author: ANDREWS, Presiding Judge. DILLARD, Judge,

text:
    A13A2163.
    BENNETT v. THE STATE.
    (754 SE2d 813)
   ANDREWS, Presiding Judge.

Adam Bennett appeals from the trial court’s denial of his motion to suppress methamphetamine seized during a traffic stop. For reasons that follow, we conclude that the trial court erred in denying the motion, and therefore we reverse.

[I]n reviewing a trial court’s decision on a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous. Further, because the trial court is the trier of fact, its findings will not be disturbed if any evidence supports them; but the court’s application of the law to undisputed facts is reviewed de novo.

Lewis v. State, 323 Ga. App. 709, 710 (747 SE2d 867) (2013) (punctuation and footnote omitted).

At the hearing on the motion to suppress, the arresting officer testified that he stopped the truck Bennett was riding in because it did not have a rear bumper. The officer stated that both Bennett and his girlfriend Cynthia Myers, who was driving, appeared extremely nervous when he approached the truck. The officer said that when he looked inside the truck, there was a sunglasses case “between the driver’s seat and the middle seat.” According to the video of the stop, the officer leaned in the window and said “you’ve got to get a bumper on it, you know that.” Myers can be heard saying: “We’re still trying to get it fixed.” The officer responded: “Okay. All right. That’s fine.”

The officer testified that he asked if there were any drugs in the car and both Bennett and Myers answered “no.” The officer asked if anyone was on probation or parole, and Bennett replied that he was on probation “for drugs.” The officer asked Myers to get out of the truck and then requested consent to search the truck. Myers refused. The officer told Myers that he was going to walk his dog around the truck and ordered Bennett to get out of the truck. After Bennett got out of the truck, the officer told him to put his hands on top of his head and, when he did so, the officer noticed a knife sticking out of Bennett’s pocket. The officer removed the knife and asked Bennett if he could search his pockets. According to the officer, Bennett replied that he was on probation and therefore “had to” consent. In the video, it appears that Bennett is undecided whether to consent to the search and says no twice before finally appearing to consent. The officer testified that when he searched Bennett’s pockets, he felt what he “knew right away was a bag of drugs.” The bag was later found to contain methamphetamine.

When questioned as to why he immediately began a search for drugs after just briefly mentioning the bumper, the officer stated that it was because Bennett and Myers were nervous, their hands were shaking, they were sweating, they would not make eye contact, and there was a sunglasses case between the seats.

Assuming without deciding that the officer could stop the truck and inquire about the missing bumper, nervous behavior and a sunglasses case between the seats are not sufficient bases for prolonging the stop.

Once the tasks related to the investigation of the traffic violation and processing of the traffic citation have been accomplished, an officer cannot continue to detain an individual without articulable suspicion. Once the purpose of that [traffic] stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention. If an officer continues to detain [an individual] after the conclusion of the traffic stop and interrogates him or seeks consent to search without reasonable suspicion of criminal activity, the officer has exceeded the scope of a permissible investigation of the initial traffic stop.

Decided March 3, 2014

Reconsideration denied March 27, 2014.

Heard v. State, 325 Ga. App. 135, 138 (1) (751 SE2d 918) (2013) (punctuation and footnotes omitted). In Heard, the evidence was that there was a “be on the lookout” message in addition to Heard’s nervousness after being stopped. This Court held: “Even when we consider together the lookout information and Heard’s nervousness, we cannot conclude that the officer was aware of circumstances sufficient to create a reasonable suspicion that Heard was involved in criminal activity other than the suspected traffic violation.” Id. Further, even “extreme nervousness” does not constitute a valid reason for detention based on suspicion of criminal activity. State v. Davis, 283 Ga. App. 200, 203 (641 SE2d 205) (2007). See also Weems v. State, 318 Ga. App. 749, 752 (734 SE2d 749) (2012) (reasonable suspicion to detain cannot arise from nervousness).

Here, the officer told Myers that she needed a bumper on the truck, but did not issue a warning and did not go back to his car to perform a license check; rather, the officer began inquiring about drugs, told both Myers and Bennett to get out of the truck and requested consent to search the truck. Accordingly, the officer impermissibly prolonged the traffic stop beyond the time necessary to warn Myers to get a bumper. Therefore, the trial court erred in denying Bennett’s motion to suppress.

Judgment reversed.

McMillian, J., concurs. Dillard, J., concurs in judgment only.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As such, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

Carver & DeBord, Jenny L. Carver, for appellant.

Shannon G. Wallace, District Attorney, Cliff Head, Assistant District Attorney, for appellee.

       The truck did have a license plate.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A13A1827.
    THUNDERBOLT HARBOUR PHASE II CONDOMINIUM ASSOCIATION, INC. v. RYAN.
    (757 SE2d 189)
   Miller, Judge.

This construction defects case arises out of the construction of Thunderbolt Harbour Condominium Phase II (“Phase II”), a building comprised of seven adjoining residential waterfront condominium units. The homeowners’ association for Phase II, Thunderbolt Harbour Phase II Condominium Association, Inc. (“Phase II HOA”), sued Michael R. Ryan, in his capacity as the officer and director of Phase II HOA, for breach of fiduciary duty for failing to adequately inspect and repair construction defects, maintain adequate insurance coverage, and maintain the building. Following a hearing, the trial court granted Ryan’s motion for summary judgment on the grounds that Georgia law did not recognize a fiduciary duty to turn over common areas of Phase II in good repair. Phase II HOA appeals from that ruling, contending that the trial court erred in concluding that Georgia law does not recognize a breach of fiduciary duty claim against the sole officer and director of a homeowners’ association. For the reasons that follow, we reverse.

On appeal from the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law. Holbrook v. Stansell, 254 Ga. App. 553, 553-554 (562 SE2d 731) (2002).

So viewed, the evidence shows that in February 2000, Brunson and Bonner, LLC executed a condominium declaration for Thunderbolt Harbour Condominium (the “Declaration”) and it became the developer. The Declaration contemplated the construction of 36 units in four buildings and reserved the option to expand the condominium complex by adding up to seven units on a portion of the subject property. After the original 36 units were at or near completion, Brunson and Bonner elected to exercise its right to expand the condominium complex, and thereafter, transferred its interest in the expansion property, now known as Phase II, along with the right to build Phase II, to Ryan Builders. Ryan Builders served as the developer and general contractor for Phase II, which was constructed between 2001 and 2003.

By the fall of 2003, Ryan Builders completed construction of Phase II. Ryan Builders then filed Articles of Incorporation with the Georgia Secretary of State to form Phase II HOA. Thereafter, on December 5, 2003, the Declaration was amended to provide that Phase II HOA would administer the expansion units of Phase II. That same day, Ryan Builders conveyed the common areas of Phase II, including such things as the building’s roof and exterior cladding, to the Phase II HOA.

Between December 2003 and June 2005, Ryan Builders sold all seven of the Phase II units to third-party purchasers, who automatically became members of the Phase II HOA. During that time, Ryan served as the sole officer and director of Phase II HOA. Ryan maintained a package policy of general commercial liability and property insurance for Phase II. He also assessed HOA fees to the condominium owners and deposited those fees into the Phase II HOA back account that he controlled. In July 2006, Ryan transferred control of the Phase II HOA bank account to Phase II HOA.

Between July 2006 and March 2010, there was no further communication between Ryan and Phase II HOA. In March 2010, counsel for Phase II HOA sent a letter to Ryan regarding construction defects at Phase II. After the parties could not come to a resolution, Phase II HOA filed suit against Ryan, alleging that he breached a fiduciary duty as Phase II HOA’s sole officer and director by failing to inspect, maintain, repair, and sue subcontractors for construction defects. The trial court found that Ryan had no fiduciary duty to turn over the common areas in good repair, and therefore granted his motion for summary judgment. Phase II HOA appeals from the trial court’s grant of summary judgment to Ryan.

1. On appeal, Phase II HOA contends that the trial court erred in concluding that Georgia law does not recognize a breach of fiduciary duty claim against the sole officer and director of a homeowners’ association. We agree.

A fiduciary or confidential relationship arises

where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.

OCGA § 23-2-58. A fiduciary or confidential relationship may be created by law, contract, or the facts of a particular case. See, e.g., Cochran v. Murrah, 235 Ga. 304, 306 (219 SE2d 421) (1975); Wright v. Apartment Investment and Mgmt. Co., 315 Ga. App. 587, 592 (2) (a) (726 SE2d 779) (2012). Generally, the existence of a confidential or fiduciary relationship is a factual matter for the jury to resolve. Wright, supra, 315 Ga. App. at 592 (2) (a). Moreover,

[a] corporate officer or director owes to the corporation and its stockholders a fiduciary or quasi-fiduciary duty, which requires that they act in utmost good faith. Directors and officers in the management and use of corporate property in which they act as fiduciaries and are trustees are charged with serving the interests of the corporation as well as the stockholders.

(Citation and punctuation omitted.) Enchanted Valley RV Park Resort, Ltd. v. Weese, 241 Ga. App. 415, 423 (5) (526 SE2d 124) (1999).

In this case, Phase II HOA alleged construction defects to Phase II HOA property, including defects in the building’s roof and exterior cladding. The evidence showed that Ryan was the sole officer and director of Phase II HOA from its inception until July 2006, when he handed over control of the Phase II HOAbank account. Consequently, a jury could find that “[i]t fell within [Ryan’s] fiduciary duties as a corporate officer to protect corporate property.” (Citation omitted.) Clarence L. Martin, P.C. v. Chatham County Tax Commr., 258 Ga. App. 349, 351 (574 SE2d 407) (2002).

Moreover, since Ryan was given the authority to act on behalf of Phase II HOA, such as selecting insurance coverage for the association and imposing HOA fees, a jury could find that Ryan acted as an agent for Phase II HOA. See OCGA § 10-6-1 (“The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him [.]”). “Where an agency relationship exists, the agent has a fiduciary relationship to his principal.” (Citation omitted.) Wright, supra, 315 Ga. App. at 592 (2) (a). Under these circumstances, the trial court erred in concluding that Phase II HOAhad no cognizable claim for breach of fiduciary duty. See Bailey v. Stonecrest Condominium Assn., 304 Ga. App. 484, 494 (3) (696 SE2d 462) (2010) (recognizing a claim for breach of fiduciary duty against the board of directors of a condominium association).

2. Ryan contends that we should nevertheless affirm the trial court’s ruling under the “right for any reason” rule, because the facts fail to show that he breached any fiduciary duty and because Phase II HOA’s claim is barred by the statute of limitations. We decline to do so.

(a) “[A] grant of summary judgment must be affirmed if it is right for any reason, whether stated or unstated in the trial court’s order, so long as the movant raised the issue in the trial court and the nonmovant had a fair opportunity to respond.” (Citations and punctuation omitted; emphasis in original.) Georgia-Pacific, LLC v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013). In his motion for summary judgment, Ryan argued only that Georgia law did not recognize the breach-of-fiduciary-duty claim raised by Phase II HOA, it lacked standing to raise the claim, and the claim was barred by the statute of limitations. Ryan did not, however, raise the issue that Phase II HOA failed to establish the elements of a breach-of-fiduciary-duty claim. Since Ryan did not present this issue in his motion for summary judgment, application of the “right for any reason” rule is not appropriate. See id.

(b) Ryan also argues that he was entitled to summary judgment because OCGA § 9-3-30 required that Phase II HOA file the lawsuit within four years after the right of action accrued. The trial court ruled adversely to Ryan on this issue, and he did not file a cross-appeal challenging that adverse ruling. See Ga. Society of Plastic Surgeons v. Anderson, 257 Ga. 710, 711 (1) (363 SE2d 140) (1987) (“The general rule is that an appellee must file a cross-appeal to preserve enumerations of error concerning adverse rulings. OCGA § 5-6-38[.]” (citation omitted)); Truelove v. Buckley, 318 Ga. App. 207, 212 (2) (733 SE2d 499) (2012). Although appellate courts may consider a trial court’s ruling that becomes material to an enumeration of error urged by an appellant without the necessity of a cross-appeal, see Ga. Society of Plastic Surgeons, supra, 257 Ga. at 711 (1), Ryan’s statute-of-limitations argument was not material to an enumeration of error argued by Phase II HOA. As a result, we will not consider Ryan’s argument without the required cross-appeal.

Therefore, we reverse the trial court’s grant of summary judgment to Ryan.

Decided March 27, 2014.

Friedman, Martin & Stevens, J. Bradley Stevens, M. Katherine Durant, Jeffrey W. Laskey, W. Brian Cornwell, for appellant.

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

Judgment reversed.

Barnes, P. J., concurs. Ray, J., concurs in judgment only.

       Phase II HOA asserted other claims against Ryan and also sued the developer/general contractor of Phase II, Ryan Builders, and other individuals involved in the construction of Phase II. Ryan Builders filed a third-party complaint, as amended, against several subcontractors. Pursuant to the parties’ joint stipulation, the trial court dismissed the claims against all defendants and all claims against Ryan, individually, with the exception of claims against him in his capacity as the officer and director of Phase II HOA. Consequently, only claims against Ryan remain.

       In finding that Ryan had no fiduciary duty, the trial court relied upon an unpublished and unreported decision issued by the U. S. District Court for the Northern District of Georgia in
        St. Claire Townhome Assn., Inc. v. D.R. Horton, Inc., Civil Action File No. 1:07CV2712 (Apr. 15, 2009). The decision in St. Claire, however, has no precedential value.


author: Ray, Judge.

text:
    A13A1833.
    PRUETTE v. UNGARINO. PHOEBE PUTNEY MEMORIAL HOSPITAL, INC. v. PRUETTE. PRUETTE v. PHOEBE PUTNEY MEMORIAL HOSPITAL, INC. et al.
    A14A0044.
    A14A0045.
    (757 SE2d 199)
   Ray, Judge.

These appeals arise from a wrongful death action alleging medical negligence brought by the plaintiff for the death of her mother, who died allegedly as the result of receiving an overdose of morphine ordered by Dr. Thomas Ungarino and administered by a nurse employed by Phoebe Putney Memorial Hospital (“Phoebe Putney”) (collectively, “defendants”). The case proceeded to a jury trial, and the jury returned a verdict for the plaintiff and against the defendants, jointly and severally. Dr. Ungarino and Phoebe Putney filed separate motions for new trial, which the trial court granted on the grounds that it had erred as a matter of law in allowing plaintiff’s expert pulmonologist to offer opinions “in which the issue of informed consent was injectedinto the standard of care evidence.” The case was retried, and at the second trial, the jury absolved Dr. Ungarino but found against Phoebe Putney. Phoebe Putney filed a motion for new trial from the second trial, which was denied.

For the purposes of appeal, we consolidate Case Nos. A13A1833, A14A0044, and A14A0045.

In Case No. A13A1833, plaintiff appeals from the trial court’s grant, in a single order, of both defendants’ motions for new trial after the first trial on the grounds that the plaintiff’s expert pulmonologist inserted inadmissible testimony into trial regarding Dr. Ungarino’s duty to obtain informed consent. In doing so, plaintiff argues that any objection regarding the impermissible injection of testimony as to informed consent was waived by defendants’ failure to raise and object to such at trial, or in the alternative, that the trial court erred because no testimony regarding informed consent was presented to the trier of fact in this case. In Case No. A14A0044, Phoebe Putney appealed from the denial of its motion for new trial after the second trial, alleging that the trial court committed several errors during the trial. In Case No. A14A0045, plaintiff filed a cross-appeal, arguing (again) that the trial court’s grant of Phoebe Putney’s motion for new trial after the first trial was in error. Because we find that the trial court correctly granted the motion for new trial after the first trial as to plaintiff’s case against Dr. Ungarino, but incorrectly granted it as to Phoebe Putney, we affirm the judgment in part and reverse the judgment in part as to Case No. A13A1833, reverse the judgment in Case No. A14A0045, and dismiss Phoebe Putney’s enumerations of error set forth in Case No. A14A0044 as moot.

The grant of a motion for new trial on special grounds involving a question of law is reviewed by this Court de novo, and this Court will “reverse if the trial court committed legal error.” (Citations and footnotes omitted.) Govt. Employees Ins. Co. v. Progressive Casualty Ins. Co., 275 Ga. App. 872, 873-874 (1) (622 SE2d 92) (2005).

The record shows that the decedent, Janie Vinson, was 79 years old at the time of her death. In the final years of her life, she suffered from end-stage chronic obstructive pulmonary disease (“COPD”), a lung disorder that resulted in airway obstruction and difficulty breathing. On March 7, 2002, Vinson experienced progressively worsening shortness of breath, was brought to Phoebe Putney, and was admitted for treatment.

During her hospitalization, Vinson was treated by her pulmonologist, Dr. Mehta, and her primary care doctors at Albany Internal Medicine Group. After several days in the hospital, her condition began to improve. On the morning of March 18, 2002, however, Vinson’s condition significantly worsened, and she went into respiratory distress.

An emergency code was called, and several doctors, including defendant Dr. Ungarino, responded. Dr. Ungarino, a pulmonary critical care physician, had never seen Vinson before as a patient and had never been consulted about her treatment or care during her hospitalization. Vinson’s attending physician, Dr. Kay Kitchen, also responded to the code and came into the room after Dr. Ungarino. Dr. Ungarino had been preparing to intubate Vinson, but stopped when Dr. Kitchen informed him of Vinson’s prior request not to be intubated.

Dr. Kitchen then took over Vinson’s care and, after consulting with Vinson’s family and Dr. Mehta, her pulmonologist, ordered two milligrams of morphine to be administered to Vinson on an as-neéded basis. Dr. Ungarino then reviewed Vinson’s chart and, without speaking to Dr. Kitchen, Dr. Mehta, the nurse, or Vinson’s family, changed Vinson’s chart to order that she be given 20 milligrams of morphine in a single dose. Approximately 40 minutes after the code ended, nurse Linda Hurdle came into the room and administered 20 milligrams to Vinson, per Dr. Ungarino’s order. Vinson soon lost consciousness and died approximately three hours later.

Plaintiff filed suit against Dr. Ungarino and Phoebe Putney for the wrongful death of her mother. She alleged that Dr. Ungarino violated the standard of care by ordering the rapid infusion of 20 milligrams of morphine into an end-stage COPD patient and that administration of such a high dosage caused Vinson’s death. Plaintiff further alleged that Vinson’s nurse, Linda Hurdle, violated the nursing standard of care by administering the dose of morphine and that Phoebe Putney could be held vicariously liable for her actions.

The case proceeded to a jury trial, and the jury returned a verdict for the plaintiff and against the defendants, jointly and severally. In a single order, the trial court granted the defendants’ separate motions for new trial on the grounds that it had erred as a matter of law in allowing plaintiff’s expert to offer opinions “in which the issue of informed consent was injected into the standard of care evidence,” and that plaintiff improperly presented arguments involving the doctrine of informed consent during her opening statement and closing arguments. The case was retried, leading to a verdict on the plaintiff’s claims in favor of Dr. Ungarino, but against Phoebe Putney. The trial court denied Phoebe Putney’s second motion for new trial.

Case No. A13A1833

In Case No. A13A1833, plaintiff appeals from the trial court’s grant of the defendants’ motions for new trial.

1. The Law of Informed Consent. Georgia law does not recognize a common law duty to inform patients of the risks of medical procedures. Blotner v. Doreika, 285 Ga. 481, 481-482 (1) (678 SE2d 80) (2009). By statute, however, any person who undergoes any surgical procedure under general anesthesia, spinal anesthesia, major regional anesthesia, or any person who undergoes certain diagnostic procedures, must consent to the procedure. OCGA § 31-9-6.1 (a). This consent must be informed, meaning that the medical professional must fully inform the patient of the material “risks and alternatives to the proposed treatment so that the patient’s right to decide is not diminished by a lack of relevant information.” (Footnote omitted.) Pope v. Davis, 261 Ga. App. 308, 309 (1) (582 SE2d 460) (2003). However, in cases where a medical provider was not obligated to obtain informed consent under OCGA § 31-9-6.1, “evidence of a failure to reveal the risks associated with medical treatment is not. . . admissible in support of a claim for professional negligence.” Blotner, supra at 482 (1). In the present case, it is undisputed that the alleged negligent act, the administration of morphine, does not fall under OCGA § 31-9-6.1 (a).

2. In her first enumeration of error, plaintiff contends that the trial court erred in granting the defendants’ motions for new trial because the defendants waived any objection to the admission of testimony or argument regarding the doctrine of informed consent because they failed to raise an objection to it at trial.

During the trial, the plaintiff presented Dr. Thomas Hyers as an expert in the field of pulmonary medicine. It is undisputed that the defendants did not object to Dr. Hyers’ testimony during trial on the grounds that it improperly raised an informed consent claim. However, the defendants contend that they preserved their objection by filing and obtaining a ruling on their Motion in Limine No. 18. See Reno v. Reno, 249 Ga. 855, 855 (295 SE2d 94) (1982) (“where a motion in limine to exclude certain evidence is [granted or] denied, the movant need not renew his objection when the disputed evidence is offered at trial[ ] in order to preserve the movant’s right to appeal” from the ruling) (citation omitted).

Defendants’ Motion in Limine No. 18, as written, clearly sought to preserve the defendants’ objection to the introduction of any testimony indicating that the defendants violated the standard of care by failing to obtain the informed consent of the decedent or her family prior to the administration of the morphine. Motion in Limine No. 18 is captioned as follows: “This [c]ourt should prohibit plaintiff’s counsel from eliciting testimony of criticism that does not rise to the level of a violation of the standard of care, including testimony regarding a failure to obtain informed consent from the family.” The written motion in limine cites to pertinent Georgia case law regarding informed consent, and it seeks a ruling that neither the plaintiff nor plaintiff’s witnesses, including Dr. Hyers, should be allowed to testify that Dr. Ungarino “had an obligation as a physician to explain to the family why he was giving such a dose of morphine [,]” or to testify that “Dr. Ungarino or the nurses violated the standard of care by not informing the family (or the decedent) before the administration of morphine.”

Plaintiff’s argument that the defendants failed to preserve the objection to testimony regarding informed consent by not specifically arguing the issue during the motion in limine hearing is without merit. Plaintiff contends that when defendants argued their motion before the trial court, that they “presented the motion solely as a motion regarding causation[,]” arguing that any testimony regarding “Dr. Ungarino’s failure to inform the patient of his course of treatment was not admissible because it was not causally related to Ms. Vinson’s death.” Pretermitting whether the defendants fully fleshed out their objection to testimony regarding the defendants’ failure to obtain the informed consent of the decedent or her family prior to ordering and administering the morphine, the trial court’s written order is clear that it considered the informed consent portion of their written motion and argument in denying the order. That written order states that “[defendants’ Motion in Limine to prohibit [plaintiff’s counsel from eliciting testimony of criticism that does not rise to the level of a violation of the standard of care, including a failure to obtain informed consent from the family” was denied. (Emphasis supplied.)

Plaintiff cites to cases holding that although a party’s written motion raised a particular argument, that party’s failure to raise the pertinent issue during the hearing on the motion waived subsequent objections to that issue. See Barber v. State, 236 Ga. App. 294, 297 (2), n. 1 (512 SE2d 48) (1999) (although defendant’s written motion to suppress “could be read to encompass both the pre-trial and in-court identifications [,]” the fact that defense counsel during the hearing on the motion limited the relief sought to only pre-trial identification waived any objection to subsequent in-court identifications); Roberson v. State, 228 Ga. App. 416, 420 (3) (491 SE2d 864) (1997) (although defendant’s written motion in limine asserted several grounds for the exclusion of an Intoxilyzer breath test, defendant waived his right to assert that the Intoxilyzer test failed to meet certain statutory standards by failing to argue that particular issue during the motion in limine hearing, thus the trial court issued no definitive ruling on the issue). However, the present case is unlike Roberson because any failure by the defendants to fully flesh out their objection to any testimony regarding informed consent during oral argument did not lull “the trial court into issuing no ruling on this issue.” (Citation and punctuation omitted.) Id. In the present case, it is clear from the trial court’s written order that it considered both the defendants’ written motion in limine and oral argument when ruling, and that it specifically ruled upon the issue of informed consent.

We note, however, that the defendants’ Motion in Limine No. 18 only sought to exclude testimony regarding informed consent by “[p]laintiff, [p]laintiff’s witnesses or any standard of care experts.” The motion does not seek to prohibit any mention of informed consent during the plaintiff’s opening statement or closing argument. The defendants made no contemporaneous objection to any statement made by plaintiff’s counsel during the opening statement or during closing argument that they believed to involve the informed consent doctrine. See RNW Family Partnership, Ltd. v. Dept. of Transp., 307 Ga. App. 108-112 (6) (704 SE2d 211) (2010) (failure to object to statements made during opening statement during trial waive such objections on appeal). We further note that the trial court instructed the jury that “the opening statements and closing arguments of the lawyers” did not constitute evidence. Accordingly, we limit our holding to a finding that the defendants properly objected to the admission of any testimony regarding informed consent from plaintiff, plaintiff’s witnesses, or any standard of care experts.

3. Plaintiff next contends that the trial court erred in granting Dr. Ungarino’s motion for new trial, arguing that “[t]his case did not involve issues of informed consent at any point or through any testimony.” We disagree.

In its order granting the defendants’ motion for new trial, the trial court held that

by the time the plaintiff presented the case to the jury, the presentation focus shifted to arguments about the professionals’ failure to inform Mrs. Vinson’s family of Dr. Ungarino’s order to give the morphine and the fact that they did not have the opportunity to reject that course of treatment.

The trial court further noted that the informed consent issue was presented to the jury during the testimony of expert witnesses and that it “was the centerpiece of the plaintiff’s case and presentation to the jury.”

As noted in Division 2, the defendants waived their objection to any argument made by plaintiff’s counsel during opening statement or closing argument. See RNW Family Partnership, Ltd., supra. However, the trial court correctly concluded that the testimony of plaintiff’s expert pulmonologist, Dr. Hyers, did impermissibly reference the doctrine of informed consent.

Georgia common law imposes no duty upon a medical provider to obtain informed consent from a patient before administering a medical procedure not specified in OCGA § 31-9-6.1, and the admission of any evidence that a physician failed to “reveal the risks associated with medical treatment is not... admissible in support of a claim for professional negligence.” Blotner, supra, quoting Albany Urology Clinic, supra at 298. Informed consent “essentially involves a medical professional fully informing a patient of the risks of and alternatives to the proposed treatment so that the patient’s right to decide is not diminished by a lack of relevant information.” (Punctuation and footnote omitted.) Paden v. Rudd, 294 Ga. App. 603, 605 (2) (669 SE2d 548) (2008). See Hyles v. Cockrill, 169 Ga. App. 132, 133 (2) (312 SE2d 124) (1983), overruled on other grounds, Ketchup v. Howard, 247 Ga. App. 54, 60 (2) (543 SE2d 371) (2000) (trial court did not err in excluding testimony regarding informed consent in a medical malpractice action).

Plaintiff suggests that the trial court’s ruling is in error because any testimony elicited from plaintiff’s expert pulmonologist, Dr. Hyers, regarding his belief that Dr. Ungarino had a duty to communicate his plan to administer 20 milligrams of morphine was in reference to a physician’s obligation to obtain his patient’s “basic consent” by “informing] . . . his patients of his general course of treatment,” and was not in regards to a physician’s obligation under any law to obtain informed consent regarding the risks and alternatives before a medical treatment. However, the testimony of Dr. Hyers belies this argument.

On direct and re-direct examination, plaintiff’s counsel elicited testimony from Dr. Hyers indicating that he believed Dr. Ungarino violated the standard of care by failing to communicate his plans to increase the decedent’s dose of morphine to her primary care doctors, to the decedent herself, or to the family members who were present. He testified that the 20 milligrams of morphine given by Dr. Ungarino was likely intended to be a “comfort measure” (although he believed the dose ordered by Dr. Ungarino was higher than necessary for an effective comfort measure), which is given to bring comfort and relief to the patient “even if it could have the effect of hastening the death of the patient.” He explained that, prior to providing morphine as a “comfort measure,” a physician such as Dr. Ungarino,

certainly know[s] that there’s a possibility that someone could die a little sooner and [the physician should] explain that to the family ... what [the physician is] doing ethically as a physician is trying to make the patient comfortable not trying to make the patient die sooner. If the sooner death occurs a few minutes earlier you want to be sure the family understands that. . . .

Dr. Hyers further explained that a physician is obligated to inform the patient and the patient’s family before providing such comfort care so that the family can decide whether to prioritize keeping the patient comfortable or keeping the patient alive longer. Plaintiff’s counsel then asked: “[W]hat is the reason why... you have to inform them? Do they have the right to choose not to take [comfort measures]”?, Dr. Hyers responded, “Yes.”

It is clear to this Court that this testimony and Plaintiff’s counsel’s question involved a physician’s duty, prior to administering “comfort care” measures, to apprise a patient or her family of the following information required under Georgia’s Informed Consent statute, OCGA § 31-9-6.1: the reason why a physician ordered such “comfort care” measures; the material risks and alternatives to the proposed medical treatment — i.e., potentially hastening death; and alternatives to treatment, such as not administering the “comfort care” medication. Thus, we find that Dr. Hyers’ testimony “was an attempt to put before the jury the issue of the ‘informed consent doctrine.’ ” Hyles, supra.

This Court’s analysis of an expert physician’s testimony in Hyles, supra, is particularly instructive in this case. In Hyles, this Court held that the trial court correctly sustained an objection to an expert physician witness’s testimony that the “ ‘recognized standard medical and surgical care would require you to inform a patient about the possible complications before you do it so that they may have a chance to make a choice whether they want to undergo the procedure’ ” on the grounds that it was an attempt to impermissibly put the issue of informed consent before the jury. Id. at 133 (2). The Hyles court reasoned that under Georgia common law, “[w]hile the attending physician is required to inform his patient of the general terms of treatment, this duty does not require a disclosure of the risks of treatment.” (Citation and punctuation omitted.) Id. In the present case, Dr. Hyers’ testimony clearly states that when a physician decides to administer a higher dose of morphine as a “comfort measure,” he is obligated to inform the patient or her family of the material risk of such treatment — i.e., that the drug may hasten the patient’s death. See Pope, supra. (“Informed consent essentially involves a medical professional fully informing a patient of the risks of and alternatives to the proposed treatment so that the patient’s right to decide is not diminished by a lack of information”) (footnote omitted).

Accordingly, we affirm the trial court’s grant of the motion for new trial as it pertains to Dr. Ungarino. As to Phoebe Putney, see Division 4 (b) herein below.

Case Nos. A14A0044 and A14A0045

After the trial court’s grant of the defendants’ motions for new trial, the case was re-tried, and the jury found in favor of Dr. Ungarino, but returned a verdict in favor of plaintiff and against Phoebe Putney. Phoebe Putney filed a second motion for new trial, which was denied. In Case No. A14A0044, Phoebe Putney appealed the judgment against it after the second trial, and plaintiff filed a cross-appeal in Case No. A14A0045.

4. In Case No. A14A0045, plaintiff argues that the trial court’s grant of defendant Phoebe Putney’s first motion for new trial on the grounds that the doctrine of informed consent was improperly inj ected into the trial was in error because Phoebe Putney failed to preserve this objection and because there was no testimony presented at trial that Nurse Hurdle should have obtained the informed consent from the decedent or her family prior to administering the morphine ordered by Dr. Ungarino.

(a) Phoebe Putney’s first enumeration again addresses the defendants’ failure to object to any admission of evidence regarding the doctrine of informed consent into trial. This enumeration is substantially the same as that raised by both defendants in Case No. A13A1833 and addressed in Division 2. Accordingly, we adopt our holding in Division 2 of this opinion which provides that the defendants did not waive any objection to testimony regarding the doctrine of informed consent by plaintiff’s witnesses.

(b) Plaintiff argues that the trial court should not have granted Phoebe Putney’s first motion for new trial because there was no testimony by plaintiff or any of plaintiff’s witnesses, including its expert on nursing, Nurse Sharon Quinn, that the nurse who administered the morphine to the decedent per Dr. Ungarino’s orders should have obtained the family’s informed consent prior to doing so.

Plaintiff’s complaint alleged that Phoebe Putney was vicariously liable for the actions of its nurse, Linda Hurdle, for administering the morphine ordered by Dr. Ungarino. At trial, plaintiff presented Nurse Sharon Quinn as an expert in nursing. Nurse Quinn testified that it was her opinion that Nurse Hurdle violated the standard of care by not questioning the 20 milligram dose of morphine ordered by Dr. Ungarino before administering it because the order was drastically higher than the dose originally ordered by the decedent’s attending physician. Nurse Quinn further testified that Nurse Hurdle should have told the patient what medication she was administering before it was given because the standard of care requires a nurse to tell a patient what medication she is giving and in what dosage before she administers it. Nurse Quinn explained that this requirement is a safety mechanism that allows the nurse to ensure that the patient is getting the right medication, that the patient does not have an allergy, and to give the patient the ability to exercise his or her right to refuse the medication. Nurse Quinn explained that she would also generally tell a patient what side effects the patient might experience with a particular type of medication, i.e., that it would make the patient sleepy or nauseous.

Although Nurse Quinn testified that a nurse should inform a patient what medication and dosage she was administering and what side effects such medication might have upon that patient, at no time during Nurse Quinn’s testimony did she explain that Nurse Hurdle should have explained the material risks or alternatives to any proposed treatment. Such testimony did not constitute an implication that Nurse Hurdle violated Georgia’s Informed Consent Doctrine. See Paden, supra; Ketchup, supra. Because plaintiff’s cause of action against Phoebe Putney sought damages only for the hospital’s vicarious liability for the actions of its nurse, Nurse Hurdle, and because there was no impermissible testimony injected in the trial that Nurse Hurdle should have obtained the patient’s or her family’s informed consent before administering the morphine dosage ordered by Dr. Ungarino, we reverse the trial court’s grant of the defendant’s motion for new trial as it applies to Phoebe Putney.

Decided March 27, 2014

Laura M. Shamp, for appellant.

Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert M. Brinson, Norman S. Fletcher, A. Franklin Beacham III, Samuel L. Lucas, Lee Durham, Joseph P. Durham, Jr., Owen, Gleaton, Egan, Jones & Sweeney, Frederick N. Gleaton, for appellees.

Case No. Al 4A0044

5. In Case No. A14A0044, Phoebe Putney appeals from the trial court’s denial of its second motion for new trial, filed after the jury issued a verdict against it after the second trial. Phoebe Putney raises several enumerations of error allegedly committed by the trial court during the second trial. However, as a result of Division 4 of this opinion, which finds that the trial court erred in granting Phoebe Putney’s motion for new trial after the original trial, we dismiss this appeal as moot.

Based upon the above, we affirm in part and reverse in part the judgment in Case No. A13A1833, reverse the judgment in Case No. A14A0045 and dismiss Case No. A14A0044 as moot.

Judgment affirmed in part and reversed in part in Case No. A13A1833. Judgment reversed in Case No. A14A004S. Appeal dismissed as moot in Case No. A14A0044.

Barnes, P. J., concurs. Miller, J., concurs in judgment only.

       OCGA § 31-9-6.1 “sets forth six specified categories of information that must be disclosed by medical providers to their patients before they undergo certain specified surgical or diagnostic procedures.” (Footnote omitted.) Albany Urology Clinic, P.C. v. Cleveland, 272 Ga. 296, 298 (1) (528 SE2d 777) (2000). Those categories defined in OCGA § 31-9-6.1 are: (1) the patient’s diagnosis necessitating the procedure; (2) the nature and purpose of the procedure; (3) the generally recognized and accepted material risks of infection, allergic reaction, disfigurement, brain or heart damage, etc., associated with the procedure; (4) the likelihood of the procedure’s success; (5) the practical, accepted and recognized alternatives to the procedure; and (6) the patient’s prognosis if the procedure is rejected. OCGA § 31-9-6.1 (a) (l)-(6) (emphasis supplied).

        In Ketchup, supra at 55-56 (1), this Court explained that “consent” in the medical sense involves two distinct legal principles, both derived from common law doctrine. The first principle involves “basic” consent, meaning that consent which avoids a battery, i.e., the consent to “touching” .... The second principle of consent in the medical context is “informed” consent, which addresses the autonomy of a competent patient to determine what medical treatment he will allow or refuse.

       We question the relevance of this testimony given that the plaintiff’s theory was that Nurse Hurdle should have questioned the drastic change in the amount of the morphine dosage, but that the issue of relevance was neither raised as an objection at trial nor as an issue in this appeal.

       Georgia’s Informed Consent statute does not mandate that a patient be informed of all risks of certain specific procedures, but rather it states that in order for a patient to provide informed consent, that patient must be informed of “material risks generally recognized and accepted by reasonably prudent physicians of infection, allergic reaction, severe loss of blood, loss or loss of function of any limb or organ, paralysis ... or death involved in such proposed surgical or diagnostic procedure. .. .” (Emphasis supplied.) OCGA § 31-9-6.1 (a) (3).

       In its appellate brief, Phoebe Putney does not argue that Nurse Quinn injected impermissible testimony regarding the doctrine of informed consent into trial. Rather, Phoebe Putney argues that “the testimony submitted by Dr. Hyers was prejudicial to all [djefendants, including [Phoebe Putney].” We are unpersuaded. Further, Phoebe Putney’s arguments that statements made by plaintiff’s counsel during opening statement and closing argument have been waived by Phoebe Putney’s failure contemporaneously to object to such. See Division 2 of this opinion, supra.


author: Branch, Judge.

text:
    A13A1874.
    BRUCE v. GEORGIA-PACIFIC, LLC. GEORGIA-PACIFIC, LLC v. LINCOLN GENERAL INSURANCE COMPANY et al.
    A13A1806.
    (757 SE2d 192)
   Branch, Judge.

Malcolm Bruce was injured when he fell off a loaded truck owned by his employer, Annett Holdings, Inc. d/b/a TMC Transportation (“TMC”), at a facility in Monticello, Georgia, owned and operated by Georgia-Pacific, LLC. On appeal from a grant of summary judgment to Georgia-Pacific in Bruce’s personal injury suit, Bruce argues in Case No. A13A1874 that questions of material fact remain as to both Georgia-Pacific’s negligence and Bruce’s contributory negligence. On appeal from a grant of summary judgment to TMC and its insurer, Lincoln General Insurance Company, in Georgia-Pacific’s third-party action, Georgia-Pacific argues in Case No. A13A1806 that TMC and Lincoln have a duty to defend Georgia-Pacific as to Bruce’s claims. We find no error and affirm in both cases.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” (Citations and punctuation omitted.) Walker v. Gwinnett Hosp. System, 263 Ga. App. 554, 555 (588 SE2d 441) (2003). Atrial court’s grant of summary judgment is reviewed de novo on appeal, construing the evidence in the light most favorable to the nonmovant. Ethridge v. Davis, 243 Ga. App. 11, 12 (530 SE2d 477) (2000).

Case No. A13A1874

Construed in favor of Bruce, the record shows that on October 15, 2007, Bruce, a TMC employee, drove one of the company’s flatbed tractor-trailers to Georgia-Pacific’s Monticello plant to pick up a load of wood paneling. Bruce had been a commercial truck driver for more than 20 years, and had been driving flatbed trailers, ajob which often required him to cover and secure loads, for at least six months. Bruce himself testified that an entirely flat surface on top of a load was “very rare,” and that every load was uneven “to some extent.”

While Bruce waited in a break room, a Georgia-Pacific employee loaded the trailer with a variety of paneling, resulting in an uneven surface on the top of the load. After the Georgia-Pacific employee had finished loading the trailer, Bruce, who was responsible for inspecting, covering, and securing the load, climbed onto the trailer and began covering it with Visqueen, a translucent plastic sheeting supplied in four-foot rolls by Georgia-Pacific for the purpose of protecting wood products from moisture. According to Bruce, Georgia-Pacific required its contractor truckers to apply Visqueen, and Bruce had previously and successfully wrapped a load with Visqueen at the same Georgia-Pacific facility. Georgia-Pacific’s own employees were forbidden to climb on or secure loaded trailers.

From his position on top of the load, Bruce unrolled, cut and unfolded the Visqueen, crawling along the top of the load as he did so, leaving a foot or two uncovered at the front and the rear to stand on. Bruce got down from the front, completed wrapping the sides of the load with Visqueen, and tied down the corners. Bruce then began covering the load with the first of two tarpaulins, one from the back toward the front and the second, overlapping the first, from the front toward the back. He crawled across the back of the load on his hands and knees unrolling the four-foot-wide first tarp, which was still folded, until its edge was lying a few feet past the middle of the load. Bruce then got up off his hands and knees and was bending over in the process of unfolding and throwing a portion of the first tarp over the edge of the load when he stepped into a space within the load, lost his balance, and fell off the trailer. The Georgia-Pacific forklift operator who had loaded the trailer and who responded to Bruce’s fall testified that as he lay on the ground, Bruce exclaimed that he “[couldn’t] believe [that he] did this,” that he had “been driving a truck for 20-something years,” and that he “[couldn’t] believe [that he was] that stupid” as to fall off his own trailer. Treatment of Bruce’s injuries required him to be airlifted to a hospital.

On February 9, 2009, Bruce filed his first complaint against Georgia-Pacific, which Bruce voluntarily dismissed in December of the same year. On March 17, 2010, Bruce filed this renewal action. In June 2011, Georgia-Pacific moved for summary judgment, which the trial court granted after a hearing. This appeal followed.

1. Bruce first argues that the trial court erred when it granted summary judgment to Georgia-Pacific because the company had not implemented Occupational Safety and Health Administration (OSHA) regulations requiring fall protection for workers applying Visqueen to trailers in or next to a building. We disagree.

A cause of action for negligence requires

(1) [a] legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.

Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982).

On appeal, plaintiff has cited only his OSHA expert’s deposition, at which the expert cited 29 CFR §§ 1910.132 (d) and 1926.501, as supporting a conclusion that Georgia-Pacific was obligated to provide fall protections to Bruce. Plaintiff argues both that the regulations themselves are evidence of a legal duty owed to him by Georgia-Pacific and that Georgia-Pacific’s failure to enforce these OSHA regulations gives rise to a cause of action for breach of that duty undertaken for the benefit of the injured person. See, e.g., Dupree v. Keller Industries, 199 Ga. App. 138, 141 (1) (404 SE2d 291) (1991), citing OCGA § 51-1-6 (an injured party may recover for a breach of duty if he suffers damage thereby and if the duty is imposed by law for the benefit of the injured person).

As a preliminary matter, the OSHA regulations cited by plaintiff as giving rise to a legal duty on Georgia-Pacific’s part do not provide that the owner of a truck loading dock like the one at issue here is obligated to provide fall protections to any person working on a trailer there. 29 CFR § 1910.132 (d) sets out only a general standard that an employer “shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment,” and that if such hazards exist, the employer shall select and have the employee use personal protection equipment. Such general admonitions cannot overcome evidence introduced by Georgia-Pacific showing that as OSHA itself interprets 29 CFR § 1926.500 et seq., “walking-working surfaces” requiring fall protection devices do not include tractor-trailers. According to OSHA, “fall protection is not required for employees who are on vehicles and trailers when,” as here, “the employee must be on the vehicle or trailer to perform his or her duties,” in which case “there is typically no feasible means of providing fall protection.” See Pruitt Corp. v. Ga. Dept. of Community Health, 284 Ga. 158 (664 SE2d 223) (2008) (courts should defer to an administrative agency’s “interpretation of statutes it is charged with enforcing or administering and the agency’s interpretation of rules and regulations it has enacted to fulfill the function given it by the legislative branch”); Upper Chattahoochee Riverkeeper, Inc. v. Forsyth County, 318 Ga. App. 499, 502 (734 SE2d 242) (2012) (“the interpretation of a statute or regulation is a question of law”). Likewise, fall protections described in 29 CFR § 1926.501, which on their face apply to “construction,” do not apply here because the loading of a tractor-trailer does not involve construction. See Cleveland Elec. Illuminating Co. v. Occupational Safety and Health Review Comm., 910 F2d 1333, 1336 (II) (6th Cir. 1990) (“an operation will be considered ‘construction’ [for purposes of OSHA] only if the work is performed on, or in close proximity to, [a] construction site”) (citation and punctuation omitted).

More fundamentally, and as we held in Dupree, the relevance of OSHA regulations “in a particular case ... dependfs] on the relationship of the parties.” 199 Ga. App. at 141 (1). Specifically, OSHA imposes a duty of care only “between an employer and its employees,” and “[i]f a defendant owes no legal duty to the plaintiff, there is no cause of action in negligence.” Id. at 141-142 (1), citing 29 USC § 651 et seq. Georgia courts have thus concluded that a company cannot be held liable for a violation of OSHA regulations unless it is bound to enforce such regulations for the safety of its own employees. In Boyd v. Packaging Corp. of America, 292 Ga. App. 281 (664 SE2d 277) (2008), for example, this Court held that because an injured construction worker was the employee of an independent contractor, neither the crane operator involved in moving the heavy steel plates that injured the worker nor the crane operator’s employer owed any duty of care to the injured worker. Id. at 283 (1).

Given the undisputed evidence in this case that Georgia-Pacific’s employees were forbidden to climb on or secure loaded trailers, Georgia-Pacific had no obligation to provide protection for falls from such trailers to its own workers at the Monticello facility. It follows that it owed no such duty to employees of other companies working at that facility. See Boyd, 292 Ga. App. at 283 (1) (affirming grant of summary judgment to owner of paper mill where accident occurred); Dupree, 199 Ga. App. at 142 (1) (OSHA regulations did not establish any common-law duty running from a past owner of a hydraulic punch press to “remote users” including a worker employed by the purchaser of the press).

2. The trial court’s grant of summary judgment to Georgia-Pacific was also proper because undisputed facts show that Bruce had knowledge of the hazard posed by the uneven load surface equal or superior to any knowledge the company may or should have had of that hazard.

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

Robinson v. Kroger Co., 268 Ga. 735, 736, 748-749 (2) (b) (493 SE2d 403) (1997). “The crux of a premises liability case is the owner’s superior knowledge of the hazard; thus, a plaintiff’s actual, subjective awareness of the hazard precludes a recovery under this theory.” (Footnote omitted.) Carroll v. Ga. Power Co., 240 Ga. App. 442, 443-444 (1) (523 SE2d 896) (1999) (citing Robinson, supra). In Carroll, for example, a plaintiff was injured in a fall from a ladder allegedly in violation of OSHA standards set out in 29 CFR § 1910 for its lack of a safety cage at the top of the ladder. This Court concluded not only that the subject regulation did not apply, but also that when the plaintiff knew that the ladder he had climbed had no safety cage and that all ladders run out of rungs, his knowledge of any hazard was equal or superior to the defendant’s and should have led him to take additional care as he approached the top of the ladder. Carroll, 240 Ga.App. at 443-445 (1), (2). As this Court has also noted, “ ‘(n)o danger is more commonly realized or risk appreciated, even by children, than that of falling.’ ” O’Neal v. Sikes, 271 Ga.App. 391, 392 (609 SE2d 734) (2005), quoting Riley v. Brasunas, 210 Ga.App. 865, 867 (1) (438 SE2d 113) (1993).

Here, Bruce’s own testimony established that at the time he fell, he knew that tractor-trailer loads such as the one he was attempting to cover were almost always uneven. Bruce’s own testimony also established that he crossed over the uneven load while successfully unrolling, cutting and unwrapping the Visqueen before he attempted to cover the back part of the load with the first tarp, during which attempt he fell. Under these circumstances, which showed both that Bruce had superior knowledge of any hazard posed by the uneven load and that he failed to take due care for his own safety, summary judgment was properly granted to Georgia-Pacific. See Delk v. Quik-Trip Corp., 258 Ga.App. 140, 141-142 (572 SE2d 676) (2002) (affirming grant of summary judgment where plaintiff did not contest that she had actual knowledge of raised gas caps at gas station, and where she had “safely traversed a similar path through the traffic and across the alleged hazard under the same conditions” just before her injury).

Case No. A13A1806

3. In this companion appeal from the grant of summary judgment to TMC and Lincoln, Georgia-Pacific argues that Lincoln owed a duty to defend Georgia-Pacific against Bruce’s claims as an additional insured of TMC’s policy. We disagree.

The relevant facts are not in dispute. On the date of Bruce’s fall, TMC was operating under a contract carriage agreement to haul freight for Georgia-Pacific. Paragraph 7 of the agreement provides in relevant part:

(b) [TMC] agrees to assume all risks growing out of or occurring in the performance of this Agreement by [TMC], its agents or employees for . . . any death or injury to any person or persons, whether or not employed by TMC, . . . occurring during the performance of this Agreement or upon the premises where this Agreement is being performed, except when caused by the negligence of [Georgia-Pacific], its agents and employees.
(c) [TMC] further agrees, and it hereby binds itself, at its own sole cost and expense, to defend, save harmless and indemnify [Georgia-Pacific] from and against any and all manner of suits, claims, judgments, demands, costs, attorneys’ fees, charges, debts, dues, liabilities, and payments of money of any sort... on account of injury to or the death of persons or loss of or damage to property in any manner whatsoever, arising out of or predicated upon the operations of trucks of or by [TMC], its agents or employees,... or the transportation and handling of goods by [Georgia-Pacific], its agents or employees,... provided that this hold harmless and indemnity shall not apply to the extent that the action giving rise to the claim was caused by any act or omission of [Georgia-Pacific],

(Emphasis supplied.)

Paragraph 8 of the agreement also provided that TMC would “obtain and maintain insurance covering the risks incident to” the agreement and that TMC “shall cause [Georgia-Pacific] to be named as an additional insured” on TMC’s commercial liability and automobile liability policies. The insurance policy duly issued by Lincoln to TMC defined an “additional insured” as an entity “as designated in the endorsements,” but “only to the extent that the insured” — that is, TMC — “is obligated by a covered contract to reimburse, hold harmless or indemnify the additional insured(s).” (Emphasis supplied.) An endorsement to the same policy identified Georgia-Pacific as an “additional insured” on the policy, but also noted that coverage was extended to Georgia-Pacific “as respects the trucking operations of the insured [TMC], but only with respect to occurrences arising out of the negligence of [TMC and] its agents, servants or employees” (Emphasis supplied.)

As a preliminary matter, we reject Georgia-Pacific’s assertion that the absence of the words “duty to defend” from the final and exculpatory clause of Paragraph 7 (c) means that the clause applies only to TMC’s responsibilities to hold harmless and to indemnify. When the exculpatory clause refers to “this hold harmless and indemnity,” it clearly refers to the paragraph’s aforementioned responsibility “to defend, save harmless and indemnify” Georgia-Pacific. See OCGA § 13-2-2 (4) (provisions of a contract must be read as a whole and in conjunction with one another). We also reject Georgia-Pacific’s reading of Paragraph 8 and the endorsement adding it as an additional insured as abrogating the underlying policy’s bar to a duty to defend for claims caused by Georgia-Pacific’s own negligence. Although Georgia-Pacific is an additional insured under the Lincoln policy, and although the endorsement includes liabilities incurred during TMC’s own “trucking operations,” the policy limits Lincoln’s provision of coverage to Georgia-Pacific as “only to the extent that the insured” — that is, TMC •— “is obligated by a covered contract to reimburse, hold harmless or indemnify” Georgia-Pacific, and TMC is not so obligated as to claims arising from Georgia-Pacific’s own negligence.

More important, the complaint before us asserts negligence only as to Georgia-Pacific and its employees acting within the scope of their employment, and TMC’s carriage agreement excludes any duty to defend or indemnify Georgia-Pacific as to claims arising from Georgia-Pacific’s own negligence. We are mindful of the well-established rule that

[i]f the facts as alleged in the complaint even arguably bring the occurrence within the policy’s coverage, the insurer has a duty to defend the action----[T] o excuse the duty to defend the petition must unambiguously exclude coverage under the policy, and thus, the duty to defend exists if the claim potentially comes within the policy. Where the claim is one of potential coverage, doubt as to liability and insurer’s duty to defend should be resolved in favor of the insured.

(Citation and punctuation omitted.) BBL-McCarthy, LLC v. Baldwin Paving Co., 285 Ga. App. 494, 497-498 (1) (a) (646 SE2d 682) (2007). We also note Georgia-Pacific’s citation to this Court’s predecessor to one of our Supreme Court’s decisions as support for its argument that Lincoln has a duty to defend Georgia-Pacific from Bruce’s claims. See Ryder Integrated Logistics v. BellSouth Telecommunications, 277 Ga. App. 679 (627 SE2d 358) (2006), rev’d on other grounds, Ryder Integrated Logistics v. BellSouth Telecommunications, 281 Ga. 736, 737 (642 SE2d 695) (2007). As we noted in Ryder, however, those parties’ written agreement extended comprehensive general liability (CGL) coverage to “any person or organization” for whom Ryder was obligated to obtain coverage for any “liability arising out of your operations.” Id. at 684 (3); see also BBL-McCarthy, 285 Ga. App. at 496 (enforcing insurer’s duty to defend where subcontract specified subcontractor’s duty to defend against all claims “arising out of the performance of the [sjubcontractor’s work”).

Unlike the broad “arising out of your operations” language seen in these cases, however, the carriage agreement before us requires TMC to obtain insurance only as to “the risks incident to this Agreement,” not including liability for claims “caused by the negligence of [Georgia-Pacific],” just as it excludes any duty on the part of Lincoln to defend, hold harmless or indemnify claims “caused by any act or omission of [Georgia-Pacific].” In light of these unambiguous contract terms, the trial court did not err when it concluded that Lincoln had no duty to defend Georgia-Pacific as to Bruce’s claims, which allege negligence only by Georgia-Pacific employees. See United Parcel Svc. v. Colt Security Agency, 296 Ga. App. 815, 816 (2) (676 SE2d 22) (2009) (affirming grant of summary judgment to insurer as to its duties to defend and indemnify plaintiff delivery company when injured security guard’s complaint contained no allegations of negligence against anyone other than delivery company’s employees); City of Atlanta v. St. Paul Fire & Marine Ins. Co., 231 Ga. App. 206, 208-209 (2) (498 SE2d 782) (1998) (where “no claim covered by the policy was asserted” by a plaintiff, who had “failed to apprise the insurer of facts which would bring the claims within the coverage,” the insurer “justifiably refused the duty to defend” that plaintiff as to those claims) (citation omitted).

Decided March 27, 2014.

Alan L. Newman, for Georgia-Pacific.

Carlock, Copeland & Stair, Charles M. McDaniel, Jr., for Lincoln General et al.

Stewart, Seay & Felton, L. Chris Stewart, for Bruce.

Judgments affirmed.

Dillard and McMillian, JJ., concur.

       29 CFR § 1910.132 (d) provides that an employer
      shall assess the workplace to determine if hazards are present, or are likely to he present, which necessitate the use of personal protective equipment (PPE). If such hazards are present, or likely to be present, the employer shall: (i) [s]elect, and have each affected employee use, the types of PPE that will protect the affected employee from the hazards identified in the hazard assessment; (ii) [c]ommunicate selection decisions to each affected employee; and, (iii) [s] elect PPE that properly fits each affected employee.
      29 CFR § 1926.501 (b) (1) provides that “[e]ach employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.”

       According to the federal legislation itself, OSHA should not
      be construed to supersede or in any manner affect any workmen’s compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.
      (Emphasis supplied.) 29 USC § 653 (b) (4).

       Our Supreme Court reversed this Court’s determination that Ryder’s insurer had a duty to defend and indemnify BellSouth up to the limits of Ryder’s comprehensive general liability policy, with Ryder “liable for any deficiency,” 277 Ga. App. at 686-687 (4), for reasons including that “Ryder did not, under the laws of this State, agree to indemnify BellSouth for BellSouth’s sole negligence.” 281 Ga. at 740.


author: Boggs, Judge. MCFADDEN, Judge,

text:
    A13A1928.
    THE MEDICAL CENTER OF CENTRAL GEORGIA, INC. v. CITY OF MACON.
    (757 SE2d 207)
   Boggs, Judge.

The Medical Center of Central Georgia, Inc. (“the Hospital”) appeals from the trial court’s order granting summary judgment in favor of the City of Macon (“the City”) regarding the City’s obligation to pay for the treatment of 220 patients brought to the Hospital by City police officers. The Hospital contends that the trial court erred because (1) the patients were “inmates” under OCGA § 42-5-2 (a), and the City was therefore liable for their medical treatment; (2) OCGA § 42-5-2 (a) obligated the City to pay for a detainee’s medical expenses; and (3) the trial court failed to address the Hospital’s alternative theories of recovery for quasi-contract claims of quantum meruit and unjust enrichment. For the reasons explained below, we affirm in part, vacate in part, and remand this case to the trial court with direction.

Summary judgment is proper when the record reveals no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). “We review the trial court’s grant of summary judgment de novo, construing the evidence and all reasonable inferences in favor of the nonmoving party.” (Footnote omitted.) Melman v. FIA Card Svcs., 312 Ga. App. 270 (718 SE2d 107) (2011). So viewed, the record shows that the Hospital filed a complaint against the City asserting that it breached its statutory duty under OCGA § 42-5-2 (a) by failing to pay the Hospital for persons treated at the Hospital while “under the custody and control of the City*’ and its police department. The Hospital also asserted that the City owed it money “on account” and sought a declaratory judgment that the City was responsible for paying for the medical treatment of persons in the custody of the City’s police department. It later amended its complaint to assert claims for quantum meruit and unjust enrichment.

In 2009, almost four years after the suit against it was filed, the City moved for summary judgment in its favor because: (1) it owed no duty under OCGA § 42-5-2 (a) because the patients at issue were not “inmates” of the City within the meaning of the statute; (2) OCGA § 42-5-2 (a) did not create a right for the Hospital to sue the City for payment for the care of inmates; (3) the Hospital’s quantum meruit and unjust enrichment claims failed for a variety of reasons, and (4) the Hospital neglected to provide a timely and sufficient ante litem notice for numerous patient accounts listed in its complaint, as amended.

In June 2012, nearly three years after the summary judgment motion was filed, the trial court held a hearing on it. The parties noted at the beginning of the hearing that there had been many conferences about the case and the parties intentionally suspended briefing and “let it sit since [20]09” in order “to let discovery continue.” The City’s counsel stated at the beginning of the hearing that

there is an issue... in each one of these claims as to whether the person was actually in the custody of the Macon Police Department, but we’re not here about that today, Judge. So for today, I would suggest,... that we can assume that all of these people were in the custody of a Macon police officer when they arrived at the emergency room And that’s just for... purposes of today.... [I] f it were to go forward to a trial, there would be an issue in most of the claims or some of the claims as to whether these people were actually in custody. ... We’re assuming that the City has physical custody of these people when they come in. [F]or the purpose of this motion for summary judgment... the City can concede that we have these people.

The record shows that it is undisputed that the City “does not operate a jail or detention facility. Individuals arrested by officers of the Macon Police Department for violation of state law are delivered directly to the Sheriff of Bibb County for incarceration in the Bibb County Jail.”

Following a hearing, the trial court issued a detailed order, in which it concluded that the Hospital’s claims against the City failed because OCGA § 42-5-2 (a) “imposed no duty owed by the City to the Hospital.” It also expressly provided an alternative analysis to support its grant of summary judgment to the City “[i]n the event that the above grant of summary judgment might be deemed error.” In a section of its order titled “The Hospital Failed to Meet its Burden of Proof,” the trial court stated:

Referring to the surrounding statutes, it appears that the legislature intended, at a minimum, that a person (1) be either charged or convicted of a crime, and (2) be held at a j ail or other similar, traditional detention facility. Since the plaintiff Hospital has produced no evidence as to either of these elements, this Court cannot find that any of the . . . patients were inmates. Therefore the City has carried its burden of identifying an absence of evidence in the record supporting plaintiff Hospital’s claim. The City is therefore entitled to summary judgment as a matter of law.

Following the entry of the trial court’s order, the Hospital filed a timely notice of appeal.

Five months after the notice of appeal was filed, the trial court signed a “Stipulation and Order” agreed to by the City and the Hospital which provided, in part:

In [its summary judgment] order, the Court found, inter alia, that The Medical Center had presented no evidence with respect to the following issue [ ]:
1. Whether the patients were within the physical custody of the Macon Police Department (herein “MPD”) . . . ;
Following the entry of the [summary judgment] order, . . . The Medical Center filed its Notice of Appeal. [] Subsequently, on January 24, 2013, the Medical Center filed its Motion to Supplement the Record and Memorandum of Authorities in Support Thereof. [] . . . After counsel for the parties conferred with each other and the Court, The Medical Center and the City are in agreement that whether the patients were in the physical custody of MPD [Macon Police Department] is a factual issue. For purposes of the City’s Motion for Summary Judgment only, the City conceded that the patients were in the physical custody of the MPD when the patients were treated by The Medical Center. Therefore, the issue of the physical custody of the patients was not a ground for the granting of the City’s Motion for Summary Judgment. . . . Therefore, in summary, as a result of this Stipulation, The Medical Center is not required to supplement the record on appeal with respect to the physical custody of the patients. . . . The foregoing Stipulation is hereby made the Order of this Court.

Nine days after the entry of the stipulation, the Hospital amended its notice of appeal to list only certain pleadings and transcripts to be included in the record on appeal. This notice of appeal “is not in the form directed by OCGA § 5-6-37 in that, rather than designating the portions of the record to be omitted on appeal, plaintiff has instructed that only the items listed on the notice of appeal be included in the record sent to this court.” (Citation and punctuation omitted.) Moulton v. Wood, 265 Ga. App. 389 (593 SE2d 911) (2004). The appeal was subsequently docketed in this court on May 28, 2013.

After the docketing of this appeal, the Hospital filed a second motion to supplement the record to include “289 deposition exhibits and five sets of discovery responses.” In its order denying this motion, the trial court stated that it was

too late to add into the record evidence that was not produced to the Court during the three years in which this motion was pending, or during the three months between the evidentiary hearing on this motion and the Court’s order. To ask the Court of Appeals to consider evidence that the Hospital would have produced if it fully appreciated its burden, and to reverse this Court’s decision based on that evidence, is to ask the Court of Appeals to exercise original jurisdiction in this case rather than sit as a court of review.

1. In related enumerations of error, the Hospital asserts that the trial court erred when it concluded that the patients at issue were not “inmates” under OCGA § 42-5-2 (a), and that this Code section did not create a duty for the City to pay for medical treatment of those in its physical custody. Nowhere in its brief on appeal, however, does the Hospital assert that the trial court erred by granting summary judgment in the City’s favor on the alternative ground that the Hospital failed to submit any evidence demonstrating that the patients at issue had been charged or convicted of a crime to qualify them as “inmates” under OCGA § 42-5-2 (a). “Grounds that are not attacked as erroneous will not be considered on appeal and are presumed to be binding and correct. [Cits.] An appellant’s failure to attack alternative bases for summary judgment results in the affirmance of that judgment. [Cit.]” Tidwell v. Coweta County Bd. of Ed., 240 Ga. App. 55, 55-56 (1) (521 SE2d 889) (1999). See also Hewitt v. Community & Southern Bank, 324 Ga. App. 713, 716 (2) (751 SE2d 513) (2013). We therefore affirm the portion of the trial court’s order granting summary judgment to the City on the Hospital’s claims pursuant to OCGA § 42-5-2 (a).

2. In its remaining enumeration of error, the Hospital contends that the trial court erred by granting summary judgment in the City’s favor, because it “completely failed to address [its] independent quasi-contract claims for quantum meruit and unjust enrichment.” Based upon our review of the trial court’s order, we agree that it failed to consider these claims. The order discusses only the three causes of action raised in the Hospital’s original complaint, and it appears to have overlooked the additional theories of recovery raised for the first time in the Hospital’s amended complaint. While the viability of the Hospital’s quantum meruit and unjust enrichment claims was raised in the parties’ summary judgment briefs below, we decline to address these grounds on appeal because they were not ruled upon by the trial court. See City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002); Ga. Neurology & Rehabilitation v. Hiller, 310 Ga. App. 202, 208 (2) (b) (712 SE2d 611) (2011). We therefore vacate in part the trial court’s grant of summary judgment only as to the Hospital’s quantum meruit and unjust enrichment claims, and we remand this case to the trial court to address them.

Decided March 27, 2014.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Doyle, P. J., concurs. McFadden, J., concurs fully in Division 2 and concurs specially in Division 1.

MCFADDEN, Judge,

concurring fully and specially.

I concur fully in Division 2.1 concur in the judgment in Division 1, but I do not agree with all that is said in that Division.

I do not agree with the majority’s holding that the Hospital failed to “attack” the “alternative ground” that there was no evidence that the patients “had been charged or convicted of a crime” and that they therefore could not qualify as “inmates.” As the majority acknowledges, the Hospital’s brief does enumerate as error the finding that the patients were not inmates. And the Hospital does argue that the fact that the patients would have been incarcerated but for their medical needs qualifies them as “inmates.” That argument, in my view, is an attack sufficient to warrant consideration on the merits.

But the Hospital does not support the factual foundation of that argument with citations to the record. It is not our role to cull the record for the parties. Pruitt v. State, 323 Ga. App. 689, 690 (1) (747 SE2d 694) (2013) (this court will not cull the record in search of error on behalf of a party, and if we have missed something in the record or misconstrued an argument, the responsibility rests with counsel).

I recognize that in its appellate brief the City “concedes that the patients at issue in this case would have been delivered over to the Sheriff of Bibb County for incarceration but for the fact that they required medical treatment.” But the City also fails to cite to the record. And the trial court made findings to the contrary.

Sell & Melton, John A. Draughon, Sr., Julia H. Magda, for appellant.

Childs & Noland, Frank H. Childs, Jr., William H. Noland, James, Bates, Brannan & Groover, Duke R. Groover, Judd T. Drake, for appellee.

Parker, Hudson, Rainer & Dobbs, John H. Parker, Jr., Robert M. Brennan, Ashley L. Filip, Temple Sellers, amici curiae.

       While the trial court also concluded that the City was not responsible for paying for medical examinations of sexual assault victims, the Hospital does not assert any error on appeal with regard to this portion of the trial court’s order.

       In its original notice of appeal, the Hospital asked that the clerk of the trial court “omit nothing from the record” and include all transcripts of evidence and proceedings.

       The record before us does not include this motion.

       The amended notice of appeal states that its purpose “is to reduce the scope of the filings to be included in the record on appeal in light of the parties’ Stipulation and Order, which was entered on March 6, 2013, to limit by agreement the factual issues relating to Defendant’s Motion for Summary Judgment.”

       The trial court directed the clerk of court to supplement the record to include this order and transmit it to this court.

       This Code section provides, in relevant part, that “it shall be the responsibility of the governmental unit, subdivision, or agency having the physical custody of an inmate to maintain the inmate, furnishing him food, clothing, and any needed medical and hospital attention.” (Emphasis supplied.) OCGA § 42-5-2 (a). The trial court noted that this Code section does not define “inmate” and looked to other Code sections (OCGA §§ 42-4-50, 42-4-70, and 42-5-55) to conclude that the definition of inmate is limited “to those persons who have been at least charged with or convicted of a crime.”

       We do not address the trial court’s conclusion that OCGA § 42-5-2 (a) does not create a duty for the City to pay the Hospital for the medical treatment of those in its physical custody. By its terms, OCGA § 42-5-2 (a) applies only to “inmates” in the physical custody of a governmental entity, and as explained above, the Hospital has not enumerated as error the trial court’s finding that it failed to meet its burden of presenting evidence showing that the patients at issue qualify as “inmates” under this Code section.

       We further note that the record before us is incomplete based upon the Hospital’s decision to amend its notice of appeal to list only the items to be included by the clerk based upon a stipulation and order that the trial court entered after the notice of appeal was filed. The trial court lacked jurisdiction to enter this order after the notice of appeal was filed. It is clear under Georgia law that “the filing of the notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect.” (Citation and punctuation omitted.) Lowe v. Center Neurology Assocs., 288 Ga. App. 166, 168 (1) (653 SE2d 318) (2007).