author: Ruffin, Judge. Pope, Presiding Judge, MlKELL, Judge,

text:
    A00A1491.
    DEPARTMENT OF HUMAN RESOURCES v. COLEY et al.
    (544 SE2d 165)
   Ruffin, Judge.

While a patient at Central State Hospital, an institution operated by the Georgia Department of Human Resources (DHR), Ronnie Dudley was allegedly strangled to death by another patient, Richard Hailey. Dudley’s sister, Patricia Coley, individually and as executrix of her brother’s estate, sued DHR, claiming that it violated a duty to protect Dudley from harm. In particular, Coley alleged that DHR negligently placed Dudley in a room with Hailey, who had made threats to kill someone in order to be transferred to a different building for the criminally insane. DHR filed a motion to dismiss, arguing that Coley’s claims were barred by sovereign immunity. Specifically, DHR asserted that such claims were barred by OCGA § 50-21-24 (7), which provides that “[t]he state shall have no liability for losses resulting from . . . [a]ssault, battery,” or certain other enumerated torts. The trial court denied the motion to dismiss. We granted DHR’s application for interlocutory appeal, and reverse the trial court’s ruling.

1. The starting point for any consideration of sovereign immunity is, of course, the Georgia Constitution. Art. I, Sec. II, Par. IX (e) of the Constitution states that

[e]xcept as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.

Thus, as a matter of constitutional law, with respect to tort claims, the state and its departments and agencies are entitled to sovereign immunity unless such immunity is specifically waived by a statute setting forth the extent of the waiver.

The state’s waiver of sovereign immunity for tort claims is set forth in the Georgia Tort Claims Act (GTCA), OCGA § 50-21-20 et seq., which states that it “constitutes the exclusive remedy for any tort committed by a state officer or employee.” OCGA § 50-21-23 (a) provides that

[t]he state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances; provided, however, that the state’s sovereign immunity is waived subject to all exceptions and limitations set forth in this article.

Many of these “exceptions and limitations” are set forth in OCGA § 50-21-24, which lists numerous circumstances in which the state does not waive sovereign immunity. The exception relevant in this case is contained in subsection (7), which provides that “[t]he state shall have no liability for losses resulting from . . . [a]ssault, battery,” or other enumerated torts. Thus, where a loss results from assault or battery, there is no waiver of sovereign immunity, even though “a private individual or entity would be liable under like circumstances.”

We have uniformly held that OCGA § 50-21-24 (7) applies not merely when a state officer or employee commits one of the enumerated torts, but whenever the underlying loss results from such tort. In Dept. of Human Resources v. Hutchinson , we noted that

“Moss” is extensively defined in OCGA § 50-21-22 (3) and includes “any . . . element of actual damages recoverable in actions for negligence.” The focus of the exceptions to liability in OCGA § 50-21-24 (7) is not on the government action taJken, but upon the act that produces the loss.

We noted that other subsections of OCGA § 50-21-24 specifically limited their application to acts taken by “a state officer or employee,” while subsection (7) contained no such limitation. Thus, we held that “the exception to the waiver of immunity covers any and all losses resulting from the torts enumerated in OCGA § 50-21-24 (7), regardless of who committed them.” Applying this rule to the facts in that case, we held that the state was entitled to sovereign immunity where a juvenile delinquent, who had been committed to the custody of the DHR, shot the operator of a contract home where the Department had placed him.

The holding in Hutchinson was subsequently reaffirmed in Ga. Military College v. Santamorena, In that case, a student at Georgia Military College, a state institution, was raped by a fellow student on school premises. The victim’s mother sued the college for negligence, alleging that it failed to take proper actions to ensure her daughter’s safety. Although the plaintiff couched her action as a claim for breach of the college’s independent duty to protect the victim, we relied on Hutchinson for the proposition that “we do not look at the duty allegedly breached by the government, but focus on the act causing the plaintiff’s loss.” Because the victim’s loss resulted from the commission of a tort enumerated in subsection (7), the state was entitled to sovereign immunity.

In determining whether the exception set forth in OCGA § 50-21-24 (7) applies, therefore, the focus is not on “the government action taken” or “the duty allegedly breached by the government,” but on the act causing the underlying loss, and it is not necessary that such act have been committed by a state officer or employee. In this case, it is apparent that the act allegedly causing the underlying loss — i.e., the strangulation of Dudley — constitutes an assault or battery within the meaning of the exception. Accordingly, the exception to the waiver of sovereign immunity applies, and the trial court erred in denying DHR’s motion to dismiss.

2. In his dissent, Presiding Judge Pope argues that Hutchinson and Santamorena were wrongly decided and should be overruled. In essence, the dissent asserts that (1) the assault and battery exception applies only where the state is being sued for the specific tort of assault or battery, and not where it is being sued under a different legal theory; and (2) the exception applies only if the assault or battery is committed by a state officer or employee acting in the scope of his employment. Under the dissent’s reasoning, therefore, the assault and battery exception would provide protection only in one narrow instance, i.e., when the plaintiff seeks to hold the state liable under the doctrine of respondeat superior for an assault or battery committed by one of its officers or employees in the course of his employment. If the state is sued under a different theory, based on the independent negligence of a state officer or employee, the assault and battery exception would provide no protection. For the reasons discussed below, this approach is incorrect.

The dissent’s analysis is based almost entirely on analogy to the Federal Tort Claims Act (FTCA). The dissent asserts that (1) the GTCA was “in most respects” patterned after the FTCA; (2) the FTCA has an assault and battery exception, which has been interpreted by the United States Supreme Court as applying only when the assault or battery is committed by a federal employee acting within the scope of his official duties; (3) the Georgia legislature was aware of this interpretation of the FTCA at the time it adopted the GTCA; and (4) therefore, the Georgia legislature must “necessarily” have intended for the GTCA’s assault and battery exception to be interpreted in the same manner.

This analysis is fundamentally flawed because its underlying premise — that the GTCA is simply a “clone” of the FTCA — is incorrect. As we noted in Santamorena, the federal assault and battery exception is quite different from the Georgia exception. The federal statute states that “[t]he provisions of this chapter [waiving sovereign immunity] shall not apply to . . . [a]ny claim arising out of assault [or] battery.” The Georgia statute, by contrast, provides that “[t]he state shall have no liability for losses resulting from . . . [a]ssault [or] battery.” The differences between the two statutes are thus clear: (1) the federal statute focuses on the claim being asserted by the plaintiff, while the Georgia statute focuses on the loss suffered by the plaintiff; and (2) the federal statute limits the extent of the waiver of sovereign immunity, while the Georgia statute affirmatively provides that the state “shall have no liability” for losses resulting from certain acts.

Notwithstanding these differences, the dissent argues that Georgia’s assault and battery exception should be given precisely the same interpretation as the federal exception, under the theory that the legislature was aware of the federal statute and case law interpreting it when it adopted the GTCA. We believe, however, that the approach should be exactly the opposite: If the legislature “mostly” patterned the Georgia statute after the federal statute, any decision to depart from the federal language must have been made for a reason. The question thus becomes, “Why did the legislature elect to make the state statute different from the federal statute?” The answer cannot be, as the dissent would suggest, “Because it wanted the meaning to be identical.”

It is thus necessary to look at the Georgia language on its own terms, and not simply to defer to federal cases construing a substantially different statute. As discussed above, the Georgia statute provides that the state “shall have no liability for losses resulting from . . . [a]ssault [or] battery.” Thus, if a “loss” “results from” an assault or battery, the state “shall have no liability.” The term “loss” is specifically defined in the statute to mean

personal injury; disease; death; damage to tangible property, including lost wages and economic loss to the person who suffered the injury, disease, or death; pain and suffering; mental anguish; and any other element of actual damages recoverable in actions for negligence.

The dissent argues that, although OCGA § 50-21-24 (7) prevents the state from being sued for the specific torts of assault and battery, the state may nevertheless be liable if the negligence of its officers or employees constitutes a joint proximate cause of the plaintiff’s injury. Thus, for example, under the dissent’s reasoning, the state may be sued for negligently hiring or supervising an employee who commits a battery. This analysis is flawed in that it fails to give meaning to the statutory language. It is true that there may be more than one proximate cause of a plaintiff’s loss. Regardless of the number of proximate causes, however, the plaintiff sustains only one “loss.” This loss cannot be apportioned among the various proximate causes, with part of the loss attributed to one event and another part attributed to a different event. To treat facts with imagination is one thing, but to imagine facts is quite another.

It cannot be disputed that, when a plaintiff is injured by an assault or battery, his loss “results” from such assault or battery, even though there may have been other contributing factors. And the statute clearly provides that the state shall have no liability for the “loss.” Under the dissent’s reasoning, however, the state may or may not have liability for the loss, depending on the particular legal claim asserted. Because the Georgia statute, unlike the federal statute, speaks of “losses” instead of “claims,” the dissent’s proposed interpretation is unpersuasive.

3. In his dissent, Judge Mikell asserts that the terms “assault” and “battery,” as used in OCGA § 50-21-24 (7), should be interpreted to mean “simple assault” and “simple battery.” Therefore, according to the dissent, the state should not be immune from tort liability where the acts in question rise to the level of a serious crime. For the reasons discussed below, we disagree.

The dissent purports to base its interpretation upon the rule of construction known as noscitur a sociis — literally, “it is known by its associates.” Under this rule of construction, “the meaning of words or phrases in a statute may be ascertained from others with which they are associated and from which they cannot be separated without impairing or destroying the evident sense they were designed to convey in the connection used.” Unfortunately, however, while purporting to apply this rule, the dissent in fact turns it on its head, reaching a result exactly the opposite of what the rule would require.

As the dissent recognizes, OCGA § 50-21-24 (7) enumerates nine different torts, including assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, and interference with contractual rights. Each of these is recognized as a tort under Georgia law. If a loss results from any of these torts, the state is immune from suit. Under the guise of interpreting these words similarly, however, the dissent would hold that the words “assault” and “battery” mean “simple assault” and “simple battery.” But these are not torts — they are crimes! Under the dissent’s reasoning, therefore, the terms “assault” and “battery” are to be singled out and treated differently from all the other terms in the statute — they are to be construed as referring to crimes, while the others are to be construed as referring to torts. This is not noscitur a sociis — it is non noscitur a sociis.

The dissent asserts that members of the legislature “would likely be surprised to learn that their list of nine torts has been expanded to include exemptions from liability for aggravated assault, child molestation, rape, and . . . murder.” However, the legislature did not provide the state with immunity for violent crimes, but with immunity for torts — we are, after all, dealing with a Tort Claims Act. And the torts of assault and battery are broad enough to include numerous acts which, if prosecuted criminally, would be characterized as aggravated assault, child molestation, rape, and even murder. Given that the legislature clearly used the terms “assault” and “battery” in their tort sense, we do not believe it would be surprised to learn that the state is immune from liability for acts that constitute those torts.

Nothing we have said goes to the wisdom of refusing to waive sovereign immunity in circumstances such as those in this case. Sovereign immunity is a harsh doctrine, not an equitable one. Indeed, it is just the opposite of equity — it is the state declaring that it cannot be sued even where it would otherwise be liable. Nevertheless, it is a constitutionally recognized doctrine, and the constitution expressly provides that immunity for tort claims can be waived only by a legislative act specifically providing for such waiver and setting forth the extent thereof. The legislature recognized the harshness of the doctrine in enacting the Tort Claims Act, noting that strict application of the doctrine leads to “inherently unfair and inequitable results.” Nevertheless, while recognizing such inequity, the legislature deliberately chose to reserve sovereign immunity for all losses resulting from assault or battery. There is no doubt that it had the power to do so, and the language it used is not susceptible to the construction placed on it by either of the dissents. Our job is to read the statute, not to rewrite it to conform to an equitable result. The singleness and sacredness of our purpose are to ascertain errors of law. Accordingly, because the loss in this case unquestionably resulted from an assault or battery, the state has not waived sovereign immunity.

Judgment reversed.

Johnson, C. J., Andrews, P. J., Blackburn, P. J., Smith, P. J., Miller and Ellington, JJ., concur. Pope, P. J., Eldridge, Barnes, Phipps and Mikell, JJ., dissent.

Pope, Presiding Judge,

dissenting.

I agree with the majority that the public duty doctrine does not apply. However, I respectfully dissent to Division 1 for two reasons. First, in Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70 (456 SE2d 642) (1995) and Ga. Military College v. Santamorena, 237 Ga. App. 58 (514 SE2d 82) (1999), upon which the majority relies in Division 1, this Court failed to recognize persuasive authority showing that the Georgia legislature intended to construe the assault and battery exception differently. And second, Hutchinson is based on flawed reasoning regarding joint proximate cause.

The principal issue in this case is whether by enacting the assault and battery exception, the legislature intended to keep sovereign immunity for all injuries that are at least partly caused by assault and battery, (1) even though a nonstate actor committed the assault or battery, and (2) regardless of whether a state official’s own independent negligence also contributed to the loss. The answer is controlled by the Georgia legislature’s intent when it enacted the Georgia Tort Claims Act in 1992 and, more specifically, their intent behind including the assault and battery exception.

The GTCA was “in most respects” “patterned” after the Federal Tort Claims Act. Maleski, The 1992 Georgia Tort Claims Act, 9 Ga. St. U. L. Rev. 431, 432, 448. Indeed, the FTCA contains a strikingly similar assault and battery exception to liability. See 28 USCA § 2680 (h). And, prior to when the Georgia legislature enacted the GTCA, the United States Supreme Court had already held: (1) that the assault and battery exception is inapplicable to an assault or battery committed by a federal employee acting outside of his official duties and analogously to someone who is not a federal employee; and (2) that therefore, the federal government can be liable for the independent negligence of an employee that contributes to the injuries caused by an assault and battery, such as in the present case. Sheridan v. United States, 487 U. S. 392 (108 SC 2449, 101 LE2d 352) (1988).

In Sheridan, an obviously intoxicated off-duty serviceman was seen by three naval corpsmen carrying a rifle. The corpsmen took no action to subdue the drunken serviceman nor to alert the appropriate authorities that he was heavily intoxicated and armed. Later, the drunken serviceman shot and wounded the plaintiffs. The Court was asked to consider whether the plaintiffs’ claim that the corpsmen were negligent arose out of an assault and battery within the meaning of 28 USCA § 2680 (h). Id. The Court allowed the suit against the government. It noted that the case involved two tortious acts, “one of which is an assault or battery and the other of which is a mere act of negligence,” i.e., the failure of the corpsmen to take action. Id. at 398. But the Court did not simply conclude that because the tort of negligence was not covered by the exception, the plaintiffs could maintain their action. Id. at 399-400.

Rather, the Court based its conclusion that the assault and battery exception did not prevent the claim on a different theory. The Court concluded that even though the assault and battery exception can be read literally to apply to assaults committed by persons other than government employees, “the intentional tort exception is simply inapplicable to torts that fall outside the scope of” the government’s general waiver of immunity. Id. at 400.

The Court explained that when the government waived immunity, it agreed to submit to claims only for the negligent or wrongful acts of government employees “acting within the scope of [their] office or employment.” 28 USCA § 1346 (b) (1); Sheridan, 487 U. S. at 401. The assault and battery exception to this general waiver (28 USCA § 2680 (h)) thus carved out liability only for acts that would otherwise be actionable under this section, namely, those of government employees acting within the scope of their employment. Since the assaults of nonemployees, as in Muniz, were not within § 1346 (b)’s waiver, government negligence permitting them could not be immunized by § 2680 (h). Similarly, where a claim of negligence involved an assault by a government employee acting outside the scope of his employment, as was the case in Sheridan, § 2680 (h) did not bar the claim if the government was otherwise negligent in permitting the assault to occur. 487 U. S. at 400-402.

Not only was Sheridan the controlling interpretation of the FTCA at the time that Georgia enacted the GTCA, but the same reasoning holds true under the GTCA. OCGA § 50-21-23 provides that “[t]he state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment.” It follows that the exceptions to liability apply only to acts that would otherwise be actionable under this section, namely, those of state employees acting within the scope of their official duties or employment. Because the torts of nonstate employees are not within the waiver of immunity, there is no reason to immunize them with the assault and battery exception. See Sheridan.

To summarize, unless the Georgia legislature changed the wording from that found in the FTCA, it necessarily adopted the Supreme Court’s authoritative interpretation of the assault and battery exception to the waiver of sovereign immunity. “The [Georgia] legislature is presumed to know the condition of the law and to enact statutes with reference to it.” State v. Tiraboschi, 269 Ga. 812, 814 (504 SE2d 689) (1998). As discussed below, the only relevant difference in the wording of the GTCA does not change this result.

Despite Sheridan, in Hutchinson and Santamorena this Court construed the assault and battery exception of the GTCA to mean the opposite of the construction found in Sheridan, namely: (1) that sovereign immunity applies even though the person committing the assault and battery was not a state employee, and (2) the state is not liable for independent negligence of a state employee that contributes to the victim’s injuries where those injuries were also caused by assault and battery.

With regard to the first point, Hutchinson held that because several of the other exceptions to the waiver of immunity itemized in OCGA § 50-21-24 specifically state that they apply to state officials, but the assault and battery exception does not, the legislature must have meant that the state has immunity regardless of who commits the assault and battery. Hutchinson, 217 Ga. App. at 71. But, the FTCA has the exact same possible ambiguity. See 28 USCA § 2680. And, despite that language, the United States Supreme Court in Sheridan held that the assault and battery exception does not apply to federal employees acting outside of their official duties, and analogously to nonemployees. Again, the Supreme Court’s construction of the FTCA was the definitive construction when the Georgia legislature cloned it to make the GTCA. Therefore it can be presumed that the Georgia legislature intended the same construction of the statute found in Sheridan. Yet Hutchinson ignored the decision in Sheridan.

With regard to the second point, Santamorena held that a difference in the wording of the FTCA and the GTCA shows that the state is not liable for the independent negligence of a state employee who contributes to the victim’s losses where those losses were also caused by a third party’s assault and battery. As stated in Santamorena,

The FTCA provides that its waiver of sovereign immunity “shall not apply to . . . (a)ny claim arising out of assault (or) battery.” 28 USC § 2680 (h). Thus, the FTCA focuses not on the act causing plaintiff’s loss, but on the nature of plaintiff’s claim. ... In contrast, under the GTCA, we do not look at the duty allegedly breached by the government, but focus on the act causing the plaintiff’s loss. See Hutchinson, supra. . . . Here, “(a)ny alleged losses arising from (the State’s alleged acts and omissions) were caused by the intentional acts alleged(, i.e., the rape), not negligence. The State has no liability for such losses.” [Cit.]

(Emphasis omitted.) Santamorena, 237 Ga. App. at 60-61.

But Santamorena relies on Hutchinson for the critical part of this analysis, and Hutchinson’s reasoning is flawed. In Hutchinson, a juvenile who had been declared delinquent shot his foster parent after being placed in her home by the DHR. The parent sued DHR alleging that it was negligent in placing the juvenile in her home and in failing to warn her of the juvenile’s violent propensities. Hutchinson held:

[T]he exception to the waiver of immunity covers any and all losses resulting from the torts enumerated in OCGA § 50-21-24 (7), regardless of who committed them. The language used does not provide any limitation on the status of the person committing an OCGA § 50-21-24 (7) tort; it provides instead that “(t)he state shall have no liability for losses resulting from” the enumerated torts. “Loss” is extensively defined in OCGA § 50-21-22 (3) and includes “any . . . element of actual damages recoverable in actions for negligence.” The focus of the exceptions to liability in OCGA § 50-21-24 (7) is not on the government action taken, but upon the act that produces the loss. Here, the government action taken, placing the juvenile in Hutchinson’s home, itself produced no loss to her-, it was the juvenile’s independent tort, one specified in OCGA § 50-21-24 (7), that resulted in Hutchinson’s injury and damages.

(Emphasis supplied.) Hutchinson, 217 Ga. App. at 71-72.

The emphasized sentence contains a critical flaw in reasoning. It is well established in tort law that, “When two concurrent causes naturally operate to produce an injury, the individual tortfeasors may be sued jointly or separately, because their wrongful conduct together becomes the proximate cause of the injury.” C. Adams & C. Adams, Ga. Law of Torts, § 15-5. Thus, in Hutchinson the “government action taken” was indeed a proximate cause of the injury under the law. It, together with “the juvenile’s independent tort” “resulted in Hutchinson’s injury and damages.” (Emphasis supplied.) Id. at 72. The sentence as written incorrectly concludes that the government action did not result in the loss. And, the indication that the government action by “itself” produced no loss has no relevant meaning. Hutchinson effectively eliminated the idea of joint proximate cause from the determination of what acts can contribute to a loss. Under its reasoning, one of two joint proximate causes of a tort does not result in the victim’s loss. “This contradicts the basic rule that the same injury can arise from more than one wrongful act.” Sheridan, 487 U. S. at 405 (Kennedy, J., concurring in the judgment). This illogical result reveals the flaw in the reasoning of Hutchinson. That flaw in reasoning is carried forward to Santamorena. In that case it was said, “ ‘(a)ny alleged losses arising from (the [s]tate’s alleged acts and omissions) were caused by the intentional acts alleged . . . , not [the state’s] negligence.” Santamorena, 237 Ga. App. at 61. Again, joint proximate cause has been lost.

Nor does the different wording of the GTCA (“losses resulting from” assault and battery) rather than the FTCA (“claims arising from” assault and battery) lead to the result stated in Hutchinson. If one of these protects the government from its own joint proximate liability and the other one does not, it is anyone’s guess which is which.

Because this Court failed to consider the relevant construction of the FTCA that existed when the GTCA was enacted, and because Hutchinson is flawed and leads to a result inconsistent with basic tort law, I would overrule it and the three cases that rely on it — Santamorena; Christensen v. State of Ga., 219 Ga. App. 10 (464 SE2d 14) (1995); and Sherin v. Dept. of Human Resources, 229 Ga. App. 621 (494 SE2d 518) (1997). Accordingly, the correct construction of the statute should follow Sheridan. Under that construction, the intentional tort exception found in OCGA § 50-21-24 (7) is simply inapplicable to torts that fall outside the scope of the state’s general waiver of immunity in OCGA § 50-21-23. I would affirm the trial court’s decision on that basis.

I am authorized to state that Judge Eldridge, Judge Barnes and Judge Phipps join in this dissent.

MlKELL, Judge,

dissenting.

I agree with the majority that the public duty doctrine does not apply. However, I respectfully dissent because the loss in this tragic case did not result from an “assault” or a “battery” as those terms are used in OCGA § 50-21-24 (7). I would disapprove Dept. of Human Resources v. Hutchinson, Christensen v. State of Ga., Sherin v. Dept. of Human Resources, and Ga. Military College v. Santamorena to the extent that those decisions interpret assault and battery expansively. Instead, the statute should be read narrowly to limit sovereign immunity to losses arising from acts of simple assault and simple battery.

In OCGA § 50-21-24 (7), the legislature listed nine specific torts which it wished to exclude from the waiver of immunity: assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, and interference with contractual rights. Had the General Assembly intended to immunize broadly the state from liability, it would have specified “all intentional torts.” Instead, it seems to have chosen certain civil wrongs which, monumental though they may seem to the victims, do not involve grievous bodily injury or bloodshed. Significantly, the legislature did not refer specifically to our tort statutes, OCGA §§ 51-1-13 and 51-1-14, which codified the common law at the time of the 1863 Code and which are broader than simple assault and simple battery.

Our duty is, of course, to discern the intent of the legislature when it enacted OCGA § 50-21-24 (7) and to give the terms it used their “common and ordinary meaning.” The members of the General Assembly, who crafted the statute pursuant to constitutional authorization, would likely be surprised to learn that their list of nine torts has been expanded to include exemptions from liability for aggravated assault, child molestation, rape, and, by the majority here, murder.

Past decisions of this court have imbued the words “assault and battery” in OCGA § 50-21-24 (7) with the meanings they have in the criminal law and have expanded them to include every crime of which assault and battery are lesser included offenses. Thus, in Christensen, the court without discussion assumed that the exemption from liability for assault included an exemption from liability for rape, and here the majority expands the definition of assault and battery to include murder. As interpreted by this court, OCGA § 50-21-24 (7) now immunizes the state from liability for losses resulting from “[all violent crimes], false imprisonment, false arrest. . .

This court’s previous interpretations of the statute may be technically correct, but the statutory language does not demand so harsh a result. We could just as legitimately apply the principle of noscitur a sociis to interpret “assault and batter/’ narrowly. As explained by the late Supreme Court of Georgia Justice Charles Weltner, “Words, like people, are judged by the company they keep.” The doctrine of noscitur a sociis often restricts general words to less general meanings by analogy to neighboring words. Applied to the statute at issue, the doctrine requires us to note that the words “assault and batter/’ immediately precede words which name specific, discrete torts, such as abuse of process, libel, and slander. Thus, the General Assembly likely meant “assault and battery” to connote specific torts — simple assault and simple battery — rather than to include every conceivable violent crime.

If we continue to broaden our interpretation of OCGA § 50-21-24 (7), we will ultimately ravage the waiver of sovereign immunity. Will we one day uphold the dismissal of a lawsuit arising from a kidnapping with bodily injury on the ground that kidnapping is just a form of false imprisonment and hence expressly exempted from the waiver? I do not believe that the General Assembly intended the state’s immunity to stretch so far.

We may have narrowed the waiver of sovereign immunity by inadvertence. For example, in Hutchinson, a lawsuit arising from an aggravated assault, the parties inexplicably did not dispute that the shooting was a “tortious battery, or assault and battery.” The decision neither discussed the scope of the exemption nor expressly ruled upon it. Instead, the decision turned on whether the state was liable if the tort was committed by a third person.

The next case, Christensen, cites Hutchinson as it concludes, without discussion or an express holding, that assault and battery encompass rape, for which the state enjoyed immunity. Sherin subsequently reached the same conclusion about the molestation of a young child by an older one. In addition to Christensen and Hutchinson, Sherin relied on two decisions where the gravamen of the complaint was simple battery and the exception truly applied. Santamorena, our most recent decision, also involved rape and simply relied on Hutchinson, Christensen, and Sherin to conclude that the suit was barred by sovereign immunity.

Thus, in whole or in part, the decisions which I would reconsider all depend on Hutchinson, a case in which the parties did not dispute, and presumably did not argue, whether the words “assault and batter/’ should be read narrowly or expansively. We should apply well-established rules of statutory construction to define “assault” and “battery” as simple assault and simple battery. I believe that we deviated from the legislative intent when we expanded those words to encompass every violent crime of which assault or battery is a lesser included offense.

A restrained interpretation of OCGA § 50-21-24 (7) would not expose the state to greatly increased liability. The assault and battery exemption would still, as intended by the General Assembly, ban many lawsuits less compelling than the one we review today. And the state would still have immunity from many suits involving grievous injuries or wrongful death because of the discretionary act exemption, for example. Moreover, in this case, other defenses can be considered at a later time. But this case is before us now on appeal from the trial court’s denial of a motion to dismiss for failure to state a claim upon which relief can be granted. I would affirm the decision of the trial court.

Decided December 1, 2000

Reconsideration dismissed December 15, 2000

Thurbert E. Baker, Attorney General, John C. Jones, Senior Assistant Attorney General, Gray, Hedrick & Edenfield, Bruce M. Edenfield, Robert L. Bunner, for appellant.

Lawson & Sippel, John A. Lawson, Cole & Cox, Charles E. Cox, Jr., Jason K. Priebe, for appellees.

       OCGA § 50-21-25 (a).

       (Emphasis supplied.)

       217 Ga. App. 70, 71-72 (1) (456 SE2d 642) (1995).

       Id. at 72. See OCGA § 50-21-24 (1) (loss resulting from “act or omission by a state officer or employee exercising due care in the execution of a statute, regulation, rule, or ordinance”), (2) (loss resulting from performance of discretionary duty “on the part of a state officer or employee”).

        Hutchinson, supra at 71.

       237 Ga. App. 58 (514 SE2d 82) (1999).

       Id. at 61 (1) (a).

       See Hendricks v. Southern Bell Tel. &c. Co., 193 Ga. App. 264-265 (1) (387 SE2d 593) (1989) (“Clearly, the act of intentionally causing actual physical harm to another is civilly actionable as a battery,” although intent to harm is not an essential element).

       Coley’s contention that the “public duty doctrine,” enunciated by the Supreme Court in City of Rome v. Jordan, 263 Ga. 26 (426 SE2d 861) (1993), creates an exception to the state’s sovereign immunity in this case is without merit. The public duty doctrine does not act as a judicially created exception to the state’s sovereign immunity. Indeed, because sovereign immunity has constitutional status, it cannot be abrogated by the judiciary. State Bd. of Ed. v. Drury, 263 Ga. 429, 430 (1) (437 SE2d 290) (1993); Dollar v. Dalton Public Schools, 233 Ga. App. 827 (505 SE2d 789) (1998). Rather, the public duty doctrine simply defines the scope of a governmental entity’s duty to provide police protection to individual citizens, Dept. of Transp. v. Brown, 267 Ga. 6, 8 (3) (471 SE2d 849) (1996), and provides that liability generally can exist only where there is a “special relationship between the injured party and the alleged governmental tortfeasor.” City of Rome, supra at 28 (1). Thus, the doctrine serves to restrict the liability of governmental entities in those situations where sovereign immunity has otherwise been waived or is inapplicable (e.g., where a municipality has purchased liability insurance) — it does not act as an exception to sovereign immunity where such immunity has not been waived. See id. (“the abrogation or waiver of sovereign immunity in Georgia did not create a duty on the part of a municipality where none existed before”). In any event, the Supreme Court has held that the public duty doctrine is limited to “the provision of police services,” Brown, supra at 8-9, and “does not apply outside the police protection context.” Hamilton v. Cannon, 267 Ga. 655, 656 (1) (482 SE2d 370) (1997). This case does not involve the provision of police services. See Santamorena, supra at 61 (1).

       Any reference to “the dissent” in this Division refers to Presiding Judge Pope’s dissent. Any reference to “the dissent” in Division 3 refers to Judge Mikell’s dissent.

       The dissent quotes from a sentence in a law review article stating that the GTCA was “[i]n most respects . . . patterned after the FTCA.” Maleski, The 1992 Georgia Tort Claims Act, 9 Ga. St. U. L. Rev. 431, 448 (1993). The next sentence, however, states that “there are some significant differences between the federal statute and the Georgia statute with regard to intentional torts.” Id. The article does not address the particular difference in language at issue in this case, but does apparently recognize that “in most respects” is not the same as “in all respects.”

       28 USC § 2680 (h).

       OCGA § 50-21-24 (7).

       OCGA § 50-21-22 (3).

       In a footnote, the dissent claims that its analysis does not necessarily lead to this conclusion — i.e., it does “not foreclose the conclusion” that the state would be immune from liability for its independent negligence (such as negligent hiring, supervision, or training), so long as the actual assault or battery is committed by a state officer or employee and not by a third party. This claim is disingenuous, and would render the dissent’s entire analysis internally inconsistent. The whole basis for the dissent’s argument that the difference in language between the state and federal statutes is irrelevant — i.e., that “losses resulting from” means the same thing as “claim arising out of’ — is its assertion that a “loss” may result from more than one proximate cause. Thus, according to the dissent, the assault and battery exception does not provide immunity for losses resulting from a proximate cause that combines with the assault or battery, since the loss in such case would also result from the independent tort. As discussed above, the dissent’s joint proximate cause analysis is incorrect, since the plaintiffs entire loss results from an assault or battery even if there are additional proximate causes, and the state is granted immunity for the “loss,” not the “claim.” However, the dissent cannot hang its hat on the fact that there may be multiple proximate causes for a loss, and then ignore that fact when it is inconvenient.

       Black’s Law Dictionary (7th ed.), p. 1084.

       (Punctuation omitted.) Burke v. State, 208 Ga. App. 446-447 (1) (430 SE2d 816) (1993).

       See Hendricks, supra.

       Ga. Const., Art. I, Sec. II, Par. IX (e).

       OCGA § 50-21-21 (a).

       The Georgia State University Law Review “Peach Sheets” for 1992, which have some legislative history on the Georgia Tort Claims Act, do not provide any guidance on the issue. Neither do the House and Senate Journals. Nor is the stated legislative intent found in OCGA § 50-21-21 helpful on this specific point.

       It is true that the article states that “there are some significant differences” between the FTCA and the GTCA-with regard to intentional torts. But the article explains that the significant differences to which it refers are the inclusion in the FTCA of a waiver of immunity for acts or omissions of the state’s investigative or law enforcement officers and the fact that the FTCA includes “misrepresentations” in the fist of torts excluded from the waiver of immunity. Id. at 448. Neither of these differences is relevant to the issue raised in this case.

       Further, in United States v. Muniz, 374 U. S. 150 (83 SC 1850, 10 LE2d 805) (1963), the Supreme Court had already held that a prisoner could bring suit against the government for damages resulting from an assault by other prisoners that prison guards had negligently permitted to happen. Although the Court in Muniz did not directly answer the question of whether the assault and battery exception to the FTCA applied to the acts of nonemployees, it did so by negative implication when it noted that the exception did apply to the intentional torts of government employees. Muniz, 374 U. S. at 163. Then the Supreme Court in Sheridan directly analyzed why that exception did not affect the result in Muniz.

        Santamorena quotes Rhoden v. Dept of Public Safety, 221 Ga. App. 844, 845 (1) (473 SE2d 537) (1996), for part of its conclusion. But Rhoden based its conclusion directly on Hutchinson. And Rhoden is easily distinguished. There, the tortfeasors were state employees, and therefore the assault and battery exception was directly applicable.

       Whether claims of negligent hiring, negligent supervision or negligent training may provide the basis for liability under the GTCA for a foreseeable assault or battery by a state employee is a separate question from the one before us today. Indeed, Sheridan did not foreclose the conclusion that such claims, when they involve assault and battery by a government employee, are barred by the intentional tort exception. In fact, on remand in Sheridan, the Fourth Circuit held that, after the plaintiffs dropped certain factual assertions, its only remaining claims were in the nature of negligent supervision. Sheridan v. United States, 969 F2d 72, 75 (II) (4th Cir. 1992). And, despite the Supreme Court’s holding in Sheridan, the Fourth Circuit held that negligent supervision claims are barred by the intentional tort exception. Id.

       217 Ga. App. 70 (456 SE2d 642) (1995).

       219 Ga. App. 10 (464 SE2d 14) (1995).

       229 Ga. App. 621 (494 SE2d 518) (1997).

       237 Ga. App. 58 (514 SE2d 82) (1999).

       Compare OCGA §§ 51-1-13; 51-1-14 with OCGA §§ 16-5-20; 16-5-23; 16-5-23.1. See generally C. Adams & C. Adams, Ga. Law of Torts, § 2-2 (1999).

       See, e.g., Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521, 523 (521 SE2d 456) (1999).

        Hutchinson, supra.

        Sherin, supra.

        Christensen, supra; Santamorena, supra.

       See Mott v. Central R., 70 Ga. 680 (1883); see generally Sutherland Statutory Construction, § 47.16, pp. 271-272 (6th ed. 2000).

        Anderson v. Southeastern Fidelity Ins. Co., 251 Ga. 556 (307 SE2d 499) (1983), citing 73 AmJur2d 406, Statutes, § 213.

        Dunham v. State, 140 Fla. 754 (192 S. 324-326) (1939).

       See Undercofler v. VFW Post 4626, 110 Ga. App. 711 (139 SE2d 776) (1964) (“general expressions may sometimes he restrained so as to make the statute bear reasonable construction”).

       See, e.g., Edwards v. Dept. of Children &c. Svcs., 271 Ga. 890 (525 SE2d 83) (2000).

       Id. at 71.

       As authority the court in Hutchinson cited the tort statute and Hendricks v. Southern Bell Tel. &c. Co., 193 Ga. App. 264 (387 SE2d 593) (1989), which held that a battery could be committed without an intent to injure.

        Sherin, supra, citing Mattox v. Bailey, 221 Ga. App. 546 (472 SE2d 130) (1996); Miller v. Dept. of Public Safety, 221 Ga. App. 280 (470 SE2d 773) (1996).

       See, e.g., Rhoden v. Dept. of Public Safety, 221 Ga. App. 844 (473 SE2d 537) (1996) (rowdy fans at Falcons game arrested after throwing paper airplanes and cups of beer onto field); Miller, supra (excessive force by arresting officer “amounting to an . . . assault and battery”); Mattox, supra (corrections officer “slammed” plaintiff’s head into a door and thereafter beat him).


source: Caselaw Access Project

author: Ellington, Judge.

license: Public Domain

text:
    A00A1662.
    MANESH et al. v. BAKER EQUIPMENT ENGINEERING COMPANY.
    (543 SE2d 61)
   Ellington, Judge.

Mehdi I. Manesh and his wife, Marsha L. Manesh, appeal from the grant of summary judgment to Baker Equipment Engineering Company in his suit for recovery for personal injury and her derivative suit for loss of consortium.* We find that Baker Equipment failed to meet its burden to establish that no jury issue exists regarding its liability. Therefore, it was not entitled to summary judgment, and we reverse.

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

(Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). On a grant of summary judgment, this Court conducts a de novo review of the record. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

In this case, Manesh presented evidence to support his claim that Baker Equipment negligently failed to properly tighten critical bolts on an aerial ladder and that this failure was responsible for an industrial accident that crushed his foot. If Baker Equipment had presented evidence of an alternative cause of the accident that was at least as likely as that presented by Manesh, it would have been the duty of the trial court to grant Baker Equipment’s motion for summary judgment. See Avery v. Cleveland Ave. Motel, 239 Ga. App. 644, 645 (1) (521 SE2d 668) (1999). Baker Equipment, however, failed to present any evidence of alternative causation. Therefore, under these circumstances, the trial court erred in granting summary judgment.

The accident happened when the ladder suddenly retracted while Manesh and a co-worker were repairing a sign in February 1997. The truck-mounted, aerial ladder had three sections that “telescoped” out to raise workers 54 feet off the ground. The sections are operated by cables that are secured by a device called a “sandwich cable grip,” which are held together by six to eight bolts. According to the manufacturer: “The top section of [this model of ladder] can retract or ‘collapse’ only in three ways: a. If the operator pushes, or ‘actuates’ the operation switch to retract the ladder; b. If the top cable breaks; or c. If the top cable slips in the sandwich cable grip.” Further, based upon the manufacturer’s history with the ladder, after the bolts are tightened and torqued according to specifications, the bolts will remain torqued “forever” and will not become loose during normal usage of the ladder. In fact, the manufacturer’s initial product tests revealed that, when it is properly tightened, maintained, and inspected, the sandwich cable grip “exceeded the strength of the actual cable it was holding” and was “sufficient to prevent unintended retraction.” It was undisputed that there has never been a report of a “sudden uncontrolled retraction” of this type of ladder or the failure of the sandwich cable grip.

The record shows that Baker Equipment replaced the extension cables on the ladder in September 1995. In December 1995, Baker Equipment disconnected the extension cables in order to remove the extension cylinder. To replace the extension cables, one has to first loosen the bolts holding the sandwich cable grip in place. A former employee of Baker Equipment, Matthew Bellew, gave an affidavit in which he admitted the following: he replaced the extension cylinder on the Wilkie Manufacturing ladder in December 1995, even though he had no training as a mechanic prior to his two weeks of employment with Baker Equipment; he referred to the Wilkie service manual as he was working on the ladder; in the process of replacing the cylinder, he disconnected both sandwich cable grips; he probably tightened the bolts only with an air wrench initially, before checking the ladder timing; he “probably did not torque the cable sandwich grip bolts after retentioning the ladder’s extension cables” or at the end of the repair work; and he would have specifically mentioned in his service order notes if he had torqued the sandwich cable grip bolts. Bellew did not record in his service order notes that he torqued the sandwich cable grip bolts after adjusting the cable tension and testing the ladder. In its statement of undisputed facts, Baker Equipment admitted that Bellew was the last of its employees to work on the ladder and that Bellew did not remember whether he retorqued the sandwich grip bolts when he finished working on the ladder.

The day after Manesh’s February 1997 accident, Manesh’s coworker discovered that the cable grip’s belts were loose and “you could see the marks on the cable where it had slipped.” Fellow employees were able to “physically slide the ladder up the [cable] grip.”

Manesh presented the testimony of two experts, who agreed that the ladder would not have accidentally retracted but for the failure to properly torque the sandwich cable grip bolts. Although one of the experts deposed that there could be other possible reasons for the bolts to become loose, such as extreme vibration or faulty repair by another, Baker Equipment failed to present any evidence to show that these alternate causes actually occurred in this case.

Further, Manesh’s experts agreed that the sandwich cable grip — with properly torqued bolts — would have supported several times the weight of the two workers plus their equipment. One expert opined that the cable grip did not fail during the thirteen-month interval between Baker Equipment’s December 1995 repair and the February 1997 accident because the sign company employees may not have placed as much weight on the ladder before. Manesh’s coworker, who worked for the sign company during that period, deposed that he had never worked with another person on the ladder while it was fully extended and elevated. Baker Equipment presented no evidence that the allowable weight limit had been exceeded prior to the time of Manesh’s accident.

1. Manesh contends that the trial court erred in finding that the deposition testimony of Bellew and the expert witnesses was not probative because it was “speculative” and inadmissible opinion evidence.

(a) Initially, we note that Bellew’s deposition was never filed in the record and was not considered herein. However, the record contained Bellew’s affidavit, which contained his personal recollection of his maintenance of the ladder. To the extent that the affidavit was based on his personal knowledge, it was admissible. OCGA § 9-11-56 (e); Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 440 (4) (280 SE2d 842) (1981) (trial court may consider admissible portions of affidavits while disregarding inadmissible portions). Bellew’s statement that he probably did not torque the sandwich cable grip bolts because he failed to record it in his service order notes was not mere speculation, but was sufficient for the jury to draw an inference of fact on the issue of Baker Equipment’s negligence. See Ogletree v. Navistar Intl. Transp. Corp., 245 Ga. App. 1, 6-7 (1) (535 SE2d 545) (2000).

(b) Further, the expert opinion evidence was well within their level of expertise.

The requirements for qualification as an expert witness are minimal; generally, nothing more is required to qualify an expert than evidence that the person has been educated in a particular trade, science, or profession. Formal education or training in an area of expertise is not necessary, provided the witness possesses the qualifications of such area of expertise through skill and experience. It is the possession of special knowledge derived either from experience, study, or both in a field of expertise that makes one an “expert.” Thus, an expert witness can express an opinion on a matter which comes within the person’s qualifications.

(Citations omitted.) Dayoub v. Yates-Astro Termite Pest Control Co., 239 Ga. App. 578, 580 (1) (521 SE2d 600) (1999). Having reviewed the record, we find that both experts possessed the requisite experience to give their opinions regarding the cause of the ladder’s sudden retraction. Further, both witnesses gave the factual bases for these opinions. See OCGA § 24-9-67. As such, a jury issue existed as to whether the failure to properly torque the bolts caused Manesh’s injuries. The trial court erred in granting Baker Equipment’s motion for summary judgment.

Decided November 28, 2000

Reconsideration denied December 15, 2000

Dietrick, Evans, Schols & Williams, Paul A. Dietrick, William P. Evans, for appellants.

Goldner, Sommers, Scrudder & Bass, Benjamin D. Ladner, Aaron J. Aberson, Owen, Gleaton, Egan, Jones & Sweeney, Philippa V. Tibbs, for appellee.

2. Manesh contends that the trial court erred in granting summary judgment on the basis of the “acceptance doctrine.” Under this doctrine,

[a]n independent contractor is not liable for injuries to a third person, occurring after the contractor has completed the work and turned it over to the owner or employer and the same has been accepted by him, though the injury resulted] from the contractor’s failure to properly carry out his contract.

Young v. Smith & Kelly Co., 124 Ga. 475 (52 SE 765) (1905). Georgia’s courts subsequently adopted an exception to this rule, as follows: when a contractor is negligent, and that negligence is inherently or intrinsically dangerous, a nuisance per se, or imminently dangerous to a third party, acceptance of the work does not bar a suit for injuries by the third party. David Allen Co. v. Benton, 260 Ga. 557, 558 (398 SE2d 191) (1990).

In this case, Manesh presented evidence that, because the ladder reaches heights exceeding 50 feet off the ground, the failure to properly torque the sandwich cable grip bolts could result in serious bodily injury or death due to the sudden retraction of the ladder. Since Manesh presented evidence from which the jury could infer Baker Equipment’s negligence and the inherently dangerous nature of such negligence, summary judgment was not appropriate under the acceptance doctrine.

Judgment reversed.

Andrews, P. J., and Ruffin, J., concur.

       The trial court also granted summary judgment in favor of co-defendant Wilkie Manufacturing, Inc., but Manesh dismissed his appeal of that judgment.

       There is no evidence that the operator retracted the ladder in this case, and the evidence affirmatively showed that the cable did not break.

       The manufacturer’s written specifications required that the bolts be “torqued equally” to a specified pressure and included the following notation: “Cable will squish, keep tightening bolts until they are tight as per torque specifications.”

       One expert emphasized that the failure to maintain a safety catch on the middle portion of the ladder did not contribute to Manesh’s accident.


author: Eldridge, Judge.

text:
    A00A1963.
    THE STATE v. LEDFORD.
    (543 SE2d 107)
   Eldridge, Judge.

The State appeals from the trial court’s grant of Judy Ladean Ledford’s motion to suppress three baggies of methamphetamine powder Hall County narcotics agents Casper and Neville found in Ledford’s black fanny pack. In granting the motion to suppress, the trial court found that (1) Ledford was detained by the agents without reasonable, articulable suspicion; and (2) Agent Neville searched Ledford’s fanny pack without consent. This Court will not disturb a trial court’s findings on a motion to suppress if there is any factual basis to support the trial court’s legal conclusions. In this case, however, we find none and reverse.

The transcript of testimony at the motion to suppress hearing shows that two agents from the Multi-Agency Narcotics Squad (MANS) unit of the Hall County Sheriff’s Department, Agents Casper and Neville, were on routine patrol in the Dawsonville Highway and Sardis Road area in Hall County. The sheriff’s department had received numerous complaints of drug activity in and around the convenience stores in that area, so Casper and Neville were specifically observing the convenience stores and businesses along the highway.

The agents observed a green Mitsubishi pull beside a pay phone outside a local restaurant that shares a parking lot with a Circle M convenience store. A female, E. S., exited the car, got on the pay phone, stayed on for a short time, and then went back to her car to sit. The agents watched her do this two or three times over a fifteen-minute span. Agent Casper testified at the motion hearing that such conduct aroused his suspicion because “usually with drug activity, selling, a person will go to a pay phone, call somebody or page somebody and then sit and wait for them to bring the drugs.”

Fifteen minutes later, a red Ford pulled up beside the Mitsubishi. Appellee Ledford got out of the Ford and into the Mitsubishi. Ledford and E. S. then drove through the parking lot to park in front of the Circle M. They exited the car and went into the convenience store; Ledford was carrying a black fanny pack. Together, Ledford and E. S. entered the single-person ladies room of the Circle M. Agents Casper and Neville waited outside the convenience store, but Ledford and E. S. did not reappear. Casper went inside the Circle M, bought a soda, and returned to the patrol car. The women did not leave the bathroom. Finally, Ledford and E. S. exited the ladies room; they left the Circle M and got back into the Mitsubishi. They drove back across the parking lot to the red Ford, where E. S. parked the Mitsubishi and let Ledford out. At that point, Casper and Neville walked up to the two women. The agents did not question them; instead, Casper immediately asked E. S. if he could search her person, and E. S. consented to such search. At the same time, Neville asked Ledford if he could search her person, and Ledford, too, consented to be searched. Casper asked E. S. if he could search her purse, and she consented. Neville then asked E. S. if he could search the Mitsubishi, and “[s]he stated that was fine.” Agent Casper testified on direct at the motion to suppress that

Agent Neville went around to the passenger side of the car, opened up the passenger door. I went to the driver side of the car and opened up the driver side door and I started searching, he started searching. There was — the black fanny pack was laying [sic] in the car. Agent Neville asked [E. S.] if it belonged to her. She stated no, that it was not hers. He asked Ms. Ledford if it belonged to her, she stated no, that it did not belong to her. At that time he opened it and reached in it and at that time Ms. Ledford pushed him aside and said, “No,” and grabbed the purse out of his hands. ... At that point she stated it was hers. . . . Agent Neville went ahead and put her in handcuffs and said, “If you’ll look in the bag there’s methamphetamine in there.” At that time, I opened the bag. I believe there were some tissue which was wrapped around three plastic baggies of methamphetamine powder.

During cross-examination, Agent Casper reiterated this sequence of events. Ledford did not testify at the motion hearing, and no further evidence was introduced. There was no challenge to the voluntary nature of the consent to search obtained by the agents.

1. The trial court found (a) that Agents Casper’s and Neville’s multiple requests to search elevated the agents’ actions to that of a Terry detention, and (b) that the agents’ actions were not supported by the requisite reasonable articulable suspicion necessary to support such detention. We find that the evidence of record does not support either of the trial court’s legal conclusions.

(a) In Georgia, we recognize three levels of police-citizen encounters:

In the first level, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. This tier provides no Fourth Amendment protection. The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity. The third tier of police-citizen encounters includes full-scale arrests that must be supported by probable cause.

Here, the only evidence of record shows that the Mitsubishi was already stopped when the agents walked up to Ledford and E. S. The agents asked for multiple consents to search. The two women voluntarily consented to each search requested. That is the extent of the evidence prior to Ledford’s arrest. And in that regard, “[i]t is well established that an officer’s approach to a stopped vehicle and inquiry into the situation [are] not a stop or seizure but rather clearly fall[ ] within the realm of the first type of police-citizen encounter.” Further, we have found that requests to search made during the course of a first level police-citizen encounter do not transform such encounter into a second tier Terry stop: “it is clear that merely requesting consent for a search is not a seizure and does not require articulable suspicion.”

There is no evidence — or claim — of coercion or force in this case that would negate either the propriety of the agents’ requests to search or the voluntary nature of the consent received. And “[office a voluntary consent is legally obtained, it continues until it either is revoked or withdrawn.” Accordingly, there is no evidence in the record that the agents’ approach of the two women was a Terry-type detention that required reasonable articulable suspicion. The trial court’s finding to the contrary, based solely on the fact that multiple requests to search were made, is erroneous.

(b) Moreover, even under a Terry analysis, the agents’ actions in this case were proper since there was ample reasonable articulable suspicion of criminal activity to support a brief investigative detention.

Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like articulable reasons and founded suspicion are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances — the whole picture — must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions — inferences and deductions that might well elude an untrained person. The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain commonsense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing.

Accordingly, momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice, or harassment. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was neither arbitrary nor harassing. The principal components of a determination of reasonable suspicion will be the events which occurred leading up to the stop or search and then “the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.”

In this case, Agent Casper testified that he had worked on the MANS unit of the Hall County Sheriffs Department for two years. The area in which the incident occurred had been repeatedly reported to the sheriffs department as a high drug crime area, Dawsonville Highway and Sardis Road. The locale in which the incident occurred had been reported as a favored locale for drug crime, i.e., a convenience store. E. S.’s and Ledford’s actions were consistent with the actions of those involved in buying and selling drugs. Upon meeting, the women’s subsequent actions were suspicious to the officers: the women met at a pay phone in a parking lot; Ledford then left her car and got into E. S.’s car only to drive across a parking lot; they entered the Circle M’s single-person bathroom together; they remained together in the bathroom for a long time; and E. S. then drove Ledford back across the parking lot only to let her out at Led-ford’s car in order to part company. Such actions demonstrated no purpose for meeting, other than to drive together across a parking lot to go to the bathroom at a convenience store. While such conduct may be susceptible to an innocent explanation, it is also consistent with drug sale activity:

[C]ourts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. . . . All of this conduct was by itself lawful, but it also suggested that the individuals were [engaged in a drug transaction]. Terry recognized that the officers could detain the individuals to resolve the ambiguity. In allowing such detentions, Terry accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent. The Terry stop is a far more minimal intrusion, simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way.

Here, given the lack of apparent purpose for the women’s actions; the consistency such actions had with drug sale activity; the fact that such actions occurred in a known drug crime area; and the fact that such actions occurred at what had been reported as a frequent drug crime locale, we find the evidence provides sufficient reasonable articulable suspicion to support a brief detention of the women in order to determine what was going on.

2. The trial court found that Agent Neville improperly searched Ledford’s fanny pack without consent. The trial court concluded that:

Officer Casper testified that as Officer Neville prepared to search the pack, “Ms. Ledford pushed him [Officer Neville] aside and said no and grabbed the purse out of his hands [and] [a]t that point she said it was hers.” Thus the Court does not believe that it is possible for Officer Neville not to have known the Defendant was asserting her ownership and did not consent to have the pack searched, nevertheless, Officer Neville proceeded to search the pack. Based on the foregoing, the Court finds that, the search of the fanny pack without the benefit of consent or a warrant, was illegal.

The evidence of record, however, does not support the trial court’s factual conclusion that Neville “proceeded to search the pack” after Ledford asserted an ownership interest in it.

It is undisputed that Ledford had initially disclaimed ownership of the pack when Agent Neville picked it up, and she cannot claim a legitimate expectation of privacy in the pack during the time she had “abandoned” her ownership of it. Yet, it is also undisputed that Led-ford ultimately asserted her ownership of the fanny pack by grabbing it out of Agent Neville’s hands and refusing consent to search. The issue here, then, is whether Neville discovered the methamphetamine before Ledford grabbed the pack from him, i.e., while it was still “abandoned” and Ledford’s consent to search was irrelevant. The sole evidence on this issue is as follows:

[Casper:] He asked Ms. Ledford if it belonged to her, she stated no, that it did not belong to her. At that time he opened it and reached in it and at that time Ms. Ledford pushed him aside and said, “No,” and grabbed the purse out of his hands.
[DA:] Did she claim ownership of the bag at any point?
[Casper:] At that point she stated it was hers.
[DA:] Was that prior to or after Agent Neville found the drugs?
[Casper:] Well, Agent — that’s what I saw at that time, Agent Neville went ahead and put her in handcuffs and said, “If you’ll look in the bag there’s methamphetamine in there.” At that time, I opened the bag. I believe there were [sic] some tissue which was wrapped around three plastic baggies of methamphetamine powder.

This is the sum total of the evidence on the issue of when the drugs were found in relation to Ledford’s belated assertion of ownership. In that regard, the record shows that Agent Casper was the next person in possession of the pack after Ledford claimed ownership by grabbing it. While handcuffing Ledford, Neville directed Casper to look inside the pack because he had seen methamphetamine. Casper did so. Casper then found the contraband. Absolutely no evidence shows that Neville ever had the fanny pack back in his possession after Led-ford grabbed it. Accordingly, there is no evidence to support the trial court’s conclusion that, after Ledford grabbed the pack from Neville and asserted ownership, “nevertheless, Officer Neville proceeded to search the pack.” The evidence, and all reasonable inferences drawn therefrom, is that Neville saw the drugs in the pack before Ledford grabbed it from him, because as Casper testified, “Officer Neville was searching her purse when she grabbed for it.” As such, the drugs were discovered by Neville during the time when Ledford had disclaimed ownership of the fanny pack and it was “abandoned.” Led-ford does not have standing to contest the search of abandoned property. “ [I] t is clear that none of the testimony given at the suppression hearing supports the trial court’s factual determination,” and thus the trial court’s finding that Neville’s search of Led-ford’s pack was improper because it was without consent is clearly erroneous.

Decided November 29, 2000

Reconsideration denied December 21, 2000

Lydia J. Sartain, District Attorney, Deborah R. Mitchell, Jason J. Deal, Assistant District Attorneys, for appellant.

Whitmer & Law, George H. Law III, for appellee.

Judgment reversed.

Blackburn, P. J., concurs. Barnes, J., concurs as to Divisions 1 (a) and 2 and concurs in judgment only as to Division 1 (b).

        State v. Henderson, 271 Ga. 264 (517 SE2d 61) (1999); State v. Bowen, 231 Ga. App. 95 (498 SE2d 570) (1998).

        Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

       (Citation and punctuation omitted.) State v. Burks, 240 Ga. App. 425, 426 (1) (523 SE2d 648) (1999).

       (Punctuation omitted.) Stokes v. State, 238 Ga. App. 230, 232 (518 SE2d 447) (1999); Voyles v. State, 237 Ga. App. 886, 887 (517 SE2d 113) (1999).

        Stokes v. State, supra at 232; Voyles v. State, supra at 887.

       (Citation omitted.) Calixte v. State, 197 Ga. App. 723, 726 (399 SE2d 490) (1990).

       (Citations and punctuation omitted.) Evans v. State, 183 Ga. App. 436, 438-439 (359 SE2d 174) (1987), citing United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981).

        State v. Stansbury, 234 Ga. App. 281, 283 (505 SE2d 564) (1998).

       (Punctuation omitted.) Freeland v. State, 223 Ga. App. 326 (477 SE2d 633) (1996), citing Ornelas v. United States, 517 U. S. 690 (116 SC 1657, 134 LE2d 911, 919) (1996).

        See Illinois v. Wardlow, 528 U. S. 119 (120 SC 673, 675-676, 145 LE2d 570) (2000).

       (Citations omitted.) Id., 120 SC at 676-677.

        Thompson v. State, 230 Ga. App. 131, 132 (495 SE2d 607) (1998).

       (Emphasis supplied.)

        Orman v. State, 207 Ga. App. 671, 672 (428 SE2d 813) (1993); Young v. State, 190 Ga. App. 775 (380 SE2d 309) (1989); Bassett v. State, 181 Ga. App. 597, 599 (353 SE2d 48) (1987), rev’d on other grounds, Bassett v. Lemacks, 258 Ga. 367 (370 SE2d 146) (1988).

       Neville’s statement to Gasper was admissible as original evidence under OCGA § 24-3-2. “Such testimony was admissible to explain the investigator’s conduct in searching [Led-ford’s pack].” Jones v. State, 226 Ga. App. 619, 622 (4) (487 SE2d 371) (1997). In addition the statement was “relevant and admissible to establish the events leading to the arrest of [Led-ford].” Thompson v. State, 210 Ga. App. 655, 657 (2) (436 SE2d 799) (1993); Smith v. State, 236 Ga. App. 122, 125 (511 SE2d 223) (1999); McCloud v. State, 210 Ga. App. 69, 70 (2) (435 SE2d 281) (1993); Evans v. State, 201 Ga. App. 20, 26 (4) (410 SE2d 146) (1991).

        Orman v. State, supra at 672; Young v. State, supra at 775; Bassett v. State, supra at 599.

        State v. David, 269 Ga. 533, 535 (501 SE2d 494) (1998).


author: Blackburn, Presiding Judge.

text:
    A00A1969.
    BONNER et al. v. SMITH et al.
    (543 SE2d 457)
   Blackburn, Presiding Judge.

Bobby Eugene Bonner and Sherrill L. Bonner appeal the jury’s verdict which set aside as fraudulent a quitclaim deed transferring title of the couple’s home from Bobby to Sherrill. Daniel Jackson Smith and Joyce Smith brought the underlying action to set aside the deed after they had obtained a judgment against Bobby Bonner in the amount of $187,639.48. The Bonners contend that the trial court erred by: (1) denying their motion for directed verdict and their motion for judgment notwithstanding the verdict; (2) charging the jury on constructive fraud; and (3) denying them the right to open and close the final arguments. For the reasons set forth below, we affirm the jury verdict.

1. The Bonners contend that the trial court erred by denying their motion for directed verdict and their motion for judgment n.o.v. because the Smiths failed to present any evidence to establish a fraudulent conveyance.

Initially, we note that in reviewing the denial of a motion for directed verdict and judgment n.o.v., this Court must determine whether there is any evidence to support the jury’s verdict. Where there is any evidence to support the jury verdict, it is proper to affirm the denial of the motions, unless it is demanded as a matter of law, because the jury is the sole and exclusive arbiter of the weight and credit given to the evidence. Gen. Ins. Svcs. v. Marcola. A judgment n.o.v. is properly granted only when there can be but one reasonable conclusion as to the proper judgment; if there is any evidentiary basis for the jury’s verdict, viewing the evidence most favorably to the party who secured the verdict, it is not error to deny the motion. First Union Nat. Bank &c. v. Davies-Elliott, Inc.

In the present case, the Smiths contended that the quitclaim deed executed between the Bonners was fraudulent. OCGA § 18-2-22 (2) provides that the following acts by debtors shall be fraudulent against creditors: “Every conveyance of real or personal estate : . . had or made with intention to delay or defraud creditors, where such intention is known to the taking party.” The evidence at trial revealed that on Friday, August 19, 1994, Bobby Bonner shot and injured Daniel Smith. On Saturday, August 20, 1994, Daniel Smith called Sherrill Bonner and told her that he was going to sue Bobby Bonner for damages and get the house. Although Smith was not an actual creditor at the time the deed was filed, OCGA § 18-2-22 would still apply. See Rolleston v. Cherry. The following Monday, August 22, 1994, the Bonners filed the quitclaim deed.

The Bonners purportedly signed the deed and had it witnessed on February 10, 1994. Bobby and Sherrill Bonner and the witness to the deed, Sherrill’s mother, testified that the deed was signed on February 10, 1994. The notary testified that she was not present when the deed was signed but that she notarized the document on February 10, 1994. However, Sherrill Bonner testified that the deed was notarized at a later date.

Bobby testified that in signing the quitclaim deed it was not a sale of the house; it was just an outright gift to his wife. Sherrill wanted the house in her name because they were having marriage difficulties and she was the one paying the mortgage. She also testified that she was worried that Bobby was going to do something stupid because of his drinking. Sherrill testified that Bobby was not providing any income to the household and that most of their debts were “under bankruptcy.” Sherrill further testified that she paid him $1 for the house as recited in the quitclaim deed.

When a creditor attacks a conveyance from a husband to a wife, slight circumstances may be sufficient to establish the existence of fraud. The burden is on the husband and the wife to show that the transaction as a whole was free from fraud. And it is for the jury to say whether the husband and the wife carried their burden in this regard.

(Citations omitted.) Dearing v. A. R. Ill, Inc Additionally, OCGA § 19-3-10 provides that “when a transaction between a husband and wife is attacked for fraud by the creditors of either, the onus shall be on the husband and wife to show that the transaction was fair.”

In the present case, the Smiths contested whether the deed was actually signed in February or after Mr. Bonner shot Mr. Smith. Under these circumstances, the issue came down to one of credibility of the witnesses. The trial court properly reserved such issue for a jury’s determination. See Gen. Ins. Svcs., supra.

2. The Bonners contend that the trial court erred in charging on constructive fraud. The trial court charged:

But fraud may be either actual or constructive. Actual fraud consists of any kind of artifice by which another is deceived. Constructive fraud consists of any act of omission or commission, contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to the good conscience and operates to the injury of another. Actual fraud implies moral guilt; constructive fraud may be consistent with innocence.

The Bonners argue that this charge was not adjusted to the evidence in the case. However, the Bonners raised no objection to the trial court’s initial charge. Only after the jury asked for a recharge on the definition of actual and constructive fraud and the trial court reiterated the same charge, did the Bonners object to the charge.

The constructive fraud charge was adjusted to the facts of the case because the jury was authorized to believe Sherrill’s testimony that she had no intention to defraud creditors, but to disbelieve her testimony that the deed was signed in February. “The jury was authorized to believe a part and disbelieve other parts of the testimony of the witnesses.” Brunswick Mfg. Co. v. Sizemore. Therefore, the trial court did not err in recharging on constructive fraud.

3. The Bonners contend that the trial court erred in denying their right to open and close the arguments. The Bonners assert that because they had the burden to prove that the transaction was fair, they had the right to open and close the arguments. Although OCGA § 19-3-10 puts the onus on the husband and wife making the transaction to show that the transaction was fair, the plaintiff still retains the burden of putting forth evidence of the fraud. In Baker v. Goddand, the Supreme Court of Georgia determined that such Code section was a rule of evidence and did “not dispense with any necessary element in setting aside a conveyance based upon valuable consideration.” In other words, a creditor could not obtain summary judgment on a claim merely by presenting a deed between a husband and wife. The creditor must come forward with some evidence to suggest an irregularity, such as in the present case, the filing of the quitclaim deed after Mr. Smith told Mrs. Bonner that he was going to sue the Bonners and take their house.

Decided December 8, 2000

Reconsideration denied December 21, 2000.

Lane & Jarriel, Thomas F. Jarriel, for appellants.

Grist & Brock, Joel M. Grist, Jr., for appellees.

The Bonners argue that the Supreme Court of Georgia’s decision in Tucker v. Talmadge supports their assertion of a right to open and close the arguments. The facts in Tucker, however, support the opposite conclusion. Therein, the wife sued her husband to enforce a deed. Therefore, the wife, as plaintiff, had the burden and had the right to open and close. Id. Such is not the case before us. Additionally, in Tucker, the issue presented was whether the trial court erred in failing to charge the jury, absent a request, as to any shift in the burden of introducing evidence. The issue which we are presently concerned with was not addressed therein. “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” (Punctuation omitted.) Gordy Tire Co. v. Dayton Rubber Co. Based on the foregoing, the trial court did not err in denying the Bonners’ request to open and close the arguments.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

        Gen. Ins. Svcs. v. Marcola, 231 Ga. App. 144, 145 (2) (497 SE2d 679) (1998).

        First Union Nat. Bank &c. v. Davies-Elliott, Inc., 215 Ga. App. 498, 501 (1) (a) (452 SE2d 132) (1994).

        Rolleston v. Cherry, 237 Ga. App. 733, 735 (1) (a) (521 SE2d 1) (1999).

        Dearing v. A. R. III, Inc., 266 Ga. 301, 302 (1) (466 SE2d 565) (1996).

        Brunswick Mfg. Co. v. Sizemore, 183 Ga. App. 482, 484 (359 SE2d 180) (1987).

        Baker v. Goddard, 205 Ga. 477, 482 (7) (53 SE2d 754) (1949).

        Tucker v. Talmadge, 186 Ga. 798, 799 (4) (198 SE 726) (1938).

        Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (1) (114 SE2d 529) (1960).


text:
    A00A2064.
    DOUGLAS KOHOUTEK, LTD. v. HARTLEY, ROWE & FOWLER, P.C. et al.
    (543 SE2d 406)
   Eldridge, Judge.

On October 20, 1995, Douglas Kohoutek, Ltd., a real estate investment limited partnership, sued Hartley, Rowe & Fowler, P.C., G. Michael Hartley, Walter P. Rowe, Joseph H. Fowler, Tom L. Lane, Jr., Linda S. Karlo, and Jeffrey P. Richards for professional negligence due to an eight and one-half month delay in filing the UCC-1 statement on September 14, 1990, to secure a note executed on January 27, 1990, which created a collateral security gap. Prior to September 14, 1990, the defendant was aware that the UCC filings had not been made timely and that the defendants might be professionally negligent. The defendants moved for summary judgment based upon the running of the statute of limitation, which was granted. The plaintiff contends that the statute of limitation was tolled by fraud through concealment, failure to disclose, and continued representation and that there existed material issues of fact for the jury as to such fraud. We do not agree and affirm.

1. Plaintiff contends that the trial court erred in granting summary judgment on the running of the statute of limitation because there existed a material issue of fact that fraud tolled the running of the statute.

In a legal malpractice action the applicable statute of limitation is four years from the breach of the duty. See OCGA § 9-3-96; Gibson v. Casto, 233 Ga. App. 403, 404 (2) (504 SE2d 705) (1998), modified on other grounds, 271 Ga. 667 (523 SE2d 564) (1999). At trial, to toll the running of the statute of limitation, plaintiff has the burden of proof to overcome this affirmative defense; however, on motion for summary judgment, after the defendant presents evidence that the statute of limitation has run, plaintiff must come forward with some evidence to demonstrate on motion for summary judgment that some evidence exists to create a material issue of fact that the statute has been tolled for jury determination. Houston v. Doe, 136 Ga. App. 583, 585-586 (3) (222 SE2d 131) (1975).

The statute of limitations is tolled in malpractice actions when a defendant intentionally conceals an act of professional negligence from a plaintiff, causing the plaintiff to be deterred from bringing a claim. Our Code provides that if a defendant is guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud. This provision has always been strictly construed to require (1) actual fraud involving moral turpitude, or (2) a fraudulent breach of a duty to disclose that exists because of a relationship of trust and confidence. ...
[I]n situations such as exist in this appeal, where the gravamen of the underlying action is not a claim of fraud, but rather of malpractice, the statute of limitations is tolled only upon a showing of a separate independent actual fraud involving moral turpitude which deters a plaintiff from filing suit. In such cases, before the running of the limitation period will toll, it must be shown that the defendant concealed information by an intentional act — something more than a mere failure, with fraudulent intent, to disclose such conduct, unless there is on the party committing such wrong a duty to make a disclosure thereof by reason of facts and circumstances, or the existence between the parties of a confidential relationship.

(Punctuation and footnotes omitted.) Hunter, Maclean &c., P.C. v. Frame, 269 Ga. 844, 846 (1) (507 SE2d 411) (1998) (“Frame”); see also OCGA § 9-3-96; Riddle v. Driebe, 153 Ga. App. 276, 280-281 (265 SE2d 92) (1980).

Where a confidential relationship exists, a plaintiff does not have to exercise the degree of care to discover fraud that would otherwise be required, and a defendant is under a heightened duty to reveal fraud where it is known to exist. Put another way, a confidential relationship imposes a greater duty on a defendant to reveal what should be revealed, and a lesser duty on the part of a plaintiff to discover what should be discoverable through the exercise of ordinary care. But the fraud itself — the defendant’s intention to conceal or deceive — still must be established, as must the deterrence of a plaintiff from bringing suit. ... It follows that the existence between the parties of a confidential relationship is not a separate and independent basis for tolling, but rather it is an important factor affecting the duty to disclose and the duty of ordinary diligence, to be considered in the fraud analysis itself. . . . [T]he limitation period is tolled only by intentional concealment that debars or deters the plaintiff’s bringing of an action. . . . But the fraud itself — the defendant’s intention to conceal or deceive — still must be established, as must the plaintiff’s deterrence from bringing suit.

Frame, supra at 848-849.

Plaintiff has pointed to no evidence in the record that raises a material issue of fact that the defendants had an intention to conceal or deceive and that such conduct deterred the plaintiff from suit. See Frame, supra at 847-849; Vincent v. Bunch, 240 Ga. App. 255, 257 (1) (522 SE2d 495) (1999); Arnall, Golden & Gregory v. Health Svcs., 197 Ga. App. 791, 792-793 (2) (399 SE2d 565) (1990).

Plaintiff can point to no intentional misrepresentations that misled or deterred suit. Instead, plaintiff only contends that failure to disclose was sufficient during the existence of the confidential relationship without the necessity to tender a scintilla of evidence that the defendants had the intent to deceive or conceal and that plaintiff was thereby debarred from filing suit against the defendants; this fails to satisfy the elements of fraud necessary to toll the statute. See Frame, supra at 848-849. Under the facts of record and all favorable inferences drawn for the plaintiff, defendants were entitled to the grant of summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Decided November 30, 2000

Reconsideration denied December 21, 2000

Robert H. Benfield, Jr., for appellant.

Gorby, Reeves, Peters & Burns, Michael J. Gorby, Karen E. Cooper, Daniel E. Turner, Christine A. Carson, for appellees.

2. Division 1 controls the plaintiff’s other four enumerations of error.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


author: Andrews, Presiding Judge.

text:
    A00A1826.
    BASSETT v. HARRINGTON.
    (543 SE2d 798)
   Andrews, Presiding Judge.

Elizabeth Bassett sued Lawrence Harrington alleging that she sustained personal injuries caused by Harrington’s negligent operation of the automobile in which she was riding as a passenger. About seven weeks after the suit was filed, Bassett and Harrington married. The trial court subsequently granted a motion for summary judgment in favor of Harrington asserting that the interspousal tort immunity doctrine barred the suit. Bassett appeals claiming that the doctrine does not apply where the marriage between the parties occurred after the suit was filed.

Under the common law doctrine of interspousal tort immunity (codified at OCGA § 19-3-8), actions between spouses for personal torts committed by one spouse against the other are barred, except where the traditional policy reasons for applying the doctrine are absent. Shoemake v. Shoemake, 200 Ga. App. 182, 183 (407 SE2d 134) (1991). In Robeson v. Intl. Indem. Co., 248 Ga. 306 (282 SE2d 896) (1981), the Supreme Court of Georgia upheld the common law doctrine of interspousal tort immunity pointing out the traditional policy reasons behind barring such suits, including the belief that truly adversarial suits between spouses would disrupt marital harmony and the fear that nonadversarial suits between spouses would be fraudulent, collusive, or frivolous. Accordingly, Robeson reaffirmed the rule that, during marriage, an action for tortious injury to the person cannot be maintained by one spouse against the other. Id. at 307. The fact that Bassett and Harrington married after the suit was filed does not change this rule.

Decided December 22, 2000.

Eric K. Maxwell, for appellant.

Sharon W. Ware & Associates, William M. Amos, Smith, Welch & Brittain, E. Gilmore Maxwell, Richard W. Kelley, for appellee.

The trial court correctly granted summary judgment in favor of Harrington on the basis that the suit was barred by the doctrine of interspousal tort immunity.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.


text:
    A00A1968.
    MOSS v. DEPARTMENT OF PUBLIC SAFETY et al.
    (543 SE2d 799)
   Andrews, Presiding Judge.

In a suit brought pursuant to the Georgia Tort Claims Act against the Georgia Department of Public Safety (the Department) and the Georgia State Patrol (a division of the Department), Daniel C. Moss alleged that, while exiting the State Patrol office in Lawrenceville, he was injured when he slipped and fell because of a hazardous condition which the Department and the State Patrol negligently allowed to exist on the premises. Because the record shows that the alleged hazard was not a condition on the premises that the Department or the State Patrol had a duty to correct, and that it was an obvious condition which Moss saw and could have easily avoided, we affirm the trial court’s grant of summary judgment in favor of the Department and the State Patrol.

1. The record shows that Moss left the State Patrol office on a rainy day and started walking to his car parked in the adjacent parking lot. Instead of walking on the paved sidewalk leading to the parking lot, Moss took a shortcut to the parking lot on what appeared to be a worn path across a grassy area. When he encountered a shallow puddle of water which had accumulated in a depressed area of the grass, he attempted to jump over the puddle. Moss said that he took a step at the edge of the puddle to attempt the jump, and the “ground gave way” or his “foot slid on into the mud or whatever,” causing him to fall. There was no evidence that anyone else had previously slipped and fallen in the area because of these conditions.

First, we decline to hold that the Department or the State Patrol was negligent in allowing a puddle of rainwater to accumulate on the ground outside its office. It is common knowledge that puddles of water will accumulate on the ground on rainy days. Neither the Department nor the State Patrol was required to insure that the grass on its premises was perfectly level and free of any depression in which a shallow puddle could form when it rains. Tanner v. Larango, 232 Ga. App. 599, 600 (502 SE2d 516) (1998). It follows that the natural, temporary accumulation of rainwater in the depressed area of the grass did not create a condition on the premises which the Department or the State Patrol, in the exercise of ordinary care, had a duty to remove or remedy to keep the premises safe. OCGA § 51-3-1.

Second, the puddle was an obvious, static condition which Moss saw and could have easily avoided by taking the sidewalk to the parking lot. Instead, Moss failed to exercise due care for his own safety when he confronted the condition and performed an obviously dangerous act by attempting to jump over it. “A plaintiff is held accountable for the failure to exercise due care for personal safety when doing an obviously dangerous act, and that failure is regarded as the sole proximate cause of the injury.” City of Winder v. Girone, 265 Ga. 723, 724 (462 SE2d 704) (1995).

The trial court properly granted summary judgment in favor of the Department and the State Patrol.

2. Moss contends the trial court erred by granting the Department’s motion in limine to exclude evidence that, after the accident, the Department constructed a sidewalk across the grassy area in order to comply with a subsequent Americans with Disabilities Act survey. As set forth in Division 1, supra, the grant of summary judgment was proper regardless of whether this evidence was excluded or considered by the trial court in ruling on the summary judgment motion. There was no error.

3. We find no error in the fact that, after the trial court initially denied the Department’s motion for summary judgment, it sua sponte reconsidered its earlier denial and granted the motion for summary judgment. It was within the discretion of the trial court to reconsider its earlier denial of summary judgment, and no additional notice to Moss was necessary since he had already been given a full and fair opportunity to respond to the motion when it was first presented to the trial court. T. L. Rogers Oil Co. v. South Carolina Nat. Bank, 203 Ga. App. 605, 606 (417 SE2d 336) (1992); Plantation Pipeline Co. v. Royal Indem. Co., 245 Ga. App. 23, 29-30 (537 SE2d 165) (2000).

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

Decided December 22, 2000.

Jewett & Clark, Robin F. Clark, for appellant.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, David B. Fife, Assistant Attorney General, for appellees.