text:
    A91A1533.
    A91A1534.
    HENDON v. DeKALB COUNTY et al. PIRKLE v. HENDON.
    (417 SE2d 705)
   Beasley, Judge.

Hendon instituted this suit against DeKalb County and various of its officers and employees, based upon their response to a “911” emergency telephone call placed by him. The trial court held that the defense of sovereign immunity bars suit against the county and its officers in their official capacities, but that the police officer who had been dispatched to Hendon’s residence could be sued in his individual capacity. Hendon appeals. The police officer, Pirkle, cross-appeals.

Summary of evidence related to issues on appeal

After suffering the onset of a stroke in the early morning hours of July 6, 1986, Hendon placed two “911” calls to DeKalb County’s emergency telephone system, which is operated by the Communications Division of the DeKalb County Department of Public Safety. The second call, which is the only one in issue, began at 5:08 p.m. and ended at 6:04 p.m., was answered by switchboard operator Jackson. She testified that the caller was breathing heavily and unable to speak; she repeatedly asked him to state his name, address, and telephone number, and whether he needed an ambulance or police assistance, but his responses were incoherent and inaudible. At one point, Jackson told the caller that if he was playing on the phone, the police would come and take him to jail. She testified that she said this because she could only hear him breathing deeply, and they get a lot of crank calls from children who do that.

Hendon argues that during this telephone conversation, his respiratory pattern was labored, and although he was unable to speak clearly, on repeated occasions he made affirmative responses to questions as to whether he needed an ambulance; he repeatedly voiced the words “Help” and “Help me”; and he moaned and voiced other discernible expressions of physical pain.

The “911” telephone conversation was recorded on a reel-to-reel tape being played on a Dictaphone 5500 machine used by the county in operating its “911” system. From this tape, plaintiff made three audio tape recordings, which were admitted in evidence, as well as a videotape. One of these audio tapes technologically enhanced the sound quality of the conversation by deleting static and background noise. The videotape was not admitted in evidence. Jackson testified that although she could hear the caller uttering the words “Help” or “Help me” on the videotape, she could not hear these words during the telephone conversation.

Shortly after the telephone conversation began, Jackson requested assistance from her supervisor Blackwell, who began to monitor the conversation and question the caller. At Blackwell’s request, a Southern Bell operator traced the call. Blackwell told the operator that the caller was unable to breath and in distress.

The procedure adopted is as follows. “911” switchboard operators ascertain the location of a call and determine whether the caller is requesting assistance from one of three response units: the police, firemen, or emergency medical service (EMS). Once that determination is made, the operator relays the information by computer to a radio dispatcher, who transmits the information through signals to the appropriate response unit in the geographical area in which the caller is located. The signal determines the priority of the call and the requested response unit. The switchboard operators and radio dispatchers relay whatever information is given them. If the requested response is unclear, the police are generally dispatched because they have the shortest response time. Discretion in determining the assistance which should in fact be provided is exercised by the response units on the scene.

Blackwell forwarded Hendon’s call to the radio dispatcher as a Signal 13, which is a “check location” low-priority non-emergency dispatch directed to the police department. The proper response to a situation involving a person in respiratory distress is a Signal 02L, which is a high-priority “person down, life-threatening” medical emergency. This brings in an ambulance and emergency medical technicians. At the time of the dispatch, Jackson entered the following comments into the computer system: “Caller . . . cannot give address/ poss needs help/operator traced call to this address . . . phone number comes back to Mr. E. T. Herndo [sic].”

The radio dispatcher, Fitzpatrick, testified that in a radio communication to Sergeant Pirkle, she stated that the caller was “possibly having respiratory distress,” and she made this statement because Blackwell had repeatedly so advised. Blackwell denied telling Fitzpatrick that the caller was possibly having respiratory distress, and she testified that she would have sent an ambulance if she was aware that this was the problem.

The initial radio dispatch was received by Officer C. E. Hall, who was the first officer to arrive on the scene. He recognized the name Hendon to be that of a lawyer or judge. Sergeant Pirkle, who next arrived, knew Hendon was a former superior court judge. Pirkle testified that Hendon had a reputation for heavy drinking, and in a radio communication from him to Fitzpatrick he stated that Hendon sounded drunk. Hall checked all windows and doors in an attempt to gain entry into the house. He advised Pirkle that he could break the glass in the back door and easily gain entry. Pirkle knocked on the back door and requested Fitzpatrick to inform thé caller that Pirkle was at the door and wanted to be let in. In response, Fitzpatrick erroneously stated that Hendon “refused” to come to the door. She was later given a reprimand as a result, in that “refused” means unwilling, which significantly differs from “unable.” At 6:02 p.m., Pirkle made a radio dispatch stating, “We’re going to be 10-8 [in service]. I assume he’s 10-4 [ok].”

The following day, at approximately 5:00 p.m., Hendon’s son returned home from out of town and found his father lying next to his bed and wearing a pajama top. He called “911” and an ambulance was sent. There was expert testimony that the delay in the receipt of medical care and treatment significantly contributed to Hendon’s permanent neurological damage.

Procedural history

Hendon filed this complaint against: DeKalb County; F. D. Hand, Jr., individually and in his official capacity as the Director of the DeKalb County Department of Public Safety; Leroy Pirkle, individually and in his official capacity as DeKalb County Police Sergeant; and “Jane Doe” and “John Roe,” unidentified persons in their individual and official capacities as DeKalb County “911” emergency telephone system switchboard operators, police dispatchers, police officers, and employees or officials with responsibility for implementing the “911” system and supervising or training its personnel.

Plaintiff seeks recovery against the defendants under state tort law and 42 USC § 1983. He alleges that “[defendants’ acts or omissions to act, as set forth in this Complaint, constituted gross negligence, conscious and deliberate indifference to the consequences, conscious and reckless disregard for the consequences, callous and arbitrary misuse and abuse of governmental power and authority, intentional wanton and willful misconduct, and/or bad faith.”

After discovering the identities of the unknown defendants, Hen-don sought to amend his complaint to add as party defendants Blackwell, Fitzpatrick, Hall, and Jackson, Brooks (another “911” switchboard operator), and Noles (Manager of the Communications Division of the Department of Public Safety). For insufficient service and for expiration of the statute of limitation, the trial court denied Hendon leave to so amend.

The court granted defendants’ motion to dismiss those parts of plaintiff’s complaint based on 42 USC § 1983. As to plaintiff’s state tort claims, the court held that under the state statutory scheme governing “911” emergency telephone systems, sovereign immunity bars suit against the county, but that county employees are personally liable for wilful misconduct, gross negligence, or bad faith.

The court initially denied the county’s motion for summary judgment based on the fact that in 1985 the county established a self-insurance fund which operates as a waiver of sovereign immunity under the Georgia Constitution, Art. I, Sec. II, Par. IX, as held in Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 301 (357 SE2d 569) (1987). Following the decision of the Georgia Supreme Court in Logue v. Wright, 260 Ga. 206 (392 SE2d 235) (1990), the court reversed the ruling and held that DeKalb County had not waived its defense of sovereign immunity. Summary judgment was entered in favor of the county, as well as Hand and Pirkle in their official capacities.

However, the court ruled that as to claims filed against Pirkle in his individual capacity, he was not entitled to summary judgment, because allegations that he acted outside his official capacity by acting maliciously, wantonly, and recklessly are based on disputed facts which must be determined by a jury. Because of the absence of such allegations against Hand, the court ruled that he was entitled to summary judgment as to the claims filed against him in his individual capacity.

Case No. A91A1533

1. Appellant contends that the trial court erred in failing to hold that the defense of sovereign immunity was waived through the county’s establishment and funding of a program of “self-insurance.” He relies on the provision in the Georgia Constitution of 1983, Art. I, Sec. II, Par. IX, that “the defense of sovereign immunity is waived as to those actions for the recovery of damages for any claim against the state or any of its departments and agencies for which liability insurance protection for such claims has been provided but only to the extent of any liability insurance provided.” He also contends that counties constitute “departments and agencies” of state government under Paragraph IX. That is correct. Toombs County v. O’Neal, 254 Ga. 390 (1) (330 SE2d 95) (1985) (three-justice plurality opinion). See also Ostuni Bros. v. Fulton County Dept. of Public Works, 184 Ga. App. 406, 407 (1) (361 SE2d 668) (1987) (cert. denied, see 184 Ga. App. at 910). The question, then, is whether the county’s sovereign immunity was waived.

The Deputy Director of Finance for Risk Management for DeKalb County testified that in prior years the county had purchased liability insurance policies for its law enforcement personnel and public officials, but in 1985 the county allowed these policies to lapse because the premiums had become too expensive.

Afterwards, the county took the monies which would have been used to pay those liability insurance premiums and established a defense and indemnification fund pursuant to OCGA §§ 45-9-21 and 45-9-22, which are part of Title 45, Chapter 9, Article 2. As we read the Code sections comprising Article 2 (OCGA §§ 45-9-20 through 45-9-23), it is their intent, with certain exceptions, to authorize a county, municipality, or other public body to purchase insurance or adopt policies to indemnify governmental employees or officers against personal liability for damages arising out of the performance of their duties (OCGA §§ 45-9-20; 45-9-22), and to defend actions in which such damages are sought (OCGA § 45-9-21), in those instances in which a defense of sovereign or official immunity is unavailable (OCGA § 45-9-23). Compare OCGA § 33-24-51; Shuman v. Dyess, 175 Ga. App. 213 (1) (333 SE2d 379) (1985). The deputy director testified that the county established the defense and indemnification fund because it did not wish to waive sovereign or official immunity. A DeKalb County ordinance, to which he referred, so provides.

In Logue v. Wright, supra at 209, the Supreme Court recognized that where a county provides a defense to employees in a legal action pursuant to OCGA § 45-9-21, it does not waive its sovereign immunity. The Supreme Court in Logue held “that under the statutes dealing with liability insurance for government employees and officials, only state self-insurance plans will waive sovereign immunity. There is no provision for a county to set up a self-insurance plan.” See Pizza Hut of America v. Hood, 198 Ga. App. 112, 113 (2) (400 SE2d 657) (1990); Hospital Auth. of Fulton County v. Litterilla, 199 Ga. App. 345, 350 (2a) (404 SE2d 796) (1991). However, the Supreme Court granted certiorari in Litterilla and has recently held that commercial liability insurance together with a self-insurance plan waives the sovereign immunity which a county hospital authority would otherwise have. Litterilla v. Hosp. Auth. of Fulton County, 262 Ga. 34 (413 SE2d 718) (1992). Nonetheless, the Supreme Court continued to recognize that plans such as the one here are in essence additional employee benefits and do not waive the government entity’s sovereign immunity. Litterilla, supra at 36. DeKalb County’s fund here at issue is simply one which provides a benefit “[i]n addition to . . . other compensation. . . .” OCGA § 45-9-20.

Under Logue and in conformity with OCGA § 45-9-23, the maintenance of the fund for personal liability does not waive sovereign immunity, and since that aspect of the Logue decision was approved in Litterilla, we hold that the county’s establishment and maintenance of the defense and indemnification fund for its personnel does not constitute a waiver of its sovereign immunity.

2. Appellant contends that the trial court erred in granting summary judgment to the county based on the defense of sovereign immunity, and to Pirkle and Hand in their official capacities based upon a defense of official immunity.

(a) “The doctrine of sovereign immunity has been recognized in this state since the adoption of the common law. [Cit.] It also applies to political subdivisions of the state, including counties. [Cits.]” Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980). “A county is not liable to suit for any cause of action unless made so by statute.” OCGA § 36-1-4; Shuman, supra at 215. “The General Assembly may waive the immunity of counties, municipalities, and school districts by law.” Ga. Const, of 1983, Art. IX, Sec. II, Par. IX; Toombs County, supra at 391.

“ ‘Any suit against an officer or agent of the State, in his official capacity, in which a judgment can be rendered controlling the action or property of the State in a manner not prescribed by statute, is a suit against the State . . .’ and cannot be maintained without its consent. [Cit.]” Hennessy, supra at 330.

Under sovereign immunity principles, a public officer or employee, acting within the scope of his authority and engaged in discretionary as opposed to ministerial functions, is entitled to immunity from suit provided the acts complained of are done within the scope of the officer’s authority and without wilfulness, fraud, malice or corruption. Id. at 331.

(b) As previously stated, a county is a “department” or “agency” of the State under Paragraph IX, which provides, following the part quoted above: “[T]he sovereign immunity of the state or any of its departments and agencies may hereafter be further waived by Act of the General Assembly which specifically provides that sovereign immunity is hereby waived and the extent of the waiver.”

(c) The question in this case is whether the General Assembly, in its enactment of the “Georgia Emergency Telephone Number ‘911’ Service Act,” OCGA § 46-5-121, has waived defenses of sovereign and official immunity which could otherwise be asserted by the county and its employees and officers in their implementation and operation of the “911” telephone system.

This Act charges the Telecommunications Division of the Department of Administrative Services with responsibility for developing a plan for implementing a state-wide emergency telephone number “911” system. OCGA § 46-5-124 (a). Subject to certain requirements, local government, such as DeKalb County, may operate an emergency “911” system or contract with a service supplier for the operation of such a system. OCGA § 46-5-133. A service supplier is a local telephone exchange service facilitating the placement of telephone calls within an emergency “911” system. OCGA § 46-5-122 (3) and (9).

Questions concerning the availability of the defenses of sovereign and official immunity in this case are based on the interpretation of OCGA § 46-5-131 (a). It provides: “Whether participating in a statewide emergency ‘911’ system or an emergency ‘911’ system serving one or more local governments, neither the state nor any local government of the state nor any emergency ‘911’ system provider, its employees, directors, officers, and agents, except in cases of wanton and willful misconduct or bad faith shall be liable for death or injury to the person or for damage to property as a result of either developing, adopting, establishing, participating in, implementing, maintaining, or carrying out duties involved in operating the ‘911’ emergency telephone system. ...”

In keeping with sovereign immunity principles, OCGA § 46-5-131 (a) does manifest an intent not to impose liability upon any person or entity providing emergency “911” telephone services, “except in cases of wanton and willful misconduct or bad faith.” However, in order to hold the county vicariously liable for the “wanton and wilful misconduct or bad faith” of its officers and employees under Paragraph IX, it would be necessary for us to hold that OCGA § 46-5-131 (a) “specifically provides that sovereign immunity [of the county] is hereby waived and the extent of the waiver.” On its face, OCGA § 46-5-131 (a) does not do this. Compare OCGA § 46-5-131 (b), which provides that no local government shall be required to indemnify or defend any emergency “911” system provider from any liability arising from subsection (a) unless the local government has agreed to assume such obligation; OCGA § 46-5-135, which provides that a service supplier is not liable for any act or omission of its employees, directors, officers, or agents “except for willful or wanton misconduct.” Therefore, there is no waiver of the county’s immunity.

3. Appellant contends that the trial court erred in dismissing his § 1983 claims.

Section 1983 imposes liability where persons acting under color of state law have deprived an individual of a federal constitutional or statutory right. Wideman v. Shallowford Community Hosp., 826 F2d 1030, 1032 (11th Cir. 1987). Federal constitutional law does not require a state to provide its citizens with protective services in the event of medical emergencies. Even if the state undertakes to provide such services, its failure to render same in a proper manner or in violation of state law does not violate the Due Process Clause of the United States Constitution, unless the state created the medical emergency or the person was in state custody or control at the time of the emergency. DeShaney v. Winnebago County Dept. of Soc. Svcs., 489 U. S. 189 (109 SC 998, 103 LE2d 249) (1989). See Cleveland v. Fulton County, 196 Ga. App. 168, 169 (1) (396 SE2d 2) (1990) and cits.; accord Davis v. City of Roswell, 250 Ga. 8 (295 SE2d 317) (1982). The state did not create Hendon’s medical emergency, and he was not in state custody or control.

4. For reasons given in Division 5, infra, the last enumeration of error, concerning the trial court’s refusal to allow the addition of named party defendants in lieu of generic defendants after their identities were ascertained, is moot.

Case No. A91A1534

5. Sergeant Pirkle contends that the trial court erred in denying his motion for summary judgment on grounds of official immunity, in that the court applied an incorrect legal standard for determining whether a county employee is entitled to official immunity from suit in his individual capacity.

OCGA § 46-5-131 (a) provides that an employee of a local governmental unit providing an emergency “911” telephone system shall not be liable “except in cases of wanton and willful misconduct or bad faith.”

Wanton and wilful conduct differs from gross negligence. Truelove v. Wilson, 159 Ga. App. 906, 908 (4) (285 SE2d 556) (1981). Wilful conduct is based on an actual intention to do harm or inflict injury; wanton conduct is that which is “ ‘so reckless or so charged with indifference to the consequences ... as to justify the jury in finding a wantonness equivalent in spirit to actual intent.’ [Cit.]” Id. “ ‘Bad faith’ is not simply bad judgment or negligence, but it imports a dishonest purpose or some moral obliquity, and implies conscious doing of wrong, and means breach of known duty through some motive of interest or ill will. [Cit.]” Vickers v. Motte, 109 Ga. App. 615, 619 (137 SE2d 77) (1964).

There is no evidence to support a finding that Sergeant Pirkle engaged in “wanton and wilful misconduct or bad faith,” as opposed to gross negligence. See Truelove, supra; King v. Smith, 47 Ga. App. 360, 366 (170 SE 546) (1933); accord Holloway v. Dougherty County School System, 157 Ga. App. 251 (277 SE2d 251) (1981); compare Vickers, supra; Central of Ga. R. Co. v. Moore, 5 Ga. App. 562, 565 (63 SE 642) (1908).

Relating to Division 4 above, there is likewise no evidence which would support findings that the other individuals which Hendon seeks to hold personally liable engaged in “wanton and willful misconduct or bad faith.” As acknowledged by Hendon, even though the unnamed defendants were not made parties, discovery in this case was undertaken and the evidence was developed as though they had been made parties.

Thus, summary judgment was required as to these defendants also because defendant Pirkle “demonstrate[d] by reference to evidence in the record that there is an absence to support at least one essential element of the non-moving party’s [i.e., plaintiff Hendon’s] case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991).

Judgment affirmed in Case No. A91A1533. Judgment reversed in Case No. A91A1534.

Johnson, J., concurs. Carley, P. J., concurs in the judgment only.

On Motion for Reconsideration.

1. That aspect of the Logue decision upon which our holding is based in Division 2 was not disapproved in the Supreme Court’s decision in Hiers v. City of Barwick, 262 Ga. 129 ( 414 SE2d 647) (1992).

2. We deal with the question of whether defenses of sovereign and official immunity have been waived based on our interpretation of OCGA § 46-5-131 (a), in Division 2 (c) of the opinion (p. 756). That statute, as amended by Ga. L. 1990, p. 179, § 2, provides for liability in cases of “wanton and willful misconduct or bad faith” of a “911” system provider’s employees, directors, officers, and agents.

Decided March 18, 1992

Reconsideration denied April 3, 1992

The Keenan Ashman Firm, Don C. Keenan, David S. Bills, for appellant.

Johnson & Montgomery, Albert S. Johnson, Susan C. Mullís, for appellees.

Hendon argues on motion for reconsideration that this case is controlled by OCGA § 46-5-131, as enacted by Ga. L. 1984, p. 652, § 1, which provided for liability in cases of “willful misconduct, gross negligence, or bad faith.”

Hendon is incorrect. It is well recognized that a reviewing court should apply the law as it exists at the time of its judgment, when no vested right will be adversely affected. Evans v. Belth, 193 Ga. App. 757, 759 (388 SE2d 914) (1989). Until the time for review has passed, a party has no vested right to a cause of action which has been removed by legislative enactment. Hensel Phelps Constr. Co. v. Johnson, 161 Ga. App. 631, 632 (295 SE2d 843) (1982), rev’d on other grounds Johnson v. Hensel Phelps Constr. Co, 250 Ga. 83 (295 SE2d 841) (1982).

       This provision was eliminated as such in the amendment of 1990, which among other things authorized the enactment of a State Tort Claims Act which could waive the state’s sovereign immunity. Ga. L. 1990, p. 2435, approved in general election of 1990. Ga. L. 1991, pp. CCCXXIV, CCCXXXI.


source: Caselaw Access Project

author: Andrews, Judge. Beasley, Judge, McMurray, Presiding Judge,

license: Public Domain

text:
    A91A1673.
    ROBINSON v. THE STATE.
    (417 SE2d 404)
   Andrews, Judge.

Robinson appeals his conviction for trafficking in cocaine resulting from an August 1989 search of a mobile home. Three other co-defendants are not involved in this appeal.

1. In his first two enumerations of error, Robinson contends that the evidence was insufficient to sustain the verdict. We disagree.

The state presented evidence that when the search warrant was executed, the knock was answered by co-defendant Hart. Hart and Marcial Robinson had been observed going into the trailer 30 minutes before the warrant was executed. Prior to arriving at the trailer, the two men had been observed in another location. Robinson was known to use at least two aliases, Anthony R. and Anthony Chicago, and the warrant upon which the search was based named “Anthony” as a suspect. Upon entering, the officer saw Robinson standing in the living room of the mobile home. In the middle of the living room floor, on an old air conditioner used as a table, were numerous one-inch by one-inch plastic bags of a type used to package crack cocaine for sale, a razor blade and pieces of styrofoam. No crack was found in the living room although marijuana was. Upon seeing the officer, Robinson ran directly to the bathroom in the rear of the trailer and into the rear bedroom through the bathroom’s rear door. He was pursued by the officer who witnessed Robinson throw a large amount of cash under the bed. Eight hundred and forty-eight dollars were found under the bed; two large plastic bags containing much larger pieces of crack were found in the bathroom, one in the commode tank and one in view on top of the medicine cabinet. A single rock of crack was found in a bag in Robinson’s sock and $50 in cash in his pocket. Two women and a child were also in the bedroom watching television. Hart pled guilty to trafficking, the two women were found not guilty, one by jury and the other by directed verdict.

“Under White v. State, 253 Ga. 106, 107 (317 SE2d 196) (1984), ‘circumstantial evidence must exclude only reasonable inferences and hypothes[e]s and it is not necessary that such evidence be devoid of every inference or hypothesis except that of the defendant’s guilt.’ ” Peppers v. State, 261 Ga. 338, 339 (1) (404 SE2d 788) (1991). See also Torgerson v. State, 200 Ga. App. 837, 839 (1) (410 SE2d 40) (1991).

“ ‘Questions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb the finding, unless the verdict is unsupportable as a matter of law.’ [Cits.]” Chambless v. State, 165 Ga. App. 194, 196 (2) (300 SE2d 201) (1983). Here, the jury’s conclusion that Robinson was a seller, thereby rejecting his proffered hypothesis, cannot be said to be unsupportable as a matter of law. Resolution of conflicting theories drawn from evidence is for the jury and it is not our province to reweigh the evidence and their inferences drawn from it. Holcomb v. State, 198 Ga. App. 547 (402 SE2d 520) (1991); see OCGA § 24-9-80.

This case is factually similar to In the Interest of A. H., 199 Ga. App. 178 (404 SE2d 341) (1991). Thus, applying the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we hold that the evidence was amply sufficient to enable a rational trier of fact to find Robinson guilty beyond a reasonable doubt of the offense of trafficking in cocaine. See In the Interest of A. H., supra.

2. Defendant contends that he was denied effective assistance of counsel. This enumeration of error is predicated on trial counsel’s calling neither defendant nor co-defendant Hart as witnesses at trial. The evidence developed on the hearing on defendant’s motion for new trial on this ground shows that defendant’s trial counsel discussed the advantages and disadvantages of presenting such evidence with defendant and that it was mutually decided as a matter of trial strategy that neither would be called to testify. The superior court did not err in holding that under these circumstances ineffective assistance of counsel was not shown. Nichols v. State, 257 Ga. 558 (2a) (361 SE2d 486) (1987). Nor do we find error in the superior court’s conclusion that there was no reasonable probability that the result of the proceeding would have been different had these witnesses been called. Reese v. State, 257 Ga. 624, 625 (2) (361 SE2d 796) (1987).

3. Defendant enumerates the denial of his motion to dismiss the indictment. Both before the trial court and here, Robinson complained only of the delay following his arrest and prior to his indictment, not post-indictment/pre-trial delay. Thus, the alleged violation of his Fifth and Fourteenth Amendment rights is meritless. See generally Haisman v. State, 242 Ga. 896, 897 (2) (252 SE2d 397) (1979). Accordingly, this enumeration presents nothing for our review.

4. The trial court did not err in refusing to include, in the charge to the jury, defendant’s requested instructions numbers 2 and 3 which incorporated the doctrine of “equal access.” “This defense is available to an accused to whom a presumption of possession flows. [Cit.]” Daniels v. State, 192 Ga. App. 446, 448 (5) (385 SE2d 107) (1989).

5. The defendant contends that it was error for the trial court to permit the state expert, a crime laboratory chemist, to testify concerning the “street value” of the confiscated drugs because he was not qualified as an expert and because his testimony was based on inadmissible hearsay. The chemist testified that he had accumulated knowledge of the street value of cocaine as a result of his experience over years of comparing the prices paid by undercover officers during their undercover purchases with that which was supplied to him for analysis.

“It is within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular art, science or profession as to entitle him to be an expert. [Cit.] ‘To qualify as an expert (see [OCGA § 24-9-67]), generally all that is required is that a person must have been educated in a particular skill or profession; his special knowledge may be derived from experience as well as study.’ [Cit.]” Evans v. State, 176 Ga. App. 818, 822 (3) (338 SE2d 48) (1985). Inasmuch as the trial court’s ruling is supported by the evidence, we find no abuse of discretion. Ingram v. State, 178 Ga. App. 292 (1) (342 SE2d 765) (1986).

Likewise, the chemist’s testimony as to street value of drugs was not inadmissible because based in part on hearsay. Blackburn v. State, 180 Ga. App. 436 (3) (349 SE2d 286) (1986).

In addition, since the witness testified as to the basis for his estimate of value, it was not necessary that he be qualified as an expert. OCGA § 24-9-66.

Judgment affirmed.

Sognier, C. J., Birdsong, P. J., Pope, Cooper and Johnson, JJ., concur. Beasley, J., concurs specially. McMurray, P. J., and Parley, P. J., dissent.

Beasley, Judge,

concurring specially.

I concur fully in Divisions 2-5. I concur in Division 1 except that I do not agree that the case is “factually similar” to In the Interest of A. H., 199 Ga. App. 178 (404 SE2d 341) (1991), to the extent found by the majority in its analysis. I do agree that the evidence here was amply sufficient to sustain a conviction.

McMurray, Presiding Judge,

dissenting.

There is no evidence showing defendant’s relationship with the other individuals found on the premises. It was not established that defendant had any possessory or proprietary interest in the premises. There is no evidence showing a connection between defendant and the cocaine found concealed in the bathroom. The evidence, including defendant’s possession of 1.1 grams of cocaine, his flight upon arrival of the officers, and his possession of a quantity of currency ($848), was not sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that his presence in the residence was in the capacity of seller or co-conspirator rather than purchaser. Ridgeway v. State, 187 Ga. App. 381 (370 SE2d 216).

While alluding to hearsay statements upon which the search warrant was predicated and citing black letter law concerning the jury’s place in the resolution of conflicting evidence, the majority fails to reference any evidence presented at trial which demonstrates a connection between defendant and the crack cocaine found in the bathroom. Furthermore, the majority’s reliance upon In the Interest of A. H., 199 Ga. App. 178 (404 SE2d 341) is entirely misplaced. The juveniles in In the Interest of A. H. were shown to have been present in the room where a shipment of cocaine was received, and then cut and packaged for sale. The decision in In the Interest of A. H. placed great emphasis on the juveniles’ presence in the room while the cocaine was received and processed. In contrast, there is no evidence that defendant had any knowledge of the cocaine in the bathroom or had ever been in the same room with that cocaine prior to his attempt to escape the entering officers by that route.

While the evidence is sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that defendant possessed I. 1 grams of cocaine, a similar conclusion that he possessed a greater quantity of cocaine is not authorized since no direct or circumstantial evidence has established that defendant possessed the bathroom caches of cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Due to the lack of proof that defendant possessed the requisite quantity of cocaine (28 grams, see OCGA § 16-13-31 (a) (1)), his conviction for trafficking in cocaine should be reversed and defendant resentenced on the lesser included offense of possession of cocaine. Hogan v. State, 193 Ga. App. 543 (1) (388 SE2d 532).

Decided March 18, 1992

Reconsideration denied April 3, 1992

Leon M. Braun, Jr., for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

I am authorized to state that Presiding Judge Carley joins in this dissent.


author: Beasley, Judge.

text:
    A91A1709, A91A1710.
    FEDERAL INSURANCE COMPANY v. NATIONAL DISTRIBUTING COMPANY, INC.; and vice versa.
    (417 SE2d 671)
   Beasley, Judge.

National Distributing Company sued its commercial umbrella liability insurer, Federal Insurance Company, for refusing to indemnify it against a punitive damage claim, asserted against National in litigation in Florida arising from the commission of a tort in Florida. In Case No. A91A1709, Federal appeals the trial court’s grant of National’s motion for partial summary judgment and its denial of Federal’s motion for summary judgment. In Case No. A91A1710, National cross-appeals the trial court’s failure to enter judgment in stated monetary amounts for various damage claims asserted by National against Federal.

The facts

National, a wholesale distributor of alcoholic beverages, is a Georgia corporation with its principal place of business in Atlanta. Federal is a New Jersey corporation transacting business in Georgia through an Atlanta office. National’s one-year policy with Federal became effective on April 1, 1983. Oberdorfer, an independent insurance agency with its office in Atlanta, solicited and negotiated the policy with Federal through telephone conversations, with all parties physically present in Atlanta. The policy was delivered to National in Atlanta, National sent a check for the premium payment to Oberdorfer in Atlanta, and Oberdorfer forwarded the premium payment to Federal in Atlanta.

The insurance policy names National as the insured, Federal as the umbrella insurer, and Fireman’s Fund as the primary or underlying insurance carrier. An endorsement names 36 additional “named Insureds” located in Georgia, Florida, North Carolina, Virginia, California, and Colorado. Most of the additional named insureds are distributing companies. Seven of the named insureds are located in Florida.

In 1984, William Cason, a Florida resident, was employed by National as a salesman in the area of Pensacola, Florida. He solicited orders from bars, lounges, restaurants, and package stores in the Pensacola area and transmitted these orders to National’s central computer center in Jacksonville. In turn, the orders were conveyed to National’s warehouse in Pensacola, which shipped the liquor and invoices to the Florida buyers.

On March 20, 1984, Cason caused an automobile accident near Destín, Florida, in which Helen Hurst and others were injured. At the time of the accident Hurst was a college student residing in Georgia, and she is still a Georgia resident. She brought suit in Florida against National, Cason, and Gordon Davis, who was Cason’s sales manager. The Hurst suit, and others arising from this automobile accident, were defended by Fireman’s Fund.

Hurst sought punitive damages against National on grounds that it was vicariously liable for Cason’s aggravated conduct and that it was directly liable for its own aggravated conduct in hiring and/or retaining Cason. However, “Florida public policy prohibits liability insurance coverage for punitive damages assessed against a person because of his own wrongful conduct. [Cits.] The Florida policy of allowing punitive damages to punish and deter those guilty of aggravated misconduct would be frustrated if such damages were covered by liability insurance.” U. S. Concrete Pipe Co. v. Bould, 437 S2d 1061, 1064 (3) (Fla. 1983). For this reason, Federal notified National that it would not be liable for any direct punitive damages awarded Hurst in the Florida litigation, although there might be coverage for imposition of punitive damages based on vicarious liability. Federal suggested that National obtain independent counsel in the Hurst case, which National did.

On the advice of independent counsel, National settled Hurst’s direct punitive damage claim for $1 million on April 23, 1987. At that time, National’s primary liability insurance had been exhausted. Under the settlement agreement, National was to pay Hurst the sum of $200,000 upon execution of the agreement and thereafter the sum of $50,000 quarterly, plus interest on the unpaid balance at 7.5 percent per annum, for four consecutive years until payment of the principal sum of $1,000,000. She later settled her remaining damage claims against National and its employees for $3 million, which was paid by Federal. Payments under the settlement agreement have been made to Hurst in Georgia.

On February 9, 1990, National instituted this action against Federal, alleging that it had made demand on Federal to indemnify it for payment of the $1 million to Hurst, and its failure and refusal to do so constituted a breach of contract, wherefore National sought reimbursement for: sums paid to Hurst to date (which totalled $864,883 in principal and interest), sums to be paid her in the future, pre-judgment and post-judgment interest, statutory bad faith penalties, and attorney fees incurred in the Hurst action and in this action.

Federal filed a motion for summary judgment on grounds that Florida tort law applies to the present controversy and under Florida law a defendant is prohibited, as a matter of public policy, from obtaining reimbursement or indemnification for punitive damages resulting from the defendant’s own wilful or wanton acts; alternatively, if Georgia law applies, the insuring of punitive damages is currently against Georgia public policy.

National filed a cross-motion for partial summary judgment on grounds that it is entitled to judgment as a matter of law on all issues arising out of this litigation except the issue of its entitlement to recovery of reasonable attorney fees in prosecuting this action.

The law

The traditional method of resolving choice-of-law issues is through a tripartite set of rules, which are lex loci contractus, lex loci delicti, and lex fori. Under the rule of lex. loci contractus, the validity, nature, construction, and interpretation of a contract are governed by the substantive law of the state where the contract was made, except that where the contract is made in one state and is to be performed in another state, the substantive law of the state where the contract is performed will apply. General Elec. Credit Corp. v. Home Indem. Co., 168 Ga. App. 344, 349 (2) (309 SE2d 152) (1983). Under the rule of lex loci delicti, tort cases are governed by the substantive law of the state where the tort was committed. Ohio Southern Express Co. v. Beeler, 110 Ga. App. 867, 868 (1) (140 SE2d 235) (1965). Under the rule of lex fori, procedural or remedial questions are governed by the law of the forum, the state in which the action is brought. Menendez v. Perishable Distrib., 254 Ga. 300 (329 SE2d 149) (1985).

In lieu of the lex loci contractus rule, the Restatement (Second) of Conflicts, § 188 (1971) applies a multi-factor “center of gravity” or “grouping of contacts” test, which takes into consideration: the place of contracting; the place of negotiation; the place of performance; the location of the subject matter of the contract; and the domicile, residence, nationality, place of incorporation and place of business of the parties. In several jurisdictions, including Georgia and Florida, the Restatement approach has been rejected so far and the traditional method retained. General Tel. Co. of the Southeast v. Trimm, 252 Ga. 95 (311 SE2d 460) (1984); Sturiano v. Brooks, 523 S2d 1126, 1128 (4, 5) (Fla. 1988).

Even if an application of these rules renders the law of another state applicable, the forum, within constitutional limits, is not required to give the law of another state extra-territorial effect. That is only done as a matter of courtesy or comity, which will not be enforced if the law of the other state contravenes the public policy of the forum. See OCGA § 1-3-9; Commercial Credit Plan v. Parker, 152 Ga. App. 409 (263 SE2d 220) (1979).

Trial court’s order

The trial court concluded that the insurer’s liability to the insured is governed by Georgia law under the rule of lex loci contractus, since this is an action on an insurance contract and not a tort action, and under the rule of lex fori, since the question here is one of damages which is a matter of remedy or procedure. It also gratuitously found that under the multi-factor test of the Restatement, Georgia has the most significant contacts.

The trial court also held that Georgia would not follow Florida’s public policy, contained in its case law, against the insurability of punitive damages. It further held that Georgia’s Tort Reform Act of 1987 implicitly sanctions the insurability of punitive damages, and the application in this case of the Florida rule disallowing insurance coverage for punitive damages would violate the public policy of Georgia, as contained in its statutory law, allowing such coverage.

For these reasons, the trial court ruled that National has a right of indemnity from Federal for sums paid in settlement of Hurst’s direct punitive-damage claim. On February 11, 1991, the trial court entered an order granting summary judgment on all issues to plaintiff and denying summary judgment on all issues to the defendant. National’s final payment to Hurst under the settlement agreement was May 5, 1991.

The appeal

1. The starting point is that this is a suit concerning the contractual rights of a Georgia insured and the obligations of an insurer transacting business, including the contract, in Georgia. Under the rule of lex loci contractus, these issues, including the question .of whether insurance coverage for punitive damages violates public policy, are to be determined by the substantive law of Georgia. See GEICO v. Dickey, 255 Ga. 661 (340 SE2d 595) (1986); Andrews v. Continental Ins. Co., 444 S2d 479 (Fla. App. 1984); Northwestern Nat. Cas. Co. v. McNulty, 307 F2d 432, 434 (2, 4) (5th Cir. 1962).

The language of the policy provides coverage for punitive damages, and there is no exclusion from liability if punitive damages arise from occurrences or transactions in a state in which insurance coverage for punitive damages contravenes public policy. See GEICO v. Dickey, supra.

There is no choice-of-law provision in the insurance policy, and numerous of the other insureds are in other states. Under the circumstances, the law imports a presumption that the parties intended-their contract to be interpreted in accordance with Georgia law. See GEICO, supra; Dacosta v. Allstate Ins. Co., 188 Ga. App. 10 (372 SE2d 7) (1988); American Family Life Assur. Co. v. United States Fire Co., 885 F2d 826, 833 (12) (11th Cir. 1989); Sturiano v. Brooks, supra; compare Grand Sheet Metals Prods. Co. v. Aetna Cas. &c. Co., 500 FSupp. 904, 908 (4, 5) (D.C. Conn. 1980).

“Learned scholars have pointed out that insurance contracts often have no particular place where performance is contemplated. Thus, it appears reasonable to apply the law of the place where the contract was made. Stated more precisely: .‘The insurance contract is. constructively made at the place where the contract is delivered.’ [Cits.] As was pronounced in Missouri &c. Ins. Co. v. Lovelace, 1 Ga. App. 446, 465 (4) (58 SE 737): ‘Parties are presumed to contract with reference to the place of the contract. If it is valid there, it is valid everywhere.’ See Trustees of Williams Hosp. v. Nisbet, 189 Ga. 807, 811 (1) (7 SE2d 737). . . .’ [Cit.]” General Elec. Credit Corp. v. Home Indem. Co., 168 Ga. App. 344, 350 (2b) (309 SE2d 152) (1983). “It is unreasonable to require that an insured research the tort law of each state as he crosses its borders. When an insured purchases a policy of automobile insurance in Georgia which gives him protection against liability in Georgia, he is entitled to the same protection when he crosses into another state.” GEICO, supra at 662.

For these reasons, we reject the argument that the substantive law of Florida applies on the theory that Florida was the place where the contract was performed. The contract was made in Georgia, because that is “where the last act essential to the completion of the contract was done,” and where it was made controls. General Southeast Tel. Co., supra. Appellant acknowledges that the contract was executed in Georgia. Payment of the claim, i.e., performance, also occurred in Georgia.

Contrary to what the trial court held, the issues in this case concern the substantive contractual rights and obligations of the parties and not questions of remedy or procedure. Compare Joice v. Scales, 18 Ga. 725 (1) (1855) (cited in General Elec., supra).

2. Since the injured party in this case is a Georgia resident, compare Cunninghame v. Equitable Life Assur. Society of the United States, 652 F2d 306 (1) (2d Cir. 1981), we likewise reject Federal’s argument that we should afford comity to Florida’s public policy in deterring aggravated conduct in that state by disallowing insurance coverage for punitive damages. Florida’s public policy is not paramount. This case involves a Georgia corporation’s liability to a Georgia resident, so the public policy of Georgia is superior to that of Florida. See General Motors Corp. v. Nat. Auto Radiator Mfg. Co., 694 F2d 1050 (6th Cir. 1982); Andrews, supra. Georgia’s public policy concerns are the protection of both the injured party and the insured. See GEICO, supra. This case, as others, turns on its own particulars.

For the reasons given in Division 1 and in this Division, application of the lex loci contractus rule would yield the same result under the Restatement “grouping of contacts” approach.

3. In Greenwood Cemetery v. Travelers Indem. Co., 238 Ga. 313, 316 (232 SE2d 910) (1977), it was argued that contracts which insure against punitive damages are illegal as a matter of public policy, because the deterrent effect of punitive damages is lost when such damages are paid by the insurer. The Supreme Court rejected this argument, holding that this question had been resolved by the legislature through its enactment of former Code Ann. § 56-408 (1), authorizing insurance against legal liability without limitation, and former Code Ann. § 56-408 (11) authorizing miscellaneous insurance if such insurance is not disapproved by the commissioner as being contrary to law or public policy. These Acts, now OCGA § 33-7-3 (1) and (11), are still in force, and there is no evidence that there has been any change in administrative regulations since the Greenwood decision.

When Greenwood was decided, former Code Ann. § 105-2002 (OCGA § 51-12-5) authorized the imposition of punitive damages to deter the wrongdoer and as compensation for the wounded feelings of the plaintiff. The so-called Tort Reform Act of 1987 provides that, “[p]unitive damages shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant.” OCGA § 51-12-5.1 (c). Because of this change in the law, Federal argues that insurance coverage for punitive damages is now against Georgia public policy. Given Greenwood’s rationale, however, this change in the law provides an insufficient basis to rule that Greenwood’s holding has been legislatively superseded.

Cross-appeal

4. National contends that the trial court erred in not including in its judgment: (1) a stated undisputed unliquidated damage of $1 million; (2) $266,575.34 for pre-judgment interest on the liquidated sum of $1 million (from April 23, 1987 to February 11, 1991, the date of judgment), as authorized by OCGA § 7-4-15; and (3) $250,000 as a bad-faith penalty under OCGA § 33-4-6.

Federal states without contradiction that at a post-judgment hearing on a motion for supersedeas bond filed by National, which motion was later withdrawn, the trial court stated that it had intended to award summary judgment in favor of National on the issue of liability only, because it did not feel that National’s damages had been proven.

Decided March 10, 1992

Reconsideration denied April 3, 1992

Lord, Bissell & Brook, David M. Leonard, for appellant.

On the present record, National is not entitled to bad faith penalties as claimed. “To support a cause of action under OCGA § 33-4-6, the insured bears the burden of proving that the refusal to pay the claim was made in bad faith. [Cits.] ‘A defense going far enough to show reasonable and probable cause for making it, would vindicate the good faith of the company as effectually as would a complete defense to the action.’ [Cits.] ‘Penalties for bad faith are not authorized where the insurance company has any reasonable ground to contest the claim and there is a disputed question of fact.’ [Cit.]” Central Nat. Ins. Co. of Omaha v. Dixon, 188 Ga. App. 680, 683 (5) (373 SE2d 849) (1988). Where there is a doubtful question of law, the insurer is not liable for bad faith penalties. Allstate Ins. Co. v. Ammons, 163 Ga. App. 385, 386-387 (2) (294 SE2d 610) (1982).

Nor is National entitled to pre-judgment interest under OCGA § 7-4-15, which applies to liquidated demands. The amount is unliquidated where, as here, there is a bona fide dispute as to principal indebtedness. Arora v. Thakrar, 187 Ga. App. 170 (369 SE2d 524) (1988).

However, based on .our resolution of the issues presented in the main appeal, National is entitled to have Federal reimburse National for its $1 million payment to Hurst in settlement of Hurst’s claim. In moving for summary judgment, National showed that its $1 million settlement of Hurst’s direct punitive damage claim was reasonable. Federal presented no rebuttal evidence on this point. Consequently, National was entitled to summary judgment on this issue. See Cochran v. Southern Business Univ., 110 Ga. App. 666 (1) (139 SE2d 400) (1964).

National is now entitled to recover the $1 million in payment of principal under the settlement agreement, and the trial court is directed to enter judgment in favor of National in that amount. See Beneficial Standard Life Ins. Co. v. Hamby, 142 Ga. App. 449, 451 (4) (236 SE2d 116) (1977).

Judgment affirmed in Case No. A91A1709. Judgment affirmed in part and reversed in part in Case No. A91A1710.

Sognier, C. J., and Carley, P. J., concur.

Freeman & Hawkins, Edward M. Newsom, Albert H. Parnell, Barry S. Noeltner, for appellee.


author: Cooper, Judge. Pope, Judge,

text:
    A91A1712.
    BRYANT v. WAL-MART STORES, INC. et al.
    (417 SE2d 688)
   Cooper, Judge.

Appellant is the administrator of the estate of the deceased and the guardian of the deceased’s minor child. Appellees are Wal-Mart Stores, Inc. (“Wal-Mart”) and the manager of the store where the deceased worked. Appellant appeals from the trial court’s grant of summary judgment to appellees. The primary issue presented is whether appellant’s tort action is barred by the exclusive remedy provision of the Workers’ Compensation Act.

The deceased worked at a Wal-Mart store on the night restocking crew. For security reasons, the manager of the store implemented a policy of locking all doors leading into and out of the store at the close of the business day. Only management personnel had keys to the store and no one in management worked on the night crew. Consequently, employees on the night crew were locked in the store until it opened the following day without a key to exit the building. While working one night, the deceased suffered a stroke and collapsed, unconscious. When the emergency medical personnel arrived, approximately six minutes later, they were unable to enter the store because no one on the night crew had a key to the door. By the time the emergency crew was able to assist the deceased, they were unable to revive her. The deceased was taken to the hospital where she was declared brain dead, and after 15 hours, the life support systems to which she was connected were discontinued. Subsequently, appellant filed an 11-count complaint against appellees, alleging among his theories of recovery the unlawful false imprisonment of the deceased. The trial court granted appellees’ motion for summary judgment, finding that the deceased’s injuries arose out of and in the course of her employment, and appellant’s action was therefore barred by the exclusive remedy provision of the Workers’ Compensation Act (hereinafter referred to as the “Act”).

1. Appellant first asserts that the trial court erred in finding that his claim for false imprisonment was barred by the exclusivity provisions of the Workers’ Compensation Act. “False imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.” OCGA § 51-7-20. “The restraint used to create the detention must be against the plaintiff’s will and be accomplished by either force or fear. [Cit.]” Wideman v. DeKalb County, 200 Ga. App. 624 (1) (b) (409 SE2d 537) (1991). “ ‘The restraint constituting a false imprisonment may arise out of words, acts, gestures or the like, which induce a reasonable apprehension that force will be used if plaintiff does not submit; and it is sufficient if they operate upon the will of the person threatened, and result in a reasonable fear of personal difficulty or personal injuries.’ [Cit.]” Greenbaum v. Brooks, 110 Ga. App. 661, 663 (1) (139 SE2d 432) (1964). Appellant contends that from the time the deceased became ill until the time the emergency personnel entered the store, the deceased was detained against her will. Appellees argue, and the record reflects, that the deceased was not detained by force or threat against her will and also that the deceased was fully aware of the risks associated with working on the night crew and being locked inside the store. The record shows that the deceased discussed the store’s policy with her parents and expressed concern that she would not be able to get out of the store in the event of an emergency. Nevertheless, the deceased volunteered to work on the night crew. It does not appear that any act of force or restraint was taken by appellees which resulted in the deceased’s fear of personal difficulty or personal injury. Accordingly, we conclude that appellant has failed to show an essential element of false imprisonment.

Even if appellant established a claim of false imprisonment, “[i]t is well settled in this state that a claim under the workers’ compensation act is the employee’s sole and exclusive remedy for injury or occupational disease incurred in the course of employment. This edict is statutory (OCGA §§ 34-9-11 and 34-9-289), as well as judicial, and its policy reasons are well understood. [Cits.]” Ervin v. Great Dane Trailers, 195 Ga. App. 317 (393 SE2d 467) (1990). The Act precludes recovery “for wilful or intentional acts of the employer so long as the injury arises out of and in the course of employment. [Cits.]” Superb Carpet Mills v. Thomason, 183 Ga. App. 554, 556 (359 SE2d 370) (1987). Even the employer’s failure to furnish its employees with a safe place to work must be redressed under the Act. McCormick v. Mark Heard Fuel Co., 183 Ga. App. 488 (2) (359 SE2d 171) (1987). It is undisputed that the deceased was locked in the store for business purposes, that she was engaged in the performance of her work duties at the time she suffered the stroke and that the emergency medical crew was unable to render immediate assistance to the deceased due to the delay in gaining entrance to the store. Therefore, insofar as appellant seeks to recover for the death of the deceased, that claim is barred by the exclusivity provisions of the Act.

Appellant contends however, that in certain counts of his complaint, he seeks to recover for injuries to the deceased’s peace, happiness, and feelings and that these “nonphysical” injuries are not included within the definition of injury found in the Act. “According to the Georgia Act, the definition of ‘injury’ is identical and synonymous with ‘personal injury,’ both terms meaning ‘only injury by accident arising out of and in the course of the employment. . . .’ OCGA § 34-9-1 (4).” Superb Carpet Mills v. Thomason, supra at 555. “That an injury is not compensable under the act does not necessarily mean it is not within the purview of the act. ... ‘In exchange for the right to recover scheduled compensation without proof of negligence on the part of the employer in those cases in which a right of recovery is granted, the employee forgoes other rights and remedies which he might otherwise have had, but if he accepts the terms of the Act he as well as the employer is limited to those things for which the act makes provision.’ [Cit.]” National Data Corp. v. Hooper, 185 Ga. App. 866, 867 (366 SE2d 189) (1988). Appellant argues that the deceased’s nonphysical injuries and subsequent death occurred due to the inability of the emergency medical personnel to render prompt medical attention. That injuries to the deceased’s peace, happiness, and feelings may not be compensable under the Act does not take those injuries out of the purview of the Act. See National Data Corp. v. Hooper, supra. Accordingly, we hold that under the facts of this case, the Workers’ Compensation Act provides the exclusive remedy and precludes appellant’s common law tort action.

2. In his second enumeration of error, appellant contends that the trial court erred in holding that appellant’s RICO claim was barred by the Workers’ Compensation Act. OCGA § 16-14-4 (a) makes it “unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money.” OCGA § 16-4-6 (c) allows any person injured by reason of a violation of § 16-14-4 to bring a civil action and recover treble damages. Appellant contends that appellees violated the RICO statute by committing the criminal act of false imprisonment on at least two occasions for the purpose of pecuniary gain. Without determining whether appellant has sufficiently alleged a claim under the RICO statute, we find no support for appellant’s argument that his RICO action is not barred by the Workers’ Compensation Act. There is nothing in the language of the RICO statute which indicates that RICO was intended to supersede the exclusivity provisions of the Workers’ Compensation Act. See Tellis v. U. S. Fidelity &c. Co., 625 FSupp. 92, 95 (N. D. Ill. 1985). Furthermore, “[t]he Georgia Workers’ Compensation Act makes no statutory exception to the exclusive remedy provision.” Pappas v. Hill-Staton Engineers, 183 Ga. App. 258, 260 (358 SE2d 625) (1987). Thus, appellant’s second enumeration is without merit.

3. Appellant next contends that appellees are estopped from asserting the exclusivity provision as a defense because they delayed filing a written report of the deceased’s death until after appellant’s lawsuit had been filed and because appellant was told by appellees that no benefits were available for the deceased’s death. Appellant’s argument is without merit. The Supreme Court has held “that the intentional delay of workers’ compensation payments does not give rise to an independent cause of action against the employer or its insurer where penalties for such delay are provided by the act.” Bright v. Nimmo, 253 Ga. 378, 381 (320 SE2d 365) (1984). Therefore, since the Act provides a remedy for an employer’s delay in 'paying benefits, we cannot conclude that appellees’ actions estopped it from asserting the exclusive remedy provision as a defense.

4. In his final enumeration of error, appellant contends that the trial court erred in ruling on appellees’ motion for summary judgment before appellees complied with appellant’s discovery request. The record reflects that three days before the hearing on appellees’ motion for summary judgment, appellant filed a motion to compel discovery. The record does not reveal any effort on the part of appellant to secure a ruling from the trial court on his motion to compel, nor does the record indicate that appellant objected to the trial court hearing the motion for summary judgment prior to ruling on the motion to compel. “ Tt is axiomatic that at the appellate level “ ‘(o)ne cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.’ ” (Cit.)’ [Cit.]” Mitchell v. Wyatt, 192 Ga. App. 127, 129 (1) (384 SE2d 227) (1989).

Judgment affirmed.

Birdsong, P. J., concurs. Pope, J., concurs specially.

Pope, Judge,

concurring specially.

I do not agree that we can hold, as a matter of law, that the facts alleged by plaintiff/appellant do not state a claim for false imprisonment. In this period of high unemployment and economic recession, we cannot say that an employee voluntarily chose to accept a job assignment by her employer simply because she did not decline the assignment. Even if the employee in this case voluntarily consented to the restriction on her liberty by being locked in the store on the evening in question, she surely withdrew her consent when it became vital for her to leave and obtain medical care after suffering a stroke. Neither do I agree that all claims for false imprisonment by an employee against an employer are compensable under the Workers’ Compensation Act (the “Act”) and therefore barred by the exclusive remedy provision. I agree, however, that the claim in this case is barred because the injury was essentially a physical injury, and not merely an injury to the employee’s peace and happiness, and therefore is a claim which is subject to the exclusive remedy provision of the Act.

The Act includes the following definition: “ ‘Injury’ or ‘personal injury’ means only injury by accident arising out of and in the course of the employment . . . .” OCGA § 34-9-1 (4). To be compensable under the Act, the injury must be a physical injury or harm. W. W. Fowler Oil Co. v. Hamby, 192 Ga. App. 422 (4) (385 SE2d 106) (1989). But the injury in a false imprisonment claim is not physical, but is simply the deprivation of liberty. Stewart v. Williams, 243 Ga. 580 (1) (255 SE2d 699) (1979). Thus, to prevail on a false imprisonment claim, one does not have to show either physical or mental harm but only wrongful detention. For this reason, a number of jurisdictions has held that an employee is not barred from bringing a tort claim for false imprisonment against an employer. For example, in Moore v. Federal Dept. Stores, 190 NW2d 262, 264 (Mich. Ct. App. 1971), the Michigan appellate court said of that state’s workers’ compensation statute: “The Act has been interpreted to encompass physical and mental injuries which arise out of and in the course of one’s employment. However, the gist of an action for false imprisonment is unlawful detention irrespective of any physicál or mental harm.” Consequently, in that case, which was brought by a store employee for false imprisonment when she was detained and interrogated concerning alleged theft, the court ruled that the claim did not involve the type of personal injury covered under the workers’ compensation act and therefore was not barred by the exclusive remedy provision of the statute. In Columbia Sussex Corp. v. Hay, 627 SW2d 270, 279 (Ky. Ct. App. 1981), the Kentucky appellate court ruled: “Inasmuch as . . . false imprisonment can be established without a showing of actual damages, there is nothing for which the Workers’ Compensation Act would compensate.” See also Le v. Federated Dept. Stores, 560 A2d 42 (Md. Ct. Spec. App. 1989); Redican v. K Mart Corp., 734 SW2d 864 (Mo. Ct. App. 1987). I agree with the rationale of the decisions cited above that a claim for false imprisonment, when the only injury is a non-physical one, is not compensable under the Act and therefore not barred by the exclusive remedy provision of the Act.

Decided March 16, 1992

Reconsideration denied April 3, 1992

Oldfield & Wilson, James 0. Wilson, Jr., Carmel W. Sanders, for appellant.

McLain & Merritt, Howard M. Lessinger, for appellees.

Each of these cases, however, involved only a claim for wrongful detention, a non-physical injury. Professor Larson notes the problem inherent in the factual situation of the case at hand, where there is a claim for false imprisonment but where the essence of the injury is compensable, physical harm. “If the essence of the tort, in law, is nonphysical, and if the injuries are of the usual non-physical sort, with physical injury being at most added to the list of injuries as a makeweight, the suit should not be barred. But if the essence of the action is recovery for physical injury or death, the action should be barred even if it can be cast in the form of a normally non-physical tort.” 2A Larson, The Law of Workmen’s Compensation, § 68.34 (a), at 13-117 (1990). See also id. at § 68.31.

The claim in the case at hand involves physical injury and death as well as false imprisonment. On appeal, plaintiff makes an admirable argument that at least that part of the claim which relates only to the allegation of false imprisonment should not be barred by the Act. The claim for false imprisonment, however, is inextricably linked to the claim for physical injury and death. In this case, the damages from the alleged false imprisonment are not only the detention, itself, but the exacerbation of the employee’s physical condition as a result of being denied the opportunity to seek medical attention during that period in which she was wrongfully detained. This physical injury is a compensable claim and thus any recovery for her injury cannot be split between a tort action and a workers’ compensation action. That the injury is essentially one which is compensable under the Act would also bar plaintiff’s RICO claim. For this reason, I agree that the judgment of the trial court must be affirmed.

       This court also has held that the Workers’ Compensation Act does not bar a claim for false imprisonment by an employee against her employer. Smith v. Rich’s, Inc., 104 Ga. App. 883 (123 SE2d 316) (1961). In Smith, however, we based our holding on the ground that plaintiff’s injuries did not arise out of an “accident,” but were the result of the wilful and intentional acts of the agent of the employer. See also Skelton v. W. T. Grant Co., 331 F2d 593 (5th Cir. 1964). As the majority points out in Division 1, the courts of this state have subsequently ruled that the Act precludes recovery in tort for the wilful and intentional acts of the employer so long as the injury is otherwise compensable. Even though the rationale employed in the Smith opinion is no longer accepted, the holding is still correct and is supported by the superior rationale that the injury is simply not compensable under the act. See D. Meade Feild, Workmen’s Compensation, 14 Mercer L. Rev. 244, 261 (1962).
      I also note that in Greenbaum v. Brooks, 110 Ga. App. 661 (139 SE2d 432) (1964), decided subsequent to the Smith decision, this court affirmed a jury award of damages in tort to an employee who sued his employer for false imprisonment without addressing the issue of the workers’ compensation bar. In a more recent case, Bi-Lo, Inc. v. McConnell, 199 Ga. App. 154 (404 SE2d 327) (1991), this court permitted an employee to recover from his employer for a similar tort involving non-physical injury, malicious prosecution.


author:
Johnson, Judge.
      Beasley, Judge,

text:
    A91A1774.
    HARPER v. THE STATE.
    (417 SE2d 435)
   Johnson, Judge.

The appellant was charged in a single indictment with armed robbery and several other offenses. At the time of his arraignment he filed a demand for trial “within the next succeeding term . . . under OCGA § 17-7-170. . . .” The next succeeding term expired without his being tried, and during the following term he filed a motion for discharge and acquittal. The trial judge denied the motion based on a determination that OCGA § 17-7-171 was applicable to the case rather than OCGA § 17-7-170; and this appeal followed.

Under OCGA § 17-7-170 (b), a person charged by indictment or accusation with “an offense not affecting his life” who thereafter makes a valid demand for trial is entitled to discharge and acquittal if he is not tried within the next succeeding term of court after the demand is filed, “provided at both terms there were juries impaneled and qualified to try him.” However, if the defendant is indicted for a “capital offense,” then OCGA § 17-7-171 applies rather than OCGA § 17-7-170. Under § 17-7-171, the state is required to try the defendant within the next two terms after the demand is made, “provided that at both terms there were juries impaneled and qualified to try [him] and provided, further, that [he] was present in court announcing ready for trial and requesting a trial on the indictment.”

Although OCGA § 16-8-41 (b) specifies that armed robbery is punishable by death, the Georgia Supreme Court, applying the rationale of Coker v. Georgia, 433 U. S. 584 (97 SC 2861, 53 LE2d 982) (1977), has held that the death penalty may no longer be imposed for this offense. See Collins v. State, 239 Ga. 400, 402 (2), 403 (236 SE2d 759) (1977). The appellant contends that armed robbery consequently may no longer be considered a capital offense, with the result that OCGA § 17-7-170 must be applied to this case rather than OCGA § 17-7-171. However, the Supreme Court has further held that “[a] capital offense within the terms of [OCGA § 17-7-171] refers to offenses defined by statute as capital offenses, not necessarily offenses for which the state could or actually does seek the death penalty,” Cleary v. State, 258 Ga. 203, 204 (366 SE2d 677) (1988); and in reliance on that statement, this court has previously held that armed robbery continues to be a capital offense within the purview of OCGA § 17-7-171. See White v. State, 202 Ga. App. 370 (414 SE2d 296) (1991). Accord Simmons v. State, 149 Ga. App. 830 (256 SE2d 79) (1979) (decided under former Code Ann. §§ 27-1901.1 and 27-1901.2, the statutory predecessors to OCGA § 17-7-171). See also Orvis v. State, 237 Ga. 6 (226 SE2d 570) (1976), approving this court’s holding in Letbedder v. State, 129 Ga. App. 196 (199 SE2d 270) (1973), that armed robbery did not cease to be a capital offense within the contemplation of former Code Ann. §§ 27-1901.1 and 27-1901.2 during the period in which the death penalty could not be imposed in this state by virtue of the United States Supreme Court’s decision in Furman v. Georgia, 408 U. S. 238 (92 SC 2726, 33 LE2d 346) (1972).

While it is well settled by the foregoing cases that armed robbery is still a “capital offense” within the purview of OCGA § 17-7-171, it has been held that armed robbery is no longer a capital offense for certain other purposes. For example, the Georgia Supreme Court held in Collins v. State, supra, that armed robbery could no longer be considered a capital felony within the meaning of Art. VI, Sec. II, Par. IV of the Georgia Constitution of 1976, giving it jurisdiction over “ ‘all cases of conviction of a capital felony.’ ” Id. 239 Ga. at 402-403. Similarly, this court has held that “ ‘if death is not a possible sentence, insofar as punishment is concerned, the offense cannot be capital, and a defendant charged with armed robbery may be indicted as a recidivist’ ” under OCGA § 17-10-7 (b). Scott v. State, 172 Ga. App. 725, 728 (5) (324 SE2d 565) (1984), quoting from Ivory v. State, 160 Ga. App. 193, 195 (286 SE2d 435) (1981). On the other hand, the Supreme Court has held that, notwithstanding Collins v. State, supra, armed robbery continues to be recognized as a capital offense “for the purpose of applying the aggravating circumstance provision of [OCGA § 17-10-30 (b) (2)].” Peek v. State, 239 Ga. 422, 432 (238 SE2d 12) (1977).

The appellant contends that to interpret armed robbery as a capital offense for some purposes but not others is so arbitrary, capricious and irrational as to violate due process and equal protection of the law. While we must concede that the decisions on this issue do not seem to be joined by any consistent thread of logic, the fact remains that armed robbery continues to be classified under statutory law as a capital offense, and it is clearly within the province of the legislature to determine that this offense is more serious than other crimes, such as feticide (OCGA § 16-5-80) and aggravated sodomy (OCGA § 16-6-2), for which life imprisonment may be imposed but for which the death sentence has never been statutorily authorized.

“State legislation is constitutional with respect to due process if it bears a rational relation to a proper and constitutionally permitted legislative purpose.” Department of Nat. Resources v. Union Timber Corp., 258 Ga. 873, 876 (4) (375 SE2d 856) (1989). Similarly, “[w]hen assessing equal protection challenges, . . . [i]f neither a suspect class nor a fundamental right is affected by the statute, the statute need only bear a rational relationship to some legitimate state purpose.” Ambles v. State, 259 Ga. 406, 407 (2) (383 SE2d 555) (1989). We conclude that the appellant’s constitutional rights to due process and equal protection of the law were not violated by the application of OCGA § 17-7-171 to the present case rather than OCGA § 17-7-170; and we consequently hold that the trial court did not err in denying his motion for discharge and acquittal.

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Carley, P. J., Pope and Andrews, JJ., concur. Beasley and Cooper, JJ., dissent.

Beasley, Judge,

dissenting.

I respectfully dissent because the appellant was entitled to discharge and acquittal under OCGA § 17-7-170 in that he was not “accused of a capital offense” and thus subject to OCGA § 17-7-171.

A crime is either a capital offense in this state or it is not. It cannot be both. It is too serious a distinction to apply to a particular crime when a procedural rule is at issue and not apply when sentencing is at issue. Defendants, their counsel, the bench and bar, and the general public must know. The lengthier period for the State to prepare for trial following an accused’s demand for trial which is allowed by OCGA § 17-7-171 only applies to capital offenses.

OCGA § 16-8-41 (b) provides that a person convicted of armed robbery “shall be punished by death” or imprisonment. Nevertheless, the Supreme Court of Georgia concluded in 1977,' when the statute also authorized the death penalty for armed robbery, that because of intervening decisions of the United States Supreme Court and the Georgia Supreme Court, “the death penalty may not be imposed for these crimes [armed robbery being one] under present Georgia statutes.” Collins v. State, 239 Ga. 400, 402 (2) (236 SE2d 759) (1977). It held that convictions of armed robbery “under present Georgia statutes are no longer convictions of capital felonies for appellate jurisdictional purposes,” which was the specific issue before it.

At that time the Georgia Constitution conferred jurisdiction on that Court “in all cases of conviction of a capital felony.” 1976 Ga. Const., Art. VI, Sec. II, Par. IV. The wording was changed in the 1983 Constitution, which now provides for that Court’s exclusive jurisdiction in “(a) 11 cases in which a sentence of death was imposed or could be imposed.” 1983 Ga. Const., Art. VI, Sec. VI, Par. Ill (8). The State decision referred to is Gregg v. State, 233 Ga. 117 (210 SE2d 659) (1974), aff’d 428 U. S. 153 (96 SC 2909, 49 LE2d 859) (1976). The statutes which the Court applied to conclude that the death penalty was not authorized for the armed robberies in that case are, as material here, the same at the current time. See OCGA §§ 17-10-30; 17-10-35; 17-10-36.

In determining whether the crime of armed robbery was “a capital felony,” the Court in Collins applied the definition first set out in Caesar v. State, 127 Ga. 710, 712 (1) (57 SE 66) (1906): “In our view the expression ‘capital felony,’ when used in our law, is merely descriptive of those felonies to which the death penalty is affixed as a punishment under given circumstances to distinguish such felonies from that class in which under no circumstances would death ever be inflicted as a penalty for the violation of the same.” Thus the Court recognized that the judicial construction of the Eighth Amendment in effect emasculated the words “by death” from OCGA § 16-8-41 (b). The penalty, which was “affixed” by the legislature, was judicially rendered void. The statute, which is an act of the General Assembly, must yield to the constitution, in this case the Federal Constitution, as judicially interpreted.

Thus, the very essence of the meaning of “capital offense,” which refers to the maximum penalty imposable under law, was eliminated as a characteristic or consequence of armed robbery. The Supreme Court so stated in Peek v. State, 239 Ga. 422, 432 (III (2)) (238 SE2d 12) (1977): “[T]he death penalty can no longer be given for armed robbery. . . .” In Peek it did no more than retain the “practice of recognizing armed robbery as a capital offense under the aggravating-circumstance provision of the Code [§ 27-2534.1 (b), now OCGA § 17-10-30 (b)], . . .” It merely “construe[d] ‘capital felony’ as that term is used in § 27-2534.1 (b) (2) [now OCGA § 17-10-30 (b) (2)] in a generic sense to include those felonies which were capital crimes in Georgia at the time this section of our death penalty statute was enacted.” That time was 1973. See Ga. L. 1973, pp. 159, 172, and Collins did not come until 1977. Thus Peek only means that when a jury is considering the death penalty in a case in which it is sought, it may consider as a statutory aggravating circumstance the fact that the offense was committed while the offender was engaged in the commission of armed robbery. The words “capital felony” in subsection (b) (2) are only shorthand or “generic” language as the Supreme Court said, for the purpose of that subsection.

If the same definition from Caesar as was applied in Collins is applied here, where another procedural matter is at issue, it will lead to the same result. Armed robbery is a crime in “that class in which under no circumstances would death ever be inflicted as a penalty for the violation of the same,” Caeser, supra at 712, under present Georgia statutes and constitutional law. It is that portion of Caeser which was emphasized by the Supreme Court, which did not regard the “affixed” language of Caeser even worthy of mention. Of course, at the time of the decision in Caeser, the legislatively-provided death penalty was legal.

Cleary v. State, 258 Ga. 203 (366 SE2d 677) (1988), does not require a different result. Defendants were charged with both capital and non-capital felonies, including among them armed robbery, and the question was whether OCGA § 17-7-170 or § 17-7-171 governed their demand for trial. The Court did not state which category it put armed robbery in. Nor does its discussion of State v. Rowe, 138 Ga. App. 904 (228 SE2d 3) (1976), imply that it considered armed robbery as a capital offense, because at the time Rowe was decided, the death penalty for armed robbery was constitutionally authorized and our court was actually dealing with a capital offense.

The Supreme Court overruled Rowe to the extent that its holding in Cleary conflicted. The holding in Cleary is that “where a multicount indictment includes both capital and noncapital offenses, the time for trial upon a proper demand by a defendant is the time allowed under OCGA § 17-7-171 for the more serious offenses.” Cleary, supra at 205. The rationale was that this was necessary to avoid a double jeopardy bar on the capital offense.

The Supreme Court decided Orvis v. State, 237 Ga. 6 (226 SE2d 570) (1976), an armed robbery case, before it stated in Collins that “armed robbery alone does not warrant the death penalty” and “the death penalty may not be imposed for [armed robbery] under present Georgia Statutes.” Collins, supra at 402. It concluded that the rationale of Coker v. Georgia, 433 U. S. 584 (97 SC 2861, 53 LE2d 982) (1977), mandated this result. It is true that at the time of Letbedder v. State, 129 Ga. App. 196 (199 SE2d 270) (1973), cert. denied, 414 U. S. 1134 (94 SC 877, 38 LE2d 759) (1974), which the Court applied in Orvis, the death penalty for armed robbery was statutorily authorized but not imposable constitutionally by virtue of Furman v. Georgia, 408 U. S. 238 (92 SC 2726, 33 LE2d 346) (1972). The crucial difference now is that in the interim, the Georgia Supreme Court decided in Collins that the death penalty could not be imposed in Georgia under Georgia statutes. Letbedder was called for trial on February 23, 1973, before the post-Furman procedure for imposition of the death penalty went into effect. Ga. L. 1973, pp. 159, 172. The death penalty was still statutorily authorized but was procedurally infirm, according to Furman. Now it is not procedurally infirm, but the Supreme Court has made it substantively unavailable in Collins, as a matter of Georgia law. See also Peek, supra, and the two cases referred to in Peek, supra at 432.

This court has applied that Collins ruling. It has interpreted Collins as establishing the rule that “[f]or the purpose of imposition of punishment” armed robbery “is not a capital felony.” Davis v. State, 159 Ga. App. 356, 361 (4) (283 SE2d 286) (1981). See also Scott v. State, 172 Ga. App. 725, 728 (5) (324 SE2d 565) (1984). The court in Scott also followed Ivory v. State, 160 Ga. App. 193, 195 (286 SE2d 435) (1981), for the proposition that “ ‘if death is not a possible sentence, insofar as punishment is concerned, the offense cannot be capital, and a defendant charged with armed robbery may be indicted as a recidivist. . . .’ ” Scott, supra at 728. Those three cases involved the substantive matter of punishment, and specifically the recidivist enhancement of punishment for armed robbery under the general recidivist statute, OCGA § 17-10-7, subsection (b) of which excludes capital felonies.

Decided March 20, 1992

Reconsideration denied April 3, 1992

Peter D. Johnson, for appellant.

Michael C. Eubanks, District Attorney, Katherine F. Bond, Richard E. Thomas, Assistant District Attorneys, for appellee.

In Garmon v. Johnson, 243 Ga. 855 (257 SE2d 276) (1979), the Supreme Court considered the procedural rule allowing waiver of indictment and proceeding on accusation. According to OCGA § 17-7-70, this can be done under certain conditions “[i]n all felony cases, other than cases involving capital felonies. ...” The Court held that “[bjecause the death penalty cannot be imposed for armed robbery, we hold that armed robbery is not a capital felony within the meaning of the first sentence of [OCGA § 17-7-70].” Id. at 857.

Since, under current Georgia law, armed robbery is not a “capital offense” for the specific purposes heretofore litigated, except for Supreme Court jurisdiction and language-wise as a species of a historic term used generically, it is not a capital offense covered by OCGA § 17-7-171. The additional time for the State to prepare and bring to trial a “capital offense” does not apply to armed robbery because the defendant in such a case, who has demanded trial, cannot be punished with death.

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

       That is to say, the question of which appellate court had jurisdiction and the question of whether the State has two terms or three terms to try a criminal defendant are both procedural rather than substantive aspects. The question of what punishment is authorized would be a substantive aspect.


text:
    A91A1779.
    CRAWFORD et al. v. FREEMAN.
    (417 SE2d 345)
   Beasley, Judge.

Appellant-plaintiffs Riordan and Crawford leased apartment C-5 in the Sandy Springs Villa Apartments, which is owned and managed by appellee-defendant Freeman. Approximately six weeks after plaintiffs moved into their apartment, its contents were destroyed by a fire which was caused by the heating unit’s overheating as a result of a short in the internal wiring and a subsequent ignition of surrounding combustible materials. Alleging that Freeman had prior knowledge that the heating unit was in need of replacement and that he was grossly negligent in not replacing it, plaintiffs brought this suit against him seeking damages.

At the outset of the trial, plaintiffs’ counsel sought to admit invoices concerning the repair and replacement of heating and air-conditioning units in other apartments, and to cross-examine defendant concerning them, for the purpose of determining whether other heating units had experienced problems similar to those experienced by plaintiffs’ unit. Counsel’s stated purpose was to show defendant’s prior knowledge of this dangerous condition, in order to prove defendant liable on plaintiffs’ claim and establish a basis for the imposition of punitive damages. The trial judge refused admission of the invoices or cross-examination about them, ruling, “I’m going to hold you to C-5 (plaintiffs’ apartment). That’s all. You prove your damages by proving any negligence on C-5.”

Defendant testified that he bought the apartment complex in 1984 and discovered that air conditioning and heating units were in need of repair and replacement. As tenants complained of malfunctioning units, defendant repaired the unit if that could be done for under $200; if not, he replaced it.

As of January 1988, there were only four apartments in the complex which did not have replacement units, and one of these was plaintiffs’. The thermostat in plaintiffs’ unit was replaced the year before the fire, but there were no other complaints concerning it. At the beginning of February, defendant began replacing the units in these four apartments. Plaintiffs’ unit was the last to be replaced. The work was scheduled for February 4, which was the day of the fire.

After plaintiffs’ witnesses had testified, defendant made a motion for directed verdict on the issue of punitive damages, arguing that “plaintiffs have not shown the prior knowledge on the part of Mr. Freeman that he knew this heating unit was a problem or going to break into a fire.” Plaintiffs’ counsel argued that, “[t]he condition of apartments in other parts of the complex have been used not only as admissible evidence but as proof to support a punitive damage award.” The trial judge granted defendant’s motion. The jury returned a verdict in defendant’s favor.

Plaintiffs contend that the trial court erred in refusing to admit the other repair invoices or to permit plaintiffs to cross-examine the defendant regarding their contents. The documents are not part of the record, as the court refused to allow a proffer, and we cannot consider the exhibits attached to their appellate brief. Ragan v. Smith, 188 Ga. App. 770, 772 (2) (374 SE2d 559) (1988). Plaintiffs also contend that the trial court erred in granting defendant’s motion for directed verdict on the issue of punitive damages.

1. A proffer should have been allowed. See generally Agnor’s Ga. Evidence, 48-2, p. 124 (1976). In view of the admission of testimony that upon complaint defendant had replaced all other units in the complex and that there had been no complaint concerning plaintiffs’ unit, any error by the trial court in refusing to allow the documentary evidence or cross-examination of defendant concerning the problems with other units was harmless. See Foster v. National Ideal Co., 119 Ga. App. 773, 774 (1) (168 SE2d 872) (1969).

Decided March 2, 1992

Reconsideration denied April 3, 1992.

Gainer & Waldrop, William G. Gainer, for appellants.

Downey, Cleveland, Parker & Williams, Y. Kevin Williams, Rodney S. Shockley, for appellee.

2. As to the question of punitive damages, there is no evidence of recklessness so as to authorize such an award. See Crow v. Evans, 183 Ga. App. 581, 583 (2) (359 SE2d 446) (1987).

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.