author: Dillard, Judge.

text:
    A14A1854.
    HAND et al. v. SOUTH GEORGIA UROLOGY CENTER, P.C. et al.
    (769 SE2d 814)
   Dillard, Judge.

In this civil action, George and Betty Hand sued Dr. Gilbert Gonzalez and his practice group, South Georgia Urology Center, P.C. (collectively “defendants”), for damages they allegedly suffered as a result of Dr. Gonzalez’s medical malpractice. Following a jury verdict and judgment in favor of defendants, the Hands appeal, arguing that the trial court erred in (1) excluding impeachment evidence, (2) failing to instruct the jury on the law pertaining to spoliation of evidence, (3) prohibiting cross-examination of Dr. Gonzalez regarding the past suspension of his medical license, and (4) finding that sufficient evidence supported the jury’s verdict. For the reasons noted infra, we agree that the trial court erred in excluding impeachment evidence, and therefore, reverse the trial court’s ruling in that regard and remand the case for a new trial.

Construed in favor of the jury’s verdict, the evidence shows that in late 2005, Dr. Gonzalez, a urologist, diagnosed George Hand as having an enlarged prostate. And after discussing various treatment options, Dr. Gonzalez ultimately recommended transurethral microwave thermotherapy, using a Targis System device manufactured by Urologix, Inc. In this procedure, the physician places the Targis device’s catheter, housing a microwave antenna, into the patient’s urethra near the prostate gland and inserts the device’s rectal thermometer into the patient’s rectum directly adjacent to the prostate gland. The antenna then delivers microwave energy into the patient’s prostate, causing cellular breakdown that leads to a reduction in the size of the prostate. During the procedure, the rectal thermometer monitors the temperature of the prostate gland and automatically halts the procedure if the temperature exceeds acceptable levels.

Based on Dr. Gonzalez’s recommendation, Hand consented to the microwave thermotherapy. Consequently, on January 19,2006, Hand went to Dr. Gonzalez’s offices, where one of the nurses prepped him and then inserted the Targis device’s catheter into Hand’s urethra and the rectal thermometer into his rectum. After Dr. Gonzalez checked the placement of both insertions, he activated the device.

During the procedure, Hand informed Dr. Gonzalez’s assistants that he was experiencing a considerable amount of pain. But the device’s rectal thermometer never indicated that the temperature exceeded safe levels, and Hand never requested that the assistants stop the treatment. Nearly 45 minutes later, the procedure concluded with no apparent complications, and Dr. Gonzalez sent Hand home to recuperate.

After resting for approximately two weeks following the procedure, Hand was still experiencing discomfort, but he nevertheless attempted to return to his job as a truck driver. However, on his first day back, Hand noticed that he discharged urine from his rectum when trying to use the bathroom. Almost immediately, Hand contacted Dr. Gonzalez, who quickly saw him on February 10, 2006, and determined that the microwave thermotherapy procedure had burned a hole between Hand’s rectal and urethral tissues, causing what is known as a rectal-urethra fistula. A short time later, Hand was admitted to the hospital for surgery to repair the fistula, and over the course of the next couple of years, he underwent numerous surgeries and procedures to treat the damage and complications resulting from the injury.

In 2008, Hand and his wife filed a complaint against Dr. Gonzalez and his practice group, alleging that Dr. Gonzalez breached the standard of medical care in treating Hand and that this breach resulted in serious injuries. Specifically, the Hands claim that Dr. Gonzalez failed to ensure that the Targis device’s rectal thermometer was properly inserted near Hand’s prostate gland prior to the microwave thermotherapy procedure and, thus, the thermometer did not indicate that Hand’s urethral and rectal tissue were being subjected to dangerous temperature levels. Defendants then filed an answer, and a lengthy discovery period ensued.

During discovery, the Hands’ counsel deposed Dr. Gonzalez, who testified that he did not breach the standard of medical care in his treatment of Hand. Dr. Gonzalez further testified that he believed the Targis device malfunctioned during Hand’s treatment and that this malfunction resulted in the burns to Hand’s tissue. Dr. Gonzalez added that he believed he had attempted to perform microwave thermotherapy treatment once or twice after Hand’s procedure, but the device would not operate properly. Then, after learning of Hand’s injury, he “lost faith” in the Targis device and stopped using it completely by late February or early March 2006.

A jury trial commenced on April 26, 2013, during which the Hands presented evidence that Dr. Gonzalez breached the standard of medical care. Defendants presented evidence that Dr. Gonzalez adhered to the standard of medical care, including expert testimony supporting his theory that the Targis device malfunctioned and caused Hand’s injury. The trial concluded on May 3, 2013, with the jury rendering a verdict in favor of defendants. One week later, the trial court affirmed the verdict and issued an order entering judgment. Subsequently, the Hands filed a motion for new trial, which the trial court denied after conducting a hearing. This appeal follows.

1. The Hands contend that the trial court erred in excluding evidence that was relevant to the impeachment of Dr. Gonzalez. We agree.

It is well established that the admission of evidence is “within the sound discretion of the trial court and appellate courts will not interfere absent abuse of that discretion.” But it is likewise well established that evidence having a tendency to establish facts at issue is “relevant and admissible, and no matter how slight the probative value, our law favors admission of relevant evidence.” With these guiding principles in mind, we turn now to the Hands’ specific claim of error.

Despite Dr. Gonzalez’s deposition testimony (mentioned supra), during the course of discovery, the Hands never requested to inspect the Targis device used to treat Hand. However, a few weeks before trial was scheduled to begin, the Hands served Dr. Gonzalez with a subpoena duces tecum, requesting that the device be brought to trial solely for demonstrative purposes. And at the start of trial, the Targis device that the parties assumed to be the device used to treat Hand was indeed brought to the courtroom. Later, during a break in the proceedings, and after the Hands rested, the Hands’ counsel activated the power on the Targis device and discovered reports in the form of data on the device, indicating that, contrary to his deposition testimony, Dr. Gonzalez used the device to treat six other patients over the course of several months after he determined that Hand suffered injuries as a result of the microwave thermotherapy procedure. The Hands’ counsel immediately brought this information to the trial court’s attention and requested, inter alia, that the data be printed out and admitted as impeachment evidence. But focusing on the fact that the Hands’ counsel never requested to inspect the device during discovery, the trial court denied this request.

Subsequently, Dr. Gonzalez testified in his own defense. And during cross-examination, despite the Hands’ counsel’s questions about the additional apparent microwave thermotherapy treatments administered after he learned of Hand’s injury, Dr. Gonzalez maintained that he only attempted to perform this type of treatment once or twice in the period of time between his treatment of Hand and learning of Hand’s injury. In addition, Dr. Gonzalez testified that, based on documents found in his office records the previous evening, he learned that the Targis device currently in the courtroom — while the identical model — was not the same machine he used to treat Hand. Rather, that specific device had been retrieved by Urologix on March 22, 2006, and replaced with the current device.

Based on this testimony, the Hands’ counsel again sought to print out and introduce the data showing that six microwave thermotherapy treatments were performed after Dr. Gonzalez learned of Hand’s injury, but the trial court once again ruled that any data from the Targis device should have been the subject of a discovery request. The trial court allowed the Hands’ counsel to further question Dr. Gonzalez regarding the replacement Targis device, but during that cross-examination, Dr. Gonzalez maintained that he did not think he used the device on any patients after learning of Hand’s injury.

The Hands argue that the data from the Targis device discovered during trial was admissible to impeach Dr. Gonzalez, and that the trial court’s exclusion of this evidence was harmful. As noted supra, we agree.

Under OCGA § 24-1-1, “[t]he object of all legal investigation is the discovery of truth. . . .” And consistent with this statutory mandate, “the policy of Georgia law is to admit evidence, even if its admissibility is doubtful, because it is more dangerous to suppress the truth than to allow a loophole for falsehood.” Toward that end, OCGA § 24-6-607 states that “[t]he credibility of a witness may be attacked by any party, including the party calling the witness.” Additionally, OCGA § 24-6-621 provides that “[a] witness may be impeached by disproving the facts testified to by the witness.” Moreover, a trial court may admit evidence relevant to the issue of impeachment even if “the evidence would not qualify for admission on other grounds.”

In the case sub judice, the data from the Targis device seemingly showed that, contrary to his testimony in his deposition and at trial, Dr. Gonzalez did, in fact, use the device — or an identical one — to treat six more patients after he learned of Hand’s injury and allegedly “lost faith” in the device’s ability to function properly. Defendants nevertheless assert that the trial court’s decision to exclude this evidence was correct because whether Dr. Gonzalez used the Targis device to treat other patients ultimately has no bearing on whether he breached the standard of medical care in treating Hand. We disagree.

While it is true that a witness may not be impeached because of a discrepancy as to a wholly immaterial matter, “a witness may be impeached on a collateral issue which is indirectly material to the issue in the case.” Here, whether the Targis device was functioning properly — and perhaps more importantly whether Dr. Gonzalez actually believed that it was functioning properly — was certainly material to an issue in the case. In fact, Dr. Gonzalez’s primary defense was that the device malfunctioned, and the sole focus of the testimony of Dr. Gonzalez’s mechanical engineering expert was an explanation of her examination of the device and her theory as to how the device could have malfunctioned to cause Hand’s injury.

Furthermore, the trial court’s exclusion of the data from the device based upon the Hands’ failure to request an inspection of the device during discovery is equally unpersuasive in light of the Supreme Court of Georgia’s decision in Ballard v. Meyers, where it reversed the trial court’s exclusion of a document impeaching the plaintiff’s testimony because the defendant failed to list it in the pretrial order. In doing so, our Supreme Court reasoned that

[w]hile an attorney in a civil action should disclose the names of those who will or may be relied upon affirmatively to prove the client’s case, there is no comparable rationale for requiring the disclosure of documents which may be used to attack the credibility of the other side’s witnesses.

The Ballard Court also noted that the imposition of such a restrictive rule could lead to situations in which “[a] party’s witnesses could lie on the stand and then that party [could] object to the introduction of any impeaching documents which were not expressly listed in the pretrial order.” And refusing to countenance such a result, the Court held that “[i]n a trial, the credibility of the witnesses is a matter which should be resolved by the jurors who have heard all of the relevant evidence, and not by the text of the pretrial order.”

Although decided well before the effective date of Georgia’s new Evidence Code, the principles espoused in Ballard are similarly posited by the federal case law interpreting Federal Rule of Evidence 607, which is nearly identical to OCGA § 24-6-607. Specifically, Rule 607 concerns the doctrine of impeachment by contradiction and permits the admission of extrinsic evidence to impeach specific errors or falsehoods in a witness’s direct testimony, “subject to Rule 403.” Indeed, the federal courts have described impeachment by contradiction as “a means of policing the defendant’s obligation to speak the truth in response to proper questions[.]”

Employing the logic and reasoning from Ballard, as well as that delineated in the federal case law pertaining to Rule 607, we find that the Hands’ failure to request data or documents from the Targis device during discovery — while tactically questionable — does not justify the exclusion of such relevant and impeaching evidence once it was discovered. Moreover, this information, which was never in the possession of the Hands’ counsel, ostensibly documented treatments performed by Dr. Gonzalez and, therefore, were arguably within his own ability to recall. Consequently, the attempted introduction of this evidence by the Hands can hardly be characterized as “trial by ambush.” Given these circumstances and the fact that our law favors admission of relevant evidence even of slight probative value, the trial court’s ruling in this case constitutes an abuse of discretion as it “authorizes the exclusion of relevant impeaching evidence and allows the credibility of a crucial witness to go unchallenged.” Accordingly, we reverse the trial court’s judgment and remand this case for a new trial. In doing so, we “deplore the significant burden a... retrial will impose, not only on the parties, but on the community as well[.]” Nevertheless, we remain steadfast in “our commitment as a Court to safeguarding the sacrosanct and cherished right to a fair and impartial jury trial,” and we will not hesitate to remand a case back to the trial court when this has not occurred.

2. The Hands also contend that the trial court erred in failing to instruct the jury on the law pertaining to spoliation of evidence. Because this issue will likely reoccur, we address this enumeration and hold that the trial court did not err.

It is axiomatic that a jury charge must be “adjusted to the evidence, apt, and a correct statement of the applicable law.” And a refusal to give a requested jury charge is not error unless “the request is entirely correct and accurate; is adjusted to the pleadings, law, and evidence; and is not otherwise covered in the general charge.” Furthermore, the review of allegedly erroneous jury instructions is a legal question, and we therefore “owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” Bearing these guiding principles in mind, we will now address the Hands’ specific claim.

The Supreme Court of Georgia has held that “spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” And if a trial court finds that a party has engaged in spoliation, it may instruct the jury regarding OCGA § 24-14-22, which provides:

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

However, notice of potential liability is “not the same as notice of potential litigation.” Rather, to meet the standard for proving spoliation, the injured party must show that “the alleged tortfeasor was put on notice that the party was contemplating litigation.” Indeed, the simple fact that someone is injured, without more, is “not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation.” Furthermore, the trial court has wide discretion in resolving spoliation issues, and “we will not disturb its ruling absent abuse.”

In this matter, the Hands requested that the trial court instruct the jury regarding OCGA § 24-14-22 after learning during trial that the Targis device in the courtroom was not the actual device that Dr. Gonzalez used to treat Hand. The trial court denied the request, and the Hands now claim that this denial constituted error. As noted previously, we disagree.

Urologix replaced the Targis device in question nearly three months after Dr. Gonzalez used it to treat Hand. And putting aside whether Dr. Gonzalez was being truthful when he testified to having no recollection of Urologix retrieving the device, there is no evidence that Dr. Gonzalez had notice that the Hands were contemplating litigation when Urologix replaced the device. Accordingly, the trial court did not err in ruling that instructing the jury pursuant to OCGA § 24-14-22 was unwarranted.

3. The Hands also contend that the trial court erred in prohibiting cross-examination of Dr. Gonzalez regarding the past suspension of his medical license. Because this issue may also reoccur, we will address this argument as well, and hold that the trial court did not err in this respect either.

Prior to trial, defendants filed a motion in limine, requesting the exclusion of any evidence regarding the temporary suspension of Dr. Gonzalez’s medical license, which occurred years before he treated Hand. Following a pretrial hearing on the matter, the Hands’ counsel indicated that he did not intend to delve into this issue, and the trial court granted defendants’ motion. Thereafter, during direct examination, defense counsel asked Dr. Gonzalez how long he had been a urologist, and he responded, “1989 to the present.” Subsequently, the Hands’ counsel sought a bench conference and argued that Dr. Gonzalez’s above-referenced testimony “opened the door” to the admission of evidence regarding the suspension of his license. The trial court disagreed and denied the Hands’ request.

On appeal, the Hands reassert that Dr. Gonzalez’s testimony— that he had been a urologist from 1989 to the present — opened the door for evidence regarding the suspension of his license. We disagree. As previously noted, “[qjuestions of relevancy are generally matters within the trial court’s discretion[.]” Nevertheless, it is not error to exclude evidence that “is not related to an issue at trial.” And evidence that is “both irrelevant and prejudicial is inadmissible.” Here, given that the suspension and reinstatement of Dr. Gonzalez’s license occurred years before his treatment of Hand, the admission of such evidence was irrelevant to whether the doctor breached the standard of medical care in this particular case and would have been unduly prejudicial. Moreover, even if we agreed with the Hands that Dr. Gonzalez’s testimony regarding how long he had been a urologist could somehow be construed as implying that his practice had never been interrupted for any reason and, therefore, was untruthful, “a witness may not be impeached based upon a discrepancy relating to a wholly immaterial matter.” And in stark contrast to the evidence discussed in Division 1, supra, evidence of Dr. Gonzalez’s past license suspension is immaterial. Accordingly, the trial court did not abuse its discretion in prohibiting cross-examination of Dr. Gonzalez regarding the past suspension of his medical license.

4. Because we have determined that a new trial is necessary, we need not address the Hands’ remaining enumeration of error regarding whether the evidence supported the jury’s verdict.

For all of the foregoing reasons, we reverse the trial court’s judgment in favor of defendants and remand the case for a new trial.

Judgment reversed and case remanded.

Doyle, P. J., and Miller, J., concur.

On Motion for Reconsideration.

On motion for reconsideration, the defendants request that we revisit our ruling that the trial court erred in excluding the data from the Targis device (discovered during trial) that was admissible to impeach Dr. Gonzalez’s testimony that he did not use the device after learning of Hand’s injury. Specifically, defendants argue that the trial court did not err in excluding this evidence because the data was never actually printed from the device during trial, and thus, the Hands never made a formal proffer of same. We disagree.

Defendants are correct that the record is somewhat confusing as to whether the data on the Targis device — showing that Dr. Gonzalez used it six more times after learning of Hand’s injury — was ever printed during trial. Indeed, this confusion seemingly even extends to defendants’ own appellate brief, in which their initial reference to the issue notes that “[a]ppellants turned the machine on and printed subsequent data from it at trial. . . .” But regardless of the form of the data, the fact remains that it constitutes evidence that contradicts both Dr. Gonzalez’s deposition and trial testimony. Moreover, defendants’ argument that exclusion of the evidence was proper because the Hands never made a formal proffer is unpersuasive. OCGA § 24-1-103 (a) (2) provides that

[ejrror shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and... [i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by an offer of proof or was apparent from the context within which questions were asked.

Decided March 16, 2015

Reconsideration denied April 14, 2015

Tate Law Group, Mark A. Tate, James E. Shipley, Jr., for appellants.

Hall Booth Smith, Terrell W. Benton HI, Dean T. Cleaveland, for appellees.

Here, the record is replete with discussions between both parties and the trial court regarding the fact that the data indicates that Dr. Gonzalez used the Targis device after learning of Hand’s injury, despite his testimony to the contrary. In fact, the trial court succinctly and accurately summarized the Hands’ argument for the admissibility of the data just before ultimately ruling to exclude the evidence. Thus, the trial court was fully aware of what the data generally entailed and why the Hands believed it was important to their case. Nevertheless, the court chose to exclude this relevant impeaching evidence and allow the credibility of Dr. Gonzalez to go unchallenged. In doing so, the trial court committed reversible error. Accordingly, defendants’ motion for reconsideration is denied.

Motion for reconsideration denied.

        See, e.g., Horton v. Hendrix, 291 Ga. App. 416, 416 (662 SE2d 227) (2008).

        City of Atlanta v. Bennett, 322 Ga. App. 726, 727 (1) (746 SE2d 198) (2013) (punctuation omitted).

         Id. at 728 (1) (punctuation omitted).

       As previously noted, this case was tried in April and May 2013, and, therefore, the new Evidence Code was applicable. See Ga. L. 2011, p. 99, § 101.

        Ballard v. Meyers, 275 Ga. 819, 821 (572 SE2d 572) (2002) (citation and punctuation omitted); accord Gibbons v. Maryland Cas. Co., 114 Ga. App. 788, 796 (152 SE2d 815) (1966).

        Bolah v. Driskell, 318 Ga. App. 405, 407 (734 SE2d 108) (2012); accord Pouncey v. Adams, 206 Ga. App. 126, 127 (424 SE2d 376) (1992).

        Barngrover v. Hins, 289 Ga. App. 410, 412 (1) (657 SE2d 14) (2008) (punctuation omitted); see also Ballard, 275 Ga. at 821-22 (holding that trial court’s ruling that excluded relevant impeaching evidence and allowed the credibility of a crucial witness to go unchallenged because document was not listed in the pretrial order was error); Smith v. State, 190 Ga. App. 6, 7 (2) (378 SE2d 349) (1989) (“Generally, a party may show anything which in the slightest degree affects the credit of an opposing witness.” (punctuation omitted)).

        See supra note 5.

       Ballard, 275 Ga. at 819.

        Id. at 820.

        Id. at 821.

        Id. at 822; see OCGA § 24-6-620 (“The credibility of a witness shall be a matter to be determined by the trier of fact, and if the case is being heard by a jury, the court shall give the jury proper instructions as to the credibility of a witness.”).

        See supra note 4.

        See Fed. R. Evid. 607 (“Any party, including the party that called the witness, may attack the witness’s credibility’). Given the similarity between Georgia’s new Evidence Code and the Federal Rules of Evidence “it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts.” Jones v. State, 326 Ga. App. 658, 660 (1) (757 SE2d 261) (2014) (punctuation omitted).

        United States v. Castillo, 181 F3d 1129, 1133 (9th Cir. 1999); accord United States v. Gilmore, 553 F3d 266, 271 (II) (3d Cir. 2009); United States v. Benedetto, 571 F2d 1246, 1250 n.7 (2d Cir. 1978).

        Morgan v. Covington Township, 648 F3d 172, 179 (III) (C) (3rd Cir. 2011) (punctuation omitted); see Ronald L. Carlson & Michael Scott Carlson, Carlson On Evidence 255 (3d ed. 2015) (noting that impeachment by contradiction permits courts to admit extrinsic evidence that specific testimony is false because other evidence contradicts it).

        See Ballard, 275 Ga. at 822 (noting that because the controlling presumption is that all witnesses speak the truth, defense counsel was reasonably justified in assuming that he would not need to introduce impeaching document, and thus, his failure to list the document in the pretrial order was not an intentional act of ambush).

        See Bennett, 322 Ga. App. at 728 (1) (noting that “evidence having a tendency to establish facts in issue is relevant and admissible, and no matter how slight the probative value, our law favors admission of relevant evidence.” (punctuation omitted)).

        Ballard, 275 Ga. at 822; see Bolah, 318 Ga. App. at 406-07 (holding that evidence that plaintiff received compensation for an earlier injury, which ordinarily would have been irrelevant and prejudicial, was admissible to impeach plaintiff’s testimony that his earlier injury had not impaired him); cf. Bennett, 322 Ga. App. at 731 (1) (holding that the “exclusion of probative trial evidence is not an appropriate remedy for curing an alleged discovery omission.” (punctuation omitted)).

        Harper v. Barge Air Conditioning, Inc., 313 Ga. App. 474, 479 (1) (722 SE2d 84) (2011) (punctuation omitted); see Guoth v. Hamilton, 273 Ga. App. 435, 441 (1) (615 SE2d 239) (2005).

        Harper, 313 Ga. App. at 479 (1).

        See id.; see also Ga. Const. Art. I, Sec. I, Par. XI (a) (providing that the right to a jury trial “shall remain inviolate”); see generally Morris S. Arnold, A Historical Inquiry into the Right to Trial by Jury in Complex Civil Litigation, in The Bill of Rights: Original Meaning and Current Understanding 399, 400 (Eugene W. Hickok, Jr. ed., 1993) (“That special affection for the jury ought to he viewed as relevant not just to the fact that jury trial was ‘preserved’ in the Constitution; it is relevant as well to interpreting the scope of the actual provision, for it gives the right granted an aura and the Constitution a meaning they would not otherwise have if the institution of jury trial had been regarded more or less indifferently.”).

        Wood v. B&S Enters., Inc., 314 Ga.App. 128, 130 (1) (723 SE2d 443) (2012) (punctuation omitted).

        Preston v. Sabetazm, 269 Ga. App. 451, 454 (2) (604 SE2d 224) (2004).

        Wood, 314 Ga. App. at 130 (1) (punctuation omitted).

        Silman v. Assocs. Bellemeade, 286 Ga. 27, 28 (685 SE2d 277) (2009) (punctuation omitted); accord Baxley v. Hakiel Indus., Inc., 282 Ga. 312, 314 (647 SE2d 29) (2007).

       This Code section is nearly identical to former OCGA § 24-4-22. See Ga. L. 2011, p. 99, §2.

        Craig v. Bailey Bros. Realty, Inc., 304 Ga. App. 794, 796 (1) (697 SE2d 888) (2010) (punctuation omitted); accord Silman, 286 Ga. at 28.

        Craig, 304 Ga. App. at 796 (1).

        Id. at 796-97 (1) (punctuation omitted).

        Paggett v. Kroger Co., 311 Ga. App. 690, 692 (2) (716 SE2d 792) (2011).

        See Hendley v. Evans, 319 Ga. App. 310, 317-18 (2) (b) (i) (734 SE2d 548) (2012) (holding that instruction regarding former OCGA § 24-4-22 is applicable only in cases when it is shown that a party has withheld evidence within party’s control and an instruction on that principle should be given only in “exceptional cases”); cf. Silman, 286 Ga. at 27-28 (holding that defendant’s removal and demolition of old deck (following its collapse), without more, was insufficient to show spoliation); Craig, 304 Ga. App. at 797 (1) (holding that defendant’s discarding of protruding landscape timber spikes, seven months before plaintiffs filed suit alleging injury caused by spikes, did not constitute spoliation).

        Wheeler v. Stewart, 234 Ga. App. 714, 715 (507 SE2d 540) (1998) (punctuation omitted); see also Bennett, 322 Ga. App. at 728 (1).

        Wheeler, 234 Ga. App. at 715 (punctuation omitted).

        Id. at 716 (punctuation omitted).

        See id. (holding that evidence of doctor’s drug use and subsequent rehabilitation, which occurred after his treatment of plaintiff, were not relevant to his treatment of plaintiff and would have heen unduly prejudicial).

        Smith v. State, 283 Ga. 237, 241 (5) (657 SE2d 523) (2008) (punctuation omitted); cf. Ballard, 275 Ga. at 821 (holding that trial court’s ruling that excluded relevant impeaching evidence was not immaterial as it allowed the credibility of a crucial witness to go unchallenged); Barngrover, 289 Ga.App. at 412 (1) (allowing plaintiff a limited cross-examination into whether physician’s medical license was renewed after physician’s specific testimony that he had allowed it to expire).

        See Wheeler, 234 Ga. App. at 715.

        See Castillo, 181 F3d at 1133; see also Ballard, 275 Ga. at 822; Bolah, 318 Ga. App. at 406-07.

        See Milich, Georgia Rules of Evidence, § 3:5, p. 66 (2d ed. 2014) (“[A]ll that is required [of an offer of proof] is presentation of the pertinent facts on the record, a task that can be accomplished by counsel simply stating the facts on the record.”).

        See Ballard, 275 Ga. at 822; Bolah, 318 Ga. App. at 406-07.


source: Caselaw Access Project

author:
Branch, Judge.
      BARNES, Presiding Judge,

license: Public Domain

text:
    A14A1884.
    NORWICH et al. v. THE SHRIMP FACTORY, INC.
    (770 SE2d 357)
   Branch, Judge.

Franceska and Leonard Norwich brought this premises liability action against the Shrimp Factory, Inc., a Savannah restaurant, after Mrs. Norwich fell from a platform upon exiting a toilet stall in the women’s restroom. The trial court granted summary judgment to the Shrimp Factory on the ground that the uncontroverted evidence showed that Mrs. Norwich had equal knowledge of the allegedly hazardous condition of the platform because she had previously negotiated the platform when she entered the toilet stall. On appeal, plaintiffs argue that a genuine issue of material fact remains as to whether Mrs. Norwich had equal knowledge of the hazard posed by the platform. We disagree and therefore affirm.

“On summary judgment, a trial court is not authorized to resolve disputed issues of material fact.” (Citation omitted.) Ly v. Jimmy Carter Commons, LLC, 286 Ga. 831, 833 (1) (691 SE2d 852) (2010). Summary judgment is proper if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). “A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (Citation omitted.) Gayle v. Frank Callen Boys & Girls Club, 322 Ga. App. 412 (745 SE2d 695) (2013).

So viewed, the evidence shows that the women’s restroom at the Shrimp Factory includes two toilet stalls constructed on top of a raised platform at the far end of the restroom. To reach either of these stalls, a patron must walk across the main floor of the restroom, step up onto the platform, and then step up into the stall. The platform is 6 inches higher than the main floor, and the stall floors are 6V2 inches higher than the platform. The platform has the same wood flooring as the main floor, but the stall floors are made of tile.

Each stall has a door that opens outward. The step from the platform to the stall floor is located at the stall door. On the inside and outside of each stall door is a sign that says “Watch Your Step.” There is a yellow stripe on the floor across the threshold of the entrance to the stalls, demarcating the step from the platform to the stall floor. The platform has two nonskid black strips on the surface in front of each bathroom stall, one of which is nearly flush with the edge of the step. A handrail extends from a wall between the two bathroom stalls to the end of the platform, to which the handrail is attached.

On the day of the accident, a hostess seated Mrs. Norwich and her husband in the restaurant, and Mrs. Norwich then went to the women’s restroom. After she entered the restroom, Mrs. Norwich stepped up onto the platform and then stepped up into one of the bathroom stalls. While in the stall, she saw the sign on the inside of the door warning patrons to watch their step. She also noticed the yellow stripe on the floor marking the threshold of the bathroom stall. As she exited from the stall, Mrs. Norwich stepped down onto the platform while holding the handrail. Believing that she was on the main floor of the restroom, Mrs. Norwich took her hand off the handrail when she came to the end of it, and she looked and stepped toward the sink. She then fell onto her right foot, dislocating and fracturing her ankle.

Mrs. Norwich and her husband brought this action against the Shrimp Factory, contending that the women’s restroom was negligently designed and constructed and that the Shrimp Factory had failed to take appropriate measures to make the restroom safe. The Shrimp Factory answered, denying liability, and thereafter moved for summary judgment on the ground that as a matter of law, Mrs. Norwich had equal knowledge of any alleged hazardous condition in the restroom. In opposing summary judgment, Mrs. Norwich and her husband cited her deposition testimony and the affidavits of two experts. The first expert, an engineer, averred that several building code violations in the construction of the women’s restroom “contributed to” Mrs. Norwich’s fall. Mrs. Norwich and her husband also submitted the affidavit of a professor of psychology, who testified that the absence of physical features at the edge of the platform created an “apparent continuity” of the floor and platform surfaces amounting to a failure in the design of the women’s bathroom and the cause of Mrs. Norwich’s fall.

The trial court granted the Shrimp Factory’s motion for summary judgment on the ground that Mrs. Norwich had equal knowledge of the hazard gained when she successfully negotiated the step up from the main floor to the platform on her way into the bathroom stall. This appeal followed.

A premises liability plaintiff

must plead and prove that: (1) the defendant had actual or constructive knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant’s actions or to conditions under the defendant’s control.

(Citation and punctuation omitted.) Perkins v. Val D'Aosta Co., 305 Ga. App. 126, 128 (699 SE2d 380) (2010); see also American Multi-Cinema v. Brown, 285 Ga. 442, 444 (2) (679 SE2d 25) (2009).

In cases involving allegations of a static, dangerous condition such as the step at issue here, an invitee’s actual knowledge of the condition relieves a proprietor of any duty to warn that invitee of that condition or hazard because “the invitee has as much knowledge as the proprietor does.” Perkins, 305 Ga. App. at 128. Thus “a claim involving a static defect differs from other slip and fall cases in that when a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have equal knowledge of it and cannot recover for a subsequent injury resulting therefrom.” Id. (citations and punctuation omitted; emphasis supplied); see also Cocklin v. JC Penney Corp., 296 Ga. App. 179, 181-182 (674 SE2d 48) (2009); Trans-Vaughn Dev. Corp. v. Cummings, 273 Ga. App. 505, 508 (615 SE2d 579) (2005); Newell v. Great Atlantic & Pacific Tea Co., 222 Ga. App. 884, 885 (476 SE2d 631) (1996). This rule imputing knowledge to an invitee of the danger posed by a premises feature is limited, however, “to cases involving a static condition that is readily discernible to a person exercising reasonable care for his own safety.” Strauss v. City of Lilburn, 329 Ga. App. 361, 364 (765 SE2d 49) (2014) (citation and punctuation omitted; emphasis in original); see also Perkins, 305 Ga. App. at 128-129; Rutherford v. Revco Discount Drug Centers, 301 Ga. App. 702, 704 (689 SE2d 59) (2009); Cocklin, 296 Ga. App. at 180; Newell, 222 Ga. App. at 885. This limitation of the rule imputing knowledge of a hazard is simply a restatement of the truism, still applied, that a plaintiff is held to have knowledge of “an open and obvious condition.” See Wright v. K-Mart Corp., 286 Ga. App. 765 (650 SE2d 300) (2007) (no error in granting a store summary judgment as to plaintiff’s claim arising from a trip over store’s shelf corner) (emphasis supplied); Music v. Steamco, Inc., 265 Ga. App. 185, 186 (593 SE2d 370) (2004) (plaintiff was held to have had equal knowledge of water on steps leading from restaurant); Becton v. Tire King of North Columbus, 246 Ga. App. 57, 59 (539 SE2d 551) (2000) (plaintiff was held not to have exercised due care when she walked backward into a planter that was “an open and obvious condition”).

The appeal before us thus turns on the question whether, shortly after Mrs. Norwich had ascended the step marked by black nonskid tape from the main floor to the platform without incident, any hazard posed by the same step downward from the platform to the main floor was “obvious” or “readily discernible” to her as a matter of law.

When a case involves a second approach to a static hazard soon after successful traversal of the same hazard, we have consistently resolved the matter of equal knowledge as a matter of law. In Gantt v. Dave & Busters of Ga., 271 Ga. App. 457 (610 SE2d 116) (2005), for example, we held that a plaintiff who had previously stepped up to a platform to play a video game had acquired equal knowledge of the hazard posed by the step even when “a white border across the vertical portion of the top level” was visible “only from the bottom level,” and when “the top level was marked with a brown strip along its edge,” just as the top level of this step was marked with a black strip along its wooden edge. Id. at 458. Likewise, in Orff v. Stonewood Restaurant Group, 285 Ga. App. 488 (646 SE2d 702) (2007), a plaintiff who had previously traversed a step up from a restaurant floor to an elevated booth “fell on the same step she used to reach her booth.” Id. at 490. We emphasized that “it is the plaintiff’s knowledge of the specific hazard which caused the fall that determines whether the plaintiff can prevail on a premises liability claim,” and concluded that having looked down to step up into the booth, the plaintiff should have known that she would have to step down such that she had equal knowledge of the hazard posed by the step. Id. (citation and punctuation omitted; emphasis in original).

Here, Mrs. Norwich twice noted “Watch Your Step” signs on both the inside and the outside of the bathroom stall before falling off the platform shortly after ascending it. Two black nonskid strips marked the platform between the stall and the main floor, with one placed near the edge of the platform; both strips are “readily discernible” even in the poor-quality copy of a photograph included in this appellate record. Norwich’s experts testified that the irregular depth of this step, the lack of a proper handrail, and the use of the same wood in the platform and the main floor all contributed to her fall. Norwich herself testified, however, that nothing had changed in the condition of the steps between her ascent and her attempted descent, and that she looked to her left in the direction of the bathroom sinks, let go of the handrail, and stepped into the air, at which moment she fell. In light of this positive evidence from the only person present at the time of the fall as to the conditions under which it took place, expert opinion as to how Norwich may have perceived the step is both speculative and irrelevant. See Pennington v. WJL, Inc., 263 Ga. App. 758, 760 (1), (2) (589 SE2d 259) (2003) (affirming grant of summary judgment when evidence did not show that plaintiff actually tripped over hoses near doorway; circumstantial evidence as to the cause of his fall was speculative and properly disregarded).

When, as here, a plaintiff has successfully negotiated a specific and static condition only moments before encountering it again, our law reasonably imputes knowledge of that condition to her because it presents no new hazard. The cases cited by the dissent are thus inapposite, and its reliance on expert testimony about an “apparent continuity” appearing from one angle but not another would gut the longstanding rule that the successful negotiation of an obvious, static, and specific hazard, including a step up, bars recovery for injuries sustained in a fall on the way back down the same hazard. Although there was some evidence in Perkins, for example, that the plaintiff had previously negotiated the curb over which he fell, his descent off the curb took place some hours after his previous ascent, with the result that he was traversing a hazard rendered substantially different by either changed conditions, the passage of time, or both. Id. at 126-127; see also Cocklin, 296 Ga. App. at 180 (plaintiff falls on entry to salon she had visited “four or five times before,” with the elapsed time between the previous visits and the fall not specified). As we emphasized in Strauss, moreover, and although the plaintiff in that case had previously visited a restaurant, she had never entered from the point she did on the day of her fall, and thus had not “actually walked either up or down the single-step riser [on which she fell] before [that] fall.” 329 Ga. App. at 364. Likewise, there was no evidence in Rutherford that the plaintiff entered the store by walking up the same ramp down which she exited: as we noted, “the fact that Rutherford had walked into the store once [did] not as a matter of law give her actual or constructive knowledge of the hazard she faced walking out of the store directly onto the steep ramp.” Id. at 703. Our decision in Hatcher v. City of Albany, 147 Ga. App. 843 (250 SE2d 537) (1978), which reversed a grant of a directed verdict as to a claim arising from a fall from a set of exterior steps, issued almost ten years before the static defect rule and its limitation as stated above, which first appeared in 1996 and 1995 respectively. See MARTA v. Fife, 220 Ga. App. 298, 300 (2) (469 SE2d 420) (1996); Martin v. Dunwoody-Shallowford Partners, 217 Ga. App. 559, 561 (458 SE2d 388) (1995). The two remaining cases cited by the dissent are not binding precedent. See Pinder v. H & H Food Svcs., 326 Ga. App. 493 (756 SE2d 721) (2014) (physical precedent only); Murray v. West Building Materials of Ga., 243 Ga. App. 834 (534 SE2d 204) (2000) (physical precedent only).

We understand that an invitee like Mrs. Norwich “[is not] required, in all circumstances, to look continuously at the floor, without intermission, for defects.” American Multi-Cinema, 285 Ga. at 447 (2) (punctuation and footnote omitted). But “the ultimate issue” in this case is whether the owner of this property “was negligent in maintaining a hazardous condition on the property,” which fault cannot arise from a failure to warn an invitee of “the obvious.” McLemore v. Genuine Parts Co., 313 Ga. App. 641, 644 (722 SE2d 366) (2012) (citation and punctuation omitted). After all, as we repeated a short time ago, “in everyday life, persons are required to negotiate floors, steps, and doorways.” Id. This trial court did not err when it concluded that Mrs. Norwich had equal knowledge of the allegedly hazardous step she had successfully traversed shortly before her fall. We therefore affirm the grant of summary judgment to the Shrimp Factory.

Judgment affirmed.

Doyle, P. J., Miller, Dillard, and Boggs, JJ., concur. Barnes, P. J., and Ellington, P. J., dissent.

BARNES, Presiding Judge,

dissenting.

A genuine issue of material fact exists as to whether the hazardous condition of the bathroom platform was readily discernible to Mrs. Norwich, in the exercise of ordinary care, from her vantage point at the time of her fall. Consequently, whether Mrs. Norwich exercised ordinary care for her own safety, and thus whether she had equal knowledge of the hazard posed by the platform, are questions of fact that should be resolved by a jury. The trial court’s grant of summary judgment to the Shrimp Factory thus should be reversed, and because the majority concludes otherwise, I respectfully dissent.

Construed in favor of Mrs. Norwich as the nonmoving party, the evidence shows that the floor in the women’s restroom at the Shrimp Factory has three levels: a main wooden floor, a raised wooden platform that is 22V2 inches in length, and two bathroom stalls with tile floors. The step from the platform to the bathroom stall floor is located immediately at the stall doors, which have “Watch Your Step” signs on them. While there is a yellow stripe on the floor at the entrance to the stalls that marks where the stall floor drops off to the platform, there is no corresponding stripe marking the edge of the platform where it drops off to the main floor. The platform has two nonskid black strips in front of each bathroom stall, but the strips clearly do not reach the edge of the platform and do not demarcate where it drops off to the main floor. A handrail extends from a wall between the two bathroom stalls, but it stops at the end of the platform.

When Mrs. Norwich exited one of the bathroom stalls, she stepped down onto the platform as she held the handrail. Because she thought she was on the main floor, Mrs. Norwich injured her right foot as she unexpectedly dropped from the platform to the main floor upon stepping toward a bathroom sink to wash her hands.

One of Mrs. Norwich’s experts, a professional engineer, opined that there were multiple building code violations in the construction of the women’s restroom that contributed to Mrs. Norwich’s accident. According to the expert, the fact that the platform was less than 44 inches in length made it difficult for patrons like Mrs. Norwich walking out of a bathroom stall to “appreciate the fact that they are on a [platform] and the fact that there is another step to negotiate” downward. Moreover, the expert opined, the lack of a proper handrail extension to the main floor contributed to patrons like Mrs. Norwich failing “to apprehend the fact that the floor was one step down from the platform.” The expert further opined that the uniform color and wooden texture of the platform and main floor affected the visibility of the step from the platform to the main floor, and that the placement of the yellow strip where the bathroom stall dropped off to the platform would cause patrons to reasonably expect a similar strip where the platform dropped off to the main floor.

Mrs. Norwich’s second expert, a professor of psychology who specialized in the study of human perception and performance, opined:

In the specific case of [Mrs.] Norwich’s accident, there were no physical features at the edge of the platform in the area in which she fell that would have served as a visual cue for the presence of the second step that she encountered that would have attracted her attention to it. That is, the edge of the platform was not demarcated by means of paint or other markings that would have allowed it to be visually discriminated from the base floor below the step. The color and texture of the platform that Mrs. Norwich was standing on at that point was identical to the color and texture of the area below it, so that visually there was an apparent continuity of surfaces. Insofar as the riser connecting the platforms was not visible from the direction that Mrs. Norwich approached it, the rise also could not serve as a visual cue for the discontinuity in the surface. Additionally, the end of the handrail at the edge of the platform provided a misleading cue to Mrs. Norwich that she had reached the base level of the floor----[Furthermore,] [t]he bright yellow paint demarcating the edge of the first step and an accompanying warning sign would have created an expectation that edges in this environment would have some form of demarcation.

Given the lack of demarcation at the edge of the platform where it dropped off to the main floor, combined with the allegedly misleading cues provided by the length of the handrail and presence of a demarcation only at the edge of the bathroom stall, the expert concluded that the failure in the design of the women’s bathroom was the direct and proximate cause of Mrs. Norwich’s accident.

After considering the submissions of the parties, the trial court granted the Shrimp Factory’s motion for summary judgment, and the majority now affirms based on the rule that a person who has successfully negotiated a hazardous condition before is presumed to have equal knowledge of it and cannot recover for any injuries resulting from the hazard. See Perkins v. Val D'Aosta Co., 305 Ga. App. 126, 128 (699 SE2d 380) (2010). But “the rule imputing knowledge of a danger to a person who has successfully negotiated an alleged dangerous condition before applies only to cases involving a static condition that is readily discernible to a person exercising reasonable care for his own safety.” (Citation and punctuation omitted; emphasis in original.) Strauss v. City of Lilburn, 329 Ga. App. 361, 364 (765 SE2d 49) (2014). See Perkins, 305 Ga. App. at 128-129.

Given the “readily discernible” requirement, even if the plaintiff previously negotiated a step or ramp, a question of fact still remains as to whether the plaintiff should have detected the change in elevation at the step or on the ramp at the time of his or her fall, if there is evidence that the change in elevation, from the plaintiff’s vantage point when the fall occurred, was hidden or difficult to see because of irregularities or unique characteristics of the step or ramp. See Perkins, 305 Ga. App. at 129 (genuine issue of material fact existed as to whether the plaintiff had equal knowledge of hazard posed by curb, even though the plaintiff had stepped down from the curb two or three times before, given that the step down from the curb “was difficult to see when approached from above due to lighting conditions, darkened surfaces and lack of warning”); Rutherford v. Revco Discount Drug Centers, 301 Ga. App. 702, 704 (689 SE2d 59) (2009) (genuine issue of material fact existed as to whether the plaintiff had equal knowledge of hazard posed by ramp he had previously ascended a few minutes before when entering store, given that “the ramp was not painted or marked in any way to make it stand out from the sidewalk,” “the ramp declined almost at the threshold of the door” to the store, and the closed door blocked the plaintiff’s view of the ramp); Murray v. West Bldg. Materials of Ga., 243 Ga. App. 834, 835-836 (534 SE2d 204) (2000) (physical precedent only) (fact that plaintiff had previously negotiated steps upon entering store did not warrant grant of summary judgment to defendant who fell when exiting from the store, given the hazards posed by descending the steps caused by “a combination of the steps’ lack of uniformity, their excessive combined height and width, and the too-short handrail compounding the first two irregularities”); Hatcher v. City of Albany, 147 Ga. App. 843, 845 (2) (250 SE2d 537) (1978) (summary judgment inappropriate where plaintiff fell while walking down steps that were irregular in depth and were concealed by the dark, although he had previously ascended and descended the steps shortly before the fall occurred).

Likewise, if the change in elevation is hidden or difficult to see from the plaintiff’s vantage point because of an optical illusion, summary judgment is inappropriate even if the plaintiff has previously negotiated the step or ramp. See Strauss, 329 Ga. App. at 362, 364-365 (even if plaintiff had previously negotiated step, summary judgment would be inappropriate, where change in elevation at step, “especially when viewed in descent,” was “ ‘invisible’ on sunny days” such that the step “appeared] ‘continuous’ or like ‘one flat surface’ when walking down toward the street”); Pinder v. H & H Food Svcs., 326 Ga. App. 493, 503 (3), n. 9 (756 SE2d 721) (2014) (physical precedent only) (noting that even if plaintiff had previously walked up the ramp, summary judgment was inappropriate where plaintiff could not see change in elevation when descending the ramp because of an optical illusion).

When these principles are applied to the present case, although Mrs. Norwich had previously stepped onto the platform when walking to the bathroom stall, there is a genuine issue of material fact as to whether the change in elevation from the platform to the main floor should have been readily discernible to her, in the exercise of reasonable care, when walking away from the stall. Mrs. Norwich presented evidence, including expert testimony, from which a jury could find that the drop from the platform to the main floor, from the vantage point of a patron walking away from the bathroom stall, was extremely difficult to see in light of the fact that the platform and main floor were the same color wood, and there were no lines or marks demarcating the edge of the platform. Additionally, a jury could find that the short length of the platform and the failure of the handrail to extend down to the main floor, when combined with the previously mentioned irregularities, created an illusion to a patron standing on the platform that he or she was standing on the main floor. A jury could further find that the bright yellow line demarcating the edge of the bathroom stall and accompanying warning sign could have led a patron to reasonably believe that other drop-offs in this environment would have some form of demarcation, and that the absence of such a demarcation at the edge of the platform thus was misleading.

Under these circumstances, whether Mrs. Norwich exercised ordinary care for her own safety, and thus whether she had equal knowledge of the hazard posed by the platform, are questions of fact to be resolved at trial. See Strauss, 329 Ga. App. at 362, 364-365 (material issues of fact remained as to whether hazard was readily discernible to plaintiff, where, among other things, plaintiff’s expert testified to “camouflaged hazard” posed by step where plaintiff fell); Cocklin v. JC Penney Corp., 296 Ga. App. 179, 182 (674 SE2d 48) (2009) (material issues of fact remained as to whether hazard was readily discernible to plaintiff, where, among other things, plaintiff’s flooring expert testified to difficulty in observing edge of ceramic tile where plaintiff fell).

In affirming the trial court’s grant of summary judgment to the Shrimp Factory, the majority relies upon Orff v. Stonewood Restaurant Group, 285 Ga. App. 488, 489-490 (646 SE2d 702) (2007), but that case is distinguishable. In Orff, the plaintiff walked up a step to reach a booth in a restaurant and later fell from the step when leaving the restaurant. Id. at 488-489. We affirmed the grant of summary judgment to the restaurant on the ground that the plaintiff had previously negotiated the hazardous condition posed by the step without incident and thus was presumed to have knowledge of the condition. Id. at 489-490. However, Orff involved a single step up to a booth, whereas the present case involved two steps, one of which had a sharply contrasting demarcation, which could have misled a patron standing on the platform looking away from the bathroom stall into believing that he or she was standing on the main floor, as indicated by the expert testimony presented.

Additionally, the plaintiff in Orff admitted that if she had been paying attention she would not have fallen, conceding that she had been looking over at her dinner companions when she fell and that “if she had looked down, she likely would have seen the step as there was nothing obstructing her view and she knew she had to descend a step to reach the hostess stand.” 285 Ga. App. at 489. In contrast, Mrs. Norwich testified in her deposition that she was not distracted before she fell from the platform and instead had fallen simply because she had thought she was on the main floor. According to Mrs. Norwich, she had been holding onto the handrail upon exiting the bathroom stall and had come to the end of the rail when she looked over at the sinks and stepped toward them, believing she was on the main floor. And when asked if she would have seen the step from the platform to the main floor if she had looked down at the ground immediately before her fall, Mrs. Norwich testified that she was not sure that she would have, given that the platform and main floor were the same color. Given these differences between the two cases as reflected by Mrs. Norwich’s deposition testimony, the majority’s reliance on Orff is misplaced. See Strauss, 329 Ga. App. at 364 (distinguishing Orff on the ground that the plaintiff had previously traversed the same hazard and had “admitted that she was not paying attention at the time of the fall”).

Decided March 30, 2015

Reconsideration denied April 14, 2015

Duffy & Feemster, Dwight T. Feemster, for appellants.

Goodman McGuffey Lindsey & Johnson, Peter D. Muller, for appellee.

The majority also relies upon Gantt v. Dave & Buster’s of Ga., 271 Ga. App. 457 (610 SE2d 116) (2005), which involved a single step that “was marked with a brown strip along its edge.” Because the step from which the plaintiff fell had a strip on its edge that demarcated the drop off from the step to the main floor, Gantt is distinguishable from the instant case. Here, the nonskid black strips on the platform from which Mrs. Norwich fell did not extend to the edge of the platform, and, as previously discussed, a jury could find that this lack of demarcation along the edge contributed to the difficulty in seeing the drop from the platform to the main floor when walking away from the bathroom stall.

For these combined reasons, we should reverse the trial court’s grant of summary judgment to the Shrimp Factory so that the factual issues arising in this case can be decided by a jury. As our Supreme Court has emphasized, “the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication.” Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 SE2d 403) (1997). Summary judgment is proper “only when the evidence is plain, palpable, and undisputed,” and that simply is not the situation here. Id.

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

       The majority claims that “there was no evidence in Rutherford that the plaintiff entered the store by walking up the same ramp down which she exited.” But we pointed out in Rutherford, 301 Ga. App. at 704, that the store “had a single entry” with a ramp and “[n]o landing outside the door.” Moreover, the dissent in Rutherford emphasized that there was “no evidence... that [the plaintiff] gained entrance to the store except by means of the same ramp she fell down on exiting” and that it was “undisputed” that she had “negotiated [the] ramp successfully on entering the store.” Id. at 706 (Andrews, P. J., dissenting).

       Although the majority states that Hatcher was “issued almost ten years before the static defect rule and its limitation,” Hatcher is consistent with our more recent static defect cases and remains good law, as made clear by our recent citation to the case with approval in Rutherford, 301 Ga. App. at 703-704.


author: McFADDEN, Judge.

text:
    A14A1911.
    A14A1912.
    A14A1913.
    A14A1914.
    BING v. THE ZURICH SERVICES CORPORATION. LOWE et al. v. THE ZURICH SERVICES CORPORATION. PURNELL v. THE ZURICH SERVICES CORPORATION. SECKINGER v. THE ZURICH SERVICES CORPORATION.
    (770 SE2d 14)
   McFADDEN, Judge.

These appeals are from trial court orders granting summary judgment to defendants in a negligent inspection case arising out of the catastrophic explosion of a sugar refinery plant operated by the Imperial Sugar Company. Because the trial court correctly found that there exists no genuine issue of material fact, we affirm.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the party is entitled to judgment as a matter of law. A defendant may do this by either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims. Once a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. We review a grant of summary judgment de novo and construe the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Brown v. Seaboard Constr. Co., 330 Ga. App. 778, 779 (1) (769 SE2d 530) (2015) (citations and punctuation omitted).

So viewed, the evidence shows that the Imperial Sugar Company has a sugar refinery plant in Port Wentworth, Georgia. Zurich American Insurance Company (“ZAIC”) was the insurance underwriter for Imperial’s property insurance policy for the plant. ZAIC contracted with its affiliate, The Zurich Services Corporation (“Zurich”), to conduct annual inspections of the plant. In April 2007, Zurich conducted such an inspection, during which its inspector failed to inspect conveyor belts over which Imperial had placed stainless steel covers. Several months later, in January 2008, an Imperial plant safety manager warned the plant manager and safety director of sugar piling up under the covered conveyor belts. He wrote in an e-mail:

We have serious dust, explosion hazards on the 9th floor of the silo. In some places sugar is piled up under the steel belt with nowhere to go because of the stainless covers over the belt.... I know the stainless covers are a quality thing but they are also not allowing sugar to get from underneath the belt and piling up into bearings and other metal components. We have a serious issue here we need to address.

A few weeks later, on February 7, 2008, there was an explosion at the plant when sugar dust, which had accumulated under the covered conveyor belts, ignited. Derrick Bing, Justin Purnell, Paul Seckinger, Patricia Proctor and others were injured in the explosion.

Bing, Purnell, Seckinger and the survivors of Proctor, who is now deceased, sued numerous entities, including Zurich. The claims against Zurich were premised on the contention that it had negligently failed to identify the threat of the explosion during its 2007 inspection. Zurich moved for summary judgment, and the trial court granted the motion, finding that Zurich had undertaken the inspection for insurance underwriting purposes and owed no duty to the plaintiffs. Bing, Purnell, Seckinger and the survivors of Proctor appeal.

1. Claims under Section 324A of the Restatement (Second) of Torts.

The appellants claim that there is a genuine issue of material fact as to whether Zurich owed them a duty pursuant to Section 324A of the Restatement (Second) of Torts. However, this very issue has been decided adversely to them in a similar federal court action arising from the same explosion. Manker v. The Zurich Svcs. Corp. 556 Fed. Appx. 907 (11th Cir. 2014). Although the federal court decision is not binding on this court, we find the analysis in that decision to be persuasive. See Baskin v. Ga. Dept. of Corrections, 272 Ga. App. 355, 359 (3) (612 SE2d 565) (2005) (federal court decisions are not binding authority on this court, but their reasoning may be persuasive).

Section 324A of the Restatement (Second) of Torts does provide for liability to third persons for negligent performance of an undertaking, and was adopted by the Supreme Court of Georgia in Huggins v. Aetna Cas. & Sur. Co., 245 Ga. 248 (264 SE2d 191) (1980).

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Id. at 249.

The appellants in Manker, supra, like the appellants in the instant case, claimed that under Section 324A, Zurich had a duty to the workers at the plant because it had conducted inspections there. But as explained by the federal court of appeals:

In order for Appellants to establish a prima facie case under [Section] 324A, there must be an undertaking by Zurich. See Finley v. Lehman, 218 Ga. App. 789 [(463 SE2d 709) (1995)]. Here, Zurich did not undertake the duty to perform inspections for Imperial. Zurich was a separate entity that performed inspections for ZAIC for insurance underwriting purposes. Section 324A of the Restatement will not support a cause of action based on the theory that a party who did not undertake to render services should have done so. Davenport v. Cummins Alabama, Inc., 284 Ga. App. 666 [(644 SE2d 503) (2007)]. Because the undisputed evidence shows that Zurich did not undertake to render services to another which it should have recognized as necessary for the protection of a third person or his things, Zurich is entitled to judgment as a matter of law on Appellants’ negligent inspection claim based on Section 324A of the Restatement. Id.

Manker, supra at 908-909 (punctuation omitted; emphasis in original).

The federal district court order granting summary judgment to Zurich, which the appeals court affirmed, discussed that evidence which, as in the instant case, included the insurance policy and report issued to Imperial. See Manker v. Zurich Svcs. Corp., 2013 U. S. Dist. LEXIS 108496 (S.D. Ga. Aug. 1, 2013).

The property insurance policy issued to Imperial states “we have the right but not the obligation to make inspections and surveys at any time; give you reports on the conditions we find; and recommend changes.” The policy further states: “Any inspections, surveys, reports or recommendations relate only to insurability and the premiums to be charged. We do not make safety inspections. We do not undertake to perform the duty of any person or organization to provide for the health or safety of workers or the public. We do not warrant that conditions are safe or healthful; or comply with laws, regulations, codes or standards.” Zurich also issued a Property Policyholder Risk Improvement Report after its inspections bearing the following notice: “Only you can make your workplace safe. Those duties are not delegated and Zurich Services Corporation accepts no delegation of those duties. Zurich Services Corporation will assist you by providing the specific services for which you have contracted. However, it makes no warranties in conjunction with those services, and it undertakes no obligation other than set out in the contract.”

Manker, supra at 2013 U. S. Dist. LEXIS 108496 (III) *5-6 (citations and punctuation omitted).

Thus, as found by both the federal district and appellate courts, Zurich did not undertake to render safety inspections for Imperial, and instead undertook to conduct inspections for underwriting purposes for the property insurance policy. The appellants’ arguments to the contrary amount to claims that Zurich should have undertaken a safety inspection, but as the federal appellate court explained, Section 324A “will not support a cause of action based on the theory that a party who did not undertake to render services should have done so. [Cit.]” Manker, supra, 556 Fed. Appx. at 909 (emphasis in original). Accordingly, the trial court correctly ruled that Zurich was “entitled to judgment as a matter of law on the [appellants’] negligence claim[s] based on Section 324A of the Restatement.” GuideOne Mut. Ins. Co. v. Hunter, 286 Ga. App. 852, 855 (650 SE2d 424) (2007) (where inspection undertaken only to determine certain obligations under insurance policy). See also Davenport, supra at 673 (2) (inspection involving performance review of an engine was not a safety inspection).

2. AIB International, Inc.

The appellants in Case No. A14A1912 incorporate their arguments concerning the grant of summary judgment to Zurich into a separate enumeration contending that the trial court also erred in granting summary judgment on its Section 324A claim against another defendant, AIB International, Inc. (“AIBI”). That claim is without merit as the undisputed evidence shows that AIBI, like Zurich, did not undertake to conduct a safety inspection of the plant. Rather, AIBI conducted food service audits whose purpose was only to ensure food safety and that the finished sugar product was not contaminated. The trial court therefore correctly granted summary judgment to AIBI. See GuideOne, supra; Davenport, supra.

Decided March 25, 2015

Reconsideration denied April 14, 2015

Constant Law Firm, Anthony F. Constant; Savage & Turner, Brent J. Savage, Robert B. Turner, Kathryn H. Pinckney; Cathey & Strain, Dennis T. Cathey, Matthew A. Cathey; Karsman, McKenzie & Hart, Jeremy S. McKenzie, for appellants.

Arnall Golden Gregory, Jeffrey Y. Lewis, David L. Hobson; Lewis Brisbois Bisgaard & Smith, R. Scott Masterson, M. Andrew Echols; Brennan Harris Rominger, G. Mason White, for appellee.

Judgments affirmed.

Andrews, P. J., and Ray, J., concur.


author: BARNES, Presiding Judge.

text:
    A14A1956.
    HILDEBRAND v. BANK OF AMERICA, N.A.
    (772 SE2d 790)
   BARNES, Presiding Judge.

Janet Hildebrand appeals the trial court’s grant of summary judgment to Bank of America, N.A., on its suit on a note for $50,844. Hildebrand argues that the court erred in granting the motion because the note was secured by a second mortgage that was “inextricably intertwined” with the first mortgage, which was foreclosed upon but not confirmed. For the reasons that follow, we affirm.

Hildebrand bought a condominium in July 2006. She borrowed $257,380 from the CDC Federal Credit Union, which prepared an “80-20” mortgage loan package for her to sign. At the closing, Hildebrand signed two promissory notes, one for $205,100 and one for $51,280, each of which was secured by a separate deed on the property being purchased. The security deed on the larger note was given first priority, and the deed securing the smaller note was given second priority. Both deeds were dated July 31, 2006, and identified Hildebrand as the borrower and CDC Federal Credit Union as the lender. The deeds differed only slightly, in that the first priority security deed required Hildebrand to occupy the property within 60 days and remain there for at least a year unless the lender agreed otherwise in writing or the borrower experienced extenuating circumstances beyond her control. Another difference is that the final paragraph of the secondary lien deed, titled “Request for Notice of Default and Foreclosure Under Superior Security Deeds, Mortgages or Deeds of Trust,” states:

Borrower and Lender request the holder of any security deed, mortgage, deed of trust or other encumbrance with a lien which has priority over this Security Instrument to give notice to Lender, at Lender’s address set forth on page one of this Security Instrument, of any default under the superior encumbrance and of any sale or other foreclosure action.

After the sale closed, the credit union assigned the two notes to Taylor, Bean & Whitaker Mortgage Corporation, which subsequently assigned the smaller note to Bank of America, and the larger first mortgage note to Cenlar FSB. Green Tree Servicing, LLC, began servicing the second mortgage loan.

Hildebrand sent separate checks to the separate companies monthly, but eventually defaulted on both. She moved out of the condominium in December 2010, but continued to maintain and try to sell it. Hildebrand testified that she provided all of her financial information to both mortgage companies jointly to try to obtain permission to sell the property for less than the amount owed on the notes, so she thought she was negotiating with both of them. She obtained an offer to buy the property for $185,000, of which her real estate agent said Green Tree would get $3,000, but Cenlar would not agree to a short sale and Green Tree would not negotiate about settling the debt secured by the second mortgage.

On June 7, 2011, Cenlar foreclosed on the first priority deed on the property and was also the highest bidder at $116,021. Cenlar filed both its foreclosure deed and a special warranty deed transferring the property to the Federal Home Loan Mortgage Corporation (Freddie Mac) on September 23, 2011. Bank of America sued Hildebrand in August 2012, seeking payment on the promissory note for the principal amount of $50,842 plus interest and attorney fees. The trial court granted summary judgment to the bank “for the reasons stated in the [bank’s] Motion and Reply Brief.”

1. Hildebrand argues on appeal that the trial court erred in granting summary judgment to the bank, because the two loans were “inextricably intertwined” and that the eventual sale of the notes to different parties after the closing did not “unlink” them. Therefore, she asserts, the funds secured by the second promissory note constitute a deficiency that cannot be collected because the foreclosure pursuant to the first security deed was not confirmed. The bank responds that the first note and deed were held by a different creditor, whose actions did not foreclose the bank’s right to recover under the second promissory note.

If a creditor conducts a non-judicial foreclosure and sells the property for less than the amount owed on the debt, it must report the sale within 30 days to a superior court judge in the county where the property is located and obtain confirmation and approval before instituting an action to obtain a deficiency judgment. OCGA § 44-14-161 (a). We have held that certain debts to the same creditor secured by liens on the same real property are so closely linked that the creditor cannot recover a second debt after foreclosing on the first debt unless the foreclosure is confirmed. For example, an action to recover debts evidenced by letters of credit that were secured by the same property that secured earlier promissory notes was actually a suit to recover a deficiency and was barred by the lender’s failure to obtain judicial confirmation of its foreclosure under the notes. Bank of N. Ga. v. Windermere Dev., Inc., 316 Ga. App. 33, 38 (1) (728 SE2d 714) (2012). In that case, “[b] ecause the debts were incurred for the same purpose, secured by the same property, held by the same creditor, and owed by the same debtor, they were inextricably intertwined.” Id. at 39 (1).

Thus, if the same creditor still held both of Hildebrand’s notes and the deeds securing those notes, it could not foreclose on the first note under the security deed, fail to obtain confirmation of the sale, and then sue Hildebrand to recover on the second note. Iwan Renovations v. North Atlanta National Bank, 296 Ga. App. 125, 129 (1) (673 SE2d 632) (2009). But in this case, the notes were sold to different entities. Neither deed had a “dragnet” clause expressly providing that the deed was intended to secure the payment of the note and any other debt owing to the grantee either then or later. See Windermere, 316 Ga. App. at 35. Despite the provision in the second security deed asking any superior priority lienholder to give the subordinate lienholder notice of default and foreclosure, nothing in the first note or deed required the holder to give such notice, and nothing in the documents underlying this transaction indicate that the subordinate lienholder held any rights regarding the first lien-holder’s decision to foreclose on the property. At the time Cenlar foreclosed on the first note, Bank of America owned the second note, and Bank of America had no authority to seek judicial confirmation of Cenlar’s foreclosure. See Titshaw v. Northeast Georgia Bank, 304 Ga. App. 712, 714-715 (1) (697 SE2d 837) (2010) (assignee of creditor who foreclosed on property was proper party to seek confirmation of sale).

Hildebrand argues that “mortgages are either inextricably intertwined at the time they are executed or they are not” and it should not matter whether the loans are subsequently sold or not, an event over which the borrower has no control. “Inextricably” means that the linkage cannot be broken, she contends, and to hold that linked mortgages become “unlinked” when one loan is sold circumvents the purpose of the deficiency statute. Hildebrand’s point that the utility of the deficiency statute is undermined by current mortgage loan practices may be well-founded.

Generally, “early American mortgage loans were two party transactions with lenders holding their own notes, collecting payments, and foreclosing on defaulting borrowers when necessary.” Christopher L. Peterson, Predatory Structured Finance, 28 Cardozo L. Rev. 2185, 2194 (2007). Before the predecessor to OCGA § 44-14-161 (a) was enacted,

it was the law of Georgia that in the event of insufficient return upon the sale of real estate as collateral, a suit could be maintained on the note to collect the deficiency. [The deficiency statute] does not eliminate this claim but subjects it to the condition that the foreclosure sale under power be given judicial approval. From the perspective of history and a consideration of the economic factors then extant, it is evident the intendment of the General Assembly in 1935, in adopting this statute, was to provide for debtor relief . . . [and] to limit and abate deficiency judgments in suits and foreclosure proceedings on debts.

(Citations, punctuation and emphasis omitted.) First National Bank & Trust Co. v. Kunes, 230 Ga. 888, 890 (199 SE2d 776) (1973). “The confirmation statute was enacted at the height of the Great Depression and is intended to protect debtors. At the same time, it furthers the state policy of quieting title to land, and is to that extent useful to creditors as well.” Redman Indus. v. Tower Properties, 517 FSupp. 144, 148 (N.D. Ga. 1981).

Because the mortgage financing and construction industry ground to a halt during the Depression, “the federal government ushered in a ‘three-party’ mortgage system by creating a secondary mortgage market designed to protect borrowers by underwriting loans.” Barry Hester, Opportunity Costs: Nonjudicial Foreclosure and the Sub-prime Mortgage Crisis in Georgia, 25 Ga. St. U. L. Rev. 1205, 1209 (2009). Those three parties were the borrower, the lender, and the government as a guarantor or assignee, and this secondary mortgage market greatly increased the amount of capital available for long-term mortgage loans. Peterson, 28 Cardozo L. Rev. at 2197. In the 1970s, federal agencies began buying home mortgages and sold participation in mortgage “pools” that paid interest income to investors, which led to the eventual development of “ ‘private label’ home mortgage-backed, securities.” Id. at 2200-2201. Unlike the older two- or three-party loans,

Decided March 19, 2015

Reconsideration denied April 14,2015

David A. Cox, for appellant.

contemporary asset-backed securities conduits often have eleven or more integral parties: a borrower, a broker, an originator, a seller, an underwriter, a trust, a trustee, multiple servicers, a document custodian (which may be closely involved in foreclosure proceedings), an external credit enhancer, a securities placement agent, and investors.

Id. at 2256.

These changes in the mortgage market have eroded the protections afforded by the confirmation statute. Hildebrand argues that these protections can remain by maintaining the linkage between loans like hers that were initiated by the same creditor, with the result that the subsequent subordinate lienholder buys the loan “as-is” for purposes of the deficiency judgment statute. As a practical matter, however, if the mortgages remained linked, the result would be that a different subordinate lienholder would have no remedies at all if the superior lienholder foreclosed on the property if the amount of the superior lien exceeds the market price. The subordinate lienholder could neither foreclose on the property again, seek confirmation of the other creditor’s sale, nor sue the borrower on the note.

Because Hildebrand’s mortgage loans were held by different entities when Cenlar foreclosed on its first-priority security deed, the loans were not inextricably intertwined, and the trial court did not err in granting summary judgment to Bank of America on its suit on the note.

2. As Hildebrand concedes, the viability of her counterclaim alleging violations of the Fair Business Practices Act turns on whether her two loans were inextricably intertwined and thus whether Bank of America was justified in pursuing her for payment of the promissory note it held. Given our holding in Division 1, the trial court did not err in granting summary judgment to the bank on Hildebrand’s counterclaim.

Judgment affirmed.

Boggs, J., concurs. Branch, J., concurs in Division 2 and in the judgment.

Kenney & Medina, Thomas S. Kenney; Johnson & Freedman, Melissa A. Meggison, for appellee.