author: Blackburn, Judge.

text:
    A98A2004.
    HOLLAND et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    (513 SE2d 48)
   Blackburn, Judge.

David and Ruby Holland appeal the judgment of the trial court in the underlying interpleader action in which the proceeds of a policy issued by State Farm Mutual Automobile Insurance Company (State Farm) were awarded to the Georgia Department of Medical Assistance (DMA) and Floyd Medical Center (FMC). The Hollands contend the trial court erred by: (1) awarding the entire insurance proceeds to the DMA and FMC, for liens pursuant to OCGA § 49-4-149 and OCGA § 44-14-470 et seq., respectively, rather than awarding all or some of the proceeds to Ruby Holland for her loss of consortium claim; (2) awarding the entire insurance proceeds to the DMA and FMC rather than David Holland because he had not been made whole by payment of the insurance proceeds; and (3) denying David Holland’s request for attorney fees. We affirm in part, finding that the awards to the DMA and FMC were proper. We reverse and remand, however, with respect to the claim for attorney fees.

The record shows that on June 8,1996, David Holland was badly injured in an automobile accident while a passenger in a car owned by a State Farm insured. David Holland was treated for his injuries at FMC. In August 1996, Mr. Holland applied for and received Medicaid benefits. The total of the Medicaid benefits paid on Mr. Holland’s behalf by the DMA and the expenses for medical care provided to Mr. Holland by FMC which were ineligible for Medicaid reimbursement exceed $64,000.

David and Ruby Holland filed suit against State Farm’s insured asserting claims for his injuries and her loss of consortium. Subsequently, the DMA and FMC asserted liens on David Holland’s cause of action against State Farm’s insured pursuant to OCGA §§ 49-4-149 and 44-14-470 et seq., respectively. OCGA § 44-14-470 provides that a hospital “shall have a lien for the reasonable charges for hospital . . . care and treatment of an injured person, which lien shall be upon any and all causes of action accruing to the person to whom the care was furnished ... on account of injuries giving rise to the causes of action and which necessitated the hospital . . . care, subject, however, to any attorney’s lien.” OCGA § 49-4-149 establishes a similar lien in favor of the DMA and allows the DMA to perfect and enforce the lien pursuant to the provisions of OCGA §§ 44-14-470 through 44-14-473.

State Farm filed the interpleader action requesting the trial court-to determine the priority of liens on the insurance proceeds asserted by the DMA and FMC. Thereafter, David Holland stated his intention to forego his cause of action so that Ruby Holland could recover on her loss of consortium claim.

1. In their first and second enumerations of error, the Hollands contend that the trial court should have awarded the entire proceeds of the policy to Ruby Holland in satisfaction of her loss of consortium claim. The Hollands contend that State Farm did not allocate the proceeds between Ruby Holland and David Holland, and therefore, the liens did not attach. However, the record shows that State Farm did in fact allocate the insurance proceeds to David Holland’s claim. In its complaint for interpleader, State Farm asserted: “State Farm wants to pay out [its] policy limits coverage of $25,000.00 to cover the cost of Holland’s medical treatment. However, State Farm may not do so without exposing itself to liability due to the existence of the hospital lien filed by FMC and possible liens filed by the [DMA].” As State Farm paid its policy limits for the cause of action asserted by David Holland, the liens attached to the insurance proceeds.

The Hollands erroneously contend that the insurance payment is not associated with David Holland’s claim and is not subject to the liens asserted by the DMA and FMC. They argue that since David Holland agreed to forego his cause of action, Ruby Holland’s loss of consortium claim is the only independent claim, and it is not subject to the liens. However, as David Holland’s claim was pending at the time State Farm filed the interpleader and is still pending, this argument has no merit. The trial court did not err in awarding the insurance proceeds to the DMA and FMC.

2. In their third enumeration of error, the Hollands contend the trial court erred in awarding the entire insurance proceeds to the DMA and FMC rather than David Holland because Mr. Holland was not made whole prior to the satisfaction of the lienholders’ interest. The Hollands argue for an expansion of the “complete compensation rule” set forth in Duncan v. Integon Gen. Ins. Corp., 267 Ga. 646 (482 SE2d 325) (1997). However, as that rule only applies to the subrogation rights of an insurance carrier who has received payments from the injured party, it has no application in the present case, and we decline to expand the rule. The trial court did not err.

3. In their fourth enumeration of error, the Hollands contend the trial court erred in denying David Holland’s claim of a lien for attorney fees on the insurance proceeds. The trial court found the Hollands failed to assert the lien timely and that the lien for attorney fees did not take priority over the liens asserted by the DMA and FMC. We disagree. Based on our decision in Division 1, the trial court erred by failing to recognize the claim of lien for attorney fees. The lien for attorney fees was not ripe until some recovery was made on Mr. Holland’s claim, which would not have been until the trial court’s award. David Holland first asserted the claim of lien in his motion for reconsideration, after the trial court had entered judgment in favor of the DMA and FMC. The claim was timely. Furthermore, the liens established by OCGA §§ 44-14-470 and 49-4-149 are subject to any attorney’s lien. OCGA §§ 44-14-470 (b); 49-4-149 (b); Ramsey v. Sumner, 211 Ga. App. 202 (438 SE2d 676) (1993). However, since the trial court did not receive evidence of the amount of the lien, this case is reversed and remanded with respect to the claim of lien for attorney fees so that the trial court can determine the amount of the lien.

Judgment affirmed in part, reversed in part and case remanded.

Decided February 24, 1999

Reconsiderations denied March 10, 1999

Rodney L. Mathis, for appellants.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Stephanie B. Hope, Per B. Normark, Assistant Attorneys General, Kinney & Kemp, Wayne E. Brooks, Jr., Shaw, Maddox, Graham, Monk & Boling, Julius W. Peek, Jr., Vaughan & Tilley, Velma C. Tilley, for appellees.

Johnson, C. J., and Eldridge, J., concur.

       David Holland and Ruby Holland divorced after the accident.

       The Hollands do not dispute that State Farm can pay its policy limits to one claimant to the detriment of another, Allstate Ins. Co. v. Evans, 200 Ga. App. 713 (409 SE2d 273) (1991), but instead only contend that State Farm had not done so.

       “Georgia public policy strongly supports the rule that an insurer may not obtain reimbursement unless and until its insured has been completely compensated for his losses.” Duncan at 647.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A98A2120.
    STAPLETON v. GENERAL ACCIDENT INSURANCE COMPANY.
    (512 SE2d 645)
   Pope, Presiding Judge.

Pam Stapleton d/b/a Stapleton’s Bed & Breakfast (Stapleton) appeals the trial court’s order granting third-party defendant General Accident Insurance Company’s (GAIC) motion for summary judgment. This lawsuit was initiated by Restoration Company when it filed suit against Stapleton for money owing on a contract for repairs to her flood-damaged inn. Stapleton answered and filed a third-party complaint against her insurer, GAIC, contending it owed her insurance proceeds for the repairs. However, the trial court found that Stapleton’s suit against GAIC was barred because it was filed outside the policy’s two-year suit limitation period. Stapleton contends the court erred because a factual dispute remains as to whether GAIC waived the limitation period by its conduct. We affirm.

“This Court applies a de novo standard of review to a grant of summary judgment, and the evidence must be viewed in the light most favorable to the nonmoving party. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).” Griffin v. Travelers Ins. Co., 230 Ga. App. 665 (497 SE2d 257) (1998). Viewed in this light, the record shows that Stapleton’s policy provided that any legal action against GAIC must be brought “within 2 years after the date on which the direct physical loss or damage occurred.” Stapleton’s inn was damaged on July 5, 1994, during a flood. On April 3, 1997, thirty-three months after the date of loss and nine months after the suit deadline, Stapleton filed her complaint against GAIC.

Stapleton does not challenge the validity of the policy’s suit limitation period, which, under Georgia law, is a binding condition precedent to her recovery. See, e.g., Appleby v. Merastar Ins. Co., 223 Ga. App. 463 (477 SE2d 887) (1996). Rather, she argues GAIC waived her compliance with the provision by its conduct.

[A]n insurer can be held to have waived a limitation period when its investigations, negotiations, or assurances up to and past the period of limitation led the insured to believe the limitation would not apply. Because OCGA § 33-24-40 permits an insurer to investigate claims without waiving such limitation, not all conduct by the insurer will lead to waiver. It is only where the insurer’s conduct reasonably leads the insured to believe that a strict compliance with the limitation provision would not be insisted upon. Where there is evidence of such conduct, the issue of waiver is a question of fact for a jury to decide.

(Citations and punctuation omitted.) Id. at 464. On the issue of waiver, the record reveals the following:

Stapleton immediately notified GAIC of the loss. After receiving notice of the loss, GAIC retained an independent adjuster to handle Stapleton’s claim. Within a week of the loss, the adjuster inspected the damaged premises, took photographs of the damaged structure and contents, and met with Restoration Company to coordinate repairs. The adjuster noticed a few small oriental rugs that had been damaged by water.

On August 29, 1994, the adjuster sent Stapleton a letter containing a $3,000 check in “advance against your personal contents claim.” The adjuster advised Stapleton that when she provided a documented, formal claim for her damaged or destroyed business property, further advances would be issued. The letter also noted that checks had been sent to pay for structural repairs. GAIC’s claims manager stated that a total of $62,602.51 was paid to cover Staple-ton’s documented structural damages. The manager explained that the personal property or “contents” claim was not paid because Stapleton failed to document her extensive list of items.

On September 13, 1994, the adjuster sent Stapleton a proof of loss form. He informed Stapleton that GAIC would not make any further advances “on business personal property until the content claim worksheets are received.” He explained that only when “this documentation is received by our office, we will quantify your loss and submit for General Accident’s review.” Stapleton lost the proof of loss form, and the adjuster sent her a second one with his letter of October 24, 1994. The adjuster advised Stapleton then that the information he had received on her contents claim, especially as it pertained to damaged oriental rugs, was “very incomplete.” The adjuster specifically requested information proving the ownership, value, and extent of damage to the rugs.

On November 16, 1994, Stapleton submitted a sworn proof of loss claiming almost $196,000 in contents damages, of which $47,125 was for damage to 24 oriental rugs. On December 7, 1994, the adjuster informed Stapleton that the proof of loss was incomplete and he would need further information in order for payments to be made. The adjuster advised Stapleton that because he had not seen the rugs during his inspection, GAIC needed something to document her ownership of the rugs and an estimate of their value. GAIC required the same information for the rest of the items on her worksheet, including clothing, freezer and pantry items, oriental lamps, furniture, and stereo equipment. He stated: “General Accident has informed us that it is up to you to prove [your] contents claim.” The adjuster also disputed several of the items claimed, asserting they either were not damaged in the flood or were not covered under the policy.

On December 16, 1994, the GAIC claims manager wrote Staple-ton, advising her that because the proof of loss was incomplete, GAIC “cannot complete the handling of your claim.” The adjuster wrote Stapleton on February 14, 1995, and again on April 26, 1995, requesting additional information and attempting to schedule a meeting. In the April 26, 1995 letter, the adjuster noted that Stapleton had canceled their previously scheduled meeting. He urged her to meet with him “face to face to settle your claim and answer any questions you may have about [the] requested documentation.” GAIC did not hear from Stapleton again until her lawyer contacted its claims manager by phone on June 6, 1995.

On June 8, 1995, Stapleton’s attorney wrote GAIC, promising that he would comply “with any requirements for properly perfecting any proof of claim under the policy which has not been properly submitted.” Also on June 8, 1995, the adjuster sent Stapleton’s attorney copies of the information and correspondence previously submitted by Stapleton.

On December 26, 1995, the adjuster wrote Stapleton’s attorney, stating that he had not received any further information or correspondence from them since June. Again, on January 17, 1996, the adjuster wrote Stapleton’s attorney stating that he hoped to “discuss the necessary documentation to bring this matter to a close.” However, no claim documentation was forthcoming. On July 4, 1996, GAIC’s suit limitation period expired; consequently, it closed its file on Stapleton’s claim on July 12, 1996. Shortly thereafter, Stapleton made a complaint to the Insurance Commissioner about GAIC’s handling of her claim. The commissioner investigated the complaint and responded, explaining that GAIC needed documentation to process the claim. The commissioner wrote: “I hoped [your attorney] might be able to assist you in successfully gathering then submitting documentation to the insurance company. I know that he made [an] effort to do so earlier in the year.”

In her deposition, Stapleton admitted that neither GAIC nor the adjuster told her not to file suit. In fact, it appears that the prospect of a lawsuit was never discussed. Stapleton testified that she could not recall whether GAIC specifically told her they were going to pay but it was her understanding that GAIC would settle with her because the adjuster always maintained that her claim “was being negotiated and that they kept wanting me to do different things and change different documents. . . .” She explained “it was just a matter of redoing a schedule of contents or whatnot. . . .” In an affidavit she filed in response to GAIC’s motion for summary judgment, Stapleton stated she did not file suit because the adjuster assured her that GAIC would pay all of her claim.

Given this evidence, we cannot agree with Stapleton that an issue of fact remains on whether GAIC waived its two-year contractual limitation period. The evidence shows only that GAIC continued to negotiate with Stapleton, waiting for documentation supporting her contents claim. “[M]erely negotiating for a possible settlement of a disputed claim which is unsuccessfully accomplished is not conduct designed to lull the claimant into a false sense of security and does not preclude an assertion of the contractual” suit limitation period. Cambridge Mut. Fire Ins. Co. v. Okonkwo, 218 Ga. App. 59, 61 (2) (460 SE2d 302) (1995). Rather,

[t]o conclude that the policy limitations have been waived or estopped, there must be an affirmative promise or other act waiving the limitation [,] or an actual or constructive fraud leading the insured to believe the limitation [period] would be enlarged, or lulling him into the security of actually thinking [that] the claim would in fact be paid without suit.

Bowers v. Safeco Ins. Co. of America, 187 Ga. App. 229, 230 (1) (369 SE2d 547) (1988). In this case, the only evidence of such a promise on GAIC’s part is Stapleton’s affidavit testimony that she did not file suit because the adjuster assured her that her claim would be paid. However, because that statement is directly contradicted by her previous deposition testimony, we construe it against her. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986) (unexplained inconsistencies in testimony must be construed against an equivocator). Finding no dispute of fact on the issue of waiver, we conclude that summary judgment to GAIC was proper.

Judgment affirmed.

Beasley, P. J., and Ruffin, J., concur.

Decided February 8, 1999

Reconsideration denied March 10, 1999

Vansant, Corriere, McClure & Dasher, Alfred N. Corriere, Michael W. Strahan, for appellant.

Swift, Currie, McGhee & Hiers, Joan P. Shaker, Mark T. Dietrichs, for appellee.


text:
    A98A2258.
    NORTH BROTHERS COMPANY et al. v. THOMAS et al.
    (513 SE2d 251)
   Blackburn, Judge.

North Brothers Company and GAB Robbins (collectively North Brothers) appeal the trial court’s order denying and dissolving a workers’ compensation subrogation lien against the recovery received by Michael A. Thomas pursuant to a personal injury suit brought by him against Alfred A. Hughes. North Brothers contends that Thomas has been fully compensated for his economic and noneconomic losses generated by his injury, and, as such, it should be allowed to assert its lien against his trial recovery pursuant to OCGA § 34-9-11.1.

On April 22, 1996, Thomas was injured in an automobile wreck with tortfeasor Hughes, creating a cause of action in tort. At that time, Thomas was acting within the scope of his employment for North Brothers and was entitled to workers’ compensation benefits. Thereafter, North Brothers, through its workers’ compensation carrier, GAB Robbins, paid workers’ compensation benefits to Thomas, which it sought to recoup through intervention in the Thomases’ tort action against Hughes.

Such a recovery was historically not permitted in Georgia under our long-standing collateral source rule. The federal government created the right to recover the expenditure of taxpayer dollars paid to injured parties under a host of federal programs, where the injured party had a cause of action against a third party, by creating a lien thereon and a right of intervention. Thereafter, the Georgia legislature created a similar right in insurance companies, notwithstanding the fact that such companies receive a premium for the risks they take, and no taxpayer dollars have been expended. Presumably, it was felt that such recoveries by insurance companies would ultimately reduce costs to such companies and that lower premiums would then result.

OCGA § 34-9-11.1, which provides a limited right of subrogation to workers’ compensation providers, was enacted in 1995. No subrogation thereunder could occur unless the injured employee had been fully and completely compensated.

On May 17,1996, Thomas and his wife filed a tort action against Hughes, contending that the automobile collision was caused by Hughes’ negligence, pursuant to OCGA § 34-9-11.1 (a). North Brothers contends that through GAB Robbins, it had paid medical expenses of $61,844.89, and temporary disability benefits for Thomas.

North Brothers was allowed to intervene in the Thomases’ action against Hughes pursuant to OCGA § 34-9-11.1 (b), which states:

In the event an employee has a right of action against such other person as contemplated in subsection (a) of this Code section and the employer’s liability under this chapter has been fully or partially paid, then the employer or such employer’s insurer shall have a subrogation lien, not to exceed the actual amount of compensation paid pursuant to this chapter, against such recovery. The employer or insurer may intervene in any action to protect and enforce such lien. However, the employer’s or insurer’s recovery under this Code section shall be limited to the recovery of the amount of disability benefits, death benefits, and medical expenses paid under this chapter and shall only be recoverable if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of the recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury.

(Emphasis supplied.)

The statute was enacted to allow an employer to recover the amount of workers’ compensation benefits paid out, but a primary legislative concern was that the injured employee first be made whole. That concern is consistent with Georgia public policy that an insurer cannot seek subrogation unless and until its insured has been completely compensated for his or her losses. See Duncan v. Integon Gen. Ins. Corp., 267 Ga. 646 (482 SE2d 325) (1997). The statute prescribes no method by which an employer can establish that a workers’ compensation recipient has been fully and completely compensated by a recovery from a third-party tortfeasor. As previously suggested in Dept. of Admin. Svcs. v. Brown, 219 Ga. App. 27 (464 SE2d 7) (1995), utilization of a special verdict form may be the most practical solution.

(Citation omitted.) Bartow County Bd. of Ed. v. Ray, 229 Ga. App. 333, 335 (494 SE2d 29) (1997). Without such a special verdict form, appellate courts could not determine what portions of the award the jury applied toward economic and noneconomic losses, and, as a result, it would be impossible to determine whether a plaintiff had been hilly compensated for his losses. The outcome in many such situations would be that a workers’ compensation subrogation lien could not be enforced. Id. It is the responsibility of the workers’ compensation provider to protect its interest by intervention and special verdict requests.

In this case, North Brothers did intervene, and the jury did return a special verdict, allowing for appellate analysis of the trial court’s dissolution of North Brothers’ subrogation lien. The jury in the tort action found for the Thomases and awarded the following: (1) medical expenses — $25,000; (2) lost wages — $0; (3) pain and suffering — $25,000; (4) loss of consortium — $0; and (5) attorney fees — $0.

In its order enforcing the jury’s verdict, the trial court found that Thomas had not been fully and completely compensated for all economic and noneconomic losses caused by his injury. Pursuant to this finding the trial court denied and dissolved North Brothers’ subrogation lien.

The initial question is whether Thomas was fully and completely compensated for his losses. The jury awarded Thomas the sum of $25,000 for pain and suffering. North Brothers paid no sums for pain and suffering in Thomas’ workers’ compensation claim. If the lien was allowed to apply to the pain and suffering award of $25,000, Thomas would then not have been compensated for his pain and suffering claim. Under the express language of OCGA § 34-9-11.1 (b), no subrogation claim can be recovered where there has not been full compensation for the employee’s injuries.

Where, for example, the employee’s weekly wages exceeded the amount of the workers’ compensation weekly benefit actually received, the employer would not be allowed to recover the weekly benefits paid unless and until such time as the employee has been compensated for the difference between the workers’ compensation weekly benefit actually received and the employee’s normal weekly wage.

Decided March 1, 1999

Reconsideration denied March 10, 1999

McLain & Merritt, Jeffrey E. Hickcox, Andrew D. Horowitz, for appellants.

Peter G. Williams, for appellees.

The employee has not been fully compensated, and no subrogation claim would thus be permitted, if there are any outstanding claims for medical expenses for which the employee would be liable, or there are other such items, for which damages are recoverable from the tortfeasor, for which workers’ compensation provides no benefits. Where there has been a jury trial with a special verdict form, the allocation of any award is controlled by the jury verdict.

A review of the record in this matter shows that Thomas admits that the medical benefits paid under his workers’ compensation claim are at least $60,030.37. The jury awarded Thomas the sum of $25,000 for medical expenses. There is nothing in the record which indicates that Thomas has any outstanding medical or other claims or obligations which should be considered in determining whether or not he has been fully compensated. We conclude, therefore, that Thomas has been fully compensated for his medical expenses.

North Brothers therefore has a right to enforce its subrogation lien, but only as to sums in excess of the amount required to fully and completely compensate Thomas. The trial court erred by dismissing North Brothers’ lien under the facts herein presented. Although North Brothers’ subrogation lien remains viable, it must be limited to the $25,000 awarded by the jury to Thomas as medical expenses, and it cannot be asserted against the remaining $25,000 awarded to Thomas for pain and suffering for the reasons outlined above.

Accordingly, North Brothers’ lien remains viable, but only as to the $25,000 jury award for medical expenses.

Judgment reversed.

McMurray, P. J., and Eldridge, J., concur.

       North Brothers contends that the medical expenses amounted to $61,844.89, and Thomas contends that his medical expenses totaled $60,030.37.

       Although Thomas also received compensation from his uninsured motorist carrier, “nothing in the statutory scheme authorizes an insurer to assert a subrogation right against an injured person’s uninsured motorist benefits.” Stewart v. Auto-Owners Ins. Co., 230 Ga. App. 265, 268 (495 SE2d 882) (1998).


text:
    A98A2318.
    ANDRIES v. THE STATE.
    (512 SE2d 685)
   Blackburn, Judge.

Todd B. Andries appeals his convictions, following a bench trial, for driving under the influence of alcohol to the extent that he was a less safe driver, see OCGA § 40-6-391 (a) (1), and driving under the influence of alcohol with a blood/alcohol concentration of .10 or more, see OCGA § 40-6-391 (a) (5). Andries contends that the trial court erred by admitting evidence of the results of a breath test taken by him following his arrest. For the reasons set forth below, we affirm the convictions.

Andries was pulled over for running a red light by Officer Daniel Brookheisen. Brookheisen testified that Andries smelled like an alcoholic beverage, had glassy eyes and slurred speech, appeared somewhat incoherent, and had difficulty interpreting instructions. Andries told Brookheisen that he was on his way home from a party and that he had consumed a few beers.

Brookheisen then called Officer Smail from the DUI Task Force to assist him. Smail asked Andries to perform the horizontal gaze nystagmus, nine-step walk and turn, and one-leg stand sobriety tests, all of which Andries failed. Smail also asked Andries to submit to an alco-sensor evaluation which tested positive for alcohol.

After being arrested, Andries was taken to a detention center where he submitted to a breath test using the Intoxilyzer 5000. This test showed a blood/alcohol concentration of approximately .16. Andries was subsequently charged for driving under the influence of alcohol to the extent that he was a less safe driver and driving with a blood/alcohol concentration greater than .10.

Andries contends that the trial court erroneously admitted the results of his Intoxilyzer 5000 breath test because the foundation for their admission was based on non-certified copies, rather than originals, of the machine’s inspection certificates, which Andries argues do not satisfy the requirements of OCGA § 40-6-392 (f).

OCGA § 40-6-392 (f) provides one method for laying the foundation for the admission of such certificates of inspection needed to prove the validity of a breath test performed pursuant to OCGA § 40-6-392 (a) (1) (A). OCGA § 40-6-392 (f) states:

Each time an approved breath-testing instrument is inspected, the inspector shall prepare a certificate which shall be signed under oath by the inspector and which shall include the following language: “This breath-testing instrument (serial no._) was thoroughly inspected, tested, and standardized by the undersigned on (date_) and all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order.” When properly prepared and executed, as prescribed in this subsection, the certificate shall, notwithstanding any other provision of law, be self-authenticating [and] shall be admissible in any court of law.

Although Andries argues otherwise, his contention that non-certified copies of the inspection certificates were insufficient to prove the proper operation of the Intoxilyzer 5000, even if it were valid, would not require the reversal of his conviction for driving under the influence of alcohol to the extent that he was less safe to drive. The result of the Intoxilyzer 5000 test was merely cumulative of the other evidence of Andries’ less safe state, including his glassy eyes, his incoherency, and his failure of field sobriety tests. As such, the admission of the breath test results was harmless in relation to the charge of driving under the influence to the extent of being less safe. Chastain v. State, 231 Ga. App. 225, 226 (2) (498 SE2d 792) (1998).

On the other hand, if it were found to be erroneous for the trial court to have admitted the photocopies of the certificates of inspection, Andries would have been harmed with regard to the per se driving under the influence charge, as the results of the Intoxilyzer 5000 breath test could be admitted only if it were shown that the machine was in proper working order. Accordingly, we must determine whether the photocopies of the inspection certificates were properly admitted into evidence pursuant to OCGA § 40-6-392 (f).

Self-authenticating language in a statute cannot be ignored, and this Court must construe such provision in order to give meaning to the legislative intent. It is, of course, fundamental that the cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose. Although the legislative intent prevails over the literal import of words, where a constitutional provision or statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.

(Punctuation omitted.) Jackson v. State, 233 Ga. App. 568, 572 (2) (b) (504 SE2d 505) (1998).

Unlike many other self-authentication provisions under the Georgia Code, OCGA § 40-6-392 (f) does not require that copies must be certified to be admissible. As such, we must assume that, had the legislature intended such a rule to apply to copies of certificates of inspection under OCGA § 40-6-392 (f), it would have expressly provided so. Therefore, we find that the trial court did not err in admitting photocopies of the certificates of inspection in this case.

Decided February 19, 1999

Reconsideration denied March 10, 1999

Bruce F. Morriss, Daniel Shim, for appellant.

Joseph J. Drolet, Solicitor, Dawn Belisle-Skinner, Assistant Solicitor, for appellee.

Moreover, even if certification of the photocopies were required, prior to the admission of the certificates of inspection into evidence, Officer Smail, who performed the breath test on Andries, testified that he was familiar with the documents and that he recognized them as photocopies of the original certificate posted next to the Intoxilyzer 5000 machine on which Andries had been tested. After the introduction of such testimony, it was not error for the trial court to admit the certificates of inspection over the appellant’s objection. See, e.g., Jackson v. State, 228 Ga. App. 877, 878 (1) (492 SE2d 897) (1997) (uncertified copy of defendant’s driving record admissible where it was identified at trial by sworn witness).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       Andries does not appeal his conviction for running a red light in violation of OCGA § 40-6-20.

       See, e.g., OCGA §§ 7-1-95 (admissibility of documents of Department of Banking & Finance); 40-5-2 (admissibility of records of application for licenses); 24-3-17 (admissibility of copies of records of Department of Public Safety).


author: McMurray, Presiding Judge.

text:
    A98A2433.
    ELLIOTT v. McDANIEL.
    (513 SE2d 249)
   McMurray, Presiding Judge.

On March 18, 1996, plaintiff-appellee Jerry C. McDaniel, Sr. obtained a judgment against his former business partners, defendant-appellant Jerry Ann Elliott, her former husband, defendant James D. Elliott, and the parties’ corporation, defendant J & J Landfill, Inc. (“J & J”), recovering on theories of fraud, misappropriation of corporate opportunity, and further obtaining a decree of specific performance. This Court affirmed in part but reversed the decree of specific performance, because “we [could not] say that money damages did not restore McDaniel to his former position.” Elliott v. McDaniel, 224 Ga. App. 848, 852-853 (4) (483 SE2d 104). This Court also held that the OCGA § 51-12-5.1 (g) cap on punitive damages applied because there was no jury finding of a specific intent to cause harm. 224 Ga. App. 855 (5), supra. Thus, the trial court’s judgment was affirmed in part, reversed in part, and remanded with direction to amend the judgment in conformity with this Court’s opinion. The Supreme Court of Georgia subsequently granted-certiorari and, in McDaniel v. Elliott, 269 Ga. 262, 265 (3) (497 SE2d 786), “reversed that portion of the Court of Appeals’ decision imposing the cap on punitive damages in this case.” “Accordingly, to the extent that this decision of the Supreme Court [of Georgia] reverses the opinion of this Court, our original judgment in this case [was] vacated, and the judgment of the Supreme Court [was] made the judgment of this Court.” Elliott v. McDaniel, 235 Ga. App. 773 (510 SE2d 46), notice of intent to apply for certiorari filed January 13, 1999.

In Case No. A98A2433, the case sub judice, plaintiff-appellee McDaniel again sued defendant-appellants Jerry Ann Elliott, James Elliott, J & J, plus J & J shareholder and director Glyndon C. Pruitt, seeking damages and injunctive relief. According to the complaint, at a special shareholders’ meeting, defendants James Elliott and Glynn Pruitt ousted plaintiff as a director of J & J, electing defendant James Elliott as the sole director; voted to have J & J vacate the premises previously leased by J & J from defendant Jerry Ann Elliott; and had defendant Jerry Ann Elliott “[file] a dispossessory action ... in the State Court of Forsyth County, Georgia. . . .” After an evidentiary hearing where all defendants were represented by counsel, the trial court denied plaintiff’s request that a receiver be appointed for J & J but granted injunctive relief against defendant Jerry Ann Elliott, “restraining her [personally or through her agent] from initiating or continuing any action to dispossess or evict the corporation, J & J Landfill, Inc. from the real estate titled in her name and [currently] occupied by said corporation.” Although captioned “Temporary Restraining Order,” we viewed this order as an interlocutory injunction because it would “remain in effect until further Order of the Court,” and so granted defendant Jerry Ann Elliott’s application for discretionary appeal pursuant to OCGA § 5-6-35 (j). In two related enumerations, she contends the trial court erred in granting injunctive relief because plaintiff has an adequate remedy at law and because his claims are barred by res judicata and collateral estoppel. Held:

“The doctrine of estoppel by judgment differs from the plea of res judicata, in that, while res judicata applies only as between the same parties and upon the same cause of action to matters which were actually in issue or which under the rules of law could have been put in issue, estoppel by judgment applies as between the same parties upon any cause of action to matters which were directly decided in the former suit.” Brown v. Brown, 212 Ga. 202, 204 (91 SE2d 495).

Tootle v. Player, 225 Ga. 431, 432 (2) (169 SE2d 340). This Court’s previous ruling that Jerry C. McDaniel, Sr. is not entitled to specific performance of the favorable lease he desired is now the law of the case in the prior suit. Consequently, McDaniel is estopped by our prior judgment to assert that J & J now has any enforceable right to stay on the land of defendant Jerry Ann Elliott after expiration of the previous lease. The trial court erred in granting the injunction restraining Jerry Ann Elliott from initiating or continuing any action to dispossess or evict J & J from her land.

Decided February 26, 1999

Reconsideration denied March 10, 1999

McGarity & Moyer, J. Michael McGarity, Howard W. Reese III, for appellant.

Sexton & Sexton, James D. Sexton, Giles D. Sexton, Henderson & Lipscomb, David S. Lipscomb, Andersen, Davidson & Tate, Gerald Davidson, Jr., Thomas T. Tate, for appellee.

Judgment reversed.

Blackburn and Eldridge, JJ, concur.


author: Smith, Judge.

text:
    A98A2466.
    TUGGLE v. THE STATE.
    (512 SE2d 650)
   Smith, Judge.

Cedric Tuggle was charged by indictment with possession of cocaine with intent to distribute and misdemeanor obstruction of an officer. After his motion to suppress tangible evidence was denied, he waived jury trial and stipulated the evidence as that presented at the hearing on the motion to suppress. He was found guilty and brings this appeal, contending that the trial court erred in denying his motion to suppress and in finding him guilty of obstructing an officer. We find no error and affirm.

The evidence presented at the hearing on the motion to suppress showed that DeKalb County police officer J. J. Davis observed a silver or gray Buick turn left across oncoming traffic. He followed in his marked car, activating his emergency lights. After the Buick made another left turn across traffic, Davis pulled it over. The car was occupied by three persons: the driver, a passenger in the left rear seat, and Tuggle, who was a passenger in the right front seat. Because the driver did not produce a driver’s license and Davis’s computer malfunctioned, he radioed for another officer to run the information given to him by the driver, and Officer Richard Hutson answered the call.

Hutson determined that the driver’s license had been suspended and relayed this information to Davis. Because of their concern about the number of people in the car stopped by Davis, Hutson also proceeded to that location. When he arrived, the driver had already been arrested and handcuffed.

Because the driver had not authorized the release of the car to either of the passengers, it was necessary for the officers to call a wrecker to impound the car. The two passengers were in the car. The passenger in the back seat then got out, and Davis was talking with him when he saw Tuggle leave the car as well. Because Hutson was concerned, for safety reasons, about allowing both passengers to leave the car at the same time, he asked Tuggle to remain seated for a short while longer.

At that point, Tuggle “adjusted something in the front of his pants and then just took off running.” Hutson chased Tuggle until Tuggle slipped and fell, allowing Hutson to make physical contact. Tuggle then “took a swing at” Hutson, and Hutson attempted to subdue Tuggle with pepper spray, but the canister malfunctioned. Tuggle pushed away and resumed running. Hutson overtook Tuggle when Tuggle encountered a fence he could not climb. After instructing Tuggle not to move, Hutson observed him make “a sudden movement into the front of his pants” that Hutson assumed was for a weapon. Hutson drew his own weapon, and Tuggle moved his hands away from his belt, but he then bolted again and resumed running. Hutson again gave chase, and he was finally able to take Tuggle into custody when Tuggle slipped again. He was arrested for obstruction of a law enforcement officer, handcuffed, and searched. No weapon was, in fact, found, but in Tuggle’s crotch area, Hutson found a tightly rolled green cloth bag with $995 in cash and five clear plastic bags containing crack cocaine.

1. Tuggle first contends the trial court erred in denying his motion to suppress because the cocaine found on his person was discovered in a search incident to an unlawful arrest. We do not agree. In reviewing the denial of a motion to suppress, the trial court’s findings must be adopted unless clearly erroneous. Culver v. State, 230 Ga. App. 224, 227 (1) (496 SE2d 292) (1998). In this case, as the State points out, a step-by-step analysis of the entire incident reveals that the trial court correctly denied Tuggle’s motion to suppress.

(a) The initial stop of the car was entirely proper. Although Tuggle insists it was pretextual, such a stop is authorized if the officer observes a traffic violation. Sanders v. State, 226 Ga. App. 565, 566 (2) (487 SE2d 115) (1997). Here, Davis testified that he observed the Buick twice make unsafe left turns across traffic.

(b) The United States Supreme Court has determined that three levels of encounter exist between a citizen and the police. The first involves a mere request for name and identification, with the individual free to refuse or ignore the request. The second is the Terry-type stop, involving a temporary restraint, which requires an articulable suspicion that a crime has been or is being committed. The third is an actual or de facto arrest, which must be supported by probable cause. Exposito v. State, 191 Ga. App. 761, 762 (1) (382 SE2d 412) (1989). In this case, the initial contact between the officers and Tuggle was a police-citizen encounter involving no restraint. Tuggle was not under suspicion at the time of the traffic stop, and both officers testified he would have been free to leave.

(c) When Tuggle bolted and ran, his actions provided the officers with an articulable suspicion that he had committed or was committing a crime. Flight is a circumstance sufficient to give an articulable suspicion of illegal activity. Walker v. State, 228 Ga. App. 509, 511 (1) (493 SE2d 193) (1997). Moreover, Hutson testified that, in his knowledge and experience, when an individual flees a routine traffic stop, it is ground for caution; outstanding warrants may be out on the individual, or the person may have contraband or weapons. This elevated the encounter to the second level, justifying a brief, Terry-type stop, in which Hutson was authorized to restrain Tuggle for further brief questioning. Hutson testified that had Tuggle allowed the questioning and satisfied his concerns, he still would have been free to leave.

(d) During the chase, however, Tuggle struggled with Hutson, further obstructing the officer’s investigation. An arrest for violating OCGA § 16-10-24 (a), misdemeanor obstruction of an officer, was supported by probable cause.

(e) The search of Tuggle was justified both for Hutson’s protection, as he believed Tuggle might have had a weapon, and incident to his lawful arrest for misdemeanor obstruction. Allison v. State, 217 Ga. App. 580, 581 (1) (459 SE2d 557) (1995).

2. Tuggle’s conviction for misdemeanor obstruction of an officer was authorized. OCGA § 16-10-24 (a) provides that “[e]xcept as otherwise provided in subsection (b) of this Code section, a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” We have already determined that Hutson had an articulable suspicion that Tuggle had committed or was committing a crime, sufficient to justify further questioning. It is beyond cavil that by fleeing from an officer who had a lawful right to question him, Tuggle at the very least hindered the officer’s investigation and violated this statute. His struggle with the officer provided further probable cause for his arrest and support for his conviction.

Judgment affirmed.

Johnson, C. J., and Barnes, J., concur.

Decided February 17, 1999

Reconsideration denied March 10, 1999

Stephen T Maples, for appellant.

J. Tom Morgan, District Attorney, John H. Petrey, Robert M. Coker, Assistant District Attorneys, for appellee.

       Under these circumstances, as in Carter v. State, 229 Ga. App. 417 (494 SE2d 108) (1997), the officers were authorized, for their own safety, to request that he remain in the car until their investigation was complete. Id. at 419-420.


author: Beasley, Presiding Judge.

text:
    A99A0265.
    TYLER et al. v. LINCOLN et al.
    (513 SE2d 6)
   Beasley, Presiding Judge.

Doyster Tyler and his wife brought this action against Steve Lincoln and Lincoln Realty, who are the developers of a subdivision adjacent to plaintiffs’ property, and others. Plaintiffs complain that development of the subdivision has caused excessive stormwater and sediment to be discharged onto their land and into their ponds. Plaintiffs appeal the trial court’s grant of summary judgment to the developers.

Between 1975 and 1987, the Tylers assembled an 11.8-acre tract of land in Lowndes County. When they acquired the property, there was a cypress pond in the rear immediately adjacent to a Norfolk Southern railroad track. Toward the front, plaintiffs located their residence and built two additional ponds, one used for fishing. A drainage ditch connects these two ponds with the cypress pond.

In 1992, the developers began constructing Sweetwater Subdivision on land lying on the other side of the railroad track. There is a natural flow of water from the subdivision onto plaintiffs’ property, and it is managed by a 24-inch culvert which drains from underneath the railroad track into the cypress pond. In 1994, plaintiffs began complaining to the county of excess stormwater and sediment discharge from the subdivision. The county — which had approved the subdivision’s erosion, sedimentation, and stormwater (i.e., drainage) plan — refused to take any action unless plaintiffs submitted documentation of their claim prepared by a registered engineer, but none was provided.

In 1995, Norfolk Southern wrote to the Lowndes County Engineer that the calculation of pre-development and post-development runoff coefficients in the plans for the subdivision indicated a 41 percent increase in post-development stormwater runoff onto adjacent property. Norfolk asserted that the existing culvert was an inadequate containment device, contended that the increased runoff would damage its railroad and plaintiffs’ property, and suggested that the county require the developers to construct a detention pond within the subdivision.

Tyler deposed that heavy rains deluge his property with excessive stormwater runoff from the subdivision, which has resulted in the deposit of an undetermined amount of sediment onto plaintiffs’ land and into their ponds. According to Tyler’s affidavit, his ponds were clear prior to development of the subdivision; they are now so polluted they cannot be used for recreational or aesthetic purposes; flooding depicted in photographs of record resulted from excessive stormwater runoff from the subdivision; and he has repeatedly asked the subdivision developers to correct the problems to no avail. At the time of his deposition he had not attempted to calculate his damages.

Plaintiffs’ expert Freshley affirmed that some sedimentation had been discharged from the subdivision into plaintiffs’ cypress pond, which he attributed to inadequate soil erosion control measures within the subdivision, and that more water is now being discharged into plaintiffs’ ponds than before the subdivision was developed. He offered no opinion as to damages. Plaintiffs submitted photographs from which a jury could find inadequate erosion and/or sediment control measures in the subdivision, flooding of plaintiffs’ property, and excessive turbidity and discoloration in their ponds.

Lowndes County Soil Erosion Control Specialist Miller determined, from inspections of plaintiffs’ property and NTU (nephelometric turbidity unit) readings, that there has been a very minimal amount of sediment deposits from the subdivision onto plaintiffs’ property and none in their ponds. After receiving complaints from plaintiffs, a committee from the Georgia Soil & Water Conservation Commission inspected the site and found that although erosion and sediment control structures in the subdivision were inadequately maintained in certain areas and absent in others, there was no sedimentation on plaintiffs’ property and therefore no significant sediment damage.

Tyler testified that algae has formed in plaintiffs’ front ponds making fishing impossible but presented no evidence this was attributable to increased water runoff or subdivision sediment. During an investigation into a fish kill in one of plaintiffs’ ponds, state environmental personnel found no evidence that contaminated water was being discharged onto plaintiffs’ property, that subdivision sediments detrimentally impacted the property, or that the subdivision was impacting the two ponds.

DeVane, the engineer who designed the drainage plans for the subdivision, acknowledged that the 41 percent increase in the runoff coefficients which he had calculated would increase the total volume of surface water runoff, but he had concluded that wetlands within the boundaries of the subdivision would adequately contain the additional runoff.

A Lowndes County ordinance prohibits a drainage system from effecting a net increase of water flow onto adjacent land unless the owner agrees to the proposed drainage design, and all drainage systems discharging water into a creek, stream, or natural body of water including wetlands must pass through an approved sedimentation or detention pond prior to discharge. Because DeVane determined that there would be no net increase of water onto adjacent property, the subdivision developers did not obtain plaintiffs’ agreement to the drainage system.

1. The court erred in granting summary judgment to the developers on the plaintiffs’ nuisance, trespass, and negligence counts.

The developers sought summary judgment on these counts on grounds that they fully complied with all county ordinances and legal requirements and because all of the government agencies investigating this matter found there has not been any increase in the discharge of water or sediment onto plaintiffs’ property or damage thereto. But it would appear that the county ordinance was violated by reason of the developers’ failure to construct a sedimentation or detention pond to control the flow of surface water from their subdivision into both wetlands on their property and a cypress pond on adjacent property.

There are also unresolved issues concerning whether the developers are currently in violation of Georgia’s Erosion & Sedimentation Act. For all land-disturbing activities, this act requires best management practices which include proper installation and maintenance of facilities to control sediment and stormwater runoff and soil erosion. Violations of the county ordinance and state statute would constitute negligence per se. And the testimony of Tyler and his expert, the letter from the railroad, and photographs in the record would authorize a jury to find that development of the subdivision has increased the flow of surface water and sediment onto plaintiffs’ property. Such evidence would support findings of trespass and nuisance.

As to damages,

[a] failure on the part of [plaintiffs] to produce any probative evidence as to the specific amount of damage they may have suffered is not a viable basis for the grant of summary judgment against them. “The law infers some damage from the invasion of a property right; and if no evidence is given of any particular amount of loss, it declares the right by awarding what it terms ‘nominal damages.’ (Cits.)” [Cit.]

The measure or quantification of personal damages recoverable in a nuisance case is the enlightened conscience of the jury. Actual damages as such, i.e., injuries, are evidenced by a showing that property owners are deprived of the full use and enjoyment of their property by the increased flow of surface waters or sediment on it.

2. The court did not err in granting summary judgment to developers on the count of plaintiffs’ complaint alleging violation of their riparian rights.

Riparian rights are defined as the rights of the owners of lands on the banks of watercourses. Georgia statutes refer to watercourses as “running waters.” Although plaintiffs correctly state that a swale or depression over which surface water runs according to the laws of nature is a watercourse even if it has no defined banks, surface water runs from the subdivision onto plaintiffs’ property by means of a man-made structure, i.e., a culvert. The doctrine of riparian rights is simply inapplicable.

3. Neither did the court err in granting summary judgment to the developers as to plaintiffs’ claims for punitive damages under OCGA § 51-12-5.1 (b) and attorney fees under OCGA § 13-6-11.

Plaintiffs base these claims on assertions that in creating the drainage system for the subdivision, the developers wilfully or intentionally diverted water onto plaintiffs’ property and/or failed to correct the resultant problems when brought to their attention. Plaintiffs maintain that the developers are thereby chargeable with “bad faith,” so as to authorize a recovery of attorney fees under OCGA § 13-6-11, and with “that entire want of care which would raise the presumption of conscious indifference to consequences,” so as to warrant punitive damages under OCGA § 51-12-5.1 (b).

There is no evidence of any complaints to the developers while the subdivision was being built or that the drainage system was designed with knowledge that it would increase the runoff of storm-water or sediment onto plaintiffs’ property. Because of this, and given the developers’ compliance with all requirements imposed by the county, plaintiffs’ failure to comply with the county’s request that they provide documentation of their complaints, and the uniform findings of the various governmental agencies as to plaintiffs’ lack of damages, the developers are not chargeable with either bad faith or a conscious indifference to consequences in designing or failing to maintain or repair the subdivision’s drainage system.

Decided February 9, 1999

Reconsideration denied March 10, 1999

Donald D. J. Stack, for appellants.

Newman, Sapp & Davis, David A. Sapp, Whelchel, Brown, Read-dick & Bumgartner, Gregory T. Carter, Miller & Towson, Wallace Miller III, Alexander & Vann, William C. Sanders, for appellees.

Judgment affirmed in part and reversed in part.

Blackburn and Barnes, JJ., concur.

       OCGA § 12-7-1 et seq.

       OCGA § 12-7-6.

       See Horney v. Panter, 204 Ga. App. 474, 476 (2) (420 SE2d 8) (1992).

       A witness knowledgeable of the facts, even though not an expert, may give his opinion as to whether or not there has been an increase in the flow of water onto property. DeKalb County v. McFarland, 231 Ga. 649, 653 (2) (g) (203 SE2d 495) (1974).

       See Shaheen v. G & G Corp., 230 Ga. 646, 648 (2) (198 SE2d 853) (1973); City of Macon v. Cannon, 89 Ga. App. 484, 492 (3) (79 SE2d 816) (1954).

        C & S Trust Co. v. Phillips Petroleum Co., 192 Ga. App. 499, 501 (5) (385 SE2d 426) (1989).

        Arvida/JMB Partners v. Hadaway, 227 Ga. App. 335, 340 (2) (489 SE2d 125) (1997).

       See Ponce de Leon Condos v. DiGirolamo, 238 Ga. 188, 190 (3) (232 SE2d 62) (1977).

       Black’s Law Dictionary (Rev. 4th ed. 1968), p. 1490.

       29 EGL Water, § 2, p. 30 (1998 Rev.); see OCGA § 44-8-1.

        Pelham Phosphate Co. v. Daniels, 21 Ga. App. 547, 556 (12) (94 SE 846) (1918).

       Miller testified that the county may have issued one or two notices to the developers to comply with the erosion control requirements of the Erosion & Sedimentation Act, but that each time a notice was issued compliance was forthcoming.

       Plaintiffs have also failed to document their complaints to the subdivision developers.

       See Gen. Refractories Co. v. Rogers, 240 Ga. 228, 233-236 (1), (2) (239 SE2d 795) (1977) (no showing defendant wilfully or intentionally diverted water so as to cause unnatural deposit on plaintiff’s property; defendant entitled to a directed verdict on claims for punitive damages and attorney fees); compare Ponce de Leon Condos, supra at 189-190 (1), (2) (award of punitive damages and attorney fees supported by evidence defendants constructed and then failed to correct drainage system which increased discharge of surface water onto plaintiff’s property notwithstanding continuing complaints by plaintiff from inception of project); ArvidalJMB Partners, supra at 339 (1) (award of attorney fees supported by evidence that defendants chose to continue development of project in face of certain knowledge that further damage to plaintiff’s property would result).


author: Barnes, Judge.

text:
    A98A1933.
    PRYOR v. DOUGLAS SHOPPER — THE COFFEE COUNTY NEWS et al.
    (514 SE2d 59)
   Barnes, Judge.

After Gerald H. Pryor filed suit against the “Douglas Shopper — The Coffee County News,” Carlene S. Phelps, Joseph M. Phelps, and William H. Kibbey, the defendants moved to dismiss his complaint because of insufficient service of process. Subsequently, the trial court found that Pryor had not exercised due diligence in perfecting service of process before the statute of limitation expired and dismissed the complaint. Pryor contends on appeal that the trial court abused its discretion by dismissing his complaint. He claims that he exercised due diligence in that a “boilerplate” service defense in the defendants’ answer combined with a faulty sheriff’s return of service prevented him from becoming aware of the defect in service. We disagree and affirm.

The defendants filed a joint answer to Pryor’s complaint on February 27,1996. Among the defenses raised were: “SIXTH DEFENSE: There was an insufficiency of summons and process with regard to plaintiff’s complaint, and as a result thereof the same must be dismissed,” and “SEVENTH DEFENSE: There is an insufficiency of service of summons, process, and a copy of complaint with regard to plaintiff’s alleged cause of action, and as a result thereof plaintiff’s complaint must be dismissed.”

In mid-July 1997, when it appeared a calendar call would be held in this case, Pryor’s attorney reviewed the case file and saw for the first time the defendants’ answer raising the insufficiency of service defenses. According to the motion to amend process Pryor filed on July 28, 1997, Pryor’s counsel was “shocked” to see these defenses because the sheriff’s returns of service in the file stated that each defendant had been served with “a copy of the within action and summons.” No copies of the summonses, however, were in her file. Upon contacting the clerk of court’s office, she learned the file in the clerk’s office also contained no copies of the summonses, but did contain copies of the sheriff’s returns that showed proper service. From this information, Pryor’s attorney concluded that no summonses had issued in the case.

The motion further stated that Pryor’s attorney did not see the defendants’ answer raising insufficiency of summonses and process defenses until mid-July 1997 because she was out of town when the answer was received over one year earlier. The answer was put in the case file without her seeing the answer and not called to her attention when she returned. Also, counsel had not reviewed the file for some time because the case had been stayed pending resolution of a related declaratory judgment action. The motion also explained that the summonses were not served initially because the person who filed the complaint was unfamiliar with the procedures in Coffee County, and thus did not include the summonses with the complaint when it was filed. The parties agree that the statute of limitation expired on February 3, 1997.

On August 14,1997, the defendants filed a combined response to Pryor’s motion to amend process and motion to dismiss the complaint. In their response, the defendants contended that Pryor’s motion to amend process should be denied as there was no valid process to amend. The trial court accepted this argument and denied Pryor’s motion on September 24, 1997. The trial court, however, deferred ruling on the defendants’ motion to dismiss the complaint.

Ultimately, after Pryor served each defendant with a summons for the first time, the trial court ruled on the motion to dismiss. The trial court found the defendants had properly preserved and not waived the defenses of insufficiency of service of process and expiration of the statute of limitation and further found that Pryor had not demonstrated that he had exercised due diligence in causing the defendants to be served. Therefore, the trial court found the action was barred by the expiration of the statute of limitation and dismissed Pryor’s complaint with prejudice.

1. When a motion to. dismiss is made on a matter in abatement, the motion may be heard and determined before trial and the factual issues shall be determined by the trial court. Intl. Indem. Co. v. Blakey, 161 Ga. App. 99, 101 (1) (289 SE2d 303) (1982). Whether Pryor was guilty of laches is a matter within the trial court’s discretion which will not be disturbed on appeal absent evidence of abuse. Shears v. Harris, 196 Ga. App. 61, 62 (395 SE2d 300) (1990).

As service of process was made after the expiration of the statute of limitation, timely filing of the complaint tolls the statute only if Pryor showed he acted in a reasonable and diligent manner in attempting to make proper service as quickly as possible and that he was not at fault. Sykes v. Springer, 220 Ga. App. 388, 389 (1) (469 SE2d 472) (1996); Slater v. Blount, 200 Ga. App. 470, 472 (408 SE2d 433) (1991). If Pryor could not make such a showing, however, he would be guilty of laches and service would not relate back to the filing of the complaint for purposes of tolling the statute of limitation. Patterson v. Johnson, 226 Ga. App. 396, 397 (486 SE2d 660) (1997).

In this case, receipt of the defendants’ answer asserting insufficiency of service “should have put [Pryor] on notice and inspired [him], through counsel, to exercise the greatest possible diligence to ensure proper and timely service.” Roberts v. Bienert, 183 Ga. App. 751, 752 (1) (360 SE2d 25) (1987). Pryor’s failure to read the answer does not excuse him from this obligation. Further, the defendants’ knowledge of the pending suit also does not excuse Pryor’s lack of diligence as the sine qua non in perfecting service is service of the summonses in the manner provided by law. Gaskins v. A.B.C. Drug Co., 183 Ga. App. 518, 519 (1) (359 SE2d 364) (1987); Stone Mtn. Aviation v. Rollins Leasing Corp., 174 Ga. App. 35, 36 (2) (329 SE2d 247) (1985). Consequently, Pryor’s responsibility to account for the failure of service begins from the time the defendants’ answer was received in February 1996, not in mid-July 1997 when his counsel finally read the answer.

2. Relying upon Miller v. Hands, 188 Ga. App. 256, 257 (372 SE2d 657) (1988), Pryor contends that the delay in perfecting service of process was caused by his reliance on a faulty sheriff’s return of service and what he terms the defendants’ “boilerplate” defenses. We find nothing in Miller v. Hands or the facts of this case to support this contention.

In Miller v. Hands, this Court affirmed the trial court’s denial of Miller’s motion to dismiss Hands’ complaint because we found no abuse of discretion. Id. at 258. Although the Miller opinion repeated Hands’ contention regarding routinely asserted “boilerplate” defenses, Miller did not otherwise discuss “boilerplate” defenses. More significantly, Miller did not hold that Hands was entitled to ignore the insufficiency of service defense because Hands decided that it was mere “boilerplate.”

Pryor’s motion to amend process shows his failure to perfect service of process diligently was not the result of being lulled into a false sense of security by the erroneous return of service and the “boilerplate” defenses. The defendants were not served with a copy of the summonses initially because Pryor’s agent neglected to prepare the summonses to be served with the complaint. Then, this defect was not discovered until over sixteen months after the complaint was filed and five months after the statute of limitation expired because Pryor only then read the defenses in the defendants’ answer and realized their significance. Therefore, neither the erroneous return of service nor the supposedly “boilerplate” defenses raised in the answer played any part in Pryor’s failure to discover and perfect service of process.

Further, examination of the service defenses raised in the answer show they were not mere “boilerplate” defenses, whatever that term may mean. Although certain cases have used that term in this context (see, e.g., Flemister v. Hopko, 230 Ga. App. 93, 95 (2) (495 SE2d 342) (1998); Garrett v. Godby, 189 Ga. App. 183, 185-186 (3), n. 1 (375 SE2d 103) (1988); Miller v. Hands, 188 Ga. App. at 257), no case has defined “boilerplate” in this connection, and no case has held that “boilerplate” defenses may be ignored. Further, suggesting such a practice ignores the holding in Roberts v. Bienert, 183 Ga. App. at 752, that receipt of an answer raising service defenses places counsel on notice that there is a problem with service and should inspire counsel “to exercise the greatest possible diligence to ensure proper and timely service.” Although the actions demanded of plaintiffs who receive answers denying valid service will necessarily vary, the immediate obligation clearly involves inquiring into and investigating fully the basis for the defense as soon as possible, including contacting opposing counsel without delay.

Decided March 10, 1999

Debra G. Gomez, for appellant.

John T. Croley, Jr., for appellees.

The defenses in this case were asserted in the answer as required by OCGA § 9-11-12 (b), and that is all our law requires to preserve them. Joyner v. Schiess, 236 Ga. App. 316 (_SE2d_) (1999); Flemister v. Hopko, 230 Ga. App. at 95 (“boilerplate” language no excuse for failure to be alerted that service may not have been proper). Remedies are available for defendants who assert frivolous defenses. See OCGA § 9-15-14.

Accordingly, based on the facts and circumstances of this case we find the trial court did not abuse its discretion when it found Pryor did not meet his burden of showing he exercised due diligence in perfecting timely and proper service of process and then by dismissing his complaint with prejudice.

Judgment affirmed.

Johnson, C. J., and Smith, J., concur.

       Black’s Dictionary of Law (5th ed.) defines the term as “language which is commonly in documents having a definite meaning in the same context without variation; used to describe standard language in a legal document that is identical in instruments of a like nature.”


author: Ruffin, Judge.

text:
    A98A2073.
    CROWDER et al. v. LARSON.
    (513 SE2d 771)
   Ruffin, Judge.

On March 2, 1996, Sandra Crowder’s two young children died when a fire broke out in their mobile home. Crowder and the children’s respective fathers, Jimmy Lowry and Stefan Maddox, filed a wrongful death action against Brian Larson, the owner of the land upon which the mobile home was located, contending that he had a duty to furnish the mobile home with a smoke detector. The trial court granted Larson’s motion for summary judgment, and plaintiffs appeal. Because Larson violated no duty owed to plaintiffs, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

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

Larson owned approximately 15 acres of real estate in Spalding County upon which he operated a mobile home park known as Timber Creek. The property was divided into 61 separate mobile home lots, about 40 of which were occupied as of March 2, 1996. Larson personally owned about 25 of these mobile homes, which he leased to tenants. The remaining mobile homes were owned by other individuals, who either resided in the mobile homes themselves or rented them to third parties.

At the time Larson bought the land, April 8, 1993, Howard Foster owned three mobile homes in the park, living in one and renting out the other two. Foster rented the mobile home located on Lot F-2 of the park to Lowry and Crowder, who paid Foster $85 per week pursuant to an oral agreement. Foster paid Larson $150 per month as rent for the lot, also pursuant to an oral agreement. In return, Larson provided water and septic service to the lot. Plaintiffs admit that “it became clear” to them that Foster owned the mobile home and Larson owned the lot.

Although it is not exactly clear when Lowry and Crowder moved into the mobile home, they lived in it for about two years, paying rent directly to Foster. They never had any discussions or dealings with Larson regarding their residency in the mobile home. Larson did not have a key to the mobile home and never entered it. Whenever any repairs were needed to the interior of the mobile home, Foster would perform the repairs or arrange to have them performed. Larson and his property manager, Lamar Summers, testified that they did not have the right to enter the interior of the mobile home except with the permission of the owner. Foster testified that it would have been fine with him if Larson wanted to inspect one of his mobile homes.

On two occasions before March 2, 1996, Crowder’s children started fires in the mobile home. Crowder testified that she and Lowry discussed buying a smoke detector, but never did so. On the night of March 2, 1996, another fire broke out in their mobile home, killing two of Crowder’s three children. Plaintiffs sued Larson for wrongful death, alleging that he failed to equip the mobile home with a smoke detector. The trial court granted summary judgment to Larson, holding that he had no duty to provide a smoke detector.

1. Plaintiffs contend that OCGA §§ 44-7-13 and 44-7-14 imposed a duty on Larson, as their landlord, to furnish the mobile home with a smoke detector. Although they recognize that they did not have a traditional landlord-tenant relationship with Larson, whom they never met, they claim that because Larson was aware Foster was renting the mobile home out to third parties, they had an implied license to use the real estate as a dwelling place. They contend that such a license created a landlord-tenant relationship between Larson, as landlord, and Crowder and Lowry, as tenants.

Plaintiffs’ reasoning suffers from a fundamental flaw in that it fails to recognize that Larson had no interest whatsoever in the mobile home, but merely owned the land upon which it sat. Plaintiffs do not allege that there was any defect in the land itself, but claim that the mobile home was defective because it lacked a smoke detector. Georgia law is clear that a mobile home that is not permanently affixed to the real estate is not part of the real estate or an improvement thereto, but is “an item of personal property separate and apart from the real property on which it sits.” Poythress v. Wilkins, 218 Ga. App. 475, 476 (462 SE2d 423) (1995); see also Griswell v. Columbus Finance Co., 220 Ga. App. 803-804 (470 SE2d 256) (1996). Plaintiffs admit that the mobile home in question “was not tied down to the ground in any way.” Even accepting plaintiffs’ contention that Larson implicitly granted them a license to use the real estate, such a license could not have extended to use of the mobile home, which was personal property owned by Foster. In short, plaintiffs rented the mobile home from Foster, not from Larson.

To the extent that the lack of a smoke detector rendered the mobile home defective, this did not constitute a defect in the real estate, but was a defect in an item of movable personal property rented by plaintiffs from a third party. Plaintiffs have presented no authority to support the proposition that a landowner has a common law duty to ensure that personal property rented by a user of the land from the landowner’s tenant is free of internal defects. Such a proposition would essentially render the landowner an insurer of the parties’ safety. See generally Scott v. Housing Auth. &c. of Glennville, 223 Ga. App. 216 (477 SE2d 325) (1996) (landlord is not an insurer of his tenant’s safety). Moreover, such a duty would be difficult for a landowner to fulfill where he does not have the right to enter the personal property for purposes of inspection and repair without the consent of the owner. Accordingly, the trial court did not err in rejecting plaintiffs’ argument that Larson had a common law duty to equip the mobile home with a smoke detector.

2. Plaintiffs also argue that various local ordinances and rules of the National Fire Protection Association (NFPA), adopted by the county, required Larson to equip the mobile home with a smoke detector. However, none of these rules and ordinances places a duty on a landowner to ensure that a mobile home owned by another is equipped with a smoke detector, simply because the mobile home is situated on land that he owns.

Plaintiffs in particular rely on NFPA 501A, “Standard for Fire Safety Criteria for Manufactured Home Installations, Sites, and Communities,” as support for their contention. Section 4-1 of NFPA 501A states as follows: “General. Responsibility for life safety and fire safety within manufactured home communities is that of the owners and operators of the community.” Plaintiffs contend that this general provision required Larson, as owner of the mobile home park, to ensure that each mobile home contained a smoke detector. However, NFPA 501A imposes no duty on the park owner to ensure that all privately owned mobile homes are equipped with a smoke detector. Rather, NFPA 501A requires the park owner to equip all nonresidential community buildings with fire detection and alarm systems.

Decided March 10, 1999.

Webb, Stuckey & Lindsey, Carlton H. Jones III, for appellants.

Lokey & Smith, G. Melton Mobley, Jon W. Burton, for appellee.

3. Finally, plaintiffs claim that the failure to equip the mobile home with a smoke detector constituted a breach of the implied warranty of habitability. Plaintiffs’ brief does not discuss how this implied warranty applies to Larson, who did not lease the mobile home to plaintiffs, but merely recites that a landlord may be liable to a tenant for harm caused by a defective condition in the leased premises that constitutes a breach of the implied warranty of habitability. See Thompson v. Crownover, 259 Ga. 126, 129 (3) (381 SE2d 283) (1989). Because Larson did not own the allegedly defective mobile home or lease it to plaintiffs, this contention is without merit.

4. Neither party on appeal addresses the effect of OCGA § 25-2-40, which requires that all dwellings be equipped with smoke detectors but states that “[fiailure to maintain a smoke detector ... in violation of this Code section shall not be considered evidence of negligence [and] shall not be considered by the court on any question of liability of any person.” OCGA § 25-2-40 (g). OCGA § 25-2-40 does not identify all parties responsible for ensuring compliance with the statute and does not state whether the failure to comply with any other applicable laws requiring smoke detectors may be considered evidence of negligence. However, because it is clear that Larson had no duty in this case to furnish the mobile home with a smoke detector, we need not consider the applicability of OCGA § 25-2-40.

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.


text:
    A98A2251.
    BLACKWELL et al. v. GOODWIN et al.
    (513 SE2d 542)
   Ruffin, Judge.

On March 30, 1993, Rita and James Blackwell sued Shirley Goodwin, a nurse, for professional malpractice and battery, alleging that on April 15, 1991, Goodwin improperly administered an intramuscular injection to Rita Blackwell. The complaint also alleged that Goodwin’s employer, Medicus Diagnostic Endoscopy Center of Greater Atlanta, Ltd. (Medicus), and its general partners were vicariously liable for Goodwin’s actions. The plaintiffs voluntarily dismissed their complaint without prejudice on January 10, 1997.

The plaintiffs refiled their complaint on March 5, 1997, and filed an amended complaint on May 14, 1997. The amended complaint reasserted the professional negligence and battery claims against Goodwin and also asserted claims directly against Medicus for negligent hiring, supervision, retention, and entrustment. Defendants moved to dismiss the complaint on the grounds that it was barred by the five-year statute of repose for medical malpractice claims, and the trial court granted the motion. We affirm.

1. As an initial matter, we note that plaintiffs’ appellate brief fails to comply with our Court of Appeals Rules, in that the statement of fact and argument sections do not contain a single proper citation to the 1,100-page record. See Court of Appeals Rules 27 (a) (1) and (c) (3) (i). Although failure to comply with such rules authorizes this Court to treat plaintiffs’ enumeration of error as abandoned, see Jenkins v. Raiford, 117 Ga. App. 658-659 (2) (161 SE2d 405) (1968), we have elected in our discretion to address plaintiffs’ argument that certain of their claims are not subject to the medical malpractice statute of repose, as an opinion on this issue would have precedential value. See Beman v. Kmart Corp., 232 Ga. App. 219, 220 (1) (501 SE2d 580) (1998). However, we do not elect to address any issues which are not specifically raised in plaintiffs’ brief.

We also do not reach the merits of plaintiffs’ assertion that, during a pre-trial conference, they were orally advised by the trial court to dismiss and refile their previous complaint, and that defendants’ attorney waived any objection to the refiling by failing to state such objection at that time. Plaintiffs have not provided any citations to the record to support their self-serving factual contentions, and no transcript of the alleged conference is contained in the record.

[I]t is not the function of an appellate court to cull the record in search of error on behalf of a party. . . . Nor can appellant establish the facts necessary to support his contention merely by recitation of factual allegations in his brief that are unsupported by the record.

(Citations omitted.) Sparti v. Joslin, 230 Ga. App. 346, 347 (2) (496 SE2d 490) (1998). We also note that the trial court’s order is at odds with plaintiffs’ characterization of the facts. Because plaintiffs have not affirmatively shown error by the record, this contention is without merit.

2. A properly filed renewal action stands on the same footing as the original action with respect to statutes of limitation. Atlanta Country Club v. Smith, 217 Ga. App. 515, 516 (458 SE2d 136) (1995). Accordingly, if a renewal action is properly filed within six months after dismissal of the original action, it remains viable even though the statute of limitation may have expired. Id.; OCGA § 9-2-61 (a). However, the Supreme Court has held that “the legislature never intended for the dismissal and renewal statutes to overcome the [five-year] statute of repose” for medical malpractice actions set forth in OCGA § 9-3-71 (b). Wright v. Robinson, 262 Ga. 844, 846 (1) (426 SE2d 870) (1993).

The statute of repose destroys the previously existing rights so that, on the expiration of the statutory period, the cause of action no longer exists. ... A voluntary dismissal terminates the action completely. An action renewed pursuant to OCGA § 9-2-61 (a) is an action de novo. . . . [I]t logically follows that a new suit on a nonexisting cause of action cannot proceed.

(Citation and punctuation omitted.) Id. at 845-846 (1).

The statute of repose on plaintiffs’ medical malpractice claims expired in April 1996, and their renewal action was not filed until March 5, 1997. Accordingly, Wright makes it clear that plaintiffs’ medical malpractice claims are barred by the statute of repose. However, plaintiffs argue that their claims for battery and for negligent hiring, retention, supervision, and entrustment are not subject to the statute of repose. This argument is without merit.

Plaintiffs state in their brief that their battery claim is based on Goodwin’s alleged failure to obtain Rita Blackwell’s consent to the injection pursuant to OCGA § 31-9-6.1. However, OCGA § 31-9-6.1 (d) provides that “[a] failure to comply with the requirements of this Code section shall not constitute a separate cause of action but may give rise to an action for medical malpractice.” Thus, plaintiffs’ battery claim is clearly subject to the five-year statute of repose for medical malpractice claims.

Plaintiffs’ claims against Medicus for negligent hiring, retention, supervision, and entrustment are also subject to the medical malpractice statute of repose because they arise out of Goodwin’s actions in administering the injection to Rita Blackwell. The term “action for medical malpractice” is defined as “any claim for damages resulting from the death of or injury to any person arising out of: (1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person; or (2) Care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment.” OCGA § 9-3-70. Plaintiffs’ claims against Medicus are clearly claims for damages resulting from injury to Rita Blackwell. Thus, for purposes of determining whether these claims constitute “actions for medical malpractice” as defined in OCGA § 9-3-70, the relevant question is whether the claims, although asserted against Medicus, are deemed to “arise out of” Goodwin’s actions in administering the injection, which actions involved the exercise of professional skill and judgment.

This issue was addressed in Ga. Physical Therapy v. McCullough, 219 Ga. App. 744 (466 SE2d 635) (1995). In that case, the plaintiff sued Scott McKeever, a certified athletic trainer, alleging that McKeever committed professional malpractice in treating the plaintiff’s ingrown toenail. Id. at 744-745. The plaintiff also sued McKeever’s employer, Georgia Physical Therapy, Inc. (GPT), for negligent hiring, supervision, and training. Id. at 746. We held that the claims against GPT must be dismissed for failure to file the expert affidavit required by OCGA § 9-11-9.1 in cases of professional malpractice. We stated that

a malpractice affidavit is required in suits against entities not required to be licensed by this state where liability is predicated on the doctrine of respondeat superior or when the averment [is] of acts or omissions requiring the exercise of professional skill and judgment by agents or employees who themselves are recognized as “professionals.” Applying that principle to the facts of this case, it is clear that McCullough’s claims against GPT arise out of the treatment rendered by its agent, McKeever, in the exercise of his professional skill and judgment.

(Citations and punctuation omitted; emphasis supplied.) Id.

Thus, in McCullough, although the claims against the employer were for negligent hiring, retention, and supervision, we held that the claims arose out of the actions of the employer’s agent in the exercise of his professional skill and judgment. Accordingly, the claims against the employer constituted claims for professional malpractice. Similarly, in this case, the claims against Medicus arose out of the actions of its agent, Goodwin, in the exercise of her professional skill and judgment. Therefore, the claims against Medicus come within the definition of “actions for medical malpractice,” and are subject to the five-year statute of repose set forth in OCGA § 9-3-71 (b). Thus, the trial court did not err in dismissing such claims.

Decided March 10, 1999.

Potts & Badaruddin, James H. Potts II, Shandor S. Badaruddin, for appellants.

Hall, Booth, Smith & Slover, John E. Hall, Jr., Heather C. McGrotty, for appellees.

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.

       The argument section does contain one reference to Goodwin’s deposition, but does not provide a record citation showing where the deposition may be found.

       Plaintiffs’ amended complaint also asserted causes of action against defendants for negligence, infliction of emotional distress, and loss of consortium. However, plaintiffs do not discuss these claims in their appellate brief or argue that they remain viable. Accordingly, as discussed in Division 1, we do not elect to consider them here. See Wellborn v. DeKalb County School Dist., 227 Ga. App. 377, 378 (2) (489 SE2d 345) (1997).


text:
    A98A2372.
    BURNETT v. INGLES MARKETS, INC.
    (514 SE2d 65)
   McMurray, Presiding Judge.

Janice Burnett brought an action against Ingles Markets, Inc. (“Ingles”) for injuries she allegedly sustained when she slipped and fell on a grape that was on the floor of the sugar aisle at Ingles’ grocery store. Burnett deposed that she did not see the grape because she “had just turned the corner when [she] fell. . . .” Ingles denied liability and filed a motion for summary judgment.

Burnett testified during her deposition that she fell less than five minutes after she and her husband entered the grocery store; that the incident occurred as she was turning into the sugar aisle, and that she first noticed the grape hazard (several green grapes) after she hit the deck, as bystanders were helping her off the floor. Burnett testified that she looked at her foot after the fall and saw a grape “on the bottom of [her] shoe. . . .”

Ronald Terry McManus, employed by Ingles as an assistant manager on the day Burnett fell, deposed that he was on duty when Burnett fell; that it was his “routine to inspect the store premises and floors every [15] minutes”; that he inspected the area where Burnett fell no more than 15 minutes before the fall, and that this inspection revealed “no hazardous substances and/or grapes.” Assistant Manager McManus further deposed (in pertinent part) as follows: “Immediately after completing this inspection of the premises, I learned that several children had dropped grapes on the floor in the produce department. This was the first time, I received notice of grapes on any part of the Ingles store floor that day. Upon learning this information, I immediately went to the produce department and removed the grapes from the floor. . . . Just as I completed removing grapes in the produce area of the store, I received notice that Ms. Burnett had slipped and fallen on a grape in or near Aisle Eight.”

Burnett’s husband, William Burnett, deposed in his affidavit:

While in Ingles on the day my wife fell, I saw the manager of the store, Mr. McManus, before my wife fell, and he was not cleaning up grapes at the produce section at that time. . . . After the fall, Mr. McManus talked to me and told me that a Mexican woman with children had been shopping in the store and the children were playing with and throwing grapes. . . . AT NO TIME did Mr. McManus tell my wife in my presence or me that he had cleaned up any grapes at the produce section. . . . After the fall, I saw personnel of Ingles store go to the store office and advise him of the fall and he came to the location of the fall and talked to me and my wife.

This appeal followed the trial court’s order granting Ingles’ motion for summary judgment. Held:

In Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997), the Supreme Court of Georgia expressly reminded members of the judiciary that “the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.” The Robinson Court further stated that it purported to “lighten the load” placed on slip and fall plaintiffs by many of our recent decisions.

Dobbins v. Bi-Lo, 230 Ga. App. 119, 120 (494 SE2d 397). The Robinson Court also held that

in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.

Robinson v. Kroger Co., 268 Ga. 735, 748-749, supra.

In the case sub judice, Burnett deposed that she did not see the hazard that allegedly caused her to fall because she “had just turned the corner when [she] fell.” We find this explanation sufficient to raise genuine issues of material fact as to whether Burnett exercised ordinary care for her own safety. See Robinson v. Kroger Co., 268 Ga. 735 (1), 739-740, supra. The remaining issue, then, is whether Ingles satisfied its burden of showing that it did not have actual or constructive knowledge of the alleged hazard.

In support of a summary judgment motion, the defendant in a slip-and-fall action still bears the onus of establishing the nonexistence of every material fact, namely, disproving its actual knowledge and pointing out the absence of evidence of its constructive knowledge of the alleged hazard. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

(Emphasis omitted.) McConnell v. Smith & Woods Mgmt. Corp., 233 Ga. App. 447, 449 (3) (504 SE2d 526). After determining in the case sub judice that actual knowledge was not an issue, the trial court concluded that Assistant Manager McManus’ affidavit established Ingles’ lack of constructive knowledge, as a matter of law, because it showed that routine inspection practices were in place, had been complied with and did not reveal a hazard on the day Burnett fell. While such proof has been found to be sufficient to authorize summary adjudication as to the absence of a proprietor’s constructive knowledge (Morris v. Ryan’s Family Steak Houses, 206 Ga. App. 369 (425 SE2d 362)), summary adjudication as to constructive knowledge arising from the duty to inspect is not authorized absent plain, palpable and undisputable proof that customary inspection procedures or cleaning practices were in place, were actually followed and were adequate to guard against known or foreseeable dangers at the time of the patron’s alleged injuries. Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30-31 (1) (500 SE2d 353); Jones v. Krystal Co., 231 Ga. App. 102, 103, n. 1 (498 SE2d 565). The evidence in the case sub judice does not satisfy these criteria.

First, proof that Assistant Manager McManus did not conduct or order a store-wide inspection after learning that children had been throwing grapes in his store raises genuine issues of material fact as to whether Ingles took adequate and reasonable steps to guard against known or foreseeable dangers posed by this activity. See Jones v. Krystal Co., 231 Ga. App. 102, 103, n. 1, supra. Second, Ingles’ proof regarding its assistant manager’s inspection activities on the day of Burnett’s fall is not plain, palpable and undisputable. See Axom v. Wendy’s Intl., 219 Ga. App. 623, 624, n. 1 (466 SE2d 613).

Decided March 10, 1999

Troy R. Millikan, for appellant.

Donahue, Hoey, Rawls, Skedsvold & Richards, William J. Rawls II, Craig R. White, for appellee.

Although Assistant Manager McManus’ affidavit indicates that he was either inspecting the premises or cleaning the store’s produce section while the Burnetts were in the store, Burnett’s husband’s affidavit indicates that McManus was not then engaged in either activity. Mr. Burnett deposed that he saw McManus before his wife fell; that McManus was not then cleaning up grapes in the store’s produce section (as McManus deposed) and that he saw McManus in the store’s office (not the produce section as McManus deposed) when employees informed him about Burnett’s fall. These circumstances raise genuine issues of material fact as to whether customary inspection procedures were in place on the day Burnett fell and whether McManus actually executed such an inspection no more than 15 minutes before Burnett fell. A jury trial is essential for resolution of such issues of fact ‘because a witness, however fair and honest and truthful, may not be careful enough, and it is to the interest of justice to expose the blundering of a witness, as well as his willful departures from veracity.” Harris v. Central R., 78 Ga. 525, 534 (3) (3 SE 355).

The trial court erred in granting Ingles’ motion for summary judgment.

Judgment reversed.

Blackburn and Eldridge, JJ, concur.