case at hand.

The Supreme Court quoted the Gilbert statement in Woodard, 265 Ga. 404. Again in Woodard, there was no reason to make any distinction between the four categories. The Court used the statement to explain that the plaintiff’s allegation that the county negligently failed to inspect and maintain a stop sign was not connected with motor vehicles at all, either their ownership, maintenance, operation, or use. Id.

In Long, this Court quoted the same sentence. Long, 219 Ga. App. at 857 (2) (b). But similarly, Long involved a situation where neither the driver of the car nor the car was covered by the policy, and the alleged negligence was failure of the Department of Corrections to prevent an inmate from escaping. Id. The statement was used to show that there was no connection between the alleged negligence and any insured motor vehicle.

Blumsack v. Bartow County relied on Long, but it changed the meaning of the sentence and held that sovereign immunity is waived only if the negligent act arises from the “use” of the vehicle, as opposed to “ownership, maintenance, or operation.” Blumsack, 223 Ga. App. at 396 (1). In Blumsack, a mechanic for a private repair business was involved in an accident which killed the plaintiff’s decedent, while the mechanic was test-driving a county truck which was covered by insurance. Id. at 394. This Court first held that because the policy did not cover the mechanic, there could be no waiver of immunity arising out of the mechanic’s alleged negligence. Id. The plaintiffs in Blumsack also argued that a county employee had negligently altered the vehicle, making it more dangerous, and that combined with failure to warn the mechanic of this condition, this negligence was a joint proximate cause of the injury. The county’s insurance covered this negligence. Id.

The Court in Blumsack properly explained that “OCGA § 33-24-51 (a) gives counties the right to purchase insurance” and that “OCGA § 33-24-51 (b) describes when insurance operates to waive sovereign immunity.” Id. at 393 (1). But, the plain wording of the statute does not further limit waiver of immunity to one type of negligence (i.e., while using/driving the vehicle, as opposed to while owning, maintaining, or operating the vehicle).

Blumsack enforced sovereign immunity even though the county’s insurance covered negligent ownership or maintenance of the vehicle by a county employee, reasoning that there could be a waiver only if the official is the person using the vehicle. Id. The Court stated that “[m]ere ownership or negligent maintenance cannot, by itself, waive sovereign immunity.” Blumsack, 223 Ga. App. at 396 (1). Neither Gilbert, Woodard, Long, nor OCGA § 33-24-51 provides a basis for this conclusion. As such, Blumsack improperly limits the law of waiver of sovereign immunity, and it must be overruled.

Our conclusion is consistent with the legislative intent of OCGA § 33-24-51. “The intent of the legislature in enacting a waiver of sovereign immunity was to allow for the compensation of parties injured by employees and agents of the state through the purchase of liability insurance where recovery is otherwise barred.” Crider v. Zurich Ins. Co., 222 Ga. App. at 178-179. Based on the wording of the statute and the legislative intent, we hold that OCGA § 33-24-51 (b) provides for waiver of sovereign immunity to the extent of the amount of liability insurance purchased for the negligence of duly authorized officers, agents, servants, attorneys, or employees in the performance of their official duties that arises out of either ownership, maintenance, operation, or use of a motor vehicle.

The Chamlees contend the claim is covered and thus sovereign immunity is waived, because (1) even though he was not driving it at the time of the accident, Ianitello was officially using the vehicle in connection with his automotive shop class or (2) Felix was acting as an agent of Ianitello while driving the car. With regard to agency, we find no evidence in the record that Felix or Samuel Chamlee was acting as Ianitello’s agent nor any authority for the proposition that a student can be considered an agent or servant of a school. Based on the record developed so far, an issue of fact remains with regard to Ianitello’s use of the car in the performance of his official duties, i.e., in connection with his teaching of automotive shop class. It was error for the trial court to grant summary judgment to the Board solely on the grounds that sovereign immunity was not waived because a government official was not personally operating the vehicle at the time of the accident.

Judgment affirmed in part and reversed in part.

Johnson, C. J., Andrews, P. J., Blackburn, P. J., Smith, Ruffin, Barnes, Miller, Ellington and Phipps, JJ, concur. McMurray, P. J., and Eldridge, J., concur specially.

Eldridge, Judge,

concurring specially.

I concur as to Division 1; I concur specially in Division 2 as to the judgment only.

Blumsack v. Bartow County, 223 Ga. App. 392 (477 SE2d 642) (1996) is a correct interpretation of OCGA § 33-24-51, because insurance coverage alone under OCGA § 33-24-51 (a), that covers ownership, maintenance, operation, or use, is not sufficient to waive sovereign immunity. Therefore, it is a correct statement of law that the “[m]ere ownership or negligent maintenance cannot, by itself, waive sovereign immunity.” Id. at 396. Such language referred to satisfaction of both OCGA § 33-24-51 (a) and (b) prior to a waiver of sovereign immunity occurring and not to the type of negligence which can give rise to liability, if there is a waiver. To waive sovereign immunity, OCGA § 33-24-51 (b) must also be satisfied when the insured motor vehicle, under the coverage, has negligence arise out of the performance of official duties by an “authorized officer, agent, servant, attorney, or employee in the performance of his official duties.”

“The procurement of insurance under this statute [(OCGA § 33-24-51 (a))] does not constitute a waiver of sovereign immunity with regard to personal injury caused by the county’s negligence, unless the negligence of its ‘officer, agent, servant, attorney, or employee’ arises from the use of a motor vehicle. (Cits.)” Simmons v. Coweta County, 229 Ga. App. 550, 552 (494 SE2d 362) (1997).

Harry v. Glynn County, 269 Ga. 503, 504 (501 SE2d 196) (1998); accord Blumsack v. Bartow County, supra at 396. Blumsack v. Bar-tow County, supra at 396, was cited favorably by Simmons v. Coweta County, supra at 552; Harry v. Glynn County, supra at 504, omitted this citation in its quote. Harry v. Glynn County, supra, was a case where the mere ownership and operation of an insured ambulance were held not to be such use as waived sovereign immunity for negligent treatment by paramedics. “Whether an event arises from the ‘use’ of a motor vehicle depends largely on the circumstances, and a bright-line definition is elusive. [Cit.] What is clear, however, is that the alleged negligence must involve the use of the motor vehicle.” Id. at 504. Then the opinion went on to give the quotation from Simmons v. Coweta County, supra, regarding “officer, agent, servant, attorney, or employee.” Blumsack v. Bartow County, supra at 396, does not limit liability to “use” only, but OCGA § 33-24-51 (a) applies to liability arising from negligent ownership, maintenance, and operation as well. In fact, “use” has been broadly construed to include the negligent supervision of a child getting off a school bus and crossing the highway. Roberts v. Burke County School Dist., 267 Ga. 665 (482 SE2d 283) (1997). As employed by the Supreme Court, “use” encompasses ownership, maintenance, operation, and “use” broadly construed of the motor vehicle. See Gilbert v. Richardson, 264 Ga. 744, 748-749 (4) (452 SE2d 476) (1994); see also Harry v. Glynn County, supra at 504; Roberts v. Burke County School Dist., supra; Woodard v. Laurens County, 265 Ga. 404, 405 (1) (456 SE2d 581) (1995); Simmons v. Coweta County, supra at 552 (a), rev’d on other grounds, 269 Ga. 694 (507 SE2d 440) (1998); Blumsack v. Bartow County, supra at 396.

Decided July 16, 1999

Eidson & Associates, James A. Eidson, Timothy R. Brennan, for appellants.

The majority’s real problem is that, as written, the opinion cannot bring the use of a private vehicle driven by Mike Felix, Jr. with Samuel P. Chamlee, Jr. as a passenger, students, under OCGA § 33-24-51 (b). The automotive class required actual motor vehicles with problems for diagnosis and repair as part of the school course, which satisfied OCGA § 33-24-51 (a). As students in the automotive repair class, Felix and Chamlee were required to examine, diagnose, repair, and verify repair of the motor vehicle, which they were test driving, as part of their school work. Thus, in driving the motor vehicle, they were acting as involuntary servants of the school under the direction, supervision, and control of their teacher in the performance of his official duties. This satisfied OCGA § 33-24-51 (b). See Simmons v. Coweta County, supra at 553 (a state prisoner, operating a tractor, was held to be an involuntary servant within OCGA § 33-24-51 (b)).

I am authorized to state Presiding Judge McMurray joins in this opinion.

Smith, Welch & Brittain, A. J Welch, Jr., Harper, Waldon & Craig, Russell D. Waldon, Jonathan M. Adelman, for appellees.

       OCGA § 33-24-51 (a) provides:
      A municipal corporation, a county, or any other political subdivision of this state is authorized in its discretion to secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury to any person or for damage to property of any person, or for both arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation, county, or any other political subdivision of this state under its management, control, or supervision, whether in a governmental undertaking or not, and to pay premiums for the insurance coverage.
      (Emphasis supplied.)

       In Harry v. Glynn County, 269 Ga. 503 (501 SE2d 196) (1998), the Supreme Court again used the phrase to explain that the claim was not covered by the qualifying policy because the claim had nothing to do with ownership, maintenance, operation or use of the insured motor vehicle. The claim was for negligent diagnosis and treatment of a medical condition by a paramedic. The Supreme Court was not attempting to distinguish between the four categories as was done in Blumsack.

       Most of the cases cited by the majority in Division 2 deal with a failure of “use” by an officer, agent, servant, attorney, or employee under OCGA § 33-24-51 (b) so that the second statutory element has not been satisfied, even though OCGA § 33-24-51 (a) has been satisfied by the appropriate insurance.


text:
    A99A0576.
    SHADIX et al. v. CARROLL COUNTY et al.
    (521 SE2d 99)
   Pope, Presiding Judge.

On August 11, 1998, Lawrence Shadix and the Carroll County Association of Taxpayers brought an action for declaratory judgment and injunctive relief to stop Carroll County and the State Revenue Commissioner, Jerry Jackson, from collecting a special purpose local option sales tax (“SPLOST”). The court denied the injunctive relief, found in favor of the defendants, and Shadix and the plaintiffs appealed. For the following reasons, we conclude that the court erred, and we reverse.

On July 13, 1993, the Carroll County Board of Commissioners passed a resolution calling for submission to the voters for approval of a referendum for the imposition of a special purpose county sales and use tax. See Ga. L. 1992, pp. 2998, 3005; OCGA § 48-8-111. The specified purposes for which the proceeds were to be used included funding road, street, and bridge projects, as well as funding fire protection, recreation, water, sewer, and jail projects.

Under the authority of the resolution, the Chairman placed the referendum as to whether to impose a one percent SPLOST on the November 2, 1993 ballot. The language on the referendum ballot strictly conformed with the statutorily prescribed form. See Ga. L. 1992, p. 3003, § 1 (d) (3). The ballot read:

SPECIAL ELECTION 1 PERCENT SALES AND USE TAX REFERENDUM!.] A YES vote means you favor a 1 percent sales and use tax[.] A NO vote means you oppose a 1 percent sales and use tax[.] Shall a special 1 percent sales and use tax be imposed in Carroll County for the raising of not more than $34,000,000 for a period of time not to exceed four (4) years, for paving, resurfacing, traffic control and improvement to the system of Roads, Streets and Bridges within the county; and for a period of time not to exceed five (5) years for the purpose of funding capital improvements relating to fire protection services, recreational facilities, public buildings and water and sewerage projects within the county and its respective municipalities? () YES () NO

On November 2, 1993, the referendum was held and more than one-half of the votes cast were in favor of imposing the SPLOST. The State Revenue Department confirmed receipt of the referendum results to impose the SPLOST and notified the Carroll County Board of Commissioners that the tax would be effective on April 1, 1994.

As of May 21, 1998, $34,009,170.16 had been collected by the State Revenue Commissioner pursuant to the SPLOST. Through the June 1998 distribution, the Commissioner distributed revenues pursuant to the SPLOST to Carroll County in the amount of $34,285,209.62. In August 1998, Shadix, a resident of Carroll County, and a taxpayers group from Carroll County filed the complaint for declaratory judgment and injunctive relief, asserting that the SPLOST terminated when $34 million was raised. The State Revenue Commissioner, the Carroll County Tax Commissioner, Jean Matthews, and Carroll County filed answers and then briefs, claiming that the five-year period specified in the ballot was controlling for collection of the tax and that the tax collection should continue for five years, regardless of the amount of money raised.

The parties and the trial court agreed to resolve the case on an expedited basis with stipulated facts and affidavits and to hold an accelerated final hearing on the merits on September 1, 1998. Before the hearing, the trial court held a conference during which plaintiffs’ counsel announced that he was filing an amendment to the complaint to add Counts 4, 5, and 6; plaintiffs’ counsel told the court that the amendment did not change plaintiffs’ theory of the case. Plaintiffs also sought additional discovery from the defendants. The court directed the defendants to provide the key factual information needed by the plaintiffs in lieu of formal discovery. The trial court heard the merits of the case from all parties. At the conclusion of the hearing, the parties completed and filed their stipulations.

On September 4, 1998, the court rendered final judgment, finding that the SPLOST terminated at the end of the day on March 31, 1999, and that the other issues in the amended Counts 4, 5, and 6 were either moot, without merit as a matter of law, or did not otherwise warrant judicial relief. Plaintiffs filed their notice of appeal to the Supreme Court; the Supreme Court denied an emergency motion for escrow of such taxes pending appeal. After docketing, the Supreme Court transferred the appeal to this Court.

1. Plaintiffs contend that the trial court erred in denying injunc-tive relief to stop the continued collection of the SPLOST and in deciding the declaratory judgment adversely to them. We agree.

We first examine the issue of mootness with respect to the questions raised regarding the termination of the tax. It is established that

[a] petition for declaratory judgment will not lie where all rights of the parties have already accrued and where no facts or circumstances are alleged showing a necessity for adjudication in order to relieve the plaintiff from the risk of taking future undirected action, which, without such action, would jeopardize the plaintiff’s interest.

(Citations and punctuation omitted.) Kelly v. City of Atlanta, 217 Ga. App. 365, 367 (2) (457 SE2d 675) (1995), overruled on other grounds, Atlanta Independent School System v. Lane, 266 Ga. 657 (1) (469 SE2d 22) (1996). Moreover, “as a general rule, a suit for injunctive relief regarding the collection of allegedly illegal taxes should not be entertained by the courts if the taxes at issue have been substantially collected and disbursed.” 217 Ga. App. at 367 (2). Nevertheless, due process requires that redress be available when taxes have been collected unlawfully. See, e.g., Reich v. Collins, 513 U. S. 106 (115 SC 547, 130 LE2d 454) (1994); OCGA § 48-2-35.

In this case, it is not clear whether the substantive issues regarding the injunctive and declaratory relief which plaintiffs sought in the original complaint have become moot. The trial court’s order stated that the tax would end on March 31, 1999. Although a consent order in the case was entered during the pendency of the case which stated that Carroll County “until further order of the Court” would not “spend any amount in excess of $34 million from the money raised by the special 1 percent sales and use tax,” no such staying order was entered after the Court’s final judgment. Moreover, as stated above, the parties filed an emergency motion for escrow of such taxes pending appeal, which the Supreme Court denied. In their stipulated facts, the parties agreed that “as of September 1, 1998, $36,183,787.99 had been collected by the State Revenue Commissioner pursuant to the Tax.” The stipulation further provided that as of that date “Carroll County had received $35,821,950.11 from the money collected by the State Revenue Commissioner pursuant to the Tax.” It is not clear from the record whether the additional money raised by the tax has been disbursed to the county, nor is it clear whether the county has spent the additional revenue. Moreover, there are issues to be resolved in this appeal which are dependent on our resolution of the merits of the underlying action. As discussed below, the trial court’s determination regarding the termination of the tax was improper. Upon remand, the court should make a factual finding as to whether the collected taxes have been spent and, if so, should direct the parties accordingly.

The General Assembly has enacted a detailed Code Article authorizing counties to impose a special one percent sales and use tax. See OCGA § 48-8-110 et seq. Subject to the requirement of referendum approval and other requirements, the governing authority of any county may impose such a tax, for limited periods of time, for one or more statutorily authorized purposes. See OCGA §§ 48-8-110; 48-8-111.

The dispute in this case arose because of ambiguity in the applicable statute. The statutory scheme left a “gap” with respect to the termination date for a mixed use SPLOST. Under the version of OCGA § 48-8-112 (b) in effect before April 14, 1997, a SPLOST that was solely for purposes other than roads, streets, and bridges (a “non-road” tax) and that did not require a debt validation terminated: (i) at the end of the calendar quarter in which it was determined the specified maximum amount of the revenue was raised; or (ii) on the final day of the five-year maximum period of time, whichever came earlier.

Nevertheless, the statute was unclear with respect to a mixed purpose SPLOST — in other words, a tax to be used for both “non-road” and road purposes like the tax involved here. OCGA § 48-8-112 (b) (3), which terminated the tax when the specified maximum amount of revenue was received, purported to apply only to a non-road, tax. Subsection (b) (2), which was not limited to non-road taxes, set the limitation solely on the basis of the specified period of time.

Despite the lack of specific statutory guidance, various of the article’s provisions show that the legislature intended that a mixed use SPLOST terminate when the maximum amount specified in the ballot was raised. OCGA § 48-8-111 (a) (3), which sets out general procedures for the imposition of a tax, provides that when a county votes to impose a tax, the county election superintendent shall be notified and that the resolution or ordinance shall specify “[t]he maximum cost of the project or projects which will be funded from the proceeds of the tax, which maximum cost shall also be the maximum amount of net proceeds to be raised by the tax.” OCGA § 48-8-111 (d) (3) specifically required a ballot for a mixed purpose tax to designate the maximum amount to be raised. Clearly, this section would be incongruous if, regardless of the inclusion in the ballot of the maximum amount to be collected, the tax could be collected in excess of this amount.

Moreover, OCGA § 48-8-121 (a) (3) provided that proceeds of a mixed purpose tax could be collected and used for both road and non-road purposes for the entire five years, so long as the total expenditures were consistent with that provided in the original resolution. Again, this section implied that the tax would terminate when the specified maximum amount was collected.

In 1997 the General Assembly amended OCGA § 48-8-112 (b) (3) specifically to apply to all SPLOST taxes, including mixed purpose taxes. Under the revised statute all SPLOST taxes clearly terminate when the maximum amount is raised. Ga. L. 1997, p. 519, § 1. This change pertained only to resolutions adopted on or after April 14, 1997, and does not resolve the question raised in this case.

The maximum amount of proceeds to be raised from the tax was a fundamental part of the tax referendum on which the Carroll County taxpayers voted. The language of the tax referendum provided that the tax would raise no more than $34 million over a period of no more than four years for purposes related to roads, streets and bridges, and for a period of no more than five years for the purpose of funding certain capital improvements. Stated differently, the voters approved a tax which would end within four and five years, or upon the collection of $34 million dollars. In so voting, the taxpayers approved only a limited collection of money.

Our conclusion that the county was bound to terminate the tax when the maximum amount stated in the ballot was raised is bolstered by the general principle that when a revenue statute lacks clarity, it must be construed against the taxing authority. “[I]f a statute levying taxes is not clear and positive as to its terms, or if it is open to various interpretations through indefiniteness of its provisions, it is to be construed most strongly against the government and in favor of the citizen.” Thompson v. Ga. Power Co., 73 Ga. App. 587, 597 (37 SE2d 622) (1946); see also Fulton Metal Bed Mfg. Co. v. State Revenue Comm., 52 Ga. App. 159, 161 (2) (182 SE 803) (1935). The meaning of a revenue statute cannot be extended by implication. Novak v. Redwine, 89 Ga. App. 755, 757 (81 SE2d 222) (1954).

Through the mechanism of the SPLOST, the General Assembly allowed its sovereign power to tax and collect to be employed by a county so that it. could collect a special, consented-to tax for constitutionally permitted purposes. See generally City Council of Augusta v. Mangelly, 243 Ga. 358, 362 (254 SE2d 315) (1979). The Carroll County voters consented to the collection of no more than $34 million for the designated purposes. The voters did not consent to the collection of additional money, and accordingly, the court erred in denying injunctive relief because the county was obligated to cease its taxation when this limitation was reached. See generally Dickey v. Storey, 262 Ga. 452, 456 (3) (423 SE2d 650) (1992) (Board of Commissioners was not authorized to use proceeds from the SPLOST tax for a purpose entirely different from that contained in original resolution). Based on our conclusion, we will not address plaintiffs’ constitutional arguments in this regard.

2. Plaintiffs contend that the court’s grant of summary judgment on Counts 4, 5, and 6 of their amended complaint was improper. They also argue that the court erroneously disallowed discovery on these counts.

In Count 4, plaintiffs sought injunctive relief to halt the expenditure of money raised after April 1, 1998, on roads. Count 5 sought injunctive relief for the ongoing improper spending of the excess proceeds of the tax in violation of OCGA § 48-8-121 (g) (2). Count 6 sought relief for the county’s breach of statutory record-keeping requirements. In its order, the trial court concluded that because of its conclusion that the time period was controlling as to the limitation of the tax, the counts of plaintiffs’ amended complaint were moot or without merit.

As stated above, we cannot determine whether the county has spent the money raised by the tax or not. If the money has not been disbursed, then Count 4 can be properly dealt with by the court, given our conclusion in Division 1. Similarly, in light of our conclusion in Division 1, the court should have allowed Count 5 of the amended complaint.

The trial court should also have allowed plaintiffs to amend by adding Count 6, regarding the maintenance of records. OCGA § 48-8-121 (a) (1) provides in pertinent part:

The proceeds received from the tax authorized by this article shall be used by the county exclusively for the purpose or purposes specified in the resolution or ordinance calling for imposition of the tax. Such proceeds shall be kept in a separate account from other funds of the county and shall not in any manner be commingled with other funds of the county prior to the expenditure.

Similarly, OCGA § 48-8-121 (a) (2) imposes strict record keeping, scheduling, and auditing practices to account for all expenditures.

The County unlawfully collected the tax revenue that exceeded the $34 million cap and could not lawfully expend those funds. The court erred in not allowing plaintiffs to raise Count 6 regarding the County’s maintenance of proper records. Although the County claims that it kept the requisite records, the court made no factual determination as to the correctness or adequacy of these records. Accordingly, on remand, the court should allow discovery so that a factual determination can be made as to whether the Comity kept the proper records, whether it properly disbursed the proceeds, and whether any excess proceeds were improperly expended. See Dickey v. Storey, 262 Ga. at 456 (3) (county must maintain financial records for each project for which tax proceeds are used).

Judgment reversed and case remanded.

Johnson, C. J., Blackburn, P. J., Smith, Barnes and Ellington, JJ., concur. Eldridge, J., dissents.

Eldridge, Judge,

dissenting.

I respectfully dissent.

1. The trial court, on an undisputed evidentiary record by agreement of the parties, tried all of the issues in the case on the merits and entered a final declaratory judgment on the merits, which was adverse to the plaintiffs. OCGA § 9-11-65 (a) (2). Having decided the issues adversely to the plaintiffs as a matter of law, injunctive relief in equity was not appropriate. The legal questions were simple: (1) did the ballot language of the referendum determine when the SPLOST terminated or (2) did the statute authorizing the SPLOST provide the termination date?

Carroll County, through the State Revenue Commissioner, can collect a SPLOST or any other tax authorized by the Georgia Constitution or by law authorized under the Constitution. “A County can only exercise the power of taxation as conferred upon it either directly by the Constitution or by the General Assembly when authorized by the Constitution.” (Citation and punctuation omitted.) Cha-nin v. Bibb County, 234 Ga. 282, 286 (216 SE2d 250) (1975); accord DeKalb County v. Brown Builders Co., 227 Ga. 777, 778 (2) (183 SE2d' 367) (1971); Richmond County Business Assn. v. Richmond County, 224 Ga. 854, 856 (165 SE2d 293) (1968); Commrs. of Chatham County v. Savannah Elec. &c. Co., 215 Ga. 636, 637 (112 SE2d 655) (1960); Ga. Const, of 1983, Art. VII, Sec. I, Par. I; Art. IX, Sec. IV, Par. I. However, the tax imposed here was not under local ordinance, but under an act of the General Assembly, and was administered on behalf of the county and municipalities by the State Revenue Commissioner as a county tax.

In regard to the prescribed language of the referendum,

[t]he formula prescribed by the legislature was not intended for the purpose of informing the voter as to the full contents of the [statute]. On the contrary, the formula was intended as the declaration by the voter of his approval or disapproval of the [SPLOST referendum,] which had been published [countywide]. The [SPLOST referendum] was submitted to the elector, and the formula prescribed was simply to elicit his expression as to whether or not the proposed [SPLOST] should become a part of the [county taxes]. The formula written or printed on his ballot was but the legislative means of obtaining his expression upon the published proposal; and when he adopted the formula he indicated his vote upon the whole [SPLOST] which was submitted, and not a mere part. [Cit.]

(Punctuation omitted.) McLennan v. Aldredge, 223 Ga. 879, 882 (1) (159 SE2d 682) (1968).

A referendum of the electorate consenting to a specific tax imposition is neither a law nor a constitutional authorization to tax; it confers no power to tax, in and of itself, but is merely a precondition. McLennan v. Aldredge, supra at 882. Such referendum vote by a majority of the electorate to the imposition of a SPLOST is the exercise of a condition precedent to impose a tax authorized by the constitution and by the General Assembly conditioned upon such prior consent, which can be conferred at any time. Bd. of Commrs. of Taylor County v. Cooper, 245 Ga. 251, 258-259 (4) (264 SE2d 193) (1980). The power to tax comes not from the referendum, but from the General Assembly by statute authorized by the constitution. Id. Therefore, the electorate can either agree or disagree to be taxed under the terms and conditions of the statutory authority, not the ballot. Once a referendum is conducted, such correct record and return of the vote are transmitted to the State Revenue Commissioner. OCGA § 48-8-111; see generally Gwinnett County v. Bolin, 262 Ga. 67, 69 (414 SE2d 225) (1992).

The descriptive caption to Ga. L. 1987, p. 1322, reads in part that its purpose is “to change provisions relating to the termination of the tax.” Thus, in passing the enabling legislation to create a SPLOST, the General Assembly expressed the clear intent to set the termination date by the statute and not by the language of the referendum ballot. Ga. L. 1987, pp. 1322, 1329-1330, § 2; OCGA § 48-8-112. The General Assembly amended this act in Ga. L. 1992, pp. 2998, 3001, § 1, to provide that in the proposed ordinance the termination dates of such taxes were

[flour years for roads, street, and bridge purposes and five years for purposes other than road, street, and bridge purposes if the proceeds of the tax are to be used in part for road, street, and bridge purposes and in part for purposes other than road, street, and bridge purposes for which the tax may be imposed.

OCGA § 48-8-111 (a) (2), which fixed the termination date under OCGA § 48-8-112 (b) (2) by passage of time only. When read in pari materia with Ga. L. 1985, pp. 232, 237-238, § 1 (OCGA § 48-8-112 (b) (2) and (3)), all combined purposes, as in this case, terminated “[o]n the final day of the maximum period of time specified for the imposition of the tax,” i.e., five years. Ga. L. 1992, pp. 2998, 3001, § 1 (OCGA § 48-8-111 (a) (2)). In contrast, where the purpose did not include a combination of roads, streets, and bridges and other purposes, i.e., “mixed purpose,” the termination date was “as of the end of the calendar quarter during which the commissioner determines that the tax will have raised revenues sufficient to provide to the county net proceeds equal to or greater than the amount specified as the maximum cost of the project.” Ga. L. 1985, pp. 232, 238, § 1 (OCGA § 48-8-112 (b) (3)). Clearly and unambiguously, the statutes provided that a combined or mixed purpose SPLOST terminated based upon time and not based upon maximum tax receipts. Such termination provisions were clear and unambiguous whether for a single or mixed use purpose contrary to the majority’s position; there was no “gap” for mixed use SPLOST. See Ga. L. 1985, pp. 232, 238, § 1; Ga. L. 1992, pp. 2998, 3001, § 1.

However, Ga. L. 1997, p. 519, § 1 changed the termination date again and provided under Code section 48-8-112 (b) (3) that the language “[i]f the tax was imposed other than for road, street, and bridge purposes” was removed so that such subsection now applied to all purposes, whether road, non-road, or combined. Further, in § 2 of that 1997 amendment, the General Assembly limited such provision to prospective application only;

[notwithstanding any provision of Code Section 1-3-4.1 to the contrary, this Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply with respect to taxes imposed or to be imposed under resolutions or ordinances adopted on or after said effective date.

(Emphasis supplied.) Ga. L. 1997, pp. 519, 520, § 2. Therefore, such amendment does not retroactively apply to the Carroll County SPLOST. In fact, the necessity of passing such amendment, which would bring about the result that plaintiffs urge if applied retrospectively, indicates that the General Assembly believed that the prior statutory provisions, rather than the formula prescribed by the ballot, determined the date of termination.

Further, former OCGA § 48-8-112 (b) (2) provided that the tax would terminate “[o]n the final day of the maximum period of time specified for the imposition of the tax,” which was five years. Ga. L. 1987, p. 1322, § 2. Under OCGA § 48-8-112 (b) (2), the Revenue Commissioner is under a statutory mandate to collect such tax until the termination date on March 31, 1999, five years after imposition. See generally Cellular One v. Emanuel County, 227 Ga. App. 197, 198-199 (489 SE2d 50) (1997).

The Supreme Court of Georgia, speaking of the ballot language for a constitutional amendment, stated, “we hold that the ballot language is not a proper subject for more than this minimal judicial review,” because such ballot language is only to sufficiently inform the elector of the nature of the matter to be voted on in the referendum. Sears v. State of Ga., 232 Ga. 547, 555-556 (4) (208 SE2d 93) (1974); see also Goldrush II v. City of Marietta, 267 Ga. 683, 686 (2) (b) (482 SE2d 347) (1997); Donaldson v. Dept. of Transp., 262 Ga. 49, 51 (1) (414 SE2d 638) (1992); Carter v. Burson, 230 Ga. 511, 521-522 (5) (198 SE2d 151) (1973).

It was within legislative discretion to adopt some formula by which the voter would express his assent or dissent to the [SPLOST].... The formula written or printed on his ballot was but the legislative means of obtaining his expression upon the published proposal.

Cooney v. Foote, 142 Ga. 647, 654-655 (3) (83 SE 537) (1914); accord Carter v. Burson, supra at 522. The General Assembly, unlike Congress, has original and not delegated powers, which power is limited only by the state and federal constitutions. Sears v. State of Ga., supra at 554.

The inherent powers of our State General Assembly are awesome [, and it] is entrusted with the general authority to make laws at discretion. This is true of the Georgia Legislature, the legislature being within the pale of its constitutional competency, the paramount and sovereign power in the State, clothed by the people with all power except where they have made limitations. The legislature is absolutely unrestricted in its power to legislate, so long as it does not undertake to enact measures prohibited by the State and Federal Constitution.

(Citations and punctuation omitted.) Id. at 553-554. Thus, the General Assembly had the power to establish the termination date of a SPLOST by statute regardless of the ballot language.

There was nothing ambiguous in the statute or its amendments regarding the termination date for a mixed purpose SPLOST. Since this was a combination of purposes project within the plain language of Ga. L. 1992, pp. 2998, 2999, 3001, § 1, OCGA § 48-8-111 (a) (1) (D) and (H) (2), and Ga. L. 1987, pp. 1322, 1329-1330, § 2, OCGA § 48-8-112 (b) (2), then the termination date was at the end of five years, which would be March 31, 1999. Where, as here, the language of the statute is plain and unequivocal, judicial construction is not only unnecessary but is prohibited. City of Jesup v. Bennett, 226 Ga. 606 (176 SE2d 81) (1970); Thompson v. Ga. Power Co., 73 Ga. App. 587 (37 SE2d 622) (1946). The majority seeks to find ambiguity where there is none and fails to follow the rules of statutory construction. OCGA § 1-3-1 (a).

Thus, where the validity of a tax act is questioned, declaratory judgment is appropriate. See Camp v. MARTA, 229 Ga. 35, 36 (189 SE2d 56) (1972); Martin v. Ellis, 242 Ga. 340, 342 (249 SE2d 23) (1978). Since the trial court entered a final declaratory judgment on the merits adverse to the plaintiffs, then plaintiffs had an adequate remedy at law and were not entitled to injunctive relief. Camp v. MARTA, supra at 36; Martin v. Ellis, supra at 342; see also OCGA §§ 23-1-3; 23-1-4; Cantrell v. Henry County, 250 Ga. 822 (301 SE2d 870) (1983). Further, if equity jurisdiction did, in fact, exist and since the judgment was adverse to plaintiffs, then the trial court determined as a matter of public policy and balancing of the equities that plaintiffs were not entitled to an injunction. Ledbetter Bros., Inc. v. Floyd County, 237 Ga. 22 (226 SE2d 730) (1976); Bradley v. Roberts, 233 Ga. 114 (210 SE2d 236) (1974); Milton Frank Allen Publications v. Ga. Assn, of Petroleum Retailers, 223 Ga. 784, 788 (158 SE2d 248) (1967).

2. At the agreed upon hearing on the merits, plaintiffs raised for the first time Counts 4, 5, and 6 by filing an amended complaint. Plaintiffs agreed to proceed with the trial of all issues and failed to object, request a continuance, or request to submit evidence after the hearing. Therefore, any objection to consideration of such issues was not preserved for appeal. Plaintiffs never raised a constitutional issue as to notice that they must try such issues and present any evidence at the final hearing.

Further, such constitutional. issues have not been properly framed, as follows: (1) the constitutional issues were not raised in writing in the trial court; (2) they were not specifically or with fair precision set forth as to which constitutional rights were implicated and in what way such rights were violated by the particular portion of the statute to raise a justiciable issue ripe for determination; (3) plaintiffs did not demonstrate standing; (4) such issues were not raised at the earliest opportunity; and (5) the trial court has not passed upon such constitutional issues. Thus, such issues are not ripe for review. Marchman & Marchman, Inc. v. City of Atlanta, 250 Ga. 64 (295 SE2d 311) (1982); St. John’s Melkite Catholic Church v. Commr. of Revenue, 240 Ga. 733, 734 (1) (242 SE2d 108) (1978); Richmond Concrete Products Co. v. Ward, 212 Ga. 773, 774-775 (95 SE2d 677) (1956), overruled on other grounds, State of Ga. v. Crane, 224 Ga. 643, 644 (164 SE2d 116) (1968).

Further, plaintiffs have waived or abandoned such issues under Court of Appeals Rule 27 (c) by failing to specifically reference the record or transcript regarding such enumerated errors. See Henry v. Med. Center, 216 Ga. App. 893, 894 (1) (456 SE2d 216) (1995); Dugger v. Danello, 175 Ga. App. 618, 620 (2) (334 SE2d 3) (1985).

3. Counts 4, 5, and 6 of the complaint sought injunctive relief in equity to impound the taxes collected after March 1998 and to compel the keeping of records as to such tax receipts and expenditures. An action for injunctive relief is to immediately prevent, stop, or reverse conduct causing irreparable harm. Therefore, it is an action to proceed in court without normal discovery to a temporary or interlocutory evidentiary hearing or an accelerated final hearing. OCGA § 9-11-65 (a) (2). Because such hearing is accelerated, the rules of evidence are relaxed.

Further, neither OCGA § 9-11-26 nor Uniform Superior Court Rule 5 grants parties any specified time for discovery to be conducted; the length of discovery rests in the sound discretion of the trial court. USCR 5.1 states:

[i]n order for a party to utilize the court’s compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay and within six months after the filing of the answer. At any time, the court, in its discretion, may extend, reopen or shorten the time to utilize the court’s compulsory process to compel discovery.

Thus, there is no specified time within which to conduct discovery, only a limitation on the period that the trial court will enforce discovery; by trial court order, discovery can be shortened or increased. Alexander v. Macon-Bibb County Urban Dev. Auth., 257 Ga. 181, 184 (5) (357 SE2d 62) (1987); Walton v. Datry, 185 Ga. App. 88, 90 (1) (363 SE2d 295) (1987).

A trial court has wide discretion to shorten, extend, or reopen the time for discovery, and its decision will not be reversed unless a clear abuse of that discretion is shown. Stewart v. Stewart, 260 Ga. 812, 813 (400 SE2d 622) (1991); Ambassador College v. Goetzke, 244 Ga. 322 (260 SE2d 27) (1979), cert, denied, 444 U. S. 1079 (100 SC 1029, 62 LE2d 762) (1980).

Decided July 16, 1999

Gary P. Bunch, for appellants.

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, David A. Runnion, Warren R. Calvert, Senior Assistant Attorneys General, David A. Basil, for appellees.

Woelper v. Piedmont Cotton Mills, 266 Ga. 472, 473 (1) (467 SE2d 517) (1996).

The record shows that the parties agreed to proceed without discovery and the trial court required the evidence be produced or stipulated by the defendants in lieu of discovery so that these important public policy issues could be tried on the merits at the earliest date. Plaintiffs agreed to the factual stipulations and placed additional evidence into the record after the hearing. Plaintiffs made no objection in the trial court or attempt to engage in any discovery. Therefore, there is no evidence of an abuse of the trial court’s discretion.

       The Commission Chairman was authorized by the resolution to enter into an intergovernmental agreement with various Carroll County municipalities to complete the specified capital improvement projects according to priorities set by the parties. On September 22, 1993, the intergovernmental agreement regarding the capital outlay projects to be funded by the proposed tax became finalized. See Ga. L. 1992, pp. 2998, 2999-3000, § 1 (a) (1) (D); OCGA § 48-8-111 (a) (1) (D). In addition to Carroll County, eight municipalities were parties to the agreement. The intergovernmental agreement described in detail all of the capital outlay projects and their respective costs.

       Carroll County, but not the voters, was aware of the “gap” in the statute and sought legal advice from the State Law Department before the referendum. An attorney in the department opined that the County could continue the tax because OCGA § 48-8-lli did not specify a termination date when the tax was collected for mixed purposes.

       We reject plaintiffs’ constitutional arguments since these arguments were neither presented properly here nor preserved below.


author: Smith, Judge. Eldridge, Judge,

text:
    A99A0656.
    SLETTO et al. v. HOSPITAL AUTHORITY OF HOUSTON COUNTY et al.
    (521 SE2d 199)
   Smith, Judge.

Leonard and Stellie Sletto filed this action against the Hospital Authority of Houston County d/b/a Houston Medical Center (HMC), Marlyn Jackson, and Smart Corporation as a result of the unauthorized release of Leonard Sletto’s psychiatric records. The trial court granted summary judgment to all defendants, and the Slettos appeal. For the reasons that follow, we affirm in part and reverse in part.

The essential facts are not disputed. Leonard Sletto filed an action in August 1992 against an individual for personal injuries he allegedly received as a result of an automobile accident. During the course of discovery, the defendant’s attorney, James Towson, sent a request for production of documents to non-party HMC requesting all of Sletto’s records. In response, HMC released to Towson copies of Sletto’s medical records, including certain mental health records, without obtaining authorization from Sletto to release the mental health records. Appellee Smart Corporation was contracted by HMC to provide photocopying and distributing services of medical records and apparently copied Leonard Sletto’s records on HMC’s behalf. The custodian of medical records for HMC, Marlyn Jackson, testified on her deposition that the release was “an error” or “oversight” made by her.

After HMC sent the records to Towson, HMC’s attorney asked Towson that the records be returned, and after having his paralegal review the records, Towson did so. The Slettos filed this action, alleging that Leonard Sletto had “suffered pecuniary loss and injury to his peace, happiness, feelings, and has suffered an invasion of his legal right of privacy as a result of” HMC’s unauthorized disclosure of his psychological records. The complaint also alleged that Stellie Sletto had suffered a loss of consortium. All defendants moved for summary judgment on several grounds. They contended, among other things, that they were entitled to summary judgment on any invasion of privacy claim. HMC and Jackson also argued that summary judgment was warranted because the Slettos could not prevail on their action alleging purely emotional harm. Further, Smart Corporation argued that it was entitled to summary judgment based on the running of the applicable statute of limitation. The trial court granted summary judgment to the defendants, finding that defendants did not intentionally release Leonard Sletto’s psychiatric records. The trial court further found that Leonard Sletto was not entitled to recover for a claim of negligent infliction of emotional distress, because that required “some physical impact arising directly from the release of the mental health records.” The trial court also concluded that the Slettos were not entitled to recover on their an invasion of privacy claim.

On appeal, the Slettos raise no contention with respect to the trial court’s finding concerning the invasion of privacy claim but instead argue that the “impact rule” does not bar recovery in this case. We conclude that Smart Corporation was entitled to summary judgment with respect to Leonard Sletto’s claim, based on the expiration of the statute of limitation. We also agree with the Slettos, however, that summary judgment was incorrectly granted to HMC and Jackson, but for different reasons.

1. The threshold issue in this case is whether the unauthorized release of Leonard Sletto’s psychiatric records affords them a cause of action under our law. The Slettos acknowledge on appeal that they seek damages under OCGA § 51-12-6. If damages for mental pain and suffering sought under this section “are not accompanied by physical or pecuniary loss, recovery is allowed only if the conduct complained of was malicious, wilful or wanton.” (Punctuation omitted.) Carroll v. Rock, 220 Ga. App. 260, 261 (469 SE2d 391) (1996). See also Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992); Ob-Gyn Assoc. of Albany v. Littleton, 259 Ga. 663, 665-666 (2) (386 SE2d 146) (1989); Ford v. Whipple, 225 Ga. App. 276, 277-278 (483 SE2d 591) (1997). Furthermore, even if the conduct was malicious, wilful, and wanton, it must have been directed toward the plaintiff to warrant recovery. Ryckeley, supra at 829. And it is true, as argued by appellees, that the record is devoid of evidence that Leonard Sletto suffered a physical impact. The Slettos concede as much in their appellate brief. We must also agree with appellees that the record does not show that appellees’ actions were “malicious, wilful, or wanton” or that any act or omission was directed toward the Slettos. Jackson testified unequivocally that HMC inadvertently released the records and that she did not harbor any malice toward Leonard Sletto, nor did she intend to injure him. She also stated that she “did not personally know or have any knowledge of Mr. Sletto or his records at HMC prior to the filing of this lawsuit.”

But even though Leonard Sletto suffered no physical injury and HMC’s actions were not wilful, wanton, or malicious that does not end our inquiry, for this case is not defined solely by reference to OCGA § 51-12-6. This case is not simply an action concerning the emotional consequences on a plaintiff arising out of a defendant’s alleged commission of a negligent tort, such as a defendant’s damage to a burial ground, Ryckeley, supra, the negligent loss of a plaintiff’s pet by defendant veterinary clinic, Carroll, supra, a vehicular collision, Ford, supra, or even the alleged negligent delivery of an infant who later died, Littleton, supra. Instead, this case involves the unauthorized release of psychiatric records, records specifically granted special, protective treatment under our law. For example, OCGA § 24-9-21 (5) expressly provides that “certain admissions and communications excluded on grounds of public policy” include “Communications between psychiatrist and patient.” Other statutes manifest this strong public policy against the unauthorized release of mental health records. OCGA § 37-3-166 (a) (2) carefully and strictly defines those persons to whom mental health records may be released. As stated in Mrozinski v. Pogue, 205 Ga. App. 731 (423 SE2d 405) (1992):

[T]he legislature’s pronouncements in OCGA §§ 37-3-166 (a) and 37-7-166 (a) as to disclosure of clinical records of persons receiving hospital treatment for mental illness and substance abuse are that a clinical record for each patient shall be maintained and no part of it shall be released. Even when clinical records are properly disclosed pursuant to these Code sections, such authorization shall not permit disclosure of matters privileged under the laws of this state. [Cits.] We conclude that Georgia law has an exceedingly strict view as to what are privileged communications.

(Punctuation omitted; emphasis in original.) Id. at 734 (2). See also OCGA § 43-39-16 (psychologist-patient privilege). 42 USC § 290dd-2 permits the release of records relating to the treatment of substance abuse only in certain strictly limited circumstances. See also 42 CFR §§ 2.1-2.67. Also, the right of confrontation may yield to the privilege afforded to psychiatric records, if the party seeking to use the privileged information cannot show the necessity of obtaining such records. See Bobo v. State, 256 Ga. 357 (349 SE2d 690) (1986). Our discovery and evidence codes, as well as our case law, therefore set extremely strict limitations on the release of mental health records.

Here, Jackson testified that each year, the department she supervises “produces approximately 500,000 pages of medical records” and receives approximately 60 to 70 requests for medical records each day. Significantly, she acknowledged that she did not “hold confidentiality of psychiatric records any higher than the confidentiality of ordinary medical records.” She also acknowledged that she did not “differentiate a release for ordinary medical records from a release for psychiatric records.” Under the very limited facts of this case, and bearing in mind the strong public policy of maintaining strict compliance with the requirements governing release of psychiatric records, we cannot say that the trial court correctly granted summary judgment to HMC and Jackson. Given the volume of records released by HMC each year, the number of requests presented to Jackson’s department, and her admissions, and in light of our laws concerning the release of psychiatric records, whether HMC adequately controlled its records is at least a jury issue. To condone the careless release of psychiatric records resulting from inadequate record controls would vitiate our State’s clear policies concerning such records. Furthermore, to refuse summarily to hold HMC and Jackson accountable for their actions might encourage even more carelessness in the future. The trial court’s grant of summary judgment to Jackson and HMC is therefore reversed.

2. We next address the trial court’s grant of summary judgment in favor of Smart Corporation. The Slettos filed their original action against defendants HMC and Jackson in December 1994. They amended the complaint several times, without ever adding Smart Corporation as a defendant, before they voluntarily dismissed the complaint in February 1996. The Slettos then filed this renewed action May 8, 1996, naming Smart Corporation as a defendant.

Although OCGA § 9-2-61 permits dismissal and renewal of complaints, that Code section “may not be used to suspend the running of the statute of limitation as to defendants different from those originally sued.” (Citations and punctuation omitted.) Reedy v. Fischer, 193 Ga. App. 684, 685 (388 SE2d 759) (1989). While the record does not reveal an exact date on which the records were copied and released, Stellie Sletto testified that she learned of the release sometime in April 1994 and that she told her husband of this fact in July or August of the same year. It follows that the records were released sometime before April 1994. The parties do not appear to dispute that the two-year statute of limitation applicable to actions alleging injuries to the person applies to Leonard Sletto’s claim. They do dispute, however, the date on which the statute began to run. We agree with Smart Corporation that the statute began to run on the date that Leonard Sletto’s records were released, rather than on the date that Leonard Sletto discovered the breach occasioned by the release of the records. The Slettos’ “ignorance of the facts constituting a cause of action does not prevent the running of the statute of limitation. [Cits.]” Metlife v. Wright, 220 Ga. App. 827-828 (1) (470 SE2d 717) (1996). The Slettos’“reliance upon the discovery rule . . . is misplaced since that rule has been confined to cases of bodily injury which develop only over an extended period of time. [Cit.]” Id. See also Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (1) (368 SE2d 732) (1988).

The unauthorized release of Leonard Sletto’s psychiatric records occurred sometime before April 1994. The statute of limitation on his claim therefore would have run sometime before April 1996. He never amended his original complaint to include Smart Corporation as a party defendant before the limitation period expired. Instead, he named Smart Corporation as a defendant only in his renewed complaint, which was filed in May 1996, after the expiration of the two-year statute of limitation. This was not permissible under Reedy, supra. See also Patterson v. Rosser Fabrap Intl., 190 Ga. App. 657, 658-659 (379 SE2d 787) (1989). We therefore affirm the trial court’s grant of summary judgment to Smart Corporation with respect to Leonard Sletto’s claims.

Stellie Sletto’s loss of consortium claim is not time barred, however, notwithstanding the derivative nature of such a claim, because the statute of limitation on a loss of consortium claim is four years. OCGA § 9-3-33. See also Mears v. Gulfstream Aerospace Corp., 225 Ga. App. 636, 639 (2) (484 SE2d 659) (1997); Jones v. Lamon, 206 Ga. App. 842, 846-847 (2) (426 SE2d 657) (1992) (physical precedent only). We therefore reverse the grant of summary judgment to Smart Corporation with respect to Stellie Sletto’s claim for loss of consortium.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Eldridge, J., concur specially.

Eldridge, Judge,

concurring specially.

While I fully concur in Division 2 of the majority opinion and I fully concur in the analysis and holding of Division 1,1 do not agree with that portion of Division 1 that the release of the records did not present a jury issue that HMC and Jackson’s conduct was “malicious, wilful, or wanton.”

First, this case is about the unauthorized release of psychiatric hospital treatment records without subpoena or court order. Second, the unauthorized release of psychiatric records is expressly prohibited under OCGA §§ 24-9-21 (5) (patient-psychiatrist privilege); 37-3-166 (psychiatric hospital records); 43-39-16 (patient-psychologist); 42 USC § 290dd-2 (confidentiality of drug and alcohol treatment records); or 42 CFR Part 2, §§ 1-2.23, pp. 7-18 for any hospital patient treated for drug, alcohol, or psychiatric condition, and such privilege of confidentiality is the most restrictive in the discovery and evidence codes. Such psychiatric privilege is so restrictive that even the constitutional right of confrontation of a prosecution witness will not overcome the privilege where there exists a substantial equivalent source of information available that is not privileged or the privilege has been waived. See Bobo v. State, 256 Ga. 357, 358-360 (3) (349 SE2d 690) (1986). The facts and circumstances of this case show such conscious indifference to the consequences of such statutory duties as to constitute wanton misconduct.

“Conscious indifference,” “reckless disregard of the rights of others,” and “wilful and wanton misconduct” refer to essentially the same degree of culpability. See Arrington v. Trammell, 83 Ga. App. 107, 110-112 (62 SE2d 451) (1950). There are two elements to “wilful and wanton misconduct”; first, the defendant must be actually aware of the plaintiff as subject to the risk of harm, i.e., the potential presence of psychiatric records in a request for all the patient’s medical records in response to a request for production of documents in a lawsuit; second, the defendant must recognize and appreciate as a reasonably prudent person the substantial probability of harm to the former psychiatric patient if their psychiatric records are released. See generally Carr v. John J. Woodside Storage Co., 217 Ga. 438, 443 (1) (123 SE2d 261) (1961); Poole v. City of Louisville, 107 Ga. App. 305, 307-308 (1) (130 SE2d 157) (1963); Arrington v. Trammell, supra; Ga. Power Co. v. Deese, 78 Ga. App. 704, 708 (51 SE2d 724) (1949). “Disregard of general consequences is a part of wanton behavior.” Ford v. Whipple, 225 Ga. App. 276, 278 (483 SE2d 591) (1997).

First, it has long been recognized that wilful and wanton conduct is not a form of negligent conduct but is a separate and distinct degree of conduct that more closely equates to intentional conduct. “There is an element of intent, actual or imputed, in wilful and wanton conduct which removes such conduct from the range of conduct which may be termed negligent.” (Punctuation omitted.) Martin v. Gaither, 219 Ga. App. 646, 652 (466 SE2d 621) (1995).

McEachern v. Muldovan, 234 Ga. App. 152, 157 (2) (b) (505 SE2d 495) (1998).

“To state a cause of action for emotional distress in the absence of physical injury, no actual damages need be shown where wilful, wanton, voluntary or intentional misconduct is alleged. Hamilton v. Powell, Goldstein, Frazer &c., 252 Ga. 149, 150 (311 SE2d 818) (1984).” Whitehead v. Cuffie, 185 Ga. App. 351, 353 (364 SE2d 87) (1987).

[W]hen the claim is for intentional misconduct, damages for mental distress may be recovered without proof of physical injury. Tuggle v. Wilson, 248 Ga. 335, 337 (282 SE2d 110) (1981). That principle has its corollary in this: reckless and wanton disregard of consequences may evince an intention to inflict injury. Carr v. Woodside Storage Co., [supra at 443]. “(I)t is equally well established that for a reckless disregard of the rights of others, equivalent to an intentional tort by the defendant, the injured party may recover for the mental pain and anguish suffered therefrom.” Pollard v. Phelps, 56 Ga. App. 408 (1) (193 SE 102) (1937), quoted with approval in McCoy v. Ga. Baptist Hospital, 167 Ga. App. 495, 498 (306 SE2d 746) (1983).

Hamilton v. Powell, Goldstein, Frazer &c., supra at 150. “[T]hat entire want of care which would raise the presumption of a conscious indifference to the consequences . . . relates to an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights.” Gilman Paper Co. v. James, 235 Ga. 348, 351 (219 SE2d 447) (1975); accord Bowen v. Waters, 170 Ga. App. 65, 67 (2) (316 SE2d 497) (1984); Skil Corp. v. Lugsdin, 168 Ga. App. 754, 755 (1) (309 SE2d 921) (1983). Such standard of wilful misconduct applies to punitive damages and is applicable here, because OCGA § 51-12-6 prior to 1987 was a species of punitive or vindictive damages where the entire injury was directed to the peace and happiness of the plaintiff, but the General Assembly changed the nature of such damages from punitive to general damages. Clearly, the unauthorized release of this patient’s psychiatric records may be considered by a jury to be a wilful and wanton act directed at the plaintiffs. Thus, an intentional tort was directed at the plaintiffs alone, allowing recovery for mental pain and suffering where the entire injury is to the peace and happiness. SeeRyckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992); Ob-Gyn Assoc. &c. v. Littleton, 259 Ga. 663, 665 (2) (A) (386 SE2d 146) (1989); Hamilton v. Powell, Goldstein &c., supra at 150; Westview Cemetery v. Blanchard, 234 Ga. 540 (216 SE2d 776) (1975); Jordan v. Atlanta Affordable Housing Fund, Ltd., 230 Ga. App. 734, 736-738 (2) (498 SE2d 104) (1998); Ford v. Whipple, supra at 278.

Decided July 16, 1999

Dozier, Lee, Graham & Sikes, Joel M. Grist, Jr., for appellants.

Jones, Cork & Miller, Wendell K. Howell, C. Ashley Royal, for appellees.

For the defendants to confess that they were negligent as a lesser degree of culpability does not eliminate the jury issue that the conduct was wilful and wanton. It was for the jury to decide if the defendants were negligent or wilful and wanton and not for the trial court. Arrington v. Trammell, supra at 113.

I am authorized to state that Presiding Judge Pope joins in this special concurrence.

       Although Mrozinski addresses the issue of a psychiatrist’s intentional release of a patient’s records, rather than a hospital’s unintentional release of such records, its discussion concerning psychiatric privilege is helpful and relevant to our analysis of the issues involved in this case.

       Ga. L. 1987, p. 915, § 6, codified as OCGA § 51-12-6, repealed vindictive damages as a punitive damage and recreated such damages to the peace and happiness as a general damage, measured in the enlightened consciences of impartial jurors. The descriptive content title, id. at 916, reads “to provide for injuries to peace, happiness, or feelings.” The body of OCGA § 51-12-6 expressly states that in such action punitive damages are not recoverable.